Delhi District Court
Cbi vs B. Sambi Reddy on 16 July, 2024
IN THE COURT OF MS. SUNENA SHARMA
SPECIAL JUDGE : CBI-20 (PC ACT): ROUSE AVENUE
COURT : NEW DELHI
Case No. 236/2019 (11/16)
RC No. 217 2015A 0001/ACU-V/AC-II/CBI/ND
CNR No. DLCT11-000915-2019
PS CBI Anti Corruption-II, New Delhi
In the matter of:
Central Bureau of Investigation (CBI)
5B, 3rd Floor, CGO Complex,
Lodhi Road, New Delhi.
Versus
B. Sambi Reddy
S/o Late B.N. Reddy,
R/o 31-B, Pocket-4,
Mayur Vihar, Phase-1,
New Delhi-110091
....... Accused no. 1
Sanjay Kumar Jha
S/o Shivnandan Jha
R/o 58-P, Vasant Vihar,
CBI Colony, New Delhi
Permanent R/o Jha Niketan,
Sarvodhaya Nagar, Begusarai,
Bihar
........ Accused no. 2
Date of Institution : 03.03.2015
Final arguments concluded on : 06.07.2024
Judgment pronounced on : 16.07.2024
Judgment
1. This judgment shall dispose of the case no.
236/2010 (old no. 11/16) emanating from RC no. 217 2015A
0001/ACU-V/AC-II/CBI/ND, registered against two accused
namely B.Sambi Reddy and Sanjay Kumar Jha, who at the
relevant time were working in CBI as Technical officer
(Banking) and Inspector respectively and they were
investigating a bank fraud case against the complainant
SUNENA
SHARMA
CBI v. B. Sambi Reddy & anr.
Digitally signed by
SUNENA SHARMA CC no. 236/2019 (16.07.2024) Page no. 1/180
Date: 2024.07.16
21:13:10 +0530
K.V.Singh, who at that time was posted as Zonal Manager,
Dena Bank.
Chargesheet
2. As per charge-sheet of this case, the case of
the prosecution is that, on the basis of a complaint dated
27.02.2013 received from C.S.Meena, Regional
Manager/DGM, North India, Dena Bank, Panchkula Zone, a
regular case RCBD1/2013/E.0002 was registered in BS&FC,
New Delhi on 28.02.2013, under Section 120B r/w 420 IPC
and Section 13 (2) r/w 13 (1) (d) of PC Act and other
substantive offences thereof. The allegations contained in
said complaint were that Sh. Vijay Kumar Gupta and
Kameshwar Mishra, both Directors of HRM Exports Pvt. Ltd.
(M/s. HRMEPL) in connivance with R.S. Phogat, the Branch
Manager, Dena Bank, Rohtak Branch and other unknown
persons misused and diverted funds to the tune of Rs. 29.94
crores and thereby, defrauded Dena Bank. On 28.02.2013,
the investigation of said case was entrusted to the then
Inspector Sanjay Kumar Jha, BS & FC, New Delhi, i.e. the
accused no.2 in the instant case (hereinafter referred as
accused no.2). In said case, after completing the
investigation, accused no.2 recommended prosecution
against various accused persons including the complainant
herein, K.V. Singh, DGM, Dena Bank for the offences
punishable under Section 120-B r/w 420, 468 and 471 IPC
and substantive offences under Section 420, 471 IPC.
However, on 04.12.2014, the competent authority finally
approved the recommendation for initiation of RDA (Regular
Departmental Action) Major Penalty against complainant
K.V. Singh, DGM, Dena Bank. Thereafter, accused no. 2
herein who was the IO of said case, filed the chargesheet in
said case in the court of Special Judge, CBI at Panchkula,
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Haryana on 24.12.2014.
2.1 The present chargesheet further mentions that
in the year 2011, the complainant K.V. Singh was posted as
Regional Manager, North India Region of Dena Bank and his
office was at Panchkula, Haryana. As a Regional Manager,
his duties included seeing the business growth of the Bank.
During that time, Dena Bank had organized a Credit Camp at
Faridabad for preliminary discussion on credit facility
wherein the complainant was also one of the members of
the Dena Bank team. During this camp, the Chief Manager,
Sh. Phogat of Dena Bank, Rohtak Branch brought a proposal
of a firm M/s. HRM Pvt. Ltd. for sanction of credit limit of
about Rs. 30 Crores for the purpose of taking over the loan
account of said company from another Bank. Being the
Regional Manager of Dena Bank, complainant K.V. Singh had
signed the sanction of credit limit with his recommendation
and the loan was disbursed to the borrower company/firm.
2.2 It is further alleged that sometime in May/June
2013, K.V.Singh came to know that CBI had registered a
case RCBD1/2013/E.0002 in the above matter against M/s.
HRM & others for defaulting in payment of the loan
sanctioned to said firm. During the investigation of that
case, K.V.Singh was called by accused no.1 to CBI
Headquarter in Delhi in October/November 2013 by issuing
notice to the complainant. He examined K.V. Singh and
recorded his statement. At that time, K.V. Singh was posted
in Delhi as DGM/Branch HO, Corporate Business Branch at
Connaught Place, New Delhi. Thereafter, in the month of
January, February and April, 2014, he was called to CBI HO,
Lodhi Road 4-5 times for joining investigation in that case by
accused no.2 Sanjay Kumar Jha. During such visits,
complainant was introduced by Sanjay Kumar Jha to B.
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Sambi Reddy, Technical Officer (Banking) in CBI i.e the
accused no.1 in the instant case (hereinafter referred as
accused no.1). Thereafter, when complainant visited CBI/HO
once or twice, he saw that accused no.1 B. Sambi Reddy,
Technical Officer (Banking) was also assisting accused no.2
Sanjay Kumar Jha in the investigation of said case. In April,
2014, K.V.Singh was transferred to Kolkata and thereafter,
he was transferred to Bhopal where he joined his duties on
29.10.2014.
2.3 While complainant was posted as Zonal
Manager, Dena Bank, Bhopal, on 04.12.2014, he received a
call on his mobile No. 7389911901 from mobile No.
09868394358. During discussion, the caller introduced
himself as B. Sambi Reddy, Bank Officer, CBI, i.e. accused
no.1 and asked K.V. Singh to meet him in Delhi in
connection with the aforementioned CBI/BS&FC case
(RCBD1/2013/E.0002). On 05.12.2014, K.V. Singh received
another call from accused no.1, who asked him to come to
Delhi to meet him, and K.V. Singh thought that he was being
called to join the investigation of aforementioned case. As
per the instruction of B. Sambi Reddy, K.V. Singh visited
Delhi on the next morning i.e. 06.12.2014 (Saturday). He
reached outside CBI Head Office Building and from there, he
contacted accused no.1 from his mobile number
07389911901 and informed him about his arrival.
Thereafter, accused no.1 asked him not to meet him in the
CBI office but somewhere outside. After sometime, accused
no.1 made a call to complainant and told him that he would
meet him at GIP Mall, Noida. In subsequent calls, accused
no.1 told complainant that he would meet him at McDonald's
restaurant in Sector-18 Market, Noida and asked him to wait
there.
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2.4 During said meeting of 06.12.2014, accused
no.1 discussed about the CBI case and told the complainant
that he would be in trouble as serious action including arrest
and custodial interrogation would be taken against him and
he would further be subjected to third degree method of
interrogation. During this meeting at McDonald's, accused
no.1 demanded Rs. 25 lakh in lieu of favouring the
complainant in said case. When K.V. Singh expressed his
inability to pay the demanded money, accused no.1 then
proposed an amount of minimum Rs.10 lakh to get rid of
said CBI case, but he said that he would confirm about the
bribe amount only after discussing it with somebody. Then
on 08.12.2014, accused no.1 again called K.V. Singh and
informed that after much persuasion, the amount had been
reduced to Rs. 10 lakh and gave him a period of 4-5 days for
arranging this amount. Thereafter, on 14.12.2014 and
15.12.2014, accused no.1 again called complainant and
demanded the bribe amount of Rs. 10 lakh. When
complainant again expressed his inability to pay the
demanded sum, accused no.1 suggested that complainant
should pay the said amount in two installments of Rs. 5 lakh
each. As accused no.1 was repeatedly demanding bribe
from the complainant, therefore, he (complainant K.V.Singh)
started recording the conversation held between him and
accused no.1 on his mobile phone (HTC Model Desire 500,
Dual Sim).
2.5 As complainant was not willing to pay the bribe,
so he decided to make a complaint in this regard. On
04.01.2015, complainant came to Delhi from Bhopal and
reached CBI Guest House at Akbar Road, where he met the
SP, CBI, ACU.V and gave his written complaint dated
04.01.2015 for taking legal action against accused no.1. On
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the written complaint submitted by K.V. Singh and after its
verification, the instant case i.e. RC2172015A0001/ACU-V/
New Delhi was registered by CBI. The case was entrusted to
DSP Vipin Kumar Verma, CBI/ACU-IV for investigation.
Result of investigation:
2.6 The investigation has disclosed that after receipt
of the complaint dated 04.01.2015 from K.V. Singh
regarding demand of bribe made by accused no.1 B. Sambi
Reddy, Banking Officer in BS&FC, New Delhi, the verification
of the complaint was undertaken on the very same day by
Inspector Shailendra Kumar Verma, CBI/ ACU-V. During the
verification process, K.V. Singh was briefed that he was
required to make a call to B. Sambi Reddy in the presence of
two independent witness namely, Nitin Narang, an officer
from Punjab National Bank and Pradeep Kumar Sharma, an
officer from Delhi Development Authority. Thereafter, on the
directions of Verification Officer Inspector Shailendra Kumar
Verma, K.V. Singh made a call on the mobile no.
9868394358 of accused no.1 B. Sambi Reddy but the call
could not be connected. After a gap of about 5 minutes,
complainant again called accused no.1 and informed him
that he had reached Delhi on 04.01.2015 and also informed
him that as per his demand, complainant wanted to deliver
him money on that very day because, he had to join duty on
the next day. Complainant also asked accused no.1 about
the place and time for the delivery of money and
accordingly, he was directed to meet at 07:00-7:30PM at the
same place where they had met earlier i.e. at McDonald
Restaurant, Sector-18 Market, Noida. The aforementioned
conversation between complainant and accused no.1 was
recorded in a Digital Voice Recorder by the verification
officer Inspector Shailendra Kumar Verma, in the presence
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of the aforementioned independent witnesses. The
conversation recorded in the digital voice recorder was
played again and from said conversation, the allegations
contained in the complaint lodged by K.V. Singh were found
to be genuine. Thereafter, it was decided to lay a trap to
catch accused B. Sambi Reddy red-handed on the very same
day i.e. on 04.01.2015.
2.7 The investigation disclosed further that a trap
team consisting of DSP Vipin Kumar (Trap Laying Officer),
DSP S.C.Jiani, other team members from CBI alongwith
independent witnesses Nitin Narang, Officer (Data Analyst),
Punjab National Bank and Pradip Kumar Sharma, LDC from
DDA was formed. Thereafter, in the office of Vipin Kumar
Verma, DSP where other team members were also present
with the complainant and independent witnesses, the
contents of the complaint were explained to all the member
of trap team.
2.8 Later, both written complaint dated 04.01.2015
and the FIR/RC 2172015A0001/ACU-V were shown to both
the independent witnesses and other members of CBI team.
The digital voice recorder, containing the recorded
conversation regarding demand of bribe, between B. Sambi
Reddy and K.V. Singh, was also played in the presence of
both the independent witnesses.
2.9 Thereafter, DSP Vipin Kumar Verma informed
both the independent witnesses that a trap was to be laid to
catch B. Sambi Reddy red- handed while demanding and
accepting the bribe from the complainant. DSP Vipin Kumar
Verma informed both the independent witnesses that
phenolphthalein powder and sodium carbonate powder are
used in trap cases. It was also explained that whenever any
trace of phenolphthalein powder comes in contact with the
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solution of sodium carbonate, the colour of the solution
turns into pink. A live demonstration to the trap team was
also given in this regard by the Verification Officer Inspector
S.K. Verma.
2.10 As per the directions of DSP Vipin Kumar Verma,
complainant K.V. Singh produced an amount of Rs. 1 lac in
the denomination of Rs. 500/- and Rs. 1000/-, the details of
which were prepared by Inspector Yasir Arfat with the help
of the aforementioned two independent witnesses and the
same was mentioned in Pre-Trap Memo dated 04.01.2015.
After noting down the details of the above said GC notes,
Insp. Shailendra Kumar, Inspector of Police, applied
phenolphthalein powder on both the sides of GC
(Government Currency) notes and put the tainted GC notes
in a white envelope. Phenolphthalein powder was also
applied on the outer side of the said envelope.
2.11 Charge-sheet further mentions that personal
search of complainant K.V. Singh was conducted by SI Vivek
Srivastava, in the presence of independent witnesses. As
per instructions of DSP Vipin Kumar Verma, Inspector
Shailendra Kumar Verma kept the envelope containing
tainted amount of Rs. 1 lac in the right pocket of the
complainant's jacket and he (the complainant) was
instructed not to touch the tainted amount until and unless
demanded by accused no.1 B. Sambi Reddy. Complainant
was also instructed to give a signal by scratching his head
with his left hand to the members of the trap party
immediately after the bribe transaction was over.
Independent witness Nitin Narang was instructed to
accompany the complainant as a shadow witness and to see
the transaction of bribe and also to overhear the
conversation of the demand and acceptance of bribe
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between the complainant and accused no.1, as far as
practicable. Pradeep Kumar Sharma, the other Independent
witness was instructed to remain present with the trap party
and wait for the pre-determined signal to be given by the
complainant.
2.12 Chargesheet further mentions that Inspector
Shailendra Kumar Verma, washed his hands and prepared a
fresh solution of sodium carbonate. All the members of the
trap team including the independent witnesses and the
complainant dipped the fingers of both their hands, one by
one, in the said colourless solution. However, the colour of
the solution did not change, thereby showing that none of
the members carried any trace of phenolphthalein powder
on their hands. Thereafter, Inspector Shailendra Kumar
Verma prepared another solution of sodium carbonate and
the said solution was poured into five small glass bottles one
by one but the colour of the solution did not change. This
also showed that none of the said bottles to be used
subsequently, did not carry any traces of phenolphthalein
powder. The trap kit containing clean glass bottles, clean
glass tumblers, sodium carbonate powder, sealing material,
stationery items, a laptop computer and printer were kept
ready for being carried by the trap team. The bottle of
phenolphthalein was returned to Malkhana In-charge. DSP
Vipin Kumar Verma also carried the same digital voice
recorder used for verification, for the purpose of recording
the conversation of demand/acceptance of bribe, if required,
during the trap proceedings. The CBI officers and the
witnesses took mutual search of each other and nobody was
allowed to carry anything except identity cards and mobile
phones. Inspector Shailendra Kumar Verma, who had
applied phenolphthalein powder on the bribe amount and
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given live demonstration, was asked not to accompany the
trap party. Thereafter, the CBI team proceeded for Sector-
18, Noida at 19:35 hrs.
2.13 After conclusion of above pre trap proceedings,
the complainant, CBI officials alongwith said two
independent witnesses left CBI office in three vehicles. The
complainant K.V. Singh along with the independent witness
Nitin Narang, were travelling in a private vehicle. During this
time, K.V. Singh was in touch with accused no.1 B. Sambi
Reddy over phone who asked him to call him (B. Sambi
Reddy) after crossing Akshardham Temple. When K.V. Singh
called B. Sambi Reddy from near Akshardham Temple, he
was asked to come towards Mayur Vihar Phase-1 Metro
Station. Then in the next call, B. Sambi Reddy asked K.V.
Singh not to go towards the Metro Station and come straight
after crossing the traffic red light. After crossing the traffic
red light of Mayur Vihar, Phase-1 Metro Station, K.V. Singh
saw B. Sambi Reddy standing on the left side of the main
road. On seeing B. Sambi Reddy, complainant stopped his
vehicle, got down of the vehicle and went towards B. Sambi
Reddy.
2.14 In the meantime, the other two vehicles in which
other members of the trap team were travelling also
stopped in the vicinity. When K.V. Singh met B. Sambi
Reddy, he enquired about his (Sh. Singh's) being late and as
to when was he (Sh. Singh) leaving for Bhopal. B. Sambi
Reddy then further asked the complainant whether he had
brought the first installment/bribe money, to which he (K.V.
Singh) replied in the affirmative. Thereafter, accused no.1 B.
Sambi Reddy asked him to give the bribe money.
Accordingly, the complainant took out the envelope
containing the tainted GC notes amounting to Rs. 1 lac from
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his jacket's right pocket and extended the same towards
accused no.1 with his right hand. Accussed no.1 accepted
and took the said envelope with his right hand and
concealed the envelope behind his back with both hands
and told complainant that the amount appeared to be less
than the demanded amount, to which K.V. Singh replied that
for the time being he could arrange that much money only.
Complainant offered B. Sambi Reddy to count the bribe
money but he did not prefer to count the same and told him
to arrange the remaining amount as early as possible and
started walking away. Immediately after the transaction of
the bribe amount was over, TLO DSP Vipin Kumar,
independent witness Sh. Nitin Narang and Inspector Yasir
Arfat rushed towards B. Sambi Reddy. Meanwhile, the
remaining members of the trap team also reached the spot.
2.15 Thereafter, TLO Vipin Kumar, revealed his
identity as well as identity of other members of the trap
party and that of both the independent witnesses to the
accused no.1 B. Sambi Reddy and challenged him about his
having demanded and accepted bribe from the complainant.
Immediately thereupon, accused no.1 B. Sambi Reddy threw
away the envelope containing tainted GC Notes of Rs. 1
lakh, demanded and accepted by him from the complainant,
on the right side of the road and started saying "ye mera
nahin hai". Thereupon, TLO DSP Vipin Kumar Verma and
Inspector Yasir Arfat caught his (accused no.1) right and left
hand by wrist but, the accused no.1 tried to wriggle out of
their hands. Thereafter, as per the instruction of the DSP
Vipin Kumar, the independent witness Nitin Narang picked
up the envelope containing tainted GC Notes of
Rs.1,00,000/- which was thrown away by accused no.1. A
fresh solution of sodium carbonate in a clean glass of water
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was then prepared and the right hand fingers of accused
no.1 were dipped into the said solution. However, there was
no apparent change in colour. The sald solution was
transferred into a pre-tested glass bottle and the same was
duly sealed and marked as "right hand wash of Sh. B. Sambi
Reddy". Similarly, left hand wash of accused no.1 was
prepared. Both the independent witnesses and DSP Vipin
Kumar Verma signed on the label of both the bottles.
2.16 Thereafter, as per the instruction of the TLO
Vipin Kumar Verma, the independent witness Nitin Narang,
counted GC Notes contained in the envelope, with the help
of other witness Pradeep Kumar Sharma and tallied the
number of GC Notes with those recorded in pre-trap
proceeding. The said envelope was found to contain an
amount of Rs. 1 lakh (in the denomination of Rs. 500/- and
Rs. 1000/-). The aforementioned tainted bribe amount of Rs.
1,00,000/- alongwith the envelope recovered from accused
no.1 were seized in the presence of both the independent
witnesses and the same were kept in an envelope which was
duly sealed and signed by both the independent witnesses
and the TLO DSP Vipin Kumar Verma.
2.17. While the above proceedings were going on,
accused no.1 B. S. Reddy admitted in the presence of both
the witnesses that he had demanded and accepted the said
bribe amount from the complainant on behalf of accused
no.2 Inspector Sanjay Kumar Jha of CBI, BS&FC, New Delhi.
He also disclosed that in the beginning of December, 2014,
Inspector Sanjay Kumar Jha, had given him the mobile
number 07389911901 of the complainant and instructed
him to demand Rs. 25 lacs as bribe from K.V. Singh for
showing him favour in the aforementioned case (RC
BD1/2013/E.0002) investigated by Inspector Sanjay Kumar
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Jha. He further disclosed that as per the instructions of the
Inspector Sanjay Kumar Jha, he contacted Sh. K.V. Singh
from his cell phone number 9868394358 and asked him to
meet him in Delhi. Accordingly, K.V. Singh came to Delhi on
06.12.2014 and met him at McDonald's, Sector-18 Market,
Noida. Thereafter, as per the instruction of Sanjay Kumar
Jha, he (B. Sambi Reddy) demanded a bribe amount of Rs.
25 lakh from complainant and when he expressed his
inability to pay such a huge bribe, he after consulting with
Sanjay Kumar Jha, reduced he amount and asked the
complainant to give the bribe amount of Rs 10 lakh in two
installments of Rs. 5 lakh each and also instructed him to
bring the first installment of Rs. 5 lakh as early as possible.
2.18 In order to verify the aforementioned disclosure
of B. Sambi Reddy, he was asked to contact Inspector Sanjay
Kumar Jha on his mobile phone no. 9868386107.
Accordingly, B. Sambi Reddy contacted Sanjay Kumar Jha
over his said mobile phone in the presence of both the
independent witnesses. The mobile phone of accused no.1
was put on speaker mode so that both the independent
witnesses and other members of the trap team could
overhear the conversation between them. During the
conversation, accused no.1 B. Sambi Reddy informed
accused no.2 Sanjay Kumar Jha that he had received an
amount of Rs. 1 lakh from K.V. Singh, upon which accused
no.2 expressed his dissatisfaction stating that the amount of
Rs. 1 lakh was much less than the demanded amount. When
accused no.1 offered to deliver him the bribe amount of Rs.
1 lakh, accused no.2 asked him to deliver it on the day after
next day. Thereafter, the personal search of accused no.2
was conducted in the presence of both the independent
witnesses and the details of the articles found in his
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possession were entered in the Arrest/Personal Search
Memo which was prepared separately at the spot.
2.19 The aforementioned bottles containing the hand
washes of accused no.1 B. Sambi Reddy were seized. A
rough sketch of scene of the offence was prepared at the
spot. Since the operation of CBI took place in a public place
on the road side, the heavy traffic on the road was causing
inconvenience in drawing up the proceedings. Therefore, it
was decided to draw up the proceedings at Mayur Vihar
Phase-1 Metro Station. Accordingly, after taking permission
from the competent authority of the Metro Station, the
members of the Trap Party, alongwith both the independent
witnesses, the complainant and accused no.1 B. Sambi
Reddy, came to Mayur Vihar, Phase-1, Metro Station. The
Metro Authorities provided one room to the CBI Team, where
the proceedings were drawn in the presence of both the
independent witnesses. Consequent to the trap proceeding,
the Post-Trap Memo dated 04.01.2015 was prepared.
2.20 Thereafter, accused no.1 Sh. B. Sambi Reddy
was arrested by the TLO Vipin Kumar Verma on 04.01.2015
at 11.30 PM vide arrest-cum-personnel search memo,
available on record as Ex.PW22/A. Further searches were
also conducted at the residence of accused no.2 Sanjay
Kumar Jha at 58-P, CBI Colony, Vasant Vihar. After the
search, Sanjay Kumar Jha was also brought to the CBI office
and he (accused no.2) was also interrogated by the TLO
Vipin Kumar Verma. During his interrogation, accused no.2
Sanjay Kumar Jha admitted his guilt that he had demanded
bribe through B. Sambi Reddy out of greed. He further
stated that he had recommended prosecution against K.V.
Singh but due to weak evidence, only RDA was approved.
Therefore, he thought of a plan to pressurize K.V. Singh
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through B. Sambi Reddy for getting the bribe money. He
also gave the mobile number of K.V. Singh to B. Sambi
Reddy for demanding bribe and also admitted that the latter
had also apprised him (Sanjay Kumar Jha) of all
developments. Accused no. 2 was arrested on 05.01.2015
at 08.30 AM vide arrest-cum-personal search memo
Ex.PW14/B. Thereafter, on the very same day i.e. on
05.01.2015, both the accused persons B. Sambi Reddy and
Sanjay Kumar Jha were produced before the Ld. Spl. Judge,
CBI, in Karkardooma Courts and both were sent to judicial
custody till 19.01.2015.
2.21 After the initial investigation, the case was
entrusted to Inspector Lalit Phular on 06.01.2015 for
carrying out further investigation. The investigation
disclosed further that since accused no.1 was demanding
bribe from complainant, who did not want to give the bribe,
therefore, he (K.V. Singh) decided to record the conversation
with B. Sambi Reddy on his mobile phone of HTC make
having facility of recording. During that time, B. Sambi
Reddy had made various calls on 14.12.2014, 15.12.2014,
16.12.2014, 22.12.2014, 29.12.2014 and 03.01.2015 for
demanding bribe from the complainant and all said calls
were recorded by complainant on his aforementioned mobile
phone and during investigation complainant handed over a
CD of said recorded conversations contained in six voice
files wherein the demand of bribe had been made by
accused no.1 B. Sambi Reddy. The said CD was seized by
the IO during the course of investigation. The transcriptions
of said recorded conversations contained in said CD
produced by the complainant was prepared and enclosed
with the report as D-31.
2.22 The investigation further disclosed that though
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the complainant had lodged his written complaint on
04.01.2015 addressed to SP/ACU.V/CBI, however, the mobile
no.9868394358 used by Sh. B. Sambi Reddy was already
intercepted by Special Unit, CBI w.e.f. 03.01.2015. The
interception was done after getting approval from Union
Home Secretary, which was given vide order dated
02.01.2015. Therefore, a total of 11 relevant intercepted
calls recorded in the computer systems of Special Unit, CBI,
New Delhi, during the period w.e.f. 03.01.2015 to
04.01.2015, were reproduced on a CD.
2.23 For the purpose of the investigation, the
conversation recorded by the SU/CBI from the working copy
of the CD was played before complainant K.V. Singh who
after hearing the CD containing recorded files identified his
voice as well as the voice of Sh. B. Sambi Reddy in the
conversation contained in 06 voice files. Thus, out of 11 files
of the recorded conversation contained in the CD seized
from SU/CBI only aforementioned 06 files were containing
the recorded calls between K.V. Singh and B. Sambi Reddy
and conversation contained therein prime facie established
that accused no.1 B. Sambi Reddy had demanded bribe from
K.V. Singh. In recorded file vide Voice No. 10-147236-0-13-
20150103-181336.wav dated 03.01.2015 at 18:13:36, it was
found that K.V. Singh had called B. Sambi Reddy to inform
him about his arrival in Delhi.
2.24 Then in Voice No. 10-147236-0-07-20150104-
182325.wav dated 04.01.2015 at 18.23.15, K.V. Singh had
called accused no.1 B. Sambi Reddy and told him that as per
demand made by him for 'ten' in two installments, he
(complainant) had come to Delhi and asked the accused
no.1 about the time and place for delivery of bribe amount.
In Voice No. 10-147236-0-18-20150104-1826.wav dated
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04.01.2015 at 18:26:14, B. Sambi Reddy called K.V. Singh
for fixing the meeting point at Sector-18 or near McDonald.
In Voice No. 10-147236-0-24-20150104-1909331.wav dated
04.01.2015 at 19:09:31, again K.V. Singh called B. Sambi
Reddy, who asked him to make a call after reaching near
Akshardham. In Voice No.10-147236-0-01-20150104-
195454.wav dated 04.01.2015 at 19:54:54, K.V. Singh called
B. Sambi Reddy, who asked him to come towards Mayur
Vihar Phase-1, Metro Station. In Voice No. 10-147236-0-25-
20150104-200211.wav dated 04.01.2015 at 20:02:11, K.V.
Singh called B. Sambi Reddy, who told him not to go towards
Metro Station and come straight after crossing the red-light.
The transcription of all said calls exchanged between K.V.
Singh and B. Sambi Reddy was enclosed with the report as
D-32.
2.25 The investigation further disclosed that in the CD of
intercepted calls, there were 03 recorded calls exchanged
between accused no.1 B. Sambi Reddy and accused no.2
Sanjay Kumar Jha which prima facie established that B.
Sambi Reddy had demanded bribe from K.V. Singh on the
directions of accused no.2 Sanjay Kumar Jha, Inspector
BF&FC, CBI. Besides that there was also an implied consent
of Sanjay Kumar Jha as reflected in said recorded
conversation. In recorded files of Voice No.10-147236-0-12-
20150104-181305.wav dated 03.01.2015 at 18:13:05, B.
Sambi Reddy called Sanjay Kumar Jha and informed him that
complainant K.V. Singh was coming after taking leave etc.
and then talked about the proposed Chandhigarh trip of
Sanjay Kumar Jha.
2.26 During investigation forensic voice examination
report was received on 30.01.2015 from CFSL vide letter no.
CFSL-2015/P-0052/dt. 29.01.2015, as per which voices in
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respect of both the accused were their probable voices and
similarly voice of K.V. Singh (complainant) was found to be
his probable voice in the questioned conversation. In
addition to this, report of Chemical Division Examination had
been also received on 30.01.2015 vide letter no. CFSL-
2015/C-0020 dt. 22.01.2015, which also gave positive test
for presence of phenolphthalein and sodium carbonate in
hand washes of accused no.1 thereby, confirmed the receipt
of the envelope containing the bribe money by B.Sambi
Reddy.
2.27 During investigation, IO collected CDR, CAF, call
location chart pertaining to phone numbers of accused and
complainant from the Nodal Officer of concerned service
provider. He also recorded statement of many witnesses
concerning this case either directly or directly. After
analysing the entire material collected during the course of
investigation in the light of statement of witnesses, IO
reached to the conclusion that both the accused in
conspiracy with each other demanded and accepted the
bribe amount by abusing their official position as reward
from the complainant and thereby, committed offences
under PC Act and IPC. After obtaining sanction under Section
19 PC Act against both the accused, IO charge-sheeted
accused no.1 for offences under Section 120B IPC r/w
Section 7,8,13(1)(d) r/w Section 13(2) of PC Act, 1988 and
substantive offences thereof and accused no. 2 for the
offences under Section 120B IPC r/w Section 7,13(1)(d) r/w
Section 13(2) of PC Act and substantive offences thereof.
Taking of cognizance and framing of charge
3. As per record, both the accused were released
on bail during investigation. After completing the
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investigation, chargesheet was filed before the court on
03.03.2015. Vide order dated 05.03.2015, cognizance of the
offence was taken by the court and both the accused were
summoned. Pursuant thereto, accused persons appeared
before the court and were supplied with the copy of charge-
sheet and the attached documents in accordance with
Section 207/208 of Cr.P.C. After hearing arguments from
both the sides and on the basis of material placed on record,
separate charges were framed against the accused persons
on 09.05.2016. The accused no. 1 B. Sambi Reddy was
charged for the offences punishable under Section 7 & 8 and
Section 13 (2) r/w Section 13 (1) (d) of the PC Act, 1988 and
against accused no.2 Sanjay Kumar Jha, charge for the
offences under Section 7 and Section 13 (2) r/w Section 13
(1) (d) of the PC Act, 1988 was framed. Both the accused
were also additionally charged for the offence of criminal
conspiracy punishable under Section 120-B of IPC read with
Section 7, 8 & Section 13 (2) r/w Section 13(1) (d) of PC Act.
To all the above charges both the accused pleaded not
guilty and claimed trial.
4. Prosecution evidence
In order to prove its case, 27 witnesses were
examined by prosecution and their examination of chief is
succinctly discussed herein below. All the witnesses were cross
examined at length by the Ld. Defence Counsels but, as and
when required, relevant part of the their cross-examination
shall be referred in the later part of this judgment starting
under the heading "Analysis of material by the Court". For the
sake of convenience, witnesses have been categorized in
following ten categories.
(i) Complainant and Independent Witnesses;
(ii) CBI witnesses of verification and trap proceedings;
CBI v. B. Sambi Reddy & anr.
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(iii) Expert witnesses from CFSL; and
(iv) Witness to voice identification of accused no.1 and
accused no. 2.
(v) Witness to CDR and related documents pertaining to
phone instruments/numbers used by complainant and
accused at the relevant time.
(vi) Witness to order of interception and seizure of CD
containing intercepted calls seized from Special Unit,
CBI.
(vii) Witnesses pertaining to Sanction under Section 19 of PC
Act, 1988.
(viii) Witness to search of house of A-2 Sanjay Kumar Jha.
(ix) Witness to seizure of complainant's voice sample, his
phone and CD prepared from his phone.
(x) Other formal Witnesses.
(i) Complainant and independent witnesses
1. Sh. K.V.Singh (Complainant) (PW-1)
2. Sh. Nitin Narang (Independent witness) (PW-3)
3. Sh. Pradeep Kumar Sharma (Independent witness) (PW-13)
(ii) CBI witnesses of verification and trap
proceedings
4. Sh. Shailendra Kumar Verma (verification officer) (PW-16)
5. Sh. Vipin Kumar Verma. (Trap Laying Officer) (PW-22)
6. Inspector Lalit Phullar Investigating Officer (PW-26)
7.Dy. SP Subhash Chander Jiani Trap Team Member (PW-27)
(iii) Expert witnesses from CFSL
8. Dr. Rajinder Singh (Forensic Expert/voice examiner) (PW-8)
9. Ms. Deepti Bhargava Sr. Scientific Officer/Chemical
examiner) (PW-18)
(iv) Witness to voice identification of accused no.1
and accused no.2
10. Sh. G.M.Rathi, Inspector, BS&FC, ND (PW-10)
(v) Witnesses to CDR and related documents
pertaining to phone instruments/numbers used by
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complainant and accused at the relevant time
11. Sh. Sushil Kumar Gupta (PW-4)
12. Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd (PW- 5)
13. Sh. Rama Shankar Yadav, Jr. Telecom Officer(CDR), MTNL,
(PW-6)
14. Sh. Rajeev Sharda, Nodal Officer, Reliance Communication
Ltd. (PW-7)
15. Sh. Y.Gopal Reddy, Chief Manager, Syndicate bank (PW-11)
16. Sh. Naeem Akhtar official from MTNL (PW-12)
17. Sh. Ajoy Kumar Thakur (PW-21)
(vi) Witnesses to order of interception and seizure
of CD containing intercepted calls of Q-1
18. Sh. Sunil Kumar (PW-23)
19. Sh. Suraj Majumder (PW-25).
(vii) Witnesses pertaining to sanction under
section 19 of PC Act, 1988
20. Sh. Santhosh Kamath, GM (Personnel) Syndicate Bank
(PW-19)
21. Ms. Shikha Goel, DIG (Pers) CISF (PW-24)
(viii) Witnesses to search of house of A-2 Sanjay
Kumar Jha
22. Sh. Prateek Singh, Sr. Manager PNB (PW-14)
23. Inspector S.S.Yadav (PW-17)
(ix) Witness to seizure of complainant's voice
sample, his phone and CD prepared from his phone.
24. Sh. Yogendra Singh, AO(Custom), ITI Ltd. (PW-15)
(x) Other formal witnesses
25. Sh. Deepak Mehra (PW-2)
26. Sh. Rajbir Singh DSP BS&FC, CBI (PW-9)
27. Sh. Ram Dutt Sharma (PW-20)
(i) Complainant and independent witnesses
5. PW-1 is the complainant Sh. K.V. Singh. In his
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examination in chief, complainant has deposed on the lines of
contents of his complaint Ex. PW1/A. As regards verification,
pre-trap and post trap proceedings narration of facts disclosed
in his testimony are more or less similar to the contents of
chargesheet already reproduced above. Hence, deposition of
complainant/PW-1 regarding contents of complaint, pre-
complaint background of the case and pre-trap and post trap
proceedings are not repeated herein for the sake of brevity.
During examination, complainant/PW-1 has proved/identified
various documents/items, details of which are given as under :-
S.No Name of document Exhibit
1. Complaint dated 04.01.2015 PW1/A
2. Verification memo dated 04.01.2015 PW1/B
3. FIR no. dated 04.01.2015 PW1/C
4. Memo containing details of GC notes Annx. PW1/D
A dated 04.01.2015
5. Pre trap memo dated 04.01.2015 PW1/E
6. Post trap memo/recovery memorandum PW1/F
dated 04.01.2015
7. Seizure memo dated 09.01.2015 PW1/G
8. Certificate under section 65 B of Indian PW1/H
Evidence Act qua CD recording
9. Specimen voice memo (voice sample of PW- PW1/J
1)
10. Sheet of words used for voice sample of PW1/K
PW-1
11. GC notes P-1(colly)
12. Bottle containing Right Hand Wash of A-1 P-2
13. Bottle containing Left Hand Wash of A-1 P-3
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14. DVR and Cells P-4(colly)
15. Mobile Phone of complainant/PW-1 P-5
16. CD (in which call recording from P-6
complainant's phone was transferred)
17. Memory card (containing voice sample of P-7
PW-1)
18. Transcription of voice file 0001 PW1/L
19. Transcription of voice file 0005 PW1/M
20. Transcription of voice file 0006 PW1/N
21. Transcription of voice file 0008 PW1/O
22. Transcription of voice file 0010 PW1/P
23. Transcription of voice file 0011 PW1/Q
24. Transcription of call no.5 and 6 (D-32) PW1/R
(verification calls of 04.01.2015)
25. CD cover P-8
26. CD P-9
27. Transcription of intercepted calls of voice PW1/S
file no. 10-147236-0-13-20150103-181336
28. Transcription of voice file no.10-147236-0- PW1/T
24-20150104-190931
29. Transcription of voice file no.10-147236-01- PW1/U
20150103-195454
30. Transcription of voice file no.10-147236-0- PW1/V
25-20150104-2002
31. Transcription of voice file no.10-147236-0- PW1/W
06-20150104-204135
32. Transcription of voice file no.10-147236-0- PW1/X
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13-20150104-204333
6. PW 3 Nitin Narang, Officer (Data Analyst), Punjab
National Bank, is the independent witness who remained
part of both the verification as well as trap proceedings. As
per his version, he joined the investigation of this case as
per the directions of Chief Manager of his Bank and reported
to Duty officer, AC-II, CBI, ND on 04.01.2015. The Duty
Officer introduced him to Inspector Shailender Kumar Verma
and they went to CBI Guest House at Akbar Road. There
Inspector Shailender Kumar Verma introduced him with
Vipin Kumar Verma, Dy. SP and complainant K.V.Singh. He
was apprised of the facts of the complaint made by
K.V.Singh against accused persons and he was further told
that he (PW3) had to remain present to witness the
proceedings in the instant case on that date i.e. to the
telephonic conversations between K.V.Singh and accused B.
Sambi Reddy. PW3 further deposed that in his presence, a
call was made by K.V.Singh (complainant) to the accused
B.Sambi Reddy and during said conversation, K.V.Singh
informed B.Sambi Reddy that he had arrived in Delhi and
money had been arranged and that he would give it to him
on that day itself as he (K.V.Singh) had to join his duty next
day to which B.Sambi Reddy told him to come over to the
place where they had met last i.e. at McDonald Restaurant
in Sector 18, Noida at 7 p.m and he also asked him to call
after reaching Akshardham. PW3 further stated that the
said call was made by putting the mobile phone on speaker
mode and the call was recorded on DVR. Thereafter, they
went to CBI office.
6.1 PW-3 further deposed that in CBI office, he was
introduced to the trap team members and explained the
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procedure of apprehending the culprits red handed by using
some powder material and demonstration was also given to
the team members. He identified his signature on the
photocopy of the complaint Ex. PW3/A. PW3 further deposed
that particulars/details of 90 GC notes of Rs. 1,000/- and 20
GC notes of Rs. 500/- denomination totaling to Rs. 1,00,000/-
were noted down in a list Ex. PW1/D by CBI officials. The
said currency notes were treated with the powder material
and the envelope in which said currency notes were kept
was also treated with said powder. Thereafter, the currency
notes were handed over to K.V.Singh, who kept the same in
the right side pocket of his jacket, with the instructions not
to touch the packet (envelope) and to hand over the same
to B.Sambi Reddy only on his demand for it. His (PW-3)
personal search as well as of K.V.Singh was conducted and
articles found in their possession were enlisted. Before
proceedings to Noida, their hands were checked with some
liquid material to ensure absences of any powder material.
The entire procedure done at the CBI office and at the Guest
house was reduced into writing vide memo Ex. PW1/E
bearing his (PW-3) signatures.
6.2 As per deposition of PW3, he alongwith
K.V.Singh and one driver proceeded towards Noida at about
7 p.m and other team members followed them in another
vehicle. After reaching Akashardham, K.V.Singh made a call
to B.Sambi Reddy and informed him that he had reached
Akshardham, however, B.Sambi Reddy changed the venue
of meeting from McDonald Sector-18 to Mayur Vihar Metro
Station, Phase-I and asked him to make a call after reaching
said metro station. After reaching Mayur Vihar metro station,
K.V.Singh again made a call to B.Sambi Reddy, who
informed him that he was standing on the left hand side of
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the red light adjacent to the Mayur Vihar Metro Station,
Phase-I. Thereafter, on their vehicle they reached near the
vehicle of B.Sambi Reddy. As per version of PW-3, K.V.Singh
asked accused no.1 to sit inside the vehicle but he refused
and then they i.e. both complainant and accused no.1
started walking away from the vehicle, while he (PW-3)
remained seated in the vehicle. After 2 meters away they
both had some conversation and PW-3 saw that K.V.Singh
had taken out the envelope from his right side pocket of his
jacket with his right hand and handed it over to B.Sambi
Reddy in his right hand. Thereafter, complainant K.V.Singh
gave pre-decided signal to the CBI officials by scratching his
head with his left hand, upon which the CBI officials nabbed
B.Sambi Reddy. DSP Vipin Kumar gave his introduction as
well as of all the other team members, to the accused no.1
and also told him that he had been apprehended while
accepting the bribe money. After hearing the same, B.Sambi
Reddy threw away the packet but by that time his hands
were caught hold by two Inspectors. PW-3 further deposed
that on instructions, he picked up the packet. Thereafter,
both the hands of accused B.Sambi Reddy were dipped into
liquid but there was no change in the liquid colour.
Thereafter, said liquid was sealed in two bottles separately
i.e. Ex. P2 having right hand wash and Ex.P-3 having left
hand wash, bearing his (PW-3) signatures. PW-3 correctly
identified the accused B.Sambi Reddy in the court on the
date of his deposition.
6.3 PW-3 further deposed that due to gathering of
crowd on the spot, they went inside one room of the metro
station where the currency notes were taken out from the
packet and tallied with the list of currency notes mentioned
in the list Ex. PW1/D. PW3 and the other independent
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witness Pradeep Kumar Sharma counted and tallied the
distinctive numbers of said recovered GC notes with
distinctive numbers mentioned in list Ex.PW1/D. Thereafter,
tainted bribe amount of Rs. 1,00,000/- was sealed in an
envelope and signed by PW-3. During his examination, PW3
correctly identified the bribe money of Rs. 1,00,000/- (90 GC
notes of Rs. 1000/- and 20 GC notes of Rs. 500/-) taken out
from the envelope Ex.P-1.
6.4 PW-3 further testified that accused no.1 B.
Sambi Reddy had informed CBI officials that the money was
accepted by him at the instance of accused Sanjay Jha,
Inspector CBI, who was investigating the case against
K.V.Singh and at the instance of Sanjay Jha only accused
B.Sambi Reddy met K.V.Singh and demanded Rs. 25 lakh to
give him favour in investigation, however, the amount was
later on settled to Rs. 10 lakh in which first installment of Rs.
5 lakh was to be given. Thereafter, on the instructions of IO,
accused B.Sambi Reddy made a call to Sanjay Jha by
keeping his mobile on speaker mode. During conversation,
B.Sambi Reddy informed accused Sanjay Jha about receipt
of bribe money of Rs.1 Lakh, on which accused Sanjay Jha
expressed his dis-satisfaction/disappointment. Thereafter,
B.Sambi Reddy told him that K.V.Singh would make the
remaining payment and he (Sanjay Kumar Jha) should talk to
K.V.Singh, to which he refused. Sanjay Kumar Jha further
refused to collect the bribe money of Rs. 1 lakh on that day
as he was not available.
6.5 PW-3 further deposed that personal search of
accused B.Sambi Reddy was conducted vide personal search
memo Ex. PW3/B and site plan Ex.PW3/C was also prepared
in his presence. PW-3 identified his signatures on both the
said documents. As per his version, sample voice of accused
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B.Sambi Reddy was recorded by CBI at about 6/6:30 am and
before recording of their sample voices, his introductory
voice as well as of other independent witness were also
taken. PW3 further deposed that thereafter specimen voice
recording memo dated 05.01.2015 Ex. PW3/D was prepared.
He further deposed that sample voice recorder was not
seized rather Micro SD card which was inserted in the voice
recorder was seized and sealed in an envelope Ex. PW3/E
(colly). During examination-in-chief, PW-3 had identified his
introductory voice in said SD Card after the same was
played in the court.
7. PW13/Sh. Pradeep Kumar Sharma is another
independent witness. As per his version, on 04.01.2014 he
joined the investigation of the instant case. On that day at
2:30 p.m he went to CBI Head Quarter, Lodhi Road where he
met DSP Mr. Verma, who introduced him with one person
Nitin and they both (PW-13 and Mr. Nitin) were made aware
about the purpose of the trap proceedings. Thereafter, they
both were taken to CBI office at Ashoka Road where they
met the complainant K.V.Singh, who had written a complaint
with the allegation of demand of bribe raised from him by
one Mr. Reddy, in their presence. PW-13 identified his
signature on the photocopy of said complaint at point B. PW-
13 narrated the gist of the complaint. PW-13 deposed that
complainant K.V.Singh was asked to call Mr. Reddy over his
phone for fixing time and place for payment of bribe amount
and said conversation over phone was recorded over
machine of make SONY. During said conversation, it was
agreed that Mr. Reddy would meet K.V.Singh at Sector 18,
Nodia and would be delivered the amount there.
7.1 Thereafter, they reached back CBI head quarter,
Lodhi Road. The officials of CBI noted down the
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denomination and particulars of the cash amount of Rs.1
lakh brought by the complainant, in the denomination of
Rs.500/- and Rs.1000/-. Demonstration of some chemical
powder was given and said powder was applied on the
currency notes, which were then put into an envelope. A kit
containing bottle, water bottle, printer machine etc was
prepared. Personal search of the complainant, of PW-13 and
that of the other witness Nitin was taken and they were
asked to carry only their respective mobile phones. The
envelope containing currency notes was thereafter kept in a
paper bag and was given to complainant with instruction
that he will move ahead and CBI official will follow him. PW-
13 deposed further that all the proceedings were recorded
on the memo where his signatures were also taken. Witness
identified his signature on pre trap memo Ex. PW1/E at point
C and on annexure A containing the details of GC notes Ex.
PW1/B at point C.
7.2 PW-13 deposed further that at about 6:30 to 7
p.m, they all headed for Sector 18, Noida in three vehicle.
The complainant and another witness Mr. Nitin Narang were
in one vehicle which was moving ahead and rest of the
vehicles were following vehicle of the complainant. Witness
deposed that on the way to Sector 18. the CBI official, who
were present in their vehicle, received a phone call from
complainant, who informed them regarding change of place
of delivery from Sector 18 Noida to somewhere near
Akshardham. After sometime again a call was received from
complainant, who informed that the location had been
changed to metro station Mayur Vihar Phase-I. Thereafter,
complainant informed regarding his having reached near
Mayur Vihar metro station. Thereafter, the vehicles of CBI
including the one where PW-13 was seated, parked
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themselves at a small distance behind the vehicle of
complainant.
7.3 PW-13 stated further that when he got down
from the vehicle, he saw Mr. Reddy shouting "ye envlope
mera nahi hai" and an envelope was lying near him on the
road. The complainant and Mr. Nitin were also present near
Mr. Reddy and two persons of CBI were holding each of the
hands of Mr. Reddy. Thereafter, CBI officials prepared the
solution and asked Mr. Reddy to put his hands one by one in
the solution but the colour of the solution did not change.
The witness Nitin was asked to pick up the envelope of
currency notes and keep it in his custody till further
instructions. Thereafter, they all alongwith the accused Mr.
Reddy went to a room in a metro station, where further
proceedings were conducted. Currency notes from the
envelope were checked, verified and noted on a memo by
comparing the same with the details of the currency notes
given in the pre-trap memo. During his examination, PW-13
identified his signature on the recovery memo as well as on
Ex. P-1, the white envelop carrying the amount of Rs. 1 lakh
and also on the two bottles containing slightly pink solution
Ex.P-2 and Ex.P-3.
7.4 PW-13 further deposed that accused B.Sambi
Reddy informed CBI officials that he had received money at
the instance of one Mr. Sanjay Jha and he was asked to call
Mr. Sanjay Jha on his mobile phone by putting the mobile
phone of accused B.Sambi Reddy on speaker mode. The first
call did not materialize however, the second call got
connected and the conversation held between the
complainant and Sanjay Jha was heard by him as the phone
was on speaker mode and the same was recorded in the
DVR. PW-13 deposed that the entire trap proceedings
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continued up to 11 to 11:30 pm and the same were recorded
in a document which was got signed from him. PW-13
identified his signature on the recovery memo Ex. PW-1/F
and on rough sketch Ex. PW3/C. PW-13 also correctly
identified B.Sambi Reddy in the court and deposed that he
(accused no.1) was caught with the envelope containing
money on the road near Mayur Vihar Phase-I, metro station.
PW-13 identified the mobile phone of accused B.Sambi
Reddy and deposed that the same was seized from his
possession in his presence and after sealing all the articles
including said mobile phone, the seal was handed over to
him at Mayur Vihar Ph-I, metro station.
7.5 As per PW-13, after the conclusion of
proceedings at Mayur Vihar metro station, they went to CBI
office with the accused and in the next day morning, voice
sample of the independent witnesses and that of accused B.
Sambi Reddy were taken and the memory card from the
DVR was taken out and sealed with the seal after taking the
same from him and thereafter, the seal was again handed
over to him. The witness had brought the seal on the date
of his examination in the court and same was taken on
record.
7.6 During examination in chief of PW-13, the micro
SD card taken out from the envelope Ex.PW3/E was played
with the help of laptop brought by the Asstt. Programmer
TAFSU, CBI and the same was found containing 05 folders. In
folder 01, PW-13, identified his introductory voice and that
of Nitin Narang and also the sample voice of accused
B.Sambi Reddy. He also identified his signature on the voice
recording memo Ex. PW3/D (D-9). However, the contents of
the DVR taken out from Ex.P-4, could not be played to the
witness as the battery of DVR was in a leak state. Here, it is
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pertinent to note that DVR was duly played in the court at
the time of examination-in-chief of complainant/PW1 on
18.04.2017 and was found containing 5 voice files in Folder
No.1 and in Voice File No.150104_004, he correctly
identified the voice of accused B. Sambi Reddy. Similarly,
DVR was also played during examination-in-chief of PW3
Nitin Narang on 29.02.2020.
(ii) CBI witnesses of verification and trap
proceedings
8. PW-16 Inspector Shailendra Kumar Verma, ACU-V, CBI
is the verifying officer who also remained part of pre trap
proceedings. In his examination-in-chief, he deposed that
on 04.01.2015, as per instruction received from SP, he did
the verification of complaint of K.V.Singh for which he
alongwith two witnesses namely Sh. Nitin Narang and Sh.
Pradeep Kumar went to CBI, Guest House, Akbar Road,
where he met complainant K.V.Singh, who narrated his
complaint regarding the demand of bribe raised by accused
no.1 B.Sambi Reddy to settle ongoing investigation of CBI
case against complainant/K.V.Singh. He further deposed that
complainant informed them that he had to pay Rs. 5 lakh to
accused no.1 B.Sambi Reddy. He (PW-16) introduced said
two witnesses to complainant/K.V.Singh and thereafter, after
ensuring the blankness of DVR, he directed complainant to
make a call to accused no.1 B.Sambi Reddy on speaker
mode. The first call was not picked up. After some time,
another call was made, which was picked up by accused
no.1, who was told by complainant that out of demanded
sum of Rs. 10 Lakh, he (K.V.Singh) was ready to pay
installment of Rs. 5 lakh on that day and he asked accused
no.1 about the place and time to deliver the same, to which
B.Sambi Reddy replied to meet around 7 p.m. at the same
place where they had met earlier i.e. McDonald shop,
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Sector-18, Noida. PW-16 further deposed that the said
conversation was recorded in the DVR and verification
memo was prepared at the spot. Thereafter, PW-16 handed
over the verification memo to his senior officers. On the
basis of said verification report, FIR was registered and same
was marked to DSP Sh. Vipin Kumar Verma for investigation.
8.1 As per deposition of PW-16, a trap team
including the complainant and independent witnesses was
constituted by DSP Vipin Kumar Verma in the CBI office and
they were made to hear the conversation recorded in the
DVR. He (PW-16) on the directions of DSP Vipin Kumar
Verma, gave demonstration of phenolphthalein powder and
the sodium carbonate solution. Thereafter, the currency
notes of Rs. 500 and Rs. 1000/- were treated with said
powder and kept in white envelope, which was also
sprayed/treated with the phenolphthalein powder, and was
put into the right side pocket of jacket of complainant by
him (PW-16) and directions were given to complainant not to
touch unless needed at the spot. He further deposed that
thereafter, it was ensured that hands of all the team
members as well as glass bottles carried for the purpose of
trap were free from phenolphthalein powder.
8.2 PW-16 identified his signature on the pre trap
memo Ex. PW1/E, which was prepared by TLO Vipin Kumar
Verma. PW-16 further deposed that on 05.01.2015, on the
instructions of TLO, after explaining them the process of
voice recording, he (PW-16) recorded voice sample of
accused no.1 B.Sambi Reddy and accused no.2 Sanjay
Kumar Jha. He identified his signatures on the specimen
voice recording memo Ex. PW3/D and Ex.PW 14/A (colly)
both dated 05.01.2015. He further deposed that voice
sample of complainant was also recorded on 12.01.2015
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vide memo Ex. PW1/J and he also identified his signatures on
the same. PW-16 identified accused no. B.Sambi Reddy, who
was present in the court on the date of deposition of PW-16.
As per PW-16, memory cards after recording of specimen
voices of accused were sealed. Further that contents of
specimen voice recording memos Ex. PW3/D and Ex. PW14/A
were written by him, at the time of taking respective
specimen voice sample of B.S.Reddy and Sanjay Kumar Jha.
9. PW-22 is the Trap Laying officer Vipin Kumar
Verma, the then DSP-CBI-ACU-4. As per his examination in
chief, at the relevant time, he was working as DSP in CBI AC-II
branch. On 04.01.2015, he was called by SP CBI, ACU-IV
Pradeep Kumar in his chamber at around 6:50 p.m and was
introduced to complainant K.V.singh, who was already present
there. He (PW-22) was informed about the complaint made by
K.V.singh against B.Sambi Reddy regarding demand of Rs. 10
Lakh for showing favour in the ongoing investigation against
K.V.Singh. The verification of the allegations were done by
Inspector Shailender Kumar and on that basis RC 217 2015A
0001/AC-V/AC-II/CBI/ND had been registered against B.Sambi
Reddy under Section 7 P.C Act.
9.1 PW-22 deposed that he was handed over the copy
of the complaint dated 04.01.2015, verification report, copy of
FIR and the digital recorder containing conversation which took
place between B.Sambi Reddy and K.V.Singh during verification
of complaint. Thereafter, he constituted a team to lay a trap on
B.Sambi Reddy to catch him red handed. PW-22 alongwith
complainant came to his room where he called the team
members namely, Subhash Jiyani, DSP, Inspector Yasir Araft,
Inspector Shaildenr Kumar, SI Vivek Shrivastav and Ct.
P.N.Triptit. Two witness namely, Nitin Narang from PNB and
Pradeep from DDA who had participated in the verification of
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the complaint were also associated in the process. The reason
for the assembly were explained by PW-22 to all the team
member, who were also shown the written complainant of
K.V.Singh and signature of both the independent witnesses
were taken on the complaint. Thereafter, as per the instructions
of PW-22, complainant K.V.Singh produced Rs. 1 lakh in the
denomination of Rs. 500/-, which he arranged against the
demand of Rs. 5 lakh as 1st installment out of total demand of
Rs. 10 lakh, which had to be delivered on that day at around
7/7:30 p.m. Inspector Yasir Araft noted down the details of the
currency notes with the help of independent witnesses,
Inspector Shailender Kumar gave demonstration of
phenolphthalein powder and solution of sodium carbonate.
9.2 PW-22 further deposed that after demonstration,
Inspector Shailender Kumar had applied PPL powder on the
currency notes given by the complainant and same were put
into the envelope and on the envelope also, said powder was
applied and thereafter, said envelope containing tainted
currency notes of Rs. 1 lakh was put in the right side pocket of
the wearing jacket of the complainant, who was instructed to
hand over the same to accused B.Sambi only on his specific
asking/demand. Instructions were given to Nitin Narang to
remain present with the complainant to watch the transaction
and to hear the likely conversation between the complainant
and accused B.Sambi Reddy. The search of the complainant
was conducted and an inventory was prepared about the
articles found in his possession. All the team members also
conducted search of each other to ensure that they did not
carry anything except their identity card. A trap kit was
prepared. The digital recorder was also taken for the purpose of
recording the conversation about the demand of bribe amount.
The proceedings were incorporated in the trap memo Ex.
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PW1/E whereupon, PW-22 put his signature and signature of
other team members. At about 7:40 p.m trap team proceeded
for the spot i.e. Sector 18 Noida. K.V.Singh and Nitin Narang
proceeded in the private vehicle whereas other team members
were in govt. vehicle. At about 8.05 p.m the complainant
vehicle stopped after crossing red light of Mayur Vihar, Phase-I,
the other two CBI vehicles which were following the
complainant's vehicle also stopped after crossing the vehicle of
complainant.
9.3 PW-22 further deposed that he saw the
complainant had got down from his vehicle and proceeded
towards B.Sambi Reddy, who was waiting on the left side of the
road. Complainant took out the envelope from his right side
pocket of jacket from right hand and handed over the same to
B.Sambi Reddy, who accpeted the same from his right hand.
After seeing this, PW-22 and the other team members also got
down from the respective vehicles. PW-22 and Inspector Yasir
Arafat rushed towards accused. B.Sambi Reddy and challenged
him for having demanded and accepted the bribe from
complainant, upon which accused threw away said envelope.
However, PW-22 caught hold of the accused from his right hand
wrist and Inspector Yasir Arafat caught hold of accused from his
left hand. Accused said that "ye mera nahi hai" (it was not
mine).
9.4 Further that, as per his (PW-22) instruction, Nitin
Narang picked up said envelope from the road, Ct. Tripti
prepared the solution of Sodium Carbonate in glass and
accused B. Sambi Reddy was asked to dip his right hand into it
but on doing so, there was no apparent change in the colour of
the solution. The said solution was transferred in the glass
bottle and sealed with the seal of CBI. Similarly, left hand wash
was also prepared by using the similar solution in another glass
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bottle and the colour of said solution also did not change. The
said solution was transferred in a bottle mark LHW and the
same was also sealed with the seal of CBI. The witness
correctly identified both the bottles when produced during
examination as Ex. P-2 and Ex.P-3. As per his (PW-22's)
instructions, Nitin Narang counted the bribe amount from the
envelope, which he had picked up from the road. The currency
notes were tallied with the number mentioned in Annexure A of
pre trap memo and the particular of the tainted money were
found to be same. Thereafter, said bribe amount was seized
and kept in an envelope and sealed with the CBI seal. PW-22
correctly identified said currency notes contained in the yellow
envelope Ex.P-1 produced by MHC(M) during his examination.
9.5 PW-22 further deposed that after the apprehension
of B.Sambi Reddy, he (B.Sambi Reddy) told that the said bribe
amount was demanded by Sanjay Jha, Inspector CBI B&SFC and
it was he (Sanjay Jha), who had given him the contact number
of the complainant, who was an accused in a case investigated
by Sanjay Jha. He deposed further that accused B.Sambi Reddy
informed that it was on the instructions of Inspector Sanjay Jha,
he met the complainant in Sector 18, Noida on 06.12.2014
where he demanded Rs. 25 lakh from the complainant for
showing him favour in said case investigated by Inspector
Sanjay Jha. PW-22 deposed that accused no.1 also disclosed
that said amount was later reduced to Rs. 10 lakh to be paid in
two installment of Rs. 5 lakh each.
9.6 PW- 22 further deposed that in order to verify the
version of the accused B. Sambi Reddy, he was asked to make
a call on the mobile number of Inspector Sanjay Jha from his
mobile by keeping the mobile phone on speaker mode.
Accordingly, accused B.Sambi Reddy made a call and talked to
S.K.Jha in the presence of both the witnesses and during said
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call, the accused B. Sambi Reddy told accused Sanjay Jha that
he had received the bribe amount of Rs. 1 lakh from K.V.Singh,
upon which, Sanjay Jha expressed his dis-satisfaction and
accused B. Sambi Reddy asked accused Sanjay Jha whether he
should pay him the said amount but he was asked to do that on
the day after next day. From said conversation, it was
considered that there was demand of bribe from accused
Sanjay Jha and a search was conducted at the residence of both
the accused Sanjay Jha and B. Sambi Reddy under Section 165
Cr.P.C by Inspector S.S.Yadav and Inspector Kadar Khan
respectively. PW-22 proved on record the personal search
memo of accused B. Sambi Reddy as Ex. PW22/A.
9.7 PW-22 further deposed that the conversation which
took placed between accused B. Sambi Reddy and Sanjay
Kumar Jha could not be recorded as he forgot to switch on the
recorder. As per his version, the rest of the post trap
proceedings were conducted in a room at Mayur Vihar metro
station. His deposition with regard to the rest of the
proceedings is on the lines of the version of the complainant
and other independent witnesses. Besides that PW-22 further
deposed that on 06.01.2015, he had sent the hand wash to
CFSL for chemical examination vide forwarding letter Ex.
PW14/DA and on the very same date the investigation of the
case was transferred to Inspector Lalit Phular. During his
examination, PW-22 identified the mobile phone Micro Max,
taken out from cloth wrapped pullanda Ex.P-1 which was
produced by the MHC(M). PW-22 also identified correctly the
two Micro SD card, containing the specimen voiceof B. Sambi
Reddy and Sanjy Kumar Jha and deposed that the accused had
given their specimen voice voluntarily in the presence of
independent witnesses, whose signatures were also taken on
the specimen voice memo Ex. PW3/D and Ex. PW14/A
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respectively. PW-22 also identified his own signatures on both
said memos as well as on the sketch of the spot of occurrence
i.e. Ex. PW3/C
10. PW-26 Inspector Lalit Pullar is the Investigating
Officer who was entrusted with the investigation of this case on
06.01.2015. PW-26 deposed that after being handed over the
investigation of this case, he collected documents from various
agencies, recorded statement of witnesses of the pre-trap/post
trap memos and other witnesses under Section 161 Cr.P.C,
collected voice sample of complainant, collected CDRs of the
mobile phones used by the complainant and the accused
during alleged transaction from the service providers and also
collected the CFSL reports from CFSL laboratory. He also
sought prosecution sanction under Section 19 P.C Act for the
prosecution of both the accused from their respective
departments and after receipt of sanction, he filed the
chargesheet against both the accused persons.
10.1 During his examination PW-26 was shown various
documents, which were already exhibited on record such as the
complaint and the FIR both dated 04.01.2015 Ex. PW-1/A and
Ex. PW1/C respectively, Verification report Ex. PW1/B, rough
sketch Ex. PW3/C, pre trap memo Ex. PW1/E, post trap memo
Ex.PW1/F, arrest cum personal search memo of accused
B.Sambi Reddy Ex. PW22/A, specimen voice recording memo of
accused B.Sambi Reddy and accused Sanjay Kumar Jha Ex.
PW3/D and Ex. PW14/A respectively, arrest-cum-personal
accused Sanjay Jha Ex. PW14/B, authorization under Section
165 Cr.P.C with the search list of accused Sanjay Kumar Jha as
Ex. PW14/C etc and with regard to all these documents, PW-26
deposed that the same were collected by him during the course
of investigation and were filed alongwith the chargesheet.
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10.2 Further he was shown the transcription memo
dated 09.01.2015 Ex. PW15/A and he deposed that the same
was prepared by him, after playing the CD containing the
conversation between K.V.Singh and B.Sambi Reddy, which the
complainant had recorded in his mobile phone. As per PW-26,
said memo was prepared by him in the presence of
independent witnesses.
10.3 He deposed further that a working CD (Copy of CD
for IO) was also seized from SU, CBI wherein 11 incriminating
calls were heard and transcription was prepared. Further in
that connection, he also examined witnesses from BS&FC,
Delhi, who identified the voice of accused B.Sambi Reddy and
Sanjay Kumar Jha, as they were also working in said
department. As per PW-26, the transcriptions already Ex.
PW1/S to Ex. PW1/X, Ex. PW10/A to Ex. PW10/C were also
prepared by him. He also identified the letter dated 26.02.2015
Ex. PW19/B vide which the sanction order dated 25.02.2015,
issued by General Manager, Syndicate Bank in respect of
accused B.Sambi Reddy was received by him. Similarly, the
letter dated 02.03.2015 issued by DIG (P), CISF, New Delhi
alongwith the sanction order Ex. PW24/B in respect of accused
Sanjay Kumar Jha, was received by him. PW-26 also identified
the mobile phone of the complainant taken out from the cloth
pullanda Ex. P-5 and deposed that on said mobile phone,
complainant had recorded the conversation between him and
accused B.Sambi Reddy. Similarly, he identified the CD, taken
out from brown colour envelope Ex. P-6 and deposed that the
same was brought by the complainant and the same was also
sealed and seized by him.
11. PW-27 is Dy. SP Subhash Chander Jiani. He is also
one of the Trap Team members. He deposed regarding pre-
trap proceedings and post trap proceedings more and less
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on the lines of deposition of other witness namely, Vipin
Kumar Verma (PW-22) and Inspector Shailender Kumer
Verma (PW-16). Upon being shown pre-trap memo Ex.
PW1/E, PW-27 deposed that the same was prepared in the
chamber of DSP Vipin Verma on 04.01.2015 before the CBI
team left for Sector 18, Noida. PW-27 also identified his
signature on each page of said memo at point F. As per the
version of PW27, after apprehension of accused B.Sambi
Reddy, said accused disclosed that he had demanded and
accepted the bribe from complainant on behalf of Inspector
Sanjay Jha who was investigating a case against the
complainant and upon said disclosure made by accused
B.Sambi Reddy, he was asked to make a call on the mobile
phone of accused S.K.Jha. Even as per deposition of PW-27,
said call was made on the spot near Mayur Vihar metro
station i.e. before shifting to the room of said metro station.
PW-27 also identified his signature on the post trap
proceedings/recovery memo Ex. PW1/F and deposed that
the same contained the actual sequence of events which
took place at the spot during the trap proceedings.
(iii) Expert witnesses from CFSL
12. PW-8 is Dr. Rajinder Singh is Retd Director cum
Chemical examiner from CFSL. During his examination in
chief he deposed that vide letter no.
296/2172015A0001/ACU(V)/CBI/New Delhi dated 13.01.2015
Ex. PW8/A, 06 sealed parcels bearing marking (1) Q-1
containing a CD having questioned voice of Sh. B.Sambi
Reddy, K.V.Singh and Sh. Sanjay Kumar Jha; (2) Q-2
containing digital voice recorder (DVR) make SONY
containing 05 audio files but the same were not considered
as the said audio files of DVR were same as recorded
conversation mark Q1(5) and 1(6) in CD mark Q-1; (3) Q-3
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containing a mobile phone make HTC; (4) S-1 containing a
micro SD card having specimen voice of B.Sambi Reddy; (5)
S-2 containing a micro SD card having voice recording of
Sanjay Kumar Jha; (6) S-3 containing a micro SD card having
specimen voice of K.V.Singh were received by the Physics
division from SP, CBI, AC-I. PW-8 deposed that after
examination, he prepared his report CFSL-2015/P-1052
dated 29.01.2015 Ex. PW8/A and sent the said report
alongwith exhibits and original record, to the forwarding
authority. He correctly identified, all the exhibits Ex. P-9 (CD
make Sony), Ex.P-4 (DVR make Sony), Ex.P-5 (mobile phone
HTC) Ex. PW3/E (micro SD card S-1), Ex. P-10 (micro SD card
S-2), Ex. P-11 colly (micro SD card S-3), Ex. P-6 (micro SD
card S-4) and also identified his signatures on the same.
13. PW-18 is the Sr. Scientific Officer-II from CFSL
Ms. Deepti Bhargava. As per her version, she had given her
opinion vide her report Ex. PW18/A in reference to the
present case. She further deposed that vide memo no. 171
dated 06.01.2015, SP, ACU-V, CBI, ND sent two sealed glass
bottles marked as Right Hand Wash and Left Hand Wash of
Sh. B.Sambi Reddy and same were received by Director,
CFSL, who marked it to HOD, Chemistry Division from where
it got marked to her on 12.01.2015 for laboratory
examination and expert opinion. She further deposed that
she had carried out the chemical examination of the
contents of said bottles and both the exhibits had given
positive test for the presence of phenolphthalein. She also
proved on record the worksheet as Ex. PW18/C and the
forwarding letter dated 30.01.2015 Ex. PW18/B vide which
the report alongwith the exhibits were forwarded to CBI.
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(iv) Witness to voice identification of accused no1.
And accused no.2
14. PW-10 Sh. G.M.Rathi, at the relevant time was
posted in BS&FC as Inspector and DSP. As per his version, on
the instructions of his seniors, he and Inspector P.Gairola had
reported to SP and IO/Inspector Lalit Phullar AC Zone, CBI,
where he was made to hear the recording contents of CD to
identify the voices of speakers and he had identified voice of
speakers of conversation as Sanjay Kumar Jha and B.S.Reddy
who he had worked with them and he was acquainted with
their voices. During his examination in chief, CD Ex.P-9 was
played and he identified the voice of accused Sanjay Kumar Jha
and B.S.Reddy in file no. 10-147236-0-12-20150104-18105.wav
and its corresponding transcript Ex.PW10/A, voice file no. 10-
147236-0-06-20150104-204135.wav and its transcript
Ex.PW1/W; voice file no. 10-147236-0-13-20150104-
204333.wav and its transcript Ex.PW1/X. PW-10 also identified
the voice of B.Sambi Reddy, who was one of the speakers in
other 6 voice files transcripts of which are available on record
as Ex. PW1/R, Ex. PW10/B, Ex.PW1/T, Ex. PW10/C, Ex. PW1/U
and Ex. PW1/V.
(v) Witnesses to CDR and other related
documents pertaining to phone
instruments/numbers used by complainant and
accused at the relevant time
15. PW-4 is Sh. Sushil Kumar Gupta, retired Manager
Syndicate Bank. He identified the seizure memo Ex. PW4/A
(D-19) vide which he had handed over three documents i.e.
original application written by B.S.Reddy, Certified copy of
one page of MTNL connection issue register and certified
copy of letter dated 19.01.2015 Ex. PW4/B (colly) of Chief
Manager, RO, Ghaziabad addressed to CBI, wherein he
confirmed that phone number 9868394358 (attributed to
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B.S.Redy as per prosecution case) was allotted to
B.S.Reddy.
16. PW-5 is Sh. Surender Kumar, Nodal Officer,
Bharti Airtel Ltd. He identified signatures of Sh. Vishal
Gaurav, Nodal Officer on the letter dated 23.01.2015 Ex.
PW5/A, addressed to Suptd of Police, CBI, ACU-V, vide which
Vishal Gaurav had handed over CDR of the calls exchanged
between phone numbers 7389911901 (attributed to
complainant K.V.Singh) and 9868394358, location chart and
CAF of mobile no. 7389911901 from 01.12.2014 to
06.01.2015 exhibited as Ex. PW5/C (colly) and supporting
certificate under Section 65-B of Indian Evidence Act as Ex.
PW5/B. He further deposed that tower location in respect of
the mobile number are changeable due to overlapping of
area served by different towers situated in different
locations.
17. PW-6 is Rama Shankar Yadav, Junior Telecom
Officer (CDR), MTNL, who is the custodian of CDRs of MTNL
and having duties to provide CDRs to the Security Agencies.
He identified his signatures on the letter dated 21.01.2015
and also on the certificate under Section 65 B of Indian
Evidence Act and certified copy of the CDR of mobile phone
9868394358 with location chart Ex. PW6/A (colly). He also
identified his signatures on certificate under Section 65 B of
Indian Evidence Act with certified copy of CDR of mobile
phone no.9868386107 with location chart Ex. PW6/B. He
further deposed that there was a possibility that a mobile
might not catch signal from the nearest tower but might
catch signals from the next nearest tower depending upon
the congestion and strength of the signal. Further that the
tower location in respect of mobile number are changeable
due to overlapping of area covered by different tower
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situated in different location and the time difference was
due to clock synchronization of service provider.
18. PW-7 is Sh. Rajeev Sharda. He is the Alternate
Nodal officer, Reliance Communication Ltd, Maharaja Ranjit
Singh Marg, ND having duties to provide CDRs, CAF etc to
Law Enforcement Agencies on their request. He identified
his signatures on covering letter dated 27.01.2015 Ex.
PW7/A, on certificate under Section 65 B Indian Evidence Act
Ex. PW7/B and CDRs in respect of mobile no. 7389911901
for (Complainant's mobile phone) the period w.e.f.
25.12.2014 to 05.01.2015 as Ex. PW7/C. He further deposed
that he had taken print out of said CDR and he was having
the exclusive access to his computer system having
password and login ID.
19. PW-11 is Sh. Y.Gopal Reddy, who at the relevant
time was posted as Chief Manager (Personal), Syndicate
Bank. As per his version, he was looking after the office
work including the issue of mobile phone and mobile
number/SIM Cards. He deposed that vide letter dated
31.10.2014 Ex. PW4/B, accused B.S.Reddy had requested for
allotment of mobile and SIM card. He identified the signature
of B.S.Reddy, as he had worked with him in the bank. PW-11
also deposed that vide office note dated 01.11.2014 Ex.
PW4/B (colly), Regional Office sanctioned Rs. 4000/- for
purchase of mobile set and as per page no. 66 of the SIM
issue register, mobile number 9868394358 was issued to
B.S.Reddy and he also identified his (PW-11) signatures on
the certificate (page no.2 of D-21) Ex. PW11/A according to
which the abovesaid mobile number was issued on
01.11.2014 in favour of B.Sambi Reddy
20. PW-12 is the official from MTNL namely, Sh.
Naeem Akhtar. As per version of PW-12, he was custodian of
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hard copy of CAF of mobile connections provided to
customers by MTNL. He deposed that vide seizure memo
dated 15.01.2015 Ex. PW12/A, bearing his signatures, he
had supplied photocopies of CAF of mobile no. 9868394358
(phone attributed to accused no.1.) Ex. PW12/B and original
CAF of mobile no. 9868386107 (attributed to accused no.2)
Ex. PW12/C to the IO and as per said record, the mobile no.
9868394358 was issued in the name of Syndicate Bank,
Regional Office, Gaziabad, while mobile no. 9868386107
was issued in the name of Sanjay Kumar Jha.
21. PW-21 is Sh. Ajoy Kumar Thakur, the then Asst.
GM, Dena Bank, Zonal Office, Bhopal. As per his version, he had
handed over certain documents to CBI, vide seizure memo Ex.
PW21/A (colly) upon which he identified his signatures and that
of Sh. S.K.Srivastava. He further deposed that he had certified
(at page no.2) that the mobile no. 7389911901 was in the
name of Dena Bank, Zonal Office, Bhopal for our Zonal Manager
and it was used by Sh. Sushil Kumar Zonal Manager till
19.11.2014 and after his (Sh. Sushil Kumar) transfer the said
mobile number was used by Sh. K.V.Singh, Zonal Manager from
24.11.2014 till the date of issuance of said document.
(vi) Witnesses to order of interception and seizure
of CD (Q-1) containing intercepted calls
22. PW-23 is Sh. Sunil Kumar, Principal Staff Officer to
Union Home Secretary, Govt. of India, Ministry of Home Affairs.
During his examination, he identified the signature of the Home
Secretary, on the order dated 02.01.2015 (interception order)
Ex. PW23/A issued in respect of mobile number 9868394358
(attributed to accused no.1). He further deposed that said
orders were issued in the matters related to public safety,
public order etc and Ex. PW23/A was sent to Director, CBI and it
was valid for 60 days.
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23. PW-25 is SI Suraj Majumder, Special Unit, CBI. He
deposed that during relevant time, he was designated to
control and maintain the call recording server installed in
Special Unit and with the permission of the Union Home
Secretary, telephone calls of particular number were
intercepted for recording on the software and server system
provided by M/s Kommlabs Design Pvt. Ltd,Noida, which was
done as per the Indian Telegraph Act and its rules. He further
deposed the said software had special character, which did not
allow any kind of alteration of the intercepted calls recorded in
the system. Further that the interception of the number in the
instant case was done in regular manner without any
operational malfunction of the system. PW-25 further deposed
that in the present case, 11 relevant calls were reproduced on
a compact disk and same was handed over to Inspector Lalit
Phullar in a sealed cover alongwith the Certificate under Section
65 B of Indian Evidence Act. He deposed that vide seizure
memo dated 09.01.2015 and accompanying certificate under
Section 65 B of Indian Evidence Act Ex. PW25/A(colly), he had
provided the documents/articles, mentioned therein, to the IO
Sh Lalit Phullar.
23.1 As per the version of PW-25, permission receipt
from the competent authority regarding interception of the
particular mobile number was conveyed to the relevant service
provider and the service provider diverted a parallel
connectivity to the CBI call recording server mentioned above
and the calls were recorded automatically without any human
intervention at the end of CBI. Being a System Administrator,
PW-25 assigned the calls for listening to IOs of the Special Unit.
He further says that the service provider used to maintain the
call record for billing purpose i.e. to know when the call gets
connected whereas, in Special Unit the recording starts for any
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call when the ring starts ringing. However, in some cases, the
duration at CBI end may be shorter than the CDR record, that
may be due to the loss of signals of the calls, but the IO may
draw an algorithm to understand the uniformity in the log of the
service provider and log of the intercepted calls.
23.2 During the examination one yellow colour envelop
bearing signature of PW-25 at point A and B was produced by
MHC(M), which was containing one CD case already Ex. P-8 and
CD already Ex. P-9, and the said yellow envelope was exhibited
as PW25/B. PW-25 also identified his signatures at point B on
Ex.P-9.
(vii) Witnesses pertaining to sanction under
section 19 of PC Act, 1988
24. PW-19 is Sh. Santhosh Kamath, General
Manager (Personnel), Syndicate Bank (HO) Banglore, who
had accorded sanction for the prosecution of accused
B.Sambi Reddy in the instant case on 25.02.2015 vide
sanction order Ex. PW19/A. He also identified the signature
of Ms. George M.Kurian, GM (Chief Vigilance officer) on the
forwarding letter Ex. PW19/B. As per his version, after going
through the reports submitted by CBI and all the relevant
documents, statement of witnesses as well as after
examining all the facts and circumstances, he had duly
applied his mind and found it to be a fit case for according
sanction for the prosecution of accused B.Sambi Reddy and
accordingly, he accorded sanction for the same.
25. Likewise, PW-24 Ms. Shikha Goel, DIG (Pers) CISF
accorded prosecution sanction against accused Sanjay Kumar
Jha. She deposed that alongwith the request of CBI, a report of
CBI, statement of witnesses and various other documents were
sent to her and after perusal of statement of witnesses,
documents and applying her mind, she accorded prosecution
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sanction of accused Sanjay Kumar Jha. She further deposed
that as per CISF Act and Rules 2001, DIG is the competent
authority for removal of an official to the rank of Inspector and
at the relevant time, she was posted as DIG and competent to
accord said prosecution sanction. She identified her signatures
on the forwarding letter dated 02.03.2015 and on the
prosecution sanction and proved the same on record as Ex.
PW24/A and Ex. PW24/B respectively.
Viii) Witnesses to the search of house of A-2
Sanjay Kumar Jha and his specimen voice recording
26. PW-14 namely, Prateek Singh, Sr. Manager,
Punjab National Bank and PW-17 Sh. S.S.Yadav Inspector,
ACU-IV, CBI are the witness to search proceedings
conducted at the house of A-2 Sanjay Kumar Jha.
26.1 PW-14 deposed that during the relevant time, he
joined investigation of the instant case and went to the
house of accused Sanjay Jha and conducted search and
thereafter, accused Sanjay Jha was brought to CBI office
where his (PW-14's) specimen voice and that of accused
no.2 Sanjay Jha was recorded. He identified his signature on
the specimen recording memo Ex. PW14/A (colly) and on
search list Ex. PW14/C. He further deposed that arrest cum
personal search memo Ex. PW 14/B of accused Sanjay Jha
was prepared in his presence. He correctly identified
accused Sanjay Jha, who was present in the court on the
date of his deposition. PW-14 further deposed that on
05.01.2015, one blank SD card was brought by Sh.
S.K.Verma in which his (PW-14) introductory voice was
taken and thereafter, specimen voice of accused Sanjay
Kumar Jha was recorded. He identified his signatures on one
cloth pulanda sealed with the seal of CBI Ex. PW14/D
containing one mobile phone which was recovered from the
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accused Sanjay Kumar Jha. PW-14 identified his voice and
that of accused no.2 Sanjay Kumar Jha in file
150105_001.MP3; file 150105_002.MP3 and file
150105_003.MP3 in the memory card/SD Card (Ex. P-10
colly).
26.2 PW-17 deposed that he had conducted search of
house of accused Sanjay Jha in the presence independent
witness and in that regard, he was authorized by Dy. SP
Vipin Kumar. He identified his signature on search list, Ex.
PW14/C.
(ix) Witness to seizure of complainant's voice
sample, his phone and CD prepared from his phone
27. PW-15 is Yogendra Singh, AO (Custom), ITI Ltd.
He deposed that in January 2015 on the instruction of his GM
he had visited the office of CBI, where he met CBI official Sh.
Shailendra. In the office he also saw one Sh. K.V.Singh,who
had brought a mobile phone alongwith the memory card and
CD. Sh. Shailendra accompanied by Sh. Lalit had made copy
of said CD and thereafter, original CD and memory card was
sealed in an envelope upon which he alongwith Sh.
Shailender and two more persons had put their signatures.
During the course of his examination, witness was shown
said mobile phone Ex. P-5, said CD from brown envelope
Ex.P-6, production cum seizure memo dated 09.01.2015 Ex.
PW1/G, upon all said exhibits he identified his signatures.
27.1 PW-15 further deposed that he again visited CBI
office on 12.01.2015 and on that day a copy of memory card
which was prepared on 09.01.2015 was heard and word by
word transcription of contents of said copy of memory card
was prepared in his presence vide transcription memo Ex.
PW15/A (colly) bearing his signatures at point A. He further
deposed that Sh. Shailendra also recorded the voice
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sample of K.V.Singh in a blank memory card and after
recording of voice sample, the same was sealed in a
separate envelope vide specimen voice recording memo Ex.
PW1/J. Later on, with the permission of the court, the Ld. PP
put a question to the witness that on 09.01.2015, the
proceedings were conducted by Sh. Lalit ji as Mr. Shailender
was not present on that day and the witness answered it in
affirmative.
(x) Other formal witnesses
28. PW-2 is Sh. Deepak Mehra, Station Controller,
Vaishali Metro Station, DMRC, Delhi. He deposed that on the
relevant date he was on duty from 3 to 10 p.m (evening
shift) at Mayur Vihar, Phase-I Metro Station, Delhi and on
instructions of his senior officer, he had provided an empty
room with few chairs at the Metro Station to CBI officials,
who carried out their work in said room for 2-3 hours.
29. PW-9 is Sh. Rajbir Singh, who deposed that at
the relevant time he was posted in BS&FC, CBI, ND and his
duties were investigation of regular cases, pairvi of court
cases etc and as per the directions of SP, he certified the
documents related to RC BD-I/2013E/0002 i.e. copy of
chargesheet, list of witnesses and list of documents of RC
BD-I/2013E/0002 including a chart prepared by Sh.
B.S.Reddy and recommendation of Sr. PP, SP, HOB, DLA and
HOZ in noting sheets Ex. PW9/A (colly). He further deposed
that said case FIR RC BD-I/2013E/0002 was registered on
28.02.2013 on the complaint dated 27.02.2013 of Sh.
C.S.Meena, the then Regional Manager/DGM, Dena Bank,
North India Region, Panchkula against M/s HRM Export Pvt.
Ltd, its director namely Vijay Kumar Gupta and Kameshwar
Sharma and the then Sr. Manger, Dena Bank, Rohtak
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namely, Sh. R.S.Phogat under section 120B, 420 IPC r/w
Section 13(2) r/w 13(1) (d) of PC Act and substantive
offences thereof.
29.1 As per version of PW-9, the investigation of said
case FIR was marked to Sh. Sanjay Kumar Jha, the then
Inspector, CBI, BS&FC and after investigation, the IO
submitted the final report on 02.06.2014 recommending
prosecution of different accused including Sh. Kawar
Virender Singh, the then DGM, Dena Bank i.e. the
complainant herein. Accused B.Sambi Reddy in his report
had pointed out serious irregularities against K.V.Singh but
Ld. Sr. PP of the branch alongwith SP, HOB, DLA had
recommended RDA (Regular Departmental Action) with
penalty against Kanwar Virender Singh and thereafter, CBI
report was sent to CVO, Dena Bank. Further that Sh.
B.S.Reddy, Technical Officer banking had also prepared a
chart mentioning the lapses on the part of K.V. Singh and
other officers of Dena Bank. He further deposed that on
24.12.2014, the chargesheet was filed by Sh. Sanjay Jha
before the Hon'ble Special Judge, CBI at Panchkula.
30. PW-20 is Ram Dutt Sharma, SI CBI. He has
deposed that during the relevant time he was posted as
Duty Officer in BS&FC, CBI, ND and at the request of the IO,
he had handed over the tour program of accused Sanjay
Kumar Jha to him. He identified the signatures of Sh. Jasvir
Singh, SP, CBI, BS&FC, ND on the letter dated 21.01.2015
alongwith the tour program issued to SP, AC-II, CBI Ex.
PW20/A (colly). He also identified his (PW-20) signature on
the railway warrant Ex. PW20/B as he had certified the
same.
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Statement of accused
31. After conclusion of prosecution evidence,
statement of both the two accused persons were recorded
under Section 313 Cr.P.C wherein all the incriminating
evidence was put to them but as expected, the same was
denied by the accused persons as wrong and incorrect. The
accused persons pleaded their innocence and came up with
the plea that they had been falsely implicated in the present
case by the CBI at the behest of the complainant. The
accused persons further say that false statements have
been recorded and fabricated/manipulated documents/CDs
have been created.
31.1 It is stated by the accused Sanjay Kumar Jha
that search of his house was illegal and motivated to falsely
implicate him. As regards specimen voice, accused Sanjay
Kumar Jha stated that the voice recordings and specimen
voice were manipulated/fabricated during police custody to
falsely implicate him. He further stated that the prosecution
sanction Ex. PW24/B was obtained by misrepresentation of
facts and said sanction was invalid. Accused Sanjay Kumar
Jha denied any knowledge regarding any demand or
acceptance of the bribe amount by co-accused B.Sambi
Reddy.
31.2 Whereas, accused B.Sambi Reddy categorically
denied the demand, acceptance or recovery of tainted bribe
amount from him. He further stated that interception of his
mobile was done in violation of the Telegraph Act. He
showed his ignorance regarding preparation of various
memos during the pre-trap and post trap proceedings. He
further stated that the witnesses had deposed at the
behest/instance of CBI.
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31.3 Accused B.Sambi Reddy further stated that as
he was Technical Officer(Banking) deputed from the bank
with BS&FC, CBI on deputation basis and had submitted a
report against Mr. K.V.Singh in a bank fraud case and for this
reason, K.V.Singh was having grudges against him and he
falsely implicated him (B.Sambi Reddy) in the present case
on a false complaint. Further that K.V.Singh was exonerated
from said bank fraud case by CBI on 04.12.2014 and that he
(accused no.1)had never demanded or accepted any illegal
gratification.
31.4 In the additional Statement under Section 313
Cr.P.C recorded on 12.03.2024 (with regard to the
deposition of PW-1 K.V.Singh recorded on 06.03.2024),
wherein said accused B.Sambi Reddy categorically denied
his meetings and conversations with K.V.Singh.
Defence evidence
32. In defence evidence, accused no.1 B.Sambi
Reddy examined only one witness namely, Sh. Amit Kumar
Sharma as D1W1, whereas, accused no.2 Sanjay Kumar Jha
examined two witnesses namely, D2W1 Sh. Ram Dayal Negi
and D2W2 Sh. P.G. Talukdar,
33. D1W1 Sh. Amit Kumar Sharma is the Manager,
Canara Bank, Circle Office, Delhi. He had brought the file
containing various official notings/documents from his Head
Office, Bangalore, pertaining to the Sanction granted against
accused B.S. Reddy and exhibited it as Ex.D1W1/1 (Colly),
the same, however, was objected to by Ld. PP on the
ground of mode of proof. As per D1W1 the said office note
was prepared on 24.02.2015 and was put before Sh. K.
Santosh Kamath (PW-19) on the same day and on that basis,
the sanction dated 25.02.2015 was accorded.
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34. D2W1 is Sh. Ram Dayal Negi, Assistant General
Manager, Bank of Baroda (earlier Dena Bank), Zonal Office
Chandigarh. As per his version, he was duly authorized on
behalf of Bank of Baroda through authorization letter Ex.
D2W1/1 and he produced envelope containing certain
documents Ex.D2W1/2 (Colly.) relating to departmental
inquiry in respect of Sh. K.V. Singh (retired).
35. D2W2 is Sh. P.G. Talukdar, L&R Branch,
Directorate of CISF, Lodhi Road, ND, who produced an
envelope from his office, containing various official notings
and documents in the file No. V-14013/7/Prosecution
Sanction (S.K.Jha)/L&R/15 Ex.D2W2/1 (Colly.-24 Pages and
CBI report, 23 Pages).
36. I have heard arguments advanced at length
from both the sides and also carefully perused the written
submissions filed on record by both the parties. I have given
my thoughtful consideration to the rival contentions and also
carefully perused the entire record including the case law
filed in support of their arguments by the defence and the
prosecution.
Prosecution arguments
37. On behalf of CBI, the arguments were advanced
by Ld. PP Sh.Parmod Singh. Ld. PP argued that prosecution
has successfully proved the charges against both the
accused by leading clinching evidence in the form of direct
and circumstantial/link evidence and in this regard, he has
taken me through the testimony of the complainant Sh.K.V.
Singh (PW1), independent witness Nitin Narang (PW-3) and
the other independent witness Pradeep (PW-13), who were
joined in the verification and trap proceedings. Ld. PP also
read over the testimonies of Verification Officer Inspector
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Shailender Kumar Verma (PW-16) and Trap Laying Officer
Inspector Vipin Kumar Verma (PW22). The incriminatory part
of their testimonies as well as that of link witnesses have
been referred in detail in the written submissions filed on
behalf of CBI. However, in order to avoid the repetition, the
same shall be discussed in the later part of this judgment. It
was further argued that with regard to demand of bribe and
its part payment, the complainant has come up with
clinching evidence and has more or less deposed on the
lines of his complaint dated 04.01.2015 Ex. PW1/A.
37.1 It was further argued that as per the complaint
Ex. PW1/A, in lieu of showing favour to complainant to
exonerate him in a bank fraud case bearing no. RC-
BD1/2013/E0002 dated 28.02.2013, which was investigated
by the accused persons, a demand of Rs.25 lakh was raised
by accused no.1, which was subsequently reduced to Rs.10
lakh and the same was agreed to be paid in two installments
of Rs. 5 lakh each. It was further argued that investigation
revealed that accused no.1 entered into a criminal
conspiracy with accused no.2 for the aforesaid demand and
pursuant to that, accused no.1 accepted the bribe amount
of Rs. 1 Lakh from the complainant on 04.01.2015. While
accepting said amount, accused no.1 was caught red
handed by the CBI and after he disclosed having accepted
said amount at the instance of accused no.2, he was asked
to make a call to accused no.2 to inform him regarding
receipt of bribe amount of Rs. 1 lakh from the complainant
and said call was heard by the trap team as the mobile
phone of accused no.1 was kept on speaker mode. During
said call, accused no.2 expressed his displeasure for the
complainant having paid only Rs. 1 lakh and the same
clearly established that the alleged offences of Section 7,8
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and Section 13(2) read with Section 13(1)(d) of PC Act were
committed by both the accused in conspiracy with each
other.
37.2 Ld. PP for CBI has argued that the allegations of
demand of bribe contained in the complaint were verified by
the verifying officer on the same date of the complaint i.e.
on 04.01.2015 and the conversation between the
complainant and the accused on the verification call was
duly recorded through DVR (Q-2). Besides DVR there is
another supporting evidence in the form of CD (Q-1), seized
by the IO from the Special Unit of CBI, who had kept the
phone number of accused no.1 on interception with the
permission of Secretary, Ministry of Home and were
recording the conversation of said intercepted calls.
37.3 It was further argued that prior to the filing of
the complaint, the complainant had been recording the calls
exchanged between him and the accused no.1 on 14th,
15th, 16th, 22nd, 29th December 2014 and on 3rd January,
2015 and the same also contained the incriminatory
material against the accused persons and the CD of said
recorded conversation prepared by the complainant was
duly seized by the IO of this case and same is available on
record as S-4. It was argued that the aforementioned calls
were recorded by complainant in his mobile phone and said
conversation was taken on the CD, which the complainant
handed over to the IO alongwith his certificate under
section 65B of Indian Evidence Act. Even the mobile phone
of the complainant with the memory card containing voice
recording of aforementioned 06 calls was also seized by IO
as Q-3. He further argued that all the aforementioned
electronic evidences Q-1, Q-2, Q-3 and S-4 alongwith the
voice samples of the complainant and accused persons (S-1,
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S-2 and S-3) were sent to CFSL for expert opinion and as per
the forensic report Ex.PW8/A, the specimen voice of the
accused matched with the questioned voice attributed to the
respective accused in the recorded conversations contained
in DVR Q-2, in complainant's mobile phone Q-3 and two CDs
i.e. Q-1(CD of the intercepted calls prepared by SU, CBI) and
S-4 (CD of the recorded calls of the mobile phone of the
complainant).
37.4 It was argued further that not much weight can
be attached to the minor discrepancies contained in the
deposition of complainant and the independent witnesses
especially when the prosecution has adduced various other
corroborative evidence in the form of testimony of other
members of the trap team as well as the audio recordings of
the conversations which occurred between accused no.1 and
the complainant prior to filing of complaint as well as on the
dates of verification and also the telephonic conversation of
the calls exchanged between accused no.1 and accused
no.2 after the apprehension of accused no.1 in this case by
the trap team. Ld. PP further argued that all the said
evidences are cumulatively sufficient to establish that both
accused no.1 and accused no.2 in conspiracy with each
other had demanded and accepted the bribe amount from
the complainant in lieu of exonerating him in the ongoing
investigation of the aforementioned bank fraud case
pending against the complainant.
37.5 Ld. PP submitted further that trap team was
carrying DVR at the time of trap and the same was to be
handed over to the complainant after reaching the decided
destination at Noida but, since the destination was changed
by accused no.1, as he asked the complainant to stop after
the red light of Mayur Vihar metro station, therefore, the
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DVR could not be handed over to the complainant as the
complainant was travelling in a separate vehicle with the
independent witness Nitin Narang (PW-3). Therefore, the
conversation which took place between the complainant and
accused no.1 at the time of trap during which accused no.1
asked the complainant for demanded money, could not be
recorded on the DVR. Ld. PP further submitted that the
telephonic conversation between accused no.1 and accused
no.2 on the call made by accused no.1 after his
apprehension by the trap team also could not be recorded
on the DVR as the IO forgot to switch on the DVR at that
time. It was argued that the failure on the part of IO to
record aforementioned conversation in the DVR is not fatal
for the reason that said call between accused no.1 and
accused no.2 was duly recorded by the Special Unit of CBI.
Because, at the relevant time, the mobile number of
accused no.1 B.Samby Reddy was put on interception with
the permission of competent authority and the CD
containing the recorded conversation of intercepted calls
including the aforementioned calls, which were made by
accused no.1 on the asking of CBI after his apprehension on
04.01.2015, was duly seized from the Special Unit by the IO
of this case on 09.01.2015.
37.6 Ld. PP has also relied upon the electronic
evidence in the form of aforementioned audio recordings
contained in the mobile phone/memory card and Compact
Disks, of the conversation occurring between the
complainant and accused no.1 at different points of time i.e.
prior to filing of complaint and at the time of verification as
well as the conversation between accused no.1 and accused
no.2 after the apprehension of accused no.1. Besides that,
Ld. PP has also relied upon the ocular testimony of the
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complainant, independent witnesses and the other members
of the trap team regarding recovery of the tainted money
from accused no.1. Ld. PP has also placed reliance upon the
supportive forensic evidence in the form of chemical
examination report Ex. PW18/A in respect of hand wash of
the accused and voice identification report dated
29.01.2015 Ex. PW 8/A. While relying upon the above
evidence, Ld. PP for CBI asserted that the prosecution has
successfully proved that accused B. Sambi Reddy and
Sanjay Kumar Jha in conspiracy with each other (both public
servant), raised the demand of bribe from the complainant
for exonerating him in the ongoing investigation of a bank
fraud case of RCBD 1/2013/E.0002 registered against the
complainant at BS&FC, New Delhi and accused no.1
accepted said demanded money from the complainant on
04.01.2015 and he was caught red handed by the trap team
while accepting said money.
37.7 It was further argued that the aforementioned
audio recordings of the telephonic conversation between the
accused no.1 and the complainant before the date of
complaint (i.e. on 14th, 15th, 16th, 22nd, 29th December 2014
and on 3rd January, 2015) and after the date of complaint i.e.
at the time of verification and the audio recording of the
conversation between accused no.1 and accused no.2
occurring on a telephonic call, made by accused no.1 to
accused no.2 on the asking of CBI after his (accused no.1)
arrest, are ample proof of what all transpired between the
complainant and accused no.1 and between accused no.1
and accused no.2 with regard to alleged transaction of bribe.
Further, the recovery of money from the possession of the
accused no.1 immediately after the raid by the trap team
leaves no scope for any other inference except that the
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accused persons had conspired together and committed the
alleged offences under PC Act, in the manner and sequence
as deposed by the prosecution witnesses. It is further
argued that the audio recording of the verification call and
of the calls exchanged prior to filing of complaint and after
the trap proceedings are well admissible in evidence and
have been duly proved on record in accordance with law and
the credibility of such evidence is above board. In this
regard, the Ld. PP has drawn attention of the court to the
deposition of PW-23 Sunil Kumar and PW-25 Suraj Majumdar.
37.8 It was further argued that the interception of the
calls of the mobile phone of accused no.1 was made by CBI
in accordance with law after taking due permission from the
competent authority and hence, the recording of said
intercepted calls is well admissible in law. It was further
argued that no doubt on the admissibility of said evidence
can be raised because, even an illegally obtained evidence
is well admissible in law especially in the light of the
judgment of Hon'ble Delhi High Court in 'Dharamveer
Khattar vs. Union of India 2012, SCC OnLine Delhi
5805; R.L.Malkani vs. State of Maharashtra 1973
(1)SCC 471; State of NCT of Delhi vs. Navjot Sandhu
2005 (11) SCC 600 and Puran Mal vs. Director of
Inspection (Investigation) 1974(1) SCC 345. It has been
urged that even if there is some violation of rules framed
under the Telegraph Act in collecting the material, such
material can still be relied upon as evidence during trial. He
further argued that the judgment of Hon'ble Delhi High
Court relied upon by the Defence Counsel in 'Jatinder Pal
Singh v. CBI and anr in Crl. Misc. case 3118/2012
decided on 17.01.2022 is of no help to the defence
because the judgment of Hon'ble Bombay High Court in
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Vineet Kumar vs.CBI 2019, Law Suit (Bom) 1903'
which has been referred by the Delhi High Court in said
judgment of Jatinder Pal Singh (Supra) has been stayed
by the Hon'ble Apex Court.
37.9 It was further argued that by clinching evidence,
the prosecution has been able to prove all the foundational
facts which are necessary to raise the presumption of
Section 20 of PC Act i.e. demand, acceptance and recovery
of tainted money and in the background of said
circumstances, the burden shifted on the accused public
servants to rebut said presumption regarding existence of
requisite motive or reward as per Section 7 of PC Act by
leading direct or indirect evidence which the accused has
miserably failed and thus, the material on record is sufficient
to fasten the guilt of the alleged offences upon the accused
persons. In the written submissions, Ld Public Prosecutor
has also relied upon the various case law in support of his
above arguments which shall be referred in later part of this
judgment.
37.10 Ld. PP further argued that similarly, the
acceptance of bribe money and the recovery thereof, can be
inferred from the complainant's own deposition supported
by independent witnesses and CBI officials coupled with the
currency notes and the hand wash of the accused no.1
together with the scientific evidence in the form of chemical
examination report dated 11.04.2019 of PW-18 Ex. PW18/A.
It is further contended that the prosecution witnesses have
successfully withstood the test of cross-examination and the
defence has failed to shake their testimony despite lengthy
cross-examination. Besides that, the corroborative evidence
in the form of audio recording and chemical examination
report has been duly proved on record by the examination of
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experts and by the witnesses in whose presence transcripts
of said audio recordings were prepared and who identified
the voice of accused persons in said conversation during the
course of investigation as well as during their examination
before the Court.
Arguments on behalf of accused no.1 B.Sambi
Reddy
38. Ld. Counsel Sh. Rajiv Mohan, for accused no.1
B.Sambi Reddy has raised following broad arguments:-
(a) There is an inordinate delay in filing of
complaint because the alleged demand for illegal
gratification was first raised on 06.12.2014 but
despite that, the matter was reported to CBI on
04.01.2015.
(b) As per prosecution case, both the
verification and trap were conducted on
04.01.2015 whereas, the IO seized the mobile
phone of the complainant on 09.01.2015 after the
gap of 05 days inspite of the fact that the
complainant was carrying his mobile phone on
04.01.2014 and mentioned it very well in his
complaint itself that he had recorded the calls
exchanged between him and accused no.1 prior to
date of complaint in his mobile phone. No
explanation has been given by the IO or the
complainant for the delay in handing over the
complainant's mobile phone and the CD prepared
therefrom.
(c) Neither the verification officer nor the trap
laying officer played the alleged recorded
conversation of the complainant's mobile phone to
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verify the allegations till 12.01.2015, when the
transcript of recorded conversation contained in
the mobile phone of the complainant was allegedly
prepared. No explanation has been rendered for
the said delay.
(d) There is no explanation in delay of
recording of specimen voice of complainant
K.V.Singh, which was recorded on 12.01.2015 and
it also creates a doubt about the existence of
mobile phone recordings prior to the date of arrest
of the accused no.1, which was affected on
04.01.2015.
(e) The verification officer S.K.Verma, who
recorded the specimen voice of accused on
05.01.2015, was not aware about the contents of
the conversation recorded on the mobile phone of
the complainant nor about the intercepted calls
seized from Special Unit, CBI and in such
circumstances, there was no material available
with him for recording the specimen voice of
accused having the common auditory words and
sentences of the questioned conversation.
(f) As per the seizure memo Ex. PW1/E as well as
the deposition of complainant recorded on
20.07.2016, the recording in the mobile phone of
the complainant was done in the memory card.
Whereas, as per the forensic report Ex.PW8/A, the
calls were recorded in the internal storage of the
mobile phone and not on the memory card as
alleged by the complainant, which again raises a
serious doubt on the credibility of the
complainant's version.
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(g) As per the transcriptions (part of D-30) of
the recordings contained in CD (S-4), one
conversation of 03.01.2015 was also recorded on
the mobile phone of the complainant, whereas, as
per complainant, he had recorded calls only till
29.12.2014 and it also creates a doubt on the
prosecution case, especially in the light of the fact
that as per complainant's own version, there was
no automatic call recording facility in the mobile
phone.
(h) CBI failed to adduce any evidence to show
as to on whose request, the interception order was
passed on 02.01.2015 and under what
circumstances, the IO gained knowledge about said
interception allegedly made by Special Unit of CBI.
(i) As per the CDR of the mobile phone of
accused no.1 B. Sambi Reddy, there was exchange
of around 40-50 calls on 03.01.2015 and
04.01.2015 on his mobile phone whereas, on CD
(Q-1) only 11 intercepted calls were taken from the
server and there is no iota of evidence adduced by
CBI to show as to who had segregated the calls
relevant to the present case from the calls
intercepted/recorded by the Special Unit of CBI.
The IO Lalit Pullar as well as Principal Staff Officer
Suraj Majumdar are completely silent on the
aforementioned aspect when they were examined
in the court.
(j) The interception order has not been
proved as per law. Neither PW-23 was a competent
person to prove said document nor the relevant file
was brought by PW-23 nor he deposed under what
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circumstances, the interception order was passed
by the competent authority.
(k) Not only the interception was illegal on
account of same having not been placed before
Review Committee as per the mandate of Rule
419-A of Indian Telegraph Rules, 2007 but, the
interception order itself is a fabricated document
as it does not bear any specific file number of this
case and the number mentioned on the
interception order Ex.PW23/A is a common
number used for all interception cases pertaining
to CBI.
(l) The entire record of mobile phone,
intercepted calls, DVR, CD has been manipulated
by complainant in connivance with CBI with a view
to falsely implicate the accused persons against
whom complainant had the grudges because the
accused had recommended complainant's
prosecution in the bank fraud case which they
were investigating and it is only on the
recommendation of the senior prosecutor of CBI,
the prosecution was dropped and only
departmental action was recommended against
the complainant K.V.Singh.
(m) There is no explanation from the side of
complainant as to why he did not try to know the
status of bank fraud case for the investigation of
which, he was called several times.
(n) In the bank fraud case, the final
recommendation for exoneration of the
complainant was signed on 04.12.2014 and the
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same was communicated to CVO, Dena Bank on
12.12.2014 and the charge-sheet was filed against
the other accused on 24.12.2014 and in said
circumstances, there was no reason for the
accused to raise any such illegal demand from the
complainant, who was already exonerated in the
matter.
(o) The recorded conversation in the mobile
phone was never played before any witness, who
could identify the voice of accused and the only
version in this regard available on record is that of
the complainant, who being the partisan witness
cannot be trusted without corroboration from some
independent source.
(p) In the light of the fact that on 05.01.2015,
when the specimen voices were taken, CBI was not
in possession of either the recording of the mobile
phone or of the CD seized from Special Unit, CBI, in
said circumstances, it remained mystery as to on
what basis the specimen voice was prepared
having common auditory words or sentences from
the questioned conversation.
(q) As per forensic expert PW-8, he had not
checked the continuity or originality of the
recording nor there is any report that DVR was
found containing any recording as the same was
never put to examination by the forensic expert
and in these circumstances, no reliance can be
placed on the recording of DVR.
(r)The prosecution witnesses have come up with
the inconsistent version with regard to the place of
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verification as well as regarding place where
alleged call to accused no.2 was made by accused
no.1 on the asking of CBI after his apprehension in
this case and same also creates serious doubt on
the truthfulness of the prosecution case.
(s) As per prosecution case, the currency
notes/tainted money was in the denomination of
Rs. 1000/- and Rs. 500/- whereas, the TLO/PW-22
Vipin Kumar deposed that the currency notes were
of Rs. 500/- denomination.
(t) No weightage/value can be attached to the
report of chemical examiner PW-18 Deepti
Bhargav, as she did not produce any worksheet
showing the method used by her for the purpose of
examination and she was also not consistent in her
answers during her cross-examination.
(u) The recorded conversation between
accused no.1 and accused no.2 of the post-trap call
is not admissible in the light of Hon'ble Apex Court
judgment in Rajesh and anr. v. State of
Madhya Pradesh, as the said conversation is hit
by the provision of Section 26 of Indian Evidence
Act.
(v) The sanction of Section 19 of PC Act is also
defective, as the same has been passed by the
sanctioning authority without application of mind,
which is evident from the office note dated
24.02.2015, part of Ex.D1W1/1 (Colly.), wherein
the sanctioning authority was cautioned that for
file being already scrutinized so many times at
high levels CBI, there remained no scope for
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competent authority to disagree with the request
of sanction.
Arguments on behalf of accused no.2 Sanjay
Kumar Jha
39. Ld. Counsel Sh. Anil Kumar, vehemently argued
on behalf of accused no.2 Sanjay Kumar Jha that prosecution
has miserably failed to prove its case against said accused
even by preponderance of probability whereas, as per law,
the charges are required to be proved on the touch stone of
beyond any reasonable doubt. Broadly the following
arguments have been raised on behalf of accused no.2 :-
(a) As per CBI's own case, there is no
allegation of any demand of illegal gratification,
raised against accused no.2 in the complaint Ex.
PW-1/A. Even the complainant during trial did not
come up with any such allegation that any
demand of illegal gratification was ever raised
from him by accused no.2 at any point of time.
(b) Even the FIR Ex. PW1/C does not disclose
any allegation of demand or acceptance of illegal
gratification against accused no.2 or his being part
of any criminal conspiracy for demand or
acceptance of any such illegal gratification from
the complainant.
(c) During verification, no incriminating
evidence surfaced against accused no.2 as is
also evident from the verification memo Ex.
PW1/B.
(d) The entire case of CBI against accused
no.2 is based on two telephonic conversation
dated 04.01.2015 i.e. call no. 10 and call no. 11,
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the transcription of which is available on record as
Ex. PW1/W and PW1/X respectively. As per CBI's
own case, the said two calls were made by the
accused B.Sambi Reddy upon the asking of CBI
from his phone, which was allegedly kept on
speaker mode but despite that, the said calls were
never recorded on the DVR, which was very much
available with the CBI team at the time of trap.
The said evidence in the form of telephonic
conversation of call no. 10 and 11 is not
admissible because the interception was done in
violation of Section 5 of Indian Telegraph Act, 1985
and Rules 419-A of Indian Telegraph Rules, 2007.
(e) CBI has miserably failed to explain as to
how and under what circumstance and for what
purpose, the phone of co-accused B.Sambi Reddy
was put under surveillance by Special Unit of CBI
w.e.f. 02.01.2015, especially when at that time,
there was no FIR or complaint lodged against
accused no.1 B.Sambi Reddy. Even the instant FIR
was lodged against him only on 04.01.2015 i.e.
after two days of interception order.
(f) That the evidence of recorded
conversation is not a substantive evidence and is
rather a very weak type of corroborative evidence.
Reliance in this regard has been placed on the
judgments "Nilesh Dinkar Paradkar vs. State
of Maharashtra, (2011) 4 SCC 143"; PUCL vs.
Union of India &Anr (1997) (1SCC 301); Vinit
Kumar vs. CBI, 2019 Law Suit (Bom) 1903;
Smt. K.L.D Nagasree v. Government of India
& Ors. AIR 2007 Andhra Pradesh 102.
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(g) No permission was taken from the court
for recording the voice sample of the accused
persons, who at that time were in the custody of
CBI and therefore, the specimen voice samples are
inadmissible in evidence.
(h) The discrepancies in the cross examination
of PW-26 Lalit Pullar establishes serious doubts
about the genuineness of the proceedings against
accused Sanjay Kumar Jha.
(i) There is no iota of material to prove the
motive of the accused Sanjay Kumar Jha for the
alleged demand/acceptance of illegal gratification
as he himself had recommended the prosecution
against the complainant in his final report FR-1
filed on 02.06.2014.
(j) The higher authorities in CBI, however,
recommended only departmental action against
complainant and thereafter, the accused Sanjay
Kumar Jha filed the chargesheet before the Special
Judge, Panchkula on 23.12.2014 whereas, the
present case was registered on 04.01.2015 and as
such there was no reason for the complainant to
succumb to the alleged demands of gratification
raised by the accused especially, when he was
already exonerated in the case and
recommendation of the departmental action
against him were duly forwarded to Chief Vigilance
Officer, Dena Bank.
(k) In the facts and circumstances of the case,
there is every possibility of the complainant having
filed a false complaint against the accused out of
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vengeance because, his name was recommended
by accused persons for criminal action.
(l) The prior meeting of mind, which is the
most essential ingredient for proving the offence
of criminal conspiracy is absolutely lacking in the
circumstances of the present case. Reliance in
this regard has been placed in judgment of
Hon'ble Apex court in 'Ram Sharan Chaturvedi
vs. State of Madhya Pradesh appeal no. 106
of 2010' and State (NCT of Delhi) v. Navjot
Sandhu in Appeal (Crl.) 373-375 of 2004
(DOD 04.08.2005).
(m) The accused no.2 is liable to be acquitted
for want of valid sanction as CBI failed to produce
the sanction file in which the sanction for
prosecution against accused no. 2 was processed
and issued and it is only in defence evidence
D2W2 produced said file as Ex. D2W2/1 and the
perusal of the note sheet 1N to 3N of said file
shows that PW-24 simply signed the already
prepared draft sanction order prepared by CBI
without any conscious scrutiny of documents and
without application of mind.
Analysis of material by the Court
40. In order to correctly appreciate the above
arguments, I may now refer to the evidence adduced on
record by the prosecution and the defence. However, before
adverting to the evidence and analyzing it in the light of
arguments raised at Bar, I may first note that the charges
alleged against accused no.1 and accused no.2 are of
Section 120 B IPC read with Section 7 and 8 read with
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Section 13(2) read with Section 13(1)(d) of PC Act, 1988. In
addition to that, the charge for the substantive offence of
Section 7 and 8 and Section 13(2) read with Section 13(1)(a)
of PC Act, 1988 has been framed against accused no.1,
while against accused no.2 additional charge of substantive
offence of only Section 7 and Section 13(2) read with
Section 13(1)(d) of PC Act, 1988 has been framed.
Provisions of PC Act, 1988 (unamended) and IPC,
relevant for determination of this case
41. It is pertinent to note that in the instant case,
the alleged incident relates back to the period from
December 2014 to January 2015. Therefore, we are here
dealing with the provisions of PC Act as they existed before
the Amendment Act 16 of 2018, which came into force w.e.f.
26.07.2018. The unamended provision of Section 7, 8, 13
and 20 of PC Act, 1988 as well as Section 120 A&B IPC have
been reproduced herein below for ready reference : -
"Section 7 of Prevention of Corruption Act,
1988
7. Public servant taking gratification other
than legal remuneration in respect of an
official act.--Whoever, being, or expecting to
be a public servant, accepts or obtains or agrees
to accept or attempts to obtain from any person,
for himself or for any other person, any
gratification whatever, other than legal
remuneration, as a motive or reward for doing or
forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official
functions, favour or disfavour to any person or
for rendering or attempting to render any
service or disservice to any person, with the
Central Government or any State Government or
Parliament or the Legislature of any State or
with any local authority, corporation or
Government company referred to in clause (c) of
section 2, or with any public servant, whether
named or otherwise, shall be punishable with
imprisonment which shall be not less than [three
years] but which may extend to [seven years]
and shall also be liable to fine.
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(Explanations) --(a) "Expecting to be a public
servant". If a person not expecting to be in office
obtains a gratification by deceiving others into a
belief that he is about to be in office, and that he
will then serve them, he may be guilty of
cheating, but he is not guilty of the offence
defined in this section.
(b) "Gratification". The word "gratification" is not
restricted to pecuniary gratifications or to
gratifications estimable in money.
(c) "Legal remuneration". The words "legal
remuneration" are not restricted to
remuneration which a public servant can lawfully
demand, but include all remuneration which he
is permitted by the Government or the
organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who
receives a gratification as a motive or reward for
doing what he does not intend or is not in a
position to do, or has not done, comes within
this expression.
(e) Where a public servant induces a person
erroneously to believe that his influence with the
Government has obtained a title for that person
and thus induces that person to give the public
servant, money or any other gratification as a
reward for this service, the public servant has
committed an offence under this section.
8. Taking gratification, in order, by corrupt or
illegal means, to influence public servant.-
Whoever accepts or obtains, or agrees to accept, or
attempts to obtain, from any person, for himself or
for any other person, any gratification whatever as
a motive or reward for inducing, by corrupt or
illegal means, any public servant, whether named
or otherwise, to do or to forbear to do any official
act, or in the exercise of the official functions of
such public servant to show favour or disfavour to
any person, or to render or attempt to render any
service or disservice to any person with the Central
government or any State Government or
Parliament or the Legislature of any State or with
any local authority, corporation or Government
company referred to in clause (c) of section 2, or
with any public servant, whether named or
otherwise, shall be punishable with imprisonment
for a term which shall be not less than [three years]
but which may extend to [seven years] and shall
also be liable to fine.
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13. Criminal misconduct by a public servant. -
(1) A public servant is said to commit the offence of
criminal misconduct.-
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or
for any other person any valuable thing or pecu-
niary advantage; or
(ii) by abusing his position as a public servant, ob-
tains for himself or any other person any valuable
thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains
for any person any valuable thing or pecuniary ad-
vantage without any public interest; or
(2) Any public servant who commits criminal mis-
conduct shall be punishable with imprisonment for
a term which shall be not less than [four years] but
which may extend to [ten years] and shall also be
liable to fine.
Section 20 of Prevention of Corruption Act,
1988
20. Presumption where public servant
accepts gratification other than legal
remuneration.--
(1) Where, in any trial of an offence punishable
under section 7 or section 11 or clause (a) or
clause (b) of sub-section (1) of section 13 it is
proved that an accused person has accepted or
obtained or has agreed to accept or attempted
to obtain for himself, or for any other person,
any gratification (other than legal remuneration)
or any valuable thing from any person, it shall be
presumed, unless the contrary is proved, that he
accepted or obtained or agreed to accept or
attempted to obtain that gratification or that
valuable thing, as the case may be, as a motive
or reward such as is mentioned in section 7 or,
as the case may be, without consideration or for
a consideration which he knows to be
inadequate.
(2) Where in any trial of an offence punishable
under section 12 or under clause (b) of section
14, it is proved that any gratification (other than
legal remuneration) or any valuable thing has
been given or offered to be given or attempted
to be given by an accused person, it shall be
presumed, unless the contrary is proved, that he
gave or offered to give or attempted to give that
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gratification or that valuable thing, as the case
may be, as a motive or reward such as is
mentioned in section 7, or as the case may be,
without consideration or for a consideration
which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-
sections (1) and (2), the court may decline to
draw the presumption referred to in either of the
said sub-sections, if the gratification or thing
aforesaid is, in its opinion, so trivial that no
interference of corruption may fairly be drawn.
1[120A. Definition of criminal conspiracy.--
When two or more persons agree to do, or cause
to be done,(1) an illegal act, or
(2) an act which is not illegal by illegal means,
such an agreement is designated a criminal
conspiracy:
Provided that no agreement except an
agreement to commit an offence shall amount to
a criminal conspiracy unless some act besides
the agreement is done by one or more parties to
such agreement in pursuance thereof.
Explanation.It is immaterial whether the illegal
act is the ultimate object of such agreement, or
is merely incidental to that object.]
[120B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy
to commit an offence punishable with death,
2[imprisonment for life] or rigorous
imprisonment for a term of two years or
upwards, shall, where no express provision is
made in this Code for the punishment of such a
conspiracy, be punished in the same manner as
if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy
other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be
punished with imprisonment of either description
for a term not exceeding six months, or with fine
or with both.]
Legal position on Section 7,13(1)(d) & 20 PC Act
42. Careful perusal of the aforementioned old
provisions of PC Act, 1988, shows that the demand of undue
advantage/illegal gratification is a sine qua non and mere
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receipt of amount by the accused is not sufficient to fasten
guilt in absence of any evidence with regard to demand and
acceptance of the amount as illegal gratification. In this
regard, I may also refer to the latest judgment of the
Hon'ble Apex Court in 'Soundarajan V State Rep. by the
Inspector of Police Vigilance Anticorruption Dindigul,
Criminal Appeal No. 1592 of 2022 decided on 17th
April, 2022', wherein it was observed as under:-
"9. It is well settled that for establishing the
commission of an offence punishable under
section of the PC Act, proof of demand of
gratification and acceptance of the gratification
is a sine qua non. Moreover, the Constitution
Bench in case of Neeraj Dutta has reiterated that
the presumption under section 20 of the PC Act
can be invoked only on proof of facts in issue,
namely, the demand of gratification by the
accused and the acceptance thereof.
12. There is no circumstantial evidence of
demand for gratification in this case. In the
circumstances, the offences punishable under
Section 7 and Section 13(2) read with Section
13(1)(d) have not been established. Unless both
demand and acceptance are established, offence
of obtaining pecuniary advantage by corrupt
means covered by clauses(1) and (ii) of Section
13(1)(d) cannot be proved."
43. In the Constitution Bench Judgment in "Neeraj
Dutta V State (Govt. of NCT of Delhi), 2022 SCC
OnLine SC1724', the Hon'ble Apex Court was to answer
the question framed for determination and while doing so
the Hon'ble Court discussed the entire gamut of law on the
provisions of Section 7, 13(1)(d) and 20 of PC Act, 1988 and
after referring to all its previous judgments on this issue, the
gist of the discussion was summarized by the Hon'ble Apex
Court in para 88 of the judgment, which reads as under:
" 88. What emerges from the aforesaid discussion is
summarised as under:
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88.1. (a) Proof of demand and acceptance of
illegal gratification by a public servant as a fact
in issue by the prosecution is a sine qua non in
order to establish the guilt of the accused
public servant under Section 7 or Sections
13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the
accused, the prosecution has to first prove the
demand of illegal gratification and the
subsequent acceptance as a matter offact. This
fact in issue can be proved either by direct
evidence which can be in the nature of oral
evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the
proof of demand and acceptance of illegal
gratification can also be proved by
circumstantial evidence in the absence of direct
oral and documentary evidence.
88.4. (d) In order to prove the fact in issue,
namely, the demand and acceptance of illegal
gratification by the public servant, the following
aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver
without there being any demand from the
public servant and the latter simply accepts the
offer and receives the illegal gratification, it is a
case of acceptance as per Section 7 of the Act.
In such a case, there need not be a prior
demand by the public servant.
(ii) On the other hand, if the public servant
makes a demand and the bribe-giver accepts
the demand and tenders the demanded
gratification which in turn is received by the
public servant, it is a case of obtainment. In the
case of obtainment, the prior demand for illegal
gratification emanates from the public servant.
This is an offence under Sections 13(1)(d)(i)
and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer
by the bribe giver and the demand by the
public servant respectively have to be proved
by the prosecution as a fact in issue. In other
words, mere acceptance or receipt of an illegal
gratification without anything more would not
make it an offence under Section 7 or Sections
13(1)(d)(i) and (ii), respectively of the Act.
Therefore, under Section 7 of the Act, in order
to bring home the offence, there must be an
offer which emanates from the bribe-giver
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which is accepted by the public servant which
would make it an offence. Similarly, a prior
demand by the public servant when accepted
by the bribe-giver and in turn there is a
payment made which is received by the public
servant, would be an offence of obtainment
under Sections 13(1)(d)(i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to
the demand and acceptance or obtainment of
an illegal gratification may be made by a court
of law by way of an inference only when the
foundational facts have been proved by
relevant oral and documentary evidence and
not in the absence thereof. On the basis of the
material on record, the court has the discretion
to raise a presumption of fact while considering
whether the fact of demand has been proved
by the prosecution or not. Of course, a
presumption of fact is subject to rebuttal by the
accused and in the absence of rebuttal
presumption stands.
88.6. (f) In the event the complainant turns
"hostile", or has died or is unavailable to let in
his evidence during trial, demand of illegal
gratification can be proved by letting in the
evidence of any other witness who can again
let in evidence, either orally or by documentary
evidence or the prosecution can prove the case
by circumstantial evidence. The trial does not
abate nor does it result in an order of acquittal
of the accused public servant.
88.7. (g) Insofar as Section 7 of the Act is
concerned, on the proof of the facts in issue,
Section 20 mandates the court to raise a
presumption that the illegal gratification was
for the purpose of a motive or reward as
mentioned in the said Section. The said
presumption has to be raised by the court as a
legal presumption or a presumption in law. Of
course, the said presumption is also subject to
rebuttal. Section 20 does not apply to Sections
13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law
under Section 20 of the Act is distinct from
presumption of fact referred to above in sub-
para 88.5(e), above, as the former is a
mandatory presumption while the latter is
discretionary in nature."
44. After laying down the aforementioned
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parameters, the Hon'ble Apex court answered the referred
questions in para 90 of the judgment and same is also
reproduced as under :
"90. Accordingly, the question referred for
consideration of this Constitution Bench is
answered as under:
In the absence of evidence of the complainant
(direct/primary, oral/documentary evidence) it is
permissible to draw an inferential deduction of
culpability/guilt of a public servant under
Section 7 and Section 13(1)(d) read with Section
13(2) of the Act based on other evidence
adduced by the prosecution."
45. Here I may also refer to the judgment in Neeraj
Dutta case which came to be passed by Hon'ble Apex Court
in Crl. Appeal no. 1669/2009 decided on 17.03.2023
(2023 SCC OnLine SC 280), after the decision of the
Constitution Bench on the aforementioned reference
decided on 15.12.2022 (2023 (4) SCC 731). In said
decision of Hon'ble Division Bench, the impugned order of
Hon'ble High Court confirming the judgment of conviction
passed by the Special Court whereby, the accused was
convicted under Section 7 and clause (i) and (ii) of 13(1)(d)
r/w Section 13(2) of PC Act, 1988, was set aside by holding
that "there are no circumstances brought on record which
will prove the demand for gratification. Therefore, the
ingredient of Section 7 of PC Act were not established and
consequently the offence under Section 13(1)(d) PC Act will
not be attracted". While setting aside the judgment of
conviction some important observations were made by the
Hon'ble Apex court and same are contained in following
paras of the judgment:-
"13. Section 7, as existed prior to 26 th July
2018, was different from the present Section 7 .
The unamended Section 7 which is applicable in
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the present case, specifically refers to "any
gratification". The substituted Section 7 does not
use the word "gratification", but it uses a wider
term "undue advantage". When the allegation is
of demand of gratification and acceptance
thereof by the accused, it must be as a motive
or reward for doing or forbearing to do any
official act. The fact that the demand and
acceptance of gratification were for motive or
reward as provided in Section 7 can be proved
by invoking the presumption under Section 20
provided the basic allegations of the demand
and acceptance are proved. In this case, we are
also concerned with the offence punishable
under clauses (i) and (ii) Section 13(1)(d) which
is punishable under Section 13(2) of the PC Act.
Clause (d) of subsection (1) of Section 13, which
existed on the statute book prior to the
amendment of 26th July 2018, has been quoted
earlier. On a plain reading of clauses (i) and (ii)
of Section 13(1)(d), it is apparent that proof of
acceptance of illegal gratification will be
necessary to prove the offences under clauses
(i) and (ii) of Section 13(1)(d). In view of what is
laid down by the Constitution Bench, in a given
case, the demand and acceptance of illegal
gratification by a public servant can be proved
by circumstantial evidence in the absence of
direct oral or documentary evidence. While
answering the referred question, the
Constitution Bench has observed that it is
permissible to draw an inferential deduction of
culpability and/or guilt of the public servant for
the offences punishable under Section 7 and
13(1)(d) read with Section 13(2) of the PC Act.
The conclusion is that in absence of direct
evidence, the demand and/or acceptance can
always be proved by other evidence such as
circumstantial evidence.
14. The allegation of demand of gratification and
acceptance made by a public servant has to be
established beyond a reasonable doubt. The
decision of the Constitution Bench does not
dilute this elementary requirement of proof
beyond a reasonable doubt. The Constitution
Bench was dealing with the issue of the modes
by which the demand can be proved. The
Constitution Bench has laid down that the proof
need not be only by direct oral or documentary
evidence, but it can be by way of other evidence
including circumstantial evidence. When reliance
is placed on circumstantial evidence to prove
the demand for gratification, the prosecution
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must establish each and every circumstance
from which the prosecution wants the Court to
draw a conclusion of guilt. The facts so
established must be consistent with only one
hypothesis that there was a demand made for
gratification by the accused. Therefore, in this
case, we will have to examine whether there is
any direct evidence of demand. If we come to a
conclusion that there is no direct evidence of
demand, this Court will have to consider whether
there is any circumstantial evidence to prove the
demand.
46. It is one of the fundamental principles of criminal
jurisprudence that an accused is presumed to be innocent
till he is proved to be guilty. It is equally well settled that
suspicion howsoever strong can never take the place of
proof. There is indeed a long distance between accused
'may have committed the offence' and 'must have
committed the offence' which must be traversed by the
prosecution by adducing reliable and cogent evidence.
Presumption of innocence has been recognized as a human
right which cannot be washed away. Thus the prosecution
has to establish all essential of charge framed to allay this
presumption of innocence. Reliance in this regard has been
placed on the judgment in Kailash Gour v. State of
Assam 2012 (1) LR C (SC).
47. In the same very judgment in Kailash Gour v.
State of Assam (Supra), Hon'ble Apex Court also referred to
Shakila Abdul Gafar Khan v. Vasant Raghunath
Dhoble (2003) 7 SCC 749 wherein, the Hon'ble Apex Court
discussed as to what all should be taken into consideration
and what should be the approach of trial court in criminal
trial and the court observed as under:
"The Courts exist for doing justice to the
persons who are affected. The trial/first
appellate courts cannot get swayed by abstract
technicalities and close their eyes to factors
which need to be positively probed and noticed.
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The court is not merely to act as a tape recorder
recording evidence, overlooking the object of
trial i.e. to get at the truth, and oblivious to the
active role to be played for which there is not
only ample scope but sufficient powers
conferred under the Code. It has a greater duty
and responsibility i.e. to render justice in a case
where the role of the prosecuting agency itself
is put in issue.'
48. Evidence is the only way to prove or disprove
anything and oral testimony apart from the documentary
evidence are the ways through which evidence is brought on
record. Where oral testimony is relied upon, then the
credibility of the witnesses becomes very important. It is to
be seen whether the witnesses are trustworthy, reliable,
narrate factual position in a proper way, truthful and that he
or she is not irresponsible or reckless or that he or she has
no mala fides, ulterior motive in deposing a particular fact
for or against a particular person or a particular act or
incident. Thus, the oral evidence has to undergo this acid
test.
49. Further while invoking the provision 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 reasonable doubt. However,
before the accused is to call upon to explain as to how the
amount in question was found in his possession, the
foundational facts must be established by the prosecution.
The complainant is an interested and partisan witness
concerned with the success of the trap and his evidence
must be tested in the same way as that of any other
interested witness and in a proper case, the court may look
for independent corroboration before convicting the accused
persons. Reliance in this regard is placed on Mukut Bihari
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& ors. v. State of Rajasthan (2012)11 SCC 642.
50. In the instant case, one of the foremost
contention raised by the Defence to challenge the credibility
of the prosecution case is the inadmissibility of the
electronic evidence adduced on record by the prosecution.
It is vehemently argued that since there is no eye witness to
the alleged demand of money raised by the accused, the
telephonic conversations exchanged between complainant
and accused no.1 and between accused no.1 and accused
no.2, which are alleged to be incriminatory in nature, have
been sought to be proved through electronic evidence in
the form of audio recordings contained in the four electronic
devices Q-1, Q-2, Q-3 & S-4. But, none of these electronic
evidences have been proved in accordance with law and
hence, they are not admissible in evidence.
Criterion for determination of credibility, admissibility
and sufficiency of evidence in trap cases
51. Before delving deep into the evidence adduced
on record, it is necessary to recount again that mere
possession and recovery of currency notes from accused
without proof of demand would not establish the offence
under Section 7 or 13(1)(d)(i)& (ii) of PC Act. In absence of
any proof of demand of illegal gratification, the use of
corrupt or illegal means or abuse of position as a public
servant to obtain any valuable thing or pecuniary advantage
cannot be held to be proved. Not only the proof of demand
thus is held to be an indispensable element but it is
essentially an inflexible statutory mandate for establishing
offences under aforementioned provisions. Further, any
presumption of Section 20 of Act would also arise only on
proof of such demand. The proof of demand of illegal
gratification is thus, the gravemen of offence under Section
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7,8 and 13(1)(d)(i)& (ii) of PC Act. Reliance in this regard is
placed on judgment of Hon'ble Apex Court in P.
Sathyanarayana Murthy v. District Inspector of Police,
State AP and another 2015 10 SCC 152.
52. At the cost of repetition, I may note again that
the complainant in the case of trap is the interested witness
on the side of prosecution and thereby, his evidence should
be carefully scrutinized and unless his version is
corroborated by some cogent evidence, the case of
prosecution should not be accepted. Therefore, the solitary
evidence of the complainant without proper corroboration
cannot be believed to record conviction.
53. With regard to appreciation of evidence in a trap
case, the legal position was summarized by the Hon'ble
Madras High Court in 'K.P.Kolanthai vs State By
Inspector Of Police in Crl. Appeal no. 693 of 2008
decided on 09.08.2019' as under : -
"12. At the outset, the legal position, which
emerges regarding appreciation of evidence in a
trap, can be summarized as under:-
(i) To succeed in such a case, the Prosecution is
obliged to prove the demand of bribe before and
at the time of trap, its acceptance and the
recovery of tainted money.
(ii) The demand can be proved by testimony of
the complainant as well as from the complaint
made by him and other witnesses if proved in
accordance with law and if it is corroborated in
material particulars.
(iii) A presumption as to the demand of bribe can
also be drawn if the tainted money i.e. the
money tendered as bribe money is recovered
from the possession of the accused, which
presumption, of course, is rebuttable under
Section 20 of the Prevention of Corruption Act,
1988.
(iv) If the accused gives some defence, that can
be scrutinized by the test of preponderance of
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probability, while the Prosecution must prove its
case beyond all reasonable doubt."
13.The genesis of a trap lies in the previous
demand of bribe made by the accused from the
complainant, which becomes the basis of laying
a trap by the investigating agency. Then, it is for
the Prosecution to, again, prove the demand at
the time when the trap was laid and thereafter,
the question of acceptance and recovery of bribe
money also is required to be proved beyond all
reasonable doubts."
54. In order to truly understand the contentions
raised by the parties with regard to the case being proved or
not proved on essential ingredients of demand and
acceptance, we need to now dwell deeper into various
aspects of credibility, admissibility and sufficiency of the
prosecution evidence led on record, in the light of
aforementioned legal position on appreciation of evidence. I
would be evaluating the evidence under various heads in the
light of broad defence arguments. The crucial aspect for
determination would be ingredient of demand, manner of
verification and spot transaction.
55. In so far as the essential ingredient of demand of
illegal gratification is concerned, there are two sets of direct
evidence, which have been adduced by the prosecution. The
first direct evidence available on record is the oral /ocular
evidence in the form of verbal testimony of the complainant.
The second direct and primary evidence adduced on record
is the electronic/documentary evidence in the form of
recordings of telephonic conversation contained in
complainant's mobile phone (Q-3) of the calls exchanged
between complainant and accused no.1 prior to filing of
complaint i.e. on 14th, 15th, 16th, 22nd, 29th December 2014,
3rd December 2014 and the DVR (Q-2), which was used for
recording of verification calls made by the complainant to
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accused no.1.
56. In R.L.Malkhani v. State of Maharashtra
reported as 1973 (1) SCC 471, Hon'ble Apex Court has
made it clear that electronically recorded conversation is
admissible in evidence provided it is relevant in the issue
and the voice is identified and the accuracy of recorded
conversation is proved by eliminating the possibility of
eraser, addition or manipulation. Giving an example, the
court pointed out that when it was disputed or in issue
whether a person's speech on a particular occasion
contained a particular statement there could be no more
direct or better evidence of it than its tape record, assuming
its authenticity to be duly established. In view of the above,
the settled legal proposition is that evidence of a recorded
conversation being primary and direct can be used to
establish what was said by a person at a material time
/occasion.
57. As per the prosecution case, the recorded
telephonic conversation contained in CDs/ mobile phone/
DVR have been duly proved on record by adducing sufficient
primary evidence such as DVR (Q-2) and complainant's
mobile phone i.e. Q-3 (Ex. P-5) as well as through secondary
evidence in the form of one CD S-4 (Ex.P-6) seized from
complainant containing copy of recorded telephonic
conversation from his mobile phone and another CD Q-1 (Ex.
P-9) seized from Special Unit, CBI containing recorded
telephonic conversation of intercepted calls of mobile phone
of accused no.1.
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Evaluation of evidence on the alleged demand for illegal
gratification, pre-complaint or post-complaint
58. As per prosecution case, accused no.2 was
investigating a bank fraud case RCBD1/2013/E.0002, which
was registered in BS&FC, New Delhi on 28.02.2013. In said
case, accused no.1 was helping accused no.2 as Technical
Officer (Banking). It is alleged by CBI that both the accused
no.1 and 2 in conspiracy with each other raised the demand
of Rs. 25 lakh from the complainant to exonerate him in said
case and said demand was raised through accused no.1,
who kept asking the complainant to pay the demanded sum
by making repeated telephonic calls. Subsequently, when
complainant expressed his inability to pay said huge
amount, the demand was reduced to Rs. 10 lakh, which was
agreed to be paid to accused no.1 in two installment of Rs.
5 lakh each in Delhi. In this connection various telephonic
calls were exchanged between the complainant and accused
no.1, few of which allegedly made on 14.12.2014,
15.12.2014, 16.12.2014, 22.12.2014 and 29.12.2014 and
03.01.2015, were recorded by complainant in his mobile
phone Q-3 as he decided to lodge a complaint in this regard.
59. On 04.01.2015, complainant came to Delhi and
lodged the complaint to CBI, upon which verification was
done vide verification memo Ex. PW1/B and after the
allegations of the complaint were found to be genuine and
true, the instant FIR Ex. PW1/C was lodged and the
investigation was taken up. A trap was laid by CBI team by
joining two independent witness namely, Nitin Narang and
Pradeep Kumar Sharma, who were also part of verification.
Nitin Narang was joined as a shadow witness with
instructions to stay close to the complainant to overhear the
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likely conversation between the accused and complainant.
The pre-trap proceedings were recorded in pre-trap memo
Ex. PW-1/E. Both the verification and trap proceedings were
done on the very same date of the complaint i.e. on
04.01.2015.
60. At the time of verification, complainant was
asked to make call from his mobile no. 7789911901 to
accused no.1 on his mobile no. 9868394358 while keeping
his phone on speaker mode. The said call was heard by CBI
verification team including the abovementioned two
independent witnesses and simultaneously, it was also
recorded in the DVR (Q-2). As per charge-sheet, during
investigation, it came to the knowledge of IO that mobile
phone of accused no.1 was kept on surveillance and the
calls of his (accused no.1) mobile phone were intercepted by
Special Unit of CBI w.e.f. 03.01.2015 with the permission
order dated 02.01.2015 of Secretary, Ministry of Home. The
CD of 11 intercepted calls i.e. Q-1 was seized by the IO from
SI Suraj Majumdar on 09.01.2015 vide seizure memo Ex.
PW25/A. On the very same date i.e. on 09.01.2015,
complainant also produced his mobile phone i.e. Q-3
alongwith the memory card and battery and also handed
over one CD (S-4) of recorded calls of his mobile pone,
prepared by him with his certificate under Section 65-B of
Indian Evidence Act and all said items were also seized by IO
vide seizure memo Ex. PW1/9 dated 09.01.2015.
61. However, as per CBI's own case except the
complainant himself, there is no eye witness to any of the
alleged demands of bribe raised by accused no.1 either at
any time prior to lodging of complaint or at the time of
verification or even at the time of trap. As per prosecution
case, complainant alone is privy to the telephonic
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conversations exchanged between him and accused no. 1 on
various date in December, 2014 and till the complaint was
lodged by him with CBI on 04.01.2015. As regard the
verification done on 04.01.2015, the same was done
telephonically on the call made by complainant to accused
no.1 in the presence of independent witnesses and
verification officer. With regard to alleged demand at the
time of trap, admittedly at that time, the shadow witness
Nitin Narang was sitting in complainant's car and while
sitting there he only saw the accused no. 1 accepting the
envelope containing tainted money from the complainant
and admittedly, he did not hear what all transpired between
the complainant and accused no.1 before the money was
handed over to him (accused no.1).
62. For more clarity, the evidence adduced by the
prosecution on the alleged demand raised at three different
stages of the case has been summarized as under :-
(A) For the alleged demand raised prior to filing of
complaint on 04.01.2015, the prosecution is relying
upon following evidences:-
1. Oral testimony of Complainant, which is in the nature
of direct evidence.
2. Electronic evidence of complainant's mobile phone (Q-
3) containing following 06 voice recording files in its internal
storage in the nature of direct/primary evidence :-
(a) voice 0001 dated 14.12.2014 at 06.16 PM
(b) voice 0005 dated 15.12.2014 at 05.07 PM
(c) voice 0006 dated 16.12.2014 at 09.26 PM
(d) voice 0008 dated 22.12.2014 at 10.01 AM
(e) voice 0010 dated 29.12.2014 at 09.23 AM
(f) voice 0011 dated 03.01.2015 at 06.13 PM
3. Electronic evidence of CD moserbaer (Q-1) containing
copy of above mentioned 06 voice recordings with
corresponding transcription of conversations contained in
said CD, is in the nature of secondary evidence.
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4. The expert report Ex.PW-8/A regarding voice
identification of the speakers of the alleged conversation in
Q-3, which is in the nature of corroborative evidence on the
identification of voice of speakers of said conversation.
(B) For alleged demand of gratification raised at the
time of verification on 04.01.2014, CBI's case rests
upon following evidences:-
(1) Testimony of complainant (direct/oral evidence).
(2) Testimony of witnesses, who were present at the time
of verification and heard the telephonic conversation
exchanged between complainant and accused no.1 and
same is in the nature of direct oral evidence.
(3) Electronic evidence of DVR i.e. Q-2 (Ex.P-4), where
said calls were recorded in the internal memory of DVR, is in
the nature of primary and direct evidence.
(4) Electronic evidence of CD make Sony i.e. Q-1 (Ex. P-1)
supplied by Special Unit, CBI on 09.01.2015, containing 11
calls in 11 different files including the verification call of
04.01.2014, is in the nature of secondary evidence.
(5) Expert report Ex. PW8/A regarding voice identification
of the alleged speakers of Q-1 and Q-2, proved through PW-
8 Dr. Rajinder Singh (corroborative evidence).
(C) For the alleged post trap telephonic
conversation between of accused no.1 and accused
no.2 for showing the complicity of accused no.2 in the
alleged offence of conspiracy of demand of illegal
gratification, CBI has relied upon following oral and
documentary evidences: -
(1) Testimony of complainant and other witnesses of trap
in whose presence the alleged call was made by accused
no.1 to accused no.2 on the asking of CBI and same is in the
nature of direct /ocular evidence.
(2) Electronic evidence of CD make Sony i.e. Q-1 (Ex. P-9)
provided by Special Unit, CBI containing 11 calls including
the aforementioned post trap call made by accused no.1 to
accused no.2 and same is in the nature of secondary
evidence.
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(3) Expert report Ex. PW8/A, regarding voice identification
of the alleged speakers of the telephonic conversation of
aforementioned post trap call exchanged between accused
no.1 and accused no.2, contained in CD Q-1 (corroborative
evidence).
63. In relation to abovementioned
electronic/documentary evidence, prosecution has examined
many other witnesses, whose testimonies are in the nature
of link evidence, e.g the testimony of Nodal Officer of service
provider telecommunication companies, who had brought
the record of CAF, CDR, Call location chart etc of the mobile
phones used by the accused and the complainant at the
relevant time for the alleged transaction. Likewise, the
deposition of witnesses examined from Dena Bank,
Syndicate Bank and BS&FC, New Delhi in relation to official
record pertaining to the complainant and accused persons
maintained in their respective department where they were
employed at the relevant time, is also in the nature of
connecting evidence. The said link evidences adduced on
record, shall assume importance to lend support to the
prosecution case only after the prosecution succeeds in
proving the aforementioned electronic evidence in
accordance with law. That is, the prosecution has to first
prove the relevancy and admissibility of said telephonic
conversations and then, the same has to be proved through
competent witnesses in accordance with law.
Evaluation of ocular testimony of complainant on
demand
64. To prove the alleged demand of gratification
raised from complainant, the prosecution has examined PW-
1/complainant K.V.Singh, who came up with the direct
evidence in the form of his oral testimony. Besides that,
prosecution also sought to prove on record the
aforementioned documentary evidences both primary (Q-2
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and Q-3) as well as secondary evidence (Q-1 and S-4) as
mentioned in the preceding para.
65. As per the version of PW-1/complainant
K.V.Singh, on 04.12.2014, when he was posted as Regional
Manager in Bhopal, he had received a telephonic call from
mobile phone of accused no. 1, who asked him to meet him
in Delhi in connection with the case of M/s HRM Pvt. Ltd.
(RCBD1/2013/E.0002). Again on 05.12.2014, PW1 was
persuaded by accused no.1 to come over at the earliest.
Accordingly, complainant reached Delhi on 06.12.2014 and
as instructed by accused no.1, he met accused no.1 at
McDonald outlet in Sector 18, Noida. In said meeting, PW1
was asked to pay Rs.25 lakh by accused no.1, who also
warned him (PW-1) that otherwise, he would be in deep
trouble. When complainant expressed his inability to pay
said amount, accused no.1 made 2-3 calls to somebody and
thereafter, he (A-1) brought down the demand to Rs. 10 lakh
subject to confirmation to be made by him on 08.12.2014 for
which he said that he would call him (complainant) on
Monday i.e. 08.12.2014.
66. As per deposition of PW-1, accused no.1 again
made a call in the evening on 08.12.2014 and confirmed the
demand of Rs. 10 lakh and asked the complainant to
arrange said money within 4-5 days. But, the complainant
expressed his inability to arrange even that amount of Rs.
10 lakh. PW-1 in his examination in chief further deposed
that when he (PW-1) realized that it was being stretched too
long to do a wrong thing, which he did not want to do,
therefore, he thought of recording the conversation between
him and accused no. 1 on his mobile phone which was
having a recording facility. Thereafter, PW-1 recorded the
calls received from accused no.1 on 14th, 15th, 16th, 22nd
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and 29th December, 2014, wherein complainant was
pressured to pay the demanded money and he was even
offered to pay the money in two installments of Rs. 5 lakh
each.
67. Here, we may note that the complainant
although has not deposed anything about the 3 rd January,
2015 call exchanged between him and accused no.1,
wherein he informed him regarding his visit to Delhi on
04.01.2015 but, the storage of his mobile phone (Q-3) does
contain the recording of said call of 3 rd January, 2015.
Although an argument has been raised that the said
inconsistency in the evidence raises a doubt on the
credibility of the prosecution case, but I do not find it of
much consequence as a person cannot be expected to have
a mirror memory and to depose like a parrot. Even
otherwise, the 3rd January, 2015 call has been duly recorded
in the complainant's mobile phone, which is a direct primary
evidence and if proved in accordance with law, the
genuineness of the same cannot be doubted merely
because the complainant has failed to mention it in his
complaint. Moreover, complainant in his examination-in-
chief has duly mentioned that on 03.01.2015, he again
received a call from accused no.1, who asked him to arrange
the demanded money at the earliest and it is only
thereafter, he decided to lodge the complaint with the CBI.
68. PW-1 further testified that on 04.01.2015, he
reached Delhi and made a complaint to CBI vide his
complaint Ex. PW-1/A. Complainant duly proved his
complaint by identifying his signature on the same at point
A. In his examination in chief, PW-1 further deposed that
verification was done by Inspector Shailender Kumar in the
presence of two independent witness, Mr. Narang from PNB
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and Mr. Pradeep Kumar from DDA, who were shown the
complaint and explained the purpose of verification.
69. PW-1 deposed further that complainant's voice
and voice of said witnesses were recorded in the recording
device. Thereafter, complainant made a call to accused
no.1. The first call was disconnected. The second call was
however, picked up and during said call accused no.1 asked
the complainant/PW-1, if he had reached Delhi, to which
complainant answered in affirmative. Thereafter, accused
no.1 asked about the money to which PW-1 said he was in
the process of arranging it but he would deliver it on that
very day as he had to join his office on the next day.
Thereafter, accused no.1 asked him to deliver said money at
the same place where they had met earlier. PW-1 deposed
that after that DVR was switched off and replayed by
Inspector Shailender Kumar Verma in the presence of
complainant and independent witnesses. The verification
proceedings were recorded in the verification memo Ex. PW-
1/B. After confirmation/verification of demand, the instant
FIR Ex.PW1/C was registered.
70. As per the deposition of complainant/PW-1, the
verification was done at Akbar road office of CBI and
thereafter, both the complainant and the independent
witnesses reached at the CBI office at 8th floor in the office
of DSP Vipin Kumar Verma. The other team members of CBI
were also present in said office and they were introduced
with the complainant and the independent witnesses and
thereafter, the entire CBI team was shown the complaint,
the FIR and their contents were read out to everyone and
recording of conversation made during verification was also
played.
71. As per complainant's version, his mobile phone
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with memory card etc were seized vide seizure memo dated
09.01.2015 Ex. PW1/G (D-14) bearing his signature at point
'A' alongwith CD of recorded calls of his mobile phone
prepared by him and his supporting certificate under Section
65 B Indian Evidence Act. Complainant identified his
signature on said certificate and proved it on record as
Ex.PW1/H. Complainant also proved on record the specimen
voice memo dated 12.01.2015 Ex.PW1/J vide which his
sample voice was recorded by asking him to speak the text
written on the paper sheet Ex. PW1/K both bearing his
signature at point A.
72. During his examination, PW-1/complainant was
shown the mobile phone HTC Desire 500 dual SIM 5060,
which he identified to be his mobile phone upon which he
had recorded the calls made by accused no.1. The identified
mobile phone was exhibited as Ex. P-5. On removing the
back cover, the mobile phone was found containing one
micro SD card make SanDisk of 8 GB and shown to PW-1,
PW-1 stated that he had recorded the conversation between
him and accused B. Sambi Reddy on said memory card. PW-
1 also identified the CD of Moser baer shown to him during
his examination and stated that on that CD, he had
transferred the recorded calls of his mobile phones, which
he had made to accused no.1 or received from him (accused
no.1).
73. The Defence has raised an argument that the
complainant's testimony is not in consonance with the
forensic report Ex. PW8/A, wherein, the telephonic calls of
the pre-complaint period were found to have been stored in
the internal storage of the complainant's mobile phone HTC
Desire 500 Dual Sim 5060, whereas, as per complainant's
version, the same were recorded on the memory card of his
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mobile phone. However, in my considered view, said
discrepancy is not touching the core issue. Even otherwise,
for a layman it is difficult to understand as to where the data
in his device is getting stored whether it is in the internal
storage of the device or on the external storage device like
memory card. Again such understanding about electronic
devices and gadget varies from person to person and it
largely depends on how technology savvy he or she is.
Furthermore, the version of the complainant to the effect
that his mobile phone was having a recording facility,
though there was no automatic recording, shows that it was
recorded in his device either in the internal memory of the
phone itself or on the memory card used in the mobile
phone.
74. As per record, during examination of
complainant, his mobile phone (Q-3) Ex. P-5 produced by
MHC(M) was switched on and connected with the laptop of
CBI and it was found containing 06 voice files i.e. voice file
0001,0005,0006,0008, 0010 and 0011 and complainant
correctly identified his voice and that of accused no.1 in said
voice file recordings and also identified the respective
conversation of said voice files to be the same as mentioned
in their corresponding transcripts contained in the document
(D-31), which are available on record as Ex. PW1/L to PW1/Q
respectively.
75. As per the evidence recorded on 18.04.2017,
during examination of PW-1, DVR (EX. P-4) make Soni model
no. ICD-UX-533F produced by MHC(M) was played in the
court with the help of write blocker and it was found
containing 05 voice calls i.e. file 150104_001.mp3 to
150104_005.mp3, out of which first 03 files were found
containing introductory voice of the independent witnesses
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and that of complainant speaking about his complaint. Only
voice file 150104_004.mp3 of 3 minutes 21 seconds
duration is the relevant conversation of the verification call
between the complainant and accused no.1 and after
hearing said conversation, PW-1 identified his voice and that
of accused no.1 and he/PW-1 also compared it with the
transcription Ex.PW1/R and he found it to be correct
transcription of the conversation contained in said voice file.
76. As already noted above, in trap cases,
complainant's testimony being that of a partisan witness,
cannot be solely sufficient to record conviction and thus, it
has to be corroborated on material particulars by some
independent evidence for seeking reliance and conviction on
that basis. In the instant case, there is no eye witness to the
alleged demand of gratification raised from the complainant.
The call recording allegedly made by the complainant in his
mobile phone (Q-3) of the calls exchanged between him and
accused no.1 prior to filing of complaint is the corroborative
evidence as far as the alleged demand of pre-complaint
period is concerned.
77. In respect of the alleged demand raised at the
time of verification, the recording contained in DVR Ex.P-4
(Q-2) has been relied upon to corroborate the version of
complainant and other witnesses of verification regarding
content of conversation of the verification call allegedly
made by the complainant by keeping his mobile phone on
speaker mode.
78. It is an admitted position on record that the DVR
used to record the verification call was also carried by the
trap team at the time of trap but, it was not handed over to
the complainant to record his likely conversation with
accused no.1 on the spot. In this regard, the explanation
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put forward by the TLO for said omission on his part, looks
convincing as he said that on account of constant change of
venue of meeting by the accused no.1 for taking delivery of
bribe amount from the complainant, the DVR could not be
given to complainant as the complainant was traveling in a
different vehicle and the DVR was to be given to him
(complainant) only after reaching near the place of meeting,
which was earlier fixed as Sector 18, Noida. However, since
the venue got subsequently changed by the accused no.1,
the complainant had to stop his vehicle immediately after
red light of Mayur Vihar metro station, as per the instruction
of accused no.1. Therefore, the DVR kept lying with the CBI
team at the time of trap and could not be handed over to
the complainant.
Analysis of defence argument on delay in seizure of
complainant's mobile phone
79. It has been vehemently contended by the
defence that despite the fact that complainant had duly
mentioned in his complaint Ex. PW1/A, about his having
recorded the alleged calls exchanged between him and
accused no.1 on 14th, 15th, 16th, 22nd, 29th December 2014,
neither the verification officer bothered to hear said
conversation to verify the allegations of the complaint nor
the verification officer or the trap laying officer cared to
seize the complainant's mobile phone, where said calls were
allegedly recorded. As per the case of CBI, the complaint
Ex. PW1/A was lodged on 04.01.2015 and both the
verification as well as the trap proceedings were conducted
on the very same date of the complaint i.e on 04.01.2015.
Whereas, as per production-cum-seizure memo Ex.PW1/9,
the mobile phone of the complainant was seized on
09.01.2015. On the same very date i.e 09.01.2015, vide
same very memo Ex. PW1/6, one CD of moserbaer of
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recorded conversation alongwith certificate of Section 65-B
of Indian Evidence Act was also seized by the IO from the
complainant. As per said production-cum-seizure memo Ex.
PW1/9, the data of said CD was transferred to another CD by
the IO through his laptop for the purpose of investigation
and thereafter, the original CD, produced by the
complainant was sealed by the IO.
80. It has been argued that there is no explanation
rendered on record for said delay in seizing the
complainant's mobile phone especially, when CBI was aware
about the existence of said recordings made by the
complainant in his mobile phone from the very contents of
the complaint dated 04.01.2015 and that too when
verification officer/TLO/IO were not aware about the
existence of any other evidence in respect of the alleged
pre-complaint demands raised by the accused. It has been
argued that the IO/TLO/Verification officer were not aware of
the recordings done by the Special Unit of CBI of the
intercepted calls of the mobile phone of accused no.1 and
the knowledge about the interception was gained by IO
Inspector Lalit Phullar only on 09.01.2015, pursuant to which
he seized the CD of intercepted calls from Sub-Inspector
Suraj Majumdar on 09.01.2015 vide seizure memo Ex.
PW5/A.
81. To determine what weight can be attached to
the above argument, we should keep in mind the common
course of things i.e. how the things usually happen and how
people act and behave in common course of events. The
complainant in the instant case was posted as Zonal
Manger, Dena Bank in Bhopal at the relevant time. On
account of his extremely busy schedule, he was not finding
time to visit Delhi despite repeated phone calls of accused
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no.1. Ultimately he decided to lodge the complaint against
accused no.1 and came to Delhi for said purpose on the
weekend i.e. on 04.01.2015 as his leaves were not
sanctioned. The complaint was lodged on the same date i.e.
04.01.2015. Both the verification and trap were also done
on the very same date. On 05.01.2015, complainant went
back to Bhopal to join his duties. On account of the fact that
complainant was away from his home and he was working at
the level of Zonal Manager, Dena Bank in Bhopal, it would
not have been feasible for him to immediately hand over his
phone to the trap team of CBI as it might be containing a lot
of official data. Even otherwise, there is not much delay in
handing over of mobile phone as the same was produced by
complainant just after 05 days of the trap i.e. on 09.01.2015.
In said factual scenario on record, not much significance can
be attached to the delay in seizure of mobile phone of
complainant and same in my considered view is not going to
adversely affect the prosecution case.
Corroborative material other than recordings of
complainant's mobile phone, on the alleged demand
raised during the month of December, 2014
82. As noted in the aforementioned judgment in
K.P.Kolanthai (supra), in a trap case for proving the
charges under Section 7 or 13(i)(d) PC Act 1988
(unamended provision), the prosecution has to prove the
essential ingredient of demand of illegal gratification, both
prior to the filing of the complaint as well as at the time of
trap. As already noted, the complainant had been recording
the telephonic conversation between him and accused no.1
on various dates prior to lodging of complaint, which
allegedly carry incriminatory material to show that accused
no. 1 had been raising illegal demand for bribe from
complainant in lieu of favouring him and exonerating him
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from the prosecution in the bank fraud case
RCBD1/2013/E.0002. As complainant did not want to be a
part of said wrong doings, he decided to report the matter to
police and ultimately filed a complaint against accused no.1
with the CBI on 04.01.2015, upon which verification was
done by the verification officer on the very same date and
even the trap proceedings were conducted in the evening of
very same date after the allegations contained in the
complaint were verified and found to be true.
83. As far as pre-complaint allegations of demand
of gratification are concerned, complainant is the only
witness to said demand and he in his examination-in-chief
has come up with the consistent version and deposed more
or less on the lines of contents of his complaint and the
defence has failed to elicit anything in his cross-examination
to shake the credibility of his version in this regard. As per
prosecution case, accused no.1 first approached the
complainant telephonically on 04.12.2014 by making a call
from his number 9868394358 to the complainant on his
mobile phone number 7389911901 and asked him to meet
him in Delhi in connection with the aforementioned case.
Pursuant thereto, on 06.12.2014 complainant came to Delhi
and met accused no.1 at McDonald Restaurant, Sector 18,
Noida. During said meeting a demand of Rs.25 lakh was
raised to exonerate the complainant in the above mentioned
case. On 08.12.2014, said demand was reduced to Rs.10
lakh and complainant was accordingly informed on his
mobile phone and was given 4-5 days time to arrange the
same. It is thereafter, the complainant allegedly started
recording the calls received from the accused no.1 as he did
not want to be part of said wrong doings and wanted to
lodge a complaint against accused no.1.
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84. To corroborate the complainant's version
regarding his alleged visit to Delhi on 06.12.2014, when the
demand for illegal gratification of Rs. 25 lakh was raised for
the first time, the prosecution has placed on record the call
location chart of the complainant's mobile phone
7389911901, which has been proved on record by Nodal
Officer PW-5 Surender Kumar from Bharti Airtel Limited, who
identified the signature of the concerned Nodal Officer
Vishal Gaurav on the letter dated 23.01.2015 vide which
Vishal Gaurav had handed over CDR details of the phone
numbers 7389911901 (attributed to complainant K.V.Singh)
and 9868394358 (attributed to accused no.1 B.Sambi
Reddy) and proved the same as Ex.PW5/C. Vide same very
letter, the location chart and CAF of the aforementioned
mobile phone attributed to the complainant was also
provided to CBI. He also identified the signature of
concerned Nodal Officer on the certificate Section 65-B of
Indian Evidence Act, Ex. PW5/B filed in support of the
aforementioned computer generated documents.
85. Perusal of the CDR Ex. PW5/C, has shown that
there was exchange of 04 calls on 06.12.2014 between the
aforementioned mobile phones attributed to complainant
and accused no. 1. Further the cell location ID of the mobile
phone of the complainant mentioned against the call of
06.12.2014 made at 12:45:31 of duration 16 seconds is
showing the cell ID of complainant's mobile phone as
32032_29360 and that of accused no.1 32032_7320 and as
per Cell ID Chart, which is also part of Ex. PW5/C (page no.
23), the location of both the said mobile phones at the time
of said call was in the vicinity of Noida, Sector 18, which is
lending support to the complainant's version that he had
visited Delhi on 06.12.2014 and met accused no.1 as in
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McDonald Restaurant, located in Sector-18, Noida where the
alleged demand of Rs. 25 lakh was raised.
Discussion on Defence argument on false implication of
accused
86. The defence counsels, have tried to raise a
challenge on the credibility of complainant's version on the
ground that complainant was having grudges against the
accused no.2 Sanjay Kumar Jha and accused no.2 B.Sambi
Reddy because they had recommended prosecution against
him in the aforementioned bank fraud case
RCBD1/2013/E.0002, which the accused were investigating.
In this regard, the defence counsels have drawn the
attention of the court to Ex. PW9/A, containing the copy of
the charge-sheet, list of witnesses and list of documents the
FIR of aforementioned bank fraud case. At page no. 170 of
Ex. PW9/A, there is a table of recommendations given
against accused persons by the IO of said case i.e. the
accused no. 2 herein and by the Sr. PP of CBI. Against the
name of the complainant Kanwar Virender Singh mentioned
as Sr. A-5 of said table, the recommendation given by the
IO/accused no.2 is for prosecution of complainant under
Section 120B r/w 420 IPC and Section 13(2) r/w 13(1)(d) PC
Act, 1988 whereas, the recommendation given by Sr. PP is
RDA (Regular Departmental Action) with major penalty.
87. It has been vociferously argued on behalf of
accused that the complainant has manipulated the entire
story of demand of illegal gratification against the accused
to take revenge from them as they were not in favour of
exonerating the complainant in the aforementioned case
and recommended prosecution against him. It is further
argued that the charge-sheet of the aforementioned bank
fraud case was already filed by accused no.2 Sanjay Kumar
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Jha before the competent court on 28.12.2014 and
complainant was well aware that he was not arrayed as an
accused in said charge-sheet on account of non-concurrence
of senior officers of CBI, who did not concur with the
recommendation of the IO as they recommended only
departmental action against K.V.Singh, i.e. the complainant
herein. Therefore, there was no occasion for the accused to
raise any such demand from the complainant or for the
complainant to succumb to the alleged pressure of the
accused when he was already aware that he had not been
charge-sheeted in said case.
88. The above arguments has been controverted by
Ld. PP by submitting that accused has failed to bring
anything on record to show that the complainant was aware
of his being not charge-sheeted in the aforementioned case
on the date of complaint or any time prior to that. It was
argued that it was the investigating team of said case
including the accused persons, who were aware of the filing
of the aforementioned charge-sheet and they never shared
said information with the complainant, who at that time was
posted at Bhopal, whereas, the charge-sheet in said case
was filed in the Special Court in Panchkula, Haryana.
89. I have considered the submissions from both the
sides on the above contention and in my considered view
the above argument is bereft of merits for the reason that
despite opportunity, the accused have failed to bring
anything on record to support the plea that complainant was
aware about the filing of the aforementioned charge-sheet
or about his not being arrayed as an accused in said charge-
sheet. During Statement of accused recorded on
12.03.2024, accused no.1 came up with the plea that one
Surender Singh from Dena Bank was deputed in CBI as
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Technical Official (Banking) and it is through him the
complainant used to get the information about the status
and progress of said bank fraud case but he could not
examine said person Surender Singh as he had already
expired. Nothing has been stated about the date of death of
said person nor anything was brought on record to show
that any such person from Dena Bank was working as
Technical Official (Banking) in the CBI at the relevant time or
that he was in touch with the complainant during relevant
time. In absence of any material in support, the defence
plea cannot be believed that the complainant was aware of
filing of charge-sheet of said case which was filed on
28.12.2014 i.e. just a few days before filing of complaint
whereas, the accused no.1 started raising the alleged
demand for illegal gratification w.e.f. 06.12.2014.
90. Moreover, merely because the IO Sanjay Jha i.e.
accused no.2 had recommended prosecution against the
complainant, it cannot be a reason for false implication
especially when both the accused were also working in CBI
though on deputation and the complainant had also lodged
his complaint against the accused with the CBI only. It is
highly improbable that CBI officials would conspire with the
complainant to falsely implicate their own employees, who
were investigating a case against the complainant and had
already filed a charge-sheet in said case before the
competent court. Undoubtedly, complainant was facing
allegations in a bank fraud case investigated by accused
persons but that would not itself mean that he would falsely
implicate them. Rather this argument acts as a double
edged weapon as it would also provide reason to the
accused to exploit the situation by raising a demand for
bribe in lieu of exonerating the complainant especially when
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accused was aware that there is no concurrence from Sr. PP
of CBI for the prosecution of complainant.
Evaluation of electronic evidence on demand,
pertaining to pre-complaint and post-complaint
recorded calls
91. As per record, on 13.01.2015, 07 parcels duly
sealed with the seal of CBI, were received by the case
assistant, CFSL, CGO Complex, Lodhi Road, New Delhi from
Inspector Lalit Phullar vide forwarding letter no. 296/217-
2014 A 0001/ACU (V)/CBI ND dated 13.01.2015 Ex. PW8/B
(D-17). As per said forwarding letter, during investigation
incriminating evidence in the form of telephonic
conversation were collected from the Special Unit of CBI,
ND. Further specimen voice of accused persons and that of
complainant were also taken in the presence of independent
witnesses. The details of the 07 sealed parcels are given in
the tabular form at page no. 2 to 4 of said forwarding letter
Ex. PW8/B. The sealed parcels sent for expert opinion are as
under : -
(1) CD seized from the special unit vide
seizure memo dated 09.01.2015 i.e. Q-1.
(2) DVR seized vide post trap memo dated
04.01.2015 i.e. Q-2.
(3) Mobile phone of the complainant
alongwith the battery and one micro SD card
of 8GB seized from the complainant on
09.01.2015 i.e. Q-3.
(4) One micro SDHC card i.e. S-1 containing
specimen voice sample of the accused no.1
recorded vide memo dated 05.01.2015.
(5) One micro SDHC card i.e. S-2 containing
specimen voice of accused no.2 recorded
vide memo dated 05.01.2015.
(6) One micro SDHC card i.e. S-3 containing
specimen voice of complainant recorded
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vide memo dated 12.01.2015.
(7) One CD of moserbaer seized from the
complainant vide seizure memo dated
09.01.2015 i.e. S-4.
92. The list of enclosures mentioned in the
aforementioned forwarding letter Ex. PW8/B, does not
mention about S-4 i.e. the CD of moserbaer seized from the
complainant vide seizure memo dated 09.1.2015. Even the
questionnaire prepared by the IO narrating the nature of
examination required from the forensic expert mentioned at
sr. no. (i) to (vi) at page no. 4 of Ex. PW8/B, does not
originally mentions anything about said exhibit S-4. But, at
sr. no. (v) wherein, the IO had sought expert opinion as to
whether the voice transferred from mobile phone to CD is
tampered or not, the handwritten words "marked as S-4"
have been inserted under the initials of the IO Lalit Phullar.
For the purpose of clarity, I may here reproduce the relevant
portion of Ex. PW8/B so as to know what nature of
examination was sought by the IO from the forensic expert
in respect of aforementioned electronic evidences collected
by him during the course of investigation and same reads as
under:-
" NATURE OF EXAMINATION REQUIRED
i. Whether the specimen voice of Shri. B.
Sambi Reddy marked as S-1 tally with the
voice contained in Voice files in CD marked as
Q-1, Digital Voice Recorder marked as Q-2 and
Mobile Phone marked as Q-3 as mentioned in
Recorded Call Information Report at Call no.
01,02,03,04,05,06 as recorded in mobile
phone marked as Q-3 and other Recorded Call
Information Report at Call no.
01,02,03,04,05,06, 07,08,09,10,11 as recorded
in Voice files in CD marked as Q-1 as per the
transcription of the calls contained in Q-1 and
Q-3 enclosed herewith.
ii. Whether the specimen voice of Shri Sanjay
Kumar Jha as S-2 tally with the voice contained
in Voice files in CD marked as Q-1 as
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mentioned in Recorded Call Information
Report at Call no. 01,02,03,04,05,06,
07,08,09,10,11 as per the transcription
enclosed herewith.
iii. Whether the specimen voice of Sh.
K.V.Singh as S-3 tally with the voice contained
in Voice files in CD marked as Q-1, Digital
Voice Recorder marked as Q-2 and Mobile
Phone marked as Q-3 as mentioned in
Recorded Call Information Report at Call no.
01,02,03,04,05,06 as recorded in mobile
phone marked as Q-3 and other Recorded Call
Information Report at Call no.
01,02,03,04,05,06, 07,08,09,10,11 as recorded
in Voice files in CD marked as Q-1 as per the
transcription enclosed herewith.
iv. A copy of the recorded conversation
contained in Digital Voice recorder which is
marked as Q-2 may also be prepared in a CD
and provided to this office urgently.
v. Whether the voice transferred from the
mobile phone to CD marked as S-4 is
tempered or not?
vi. Any other information as deemed fit."
93. Let us now look at the testimony of the expert
witness Dr. Rajinder Singh, who has been examined by the
prosecution as PW-8, for the purpose of proving the voice
identification report Ex. PW-8/A prepared him. As per his
examination-in-chief dated 21.10.2021, physics Division of
CFSL had received 07 parcels from SP, CBI, AC-I on
13.01.2015 vide letter no. 296/217-2015A 0001/ACU (V) CBI,
ND dated 13.01.2015 and parcels were marked as Q-1, Q-2,
Q-3, S-1, S-2, S-3 and S-4. The parcel Q-1 was found to be
containing compact disk stated to have questioned voice of
accused no.1 B.Sambi Reddy, complainant K.V.Singh and
accused no.2 Sanjay Kumar Jha. The questioned voice of
B.Sambi Reddy in said disk was marked by him as Ex. Q-1(1)
(B) to Q-1(11)(B). The questioned voice of K.V.Singh was
marked as Ex. Q-1(1)(K) to Ex. Q-1(9)(K) and that of accused
Sanjay Kumar Jha as Ex. Q-1(1)(S) to Ex. Q-1(11)(S). He
deposed further that parcel Q-2 was found to be containing
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a digital voice recorder (DVR) of make Sony containing 05
audio files out of which audio files (1) 150104_001 marked
as Q2(1); (2) 150104_002 marked as Q2(2) and (3)
150104_003 marked as Q2(3) were containing the
introductory voice of witnesses. Whereas, the audio file of
verification call i.e. 150104_004 marked as Q2(4) in said
recorder (DVR) was the same as recorded conversation
marked as Q-1 (5) and Q-1(6) contained in compact disk of
intercepted calls i.e. CD Q-1 therefore, the recorded
conversation of that file Q2(4) of DVR having duration 3
minutes 32 seconds was not considered for examination.
The other audio file 150104_005 marked as Q2(5) of DVR
having duration of 28 seconds was also not put to
examination as no transcription of the same was provided
by the IO.
94. Here, what is important to note is that, the files
contained in DVR i.e. Q-2 were not put to examination by the
forensic expert for the reason that said audio file of
verification call Q2(4) contained in DVR was the same as
that contained in the questioned voice file Q-1(5) and Q1(6)
of CD (Q-1) of intercepted calls seized from Special Unit, CBI.
Perusal of para no. 6 on page no.3 of the report Ex.PW8/A
shows that Compact Disk make Sony Ex. Q-1 contained one
folder of 11 audio files. The details of said calls are given in
the tabular box in said para and it shows that audio file 10-
147236-0-07-20150104-182325 is given marking Q-1(5)
containing conversation of duration 2 mins 37 seconds
while, audio file 10-147236-0-18-20150104-182614 is
containing conversation Q1(6) of duration 54 seconds. The
respective transcription of said conversation Q1(5) (Call
no.5) and Q1(6) (Call no.6) are lying on record as Ex.PW1/R
and Ex. PW10/B respectively and both are forming part of
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document D-32 (Annexure 2 page 5 to 7). Both the said
transcription contain the conversation of two verification
calls which were made by complainant to accused no.1 on
04.01.2014 in the presence of independent witnesses. The
rest of the files/folder of DVR contained introductory voice of
independent witnesses and complainant which were
recorded before recording of aforementioned verification
calls, to ensure the blankness of DVR.
95. In Voice file No. 10-147236-0-07-20150104-
182325.wav dated 04.01.2015 at 18:23:15 (6.23 p.m), which
is the first verification call of CD(Q-1) of the duration 2
minutes 37 seconds referred as Q1(5) in the forensic report
Ex. PW8/A, the complainant Sh. K.V. Singh called the
accused no. 1 Sh. B. Sambi Reddy for delivery of the amount
as per the demand made by him (accused no.1). The gist of
said conversation is as under:-
Reddy: हां-हां
Singh: अभी arrange कर पाया था आपने last time 10 मांगा था फिर 10 तो
पूरा नहीं कर पाया था
Reddy : हां, हां
Singh : तो फिर आपने 50 के लिये बोला था के पांच-पांच लाख कर लेना कम से कम
Reddy : अ-------आज आप घर पे हैं
Singh : हां मैं एक relative के यहां से कु छ पैसा लेके आ रहा था.....
Reddy : हां, हां कब कहां मिलेंगे sector 18 में अगर मैट्रो के पास आ जाऊं गा सर मैं
Singh: अ-----------
Reddy: सैक्टर 18
Singh: सैक्टर 18 अच्छा last time जहां मिले थे
Reddy : हां, हां
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Singh : ठीक है तो अंदाजन किस समय तक पहुंचेंगे सर आप वहां पर
96. The second verification call of DVR 150104_005
having duration of 28 seconds marked as Q-2(5), is
corresponding with the voice call no. 10-147236-0-18-
20150104-182614 dated 04.01.2015 at 18:26:14 (6.26 p.m),
referred as Q1(6) in Ex. PW8/A, of the duration 54 seconds,
which was made by Sh. B. Sambi Reddy to Sh. K.V. Singh for
fixing the meeting point at Sector-18 or near McDonald's
and corresponding transcription of said conversation is lying
on record as call no.6 of D-32 Ex. PW10/B. The gist of said
conversation is as under:
Reddy : हां, signal कट हो रहे
Singh: जी सर, अ आप बताओ सर, सर, सर, सात बजे के आस-पास उधर ही
सेक्टर-18 में मिल लेता हूं
Reddy : हां ठीक है, ठीक है
Singh: ठीक है ना, और अगर convenient हो तो वहीं Mcdonald पर, या
जहां आप कहेंगे, रख लेंगे
Reddy: Ok
97. The aforementioned two conversations are the
gist of transcript of the verification calls of 04.01.2015
exchanged between the complainant and accused no. 1 in
the presence of the independent witnesses and the
verification officer. The said transcripts were prepared by
playing the CD of intercepted calls contained in CD (Q-1).
However, the verification officers/TLO appear to have not
prepared the transcription of verification calls recorded in
the DVR and said calls are referred as Q-2(4) and Q-2(5) in
the forensic report Ex. PW8/A. As per said forensic report,
Q-2(4) is the audio file 150104_004 of the duration 3
minutes 32 seconds and Q-2(5) is the audio file 150104_005
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of 28 seconds. Careful scrutiny of the record shows, that
there is a slight difference of few seconds in the duration of
said two calls of Q-2, if the same is compared with the
corresponding calls of CD (Q-1).
98. As per prosecution case, the said calls were
recorded in the internal memory/storage of DVR and both
the CD of intercepted calls i.e. CD (Q-1) as well as the DVR
(Q-2) were sent to CFSL with the sample voice of the
complainant and the accused persons for comparison of
sample voice with the voice of the speakers in the
questioned conversation contained in Q-1 and Q-2 for
identification of their voices. However, as per the version of
the expert witness/forensic expert PW-8, the conversation
contained in the DVR were not examined by him separately
for the reason that the audio file no. 150104_004 Q2(4) was
found to be the same as to the recorded conversation Q-1(5)
and Q-1(6) contained in CD Ex. Q-1.
99. Admittedly, the complainant's mobile phone
which was seized by the IO on 09.01.2015, was not having
any recording of verification calls of 04.01.2015 nor of the
post trap call allegedly made by the accused no.1 on the
mobile phone of accused no.2 after his (accused no.1.)
apprehension in this case. Therefore, as far as, verification
calls are concerned, the CBI is relying upon two type of
electronic evidence. One is the primary evidence in the
nature of DVR (Q-2) on which the verification calls were
directly recorded i.e. Q-2(4) and Q-2(5) and the other is the
secondary evidence in the nature of CD (Q-1) of the
intercepted calls seized from Special Unit, CBI, which
contained 11 intercepted calls including the aforementioned
02 verification calls i.e. Q-1(5) and Q-1(6) exchanged
between complainant and accused no.1 on 04.01.2015.
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Admittedly, the post trap call exchanged between accused
no. 1 and accused no.2 was not recorded on the DVR and
hence, for said call, the electronic evidence relied upon by
the prosecution is CD(Q-1), which also contained the said
post trap call exchanged between the two accused. The
said CD of intercepted calls which is available on record as
Q-1 is in the nature of secondary evidence because the
same was prepared from the original data contained in the
other recording device i.e. the call recording server installed
in Special Unit, CBI, which is the primary evidence.
100. Similarly, for the CD mark S-4, prepared from
complainant's mobile phone, the primary evidence was
complainant's mobile phone. As per Expert report Ex.
PW8/A, the six calls, which were copied on said CD, were
found stored in the internal memory of mobile phone Q-3. In
support of both the CDs, the requisite certificate of Section
65-B of Indian Evidence Act were furnished by the makers of
the CDs. In respect of CD S-4, the certificate was furnished
by complainant while in respect of CD Q-1, it was furnished
by SI Suraj Majumder (PW-25) of Special Unit, CBI.
Analysis of Defence argument on illegal interception in
the light of version of PW-23 and PW-25
101. A legal argument has been vociferously raised
by the defence counsels for challenging the admissibility of
questioned conversation contained in the CD (Q-1), seized
from Special Unit, CBI of the intercepted calls of the mobile
phone of accused no. 1. The challenge has been raised on
the ground that interception has been done in violation of
the provision of Section 5 of Telegraph Act 1885, which
deals with the powers of the Government to take possession
of licensed telegraph and to order interception of messages.
It has been argued that Section 5(2) of Telegraph Act 1885
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permits interception only in accordance with the provision of
said section. For application of the provisions of Section 5(2)
of Telegraph Act 1885, occurrence of any "public
emergency" or "in the interest of public safety" are sine qua
non. Whereas, during entire trial CBI failed to adduce any
iota to evidence to show that any such circumstances
existed at the relevant time for the competent authority to
pass such orders for interception of the calls of the mobile
number attributed to accused no.1.
102. It has been further argued that interception
order by the Secretary, Ministry of Home Affairs for
interception of mobile number of accused no. 1 was passed
on 02.01.2015, whereas, the complaint Ex.PW1/A which led
to registration of instant FIR, was lodged with the CBI on
04.01.2015 and it is only during invetigation of this case, the
IO came to know about the interception done by Special
Unit, CBI and subsequent thereto, he seized the CD
containing recording of 11 intercepted calls from SI Suraj
Majumdar (PW-25) of Special Unit, CBI on 09.01.2015 vide
seizure memo dated 09.01.2015, alongwith the
accompanying certificate of SI Suraj Majumdar under
Section 65 of Indian Evidence Act, available on record as Ex.
PW 25/A (colly).
103. It has been vehemently argued that right to
privacy includes telephonic conversation and telephone
tapping would certainly infract Article 21 of Constitution of
India unless it is permitted under the procedure established
by law. Whereas, in the instant case, there is nothing on
record to show that any such procedure had been followed
by the competent authority before or after passing said
order dated 02.01.2015. There is nothing on record even to
show the compliance of Section 419 (A) of Telegraph Rules,
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2007, which mandates that any such order passed by the
competent authority is to be reviewed by the Review
Committee. Reliance in this regard has been placed by the
Defence on the judgment of Hon'ble Apex Court in 'PUCL v.
Union of India and anr (1997)(1SCC301)' and 'Justice
K.S.Puttuswami (Retd) v. Union of India AIR 2018
(Supp.) 1841'; the judgment of Hon'ble Apex Court in
'Vinit Kumar v. CBI, 2019 Law Suit (Bom) 1903' and
the judgment of Hon'ble Delhi High Court in 'Jatinder Pal
Singh v. CBI and anr in Crl. Misc. case 3118/2012
decided on 17.01.2022 ' .
104. The above argument has been refuted by the Ld.
PP on the ground that even assuming that there is violation
of certain rules in collecting the evidence, such evidence
shall still be admissible, if proved in accordance with law. In
this regard, he placed reliance on the judgment
'Dharambir Khattar v. Union of India 2012 SCC Online
5805', 'R.L.Malkhani v. State of Maharashtra'
reported as 1973 (1) SCC 471' and 'State (NCT of
Delhi) v. Navjot Sandhu judgment reported as 2015
(11) SCC 600'.
105. Before adverting to the evidence adduced on
record in the light of above contentions raised by the
Defence and the Prosecution, it is deemed necessary to
glance through the relevant provisions of Indian Telegraph
Act, 1885 and Indian Telegraph Rules 2007 and the same
are reproduced as under :
Section 5 of Indian Telegraph Act, 1885
" 5. Power for Government to take possession of
licensed telegraphs and to order interception of
messages. - (1) On the occurrence of any public
emergency, or in the interest of the public
safety, the Central Government or a State
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Government or any officer specially authorized
in this behalf by the Central Government or a
State Government may, if satisfied that it is
necessary or expedient so to do, take temporary
possession (for so long as the public emergency
exists or the interest of the public safety
requires the taking of such action) of any
telegraph established, maintained or worked by
any person licensed under this Act.
(2) On the occurrence of any public emergency,
or in the interest of the public safety, the Central
Government or a State Government or any
officer specially authorized in this behalf by the
Central Government or a State Government
may, if satisfied that it is necessary or expedient
so to do in the interests of the sovereignty and
integrity of India, the security of the State,
friendly relations with foreign States or public
order or for preventing incitement to the
commission of an offence, for reasons to be
recorded in writing, by order, direct that any
message or class of messages to or from any
person or class of persons, or relating to any
particular subject, brought for transmission by or
transmitted or received by any telegraph, shall
not be transmitted, or shall be intercepted or
detained, or shall be disclosed to the
Government making the order or an officer
thereof mentioned in the order:
Provided that press messages intended to be
published in India of correspondents accredited
to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section."
Rule 419 A of Indian Telegraph Rules 2007 419-A. (1) Directions for interception of any message or class of messages under sub-section (2) of Section 5 of the Indian Telegraph Act, 1885 (hereinafter referred to as the said (Act) shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India and by the Secretary to the State Government in-charge of the Home Department in the case of a State Government. In unavoidable circumstances, such order may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorized by the Union Home Secretary or the State Home Secretary, as the CBI v. B. Sambi Reddy & anr.
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Provided that in emergent cases--
(i) in remote areas, where obtaining of prior directions for interception of messages or class of messages is not feasible; or
(ii) for operational reasons, where obtaining of prior directions for interception of message or class of messages is not feasible; the required interception of any message or class of messages shall be carried out with the prior approval of the Head or the second senior most officer of the authorized security i.e. Law Enforcement Agency at the Central Level and the officers authorised in this behalf, not below the rank of Inspector General of Police at the state level but the concerned competent authority shall be informed of such interceptions by the approving authority within three working days and that such interceptions shall be got confirmed by the concerned competent authority within a period of seven working days.
If the confirmation from the competent authority is not received within the stipulated seven days, such interception shall cease and the same message or class of messages shall not be intercepted thereafter without the prior approval of the Union Home Secretary or the State Home Secretary, as the case may be.
(2) Any order issued by the competent authority under sub-rule (1) shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned Review Committee within a period of seven working days.
(3) While issuing directions under sub-rule (1) the officer shall consider possibility of acquiring the necessary information by other means and the directions under sub-rule (1) shall be issued only when it is not possible to acquire the information by any other reasonable means.
(4-16) ...
(17) The Review Committee shall meet at least once in two months and record its findings whether the directions issued under sub-rule (1) are in accordance with the provisions of sub- section (2) of Section 5 of the said Act. When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above it may set aside the directions and orders for destruction of the CBI v. B. Sambi Reddy & anr.
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(18) Records pertaining to such directions for interception and of intercepted messages shall be destroyed by the relevant competent authority and the authorized security and Law Enforcement Agencies every six months unless these are, or likely to be, required for functional requirements.
(19) The service providers shall destroy records pertaining to directions for interception of message within two months of discontinuance of the interception of such messages and in doing so they shall maintain extreme secrecy."
106. Besides the above contentions raised with regard to interception being illegal for being in violation of above mentioned provisions of Indian Telegraph Act and Rules made thereunder, it has also been urged that the electronic evidence of the intercepted calls i.e. Q-1; or the recordings contained in mobile phone of complainant i.e. Q- 3; or in the CD prepared by the complainant of the calls recorded in his mobile phone i.e. S-4; or the verification call conversation allegedly recorded in the DVR i.e. Q-2, have not been proved in accordance with law.
107. As far as the above argument regarding inadmissibility of evidence based on illegal interception is concerned, I find the arguments quite valid essentially in the light of the judgment of Hon'ble Delhi High Court in case titled 'Jatinder Pal Singh v. CBI and anr in Crl. Misc. case 3118/2012 decided on 17.01.2022' wherein, a similar argument was raised that the material collected on the basis of illegally intercepted telephonic recordings ought to be put at naught. It was argued before the court that if the foundation is removed, the structure falls and that the legal maxim sub lato fundamento cadit opus shall apply in such cases. While accepting the above argument, the Hon'ble High Court referred to the previous judgment of CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 119/180 Constitutional Bench of Hon'ble Apex Court in K.S.Puttaswami (supra) and of Hon'ble two judge bench in 'People's Union for Civil Liberties (PUCL) (supra)', and made following important observations:-
"57. As per Rule 419A of the Rules framed under the Telegraph Act, the order of the Home Secretary granting permission to intercept telephonic conversations is to be forwarded to the Review Committee within seven days of passing the order, for the purpose of being reviewed by the Committee. This Court does not find any material on record to establish that any review of the order of the Home Secretary was conducted in compliance of the aforesaid rules framed under the Telegraph Act. Therefore, this Court is convinced that the Special Judge while passing the impugned orders has totally ignored the provisions of the aforesaid rules.
58. This Court is of the view that as per Section 5 (2) of the Telegraph Act, an order for interception can be issued on either the occurrence of any public emergency or in the interest of the public safety as per the law laid down by the Hon‟ble Supreme Court in the case of PUCL (Supra). After the perusal of the records, this Court is satisfied that in peculiar facts of the instant case, the mandatory requirements laid down by law for placing reliance on such audio conversations, have not been fulfilled. It is an admitted position that Rule 419(A)(17) which provides for destruction of intercepted message also adopt the said directions. The court below while passing the impugned orders has also ignored the settled legal positions and directions of the Hon'ble Supreme Court.
59. It is also relevant to add here that if the directions of the Hon'ble Supreme Court in PUCL (Supra) which are now re- enforced and approved by the Hon'ble Supreme Court in K.S.Puttaswamy (Supra) as also the mandatory rules in regard to the illegally intercepted messages/audio conversations pursuant to an order having CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 120/180 no sanction of law, are permitted, it would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Hon'ble Supreme Court."
108. Even in the instant case, CBI has failed to bring any material to show that the interception order dated 02.01.2015 Ex. PW23/A was passed in consonance with the provision of Section 5(2) of Indian Telegraph Act, 1885 as there is no material to show that there existed any situation of 'public emergency' or the 'interest of public safety', which as per the judgment in PUCL (supra), are the mandatory conditions to be fulfilled before seeking any order for interception of the telephonic calls. There is nothing on record to show even the compliance of Rule 419A of Indian Telegraph Rules, 2007, which makes it mandatory that the order of Home Secretary granting permission for interception has to be forwarded to the Review Committee within 07 days of passing of order for the purpose of being reviewed by the Committee. The CBI has not adduced any evidence to show that the interception order dated 02.01.2015 was ever placed before the Review Committee for the purpose of review.
109. In this regard, I may refer to the examination of PW-23 Sh. Sunil Kumar, who was examined by the prosecution to prove the interception order. As per the PW- 23 Sunil Kumar, during relevant time he was posted as Principal Staff Officer to Union Home Secretary, Govt. of India. Ministry of Home Affairs, North Block and he used to deal with the permission matters of interception of calls/messages relating to investigating agencies/law enforcement department. He deposed that the order dated 02.01.2015 Ex.PW23/A (D-15 page 5), upon which he CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 121/180 identified the signature of Home Secretary at point A, was issued as per the provisions of Indian Telegraph Rules, 2007 and same was issued in respect of mobile number 9868394358 and said order was valid for the period of 60 days. He in his cross-examination deposed that he did not remember whether the present matter of interception was placed before Review Committee under Indian Telegraph Rules, 2007, as the matter was very old. He admitted that he had not been shown any document in the court by the CBI to show that the interception permission was sent to Review Committee or it was considered by Review Committee. He admitted the suggestion that if the Review Committee would take a decision that interception permission was not granted as per provisions, then orders were to be passed for destruction of all the interception material. He further admitted that he had not been shown any official noting/file of MHA, in which the present permission was processed. He also admitted the suggestion that there was no reference of request letter of CBI in Ex. PW23/A nor there was any mention of dispatch/diary number on said document.
110. It is admitted position on record that the CBI has not placed any document vide which the request was sent by the Special Unit of CBI for seeking permission for the interception of the mobile number 9868394358 for the determination by this Court, if the requisite conditions of Section 5(2) of Indian Telegraph Act, 1885 existed for according permission for the interception by the competent authority nor there is any document to show that the permission order dated 02.01.2015 was ever placed before the Review Committee. Perusal of the file shows that the order Ex.PW23/A bears reference no. N-14/3/97-CBI and as CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 122/180 per the deposition of PW-23, all the orders of interception relating to CBI are passed with the same reference number N-14/3/97-CBI. In absence of any specific reference/diary number on the interception order, it is difficult to ascertain as to in respect of which particular case, the interception order was sought by the CBI. There is nothing on record to show that except the instant case, any other criminal case was pending against the accused B.Sambi Reddy at the relevant time when the aforementioned interception order Ex. PW23/A was passed in respect of the mobile phone number allegedly attributed to said accused.
111. As per the testimony of PW-25, he being the System Administrator had the control over Call Recording Server of Special Unit, CBI and used to allow access to listening of intercepted calls to special officer and IOs of Special Unit, who could only listen to these calls and draw inference. As per his version, Nodal Officer on behalf of Director, CBI was authorized to hand over the intercepted material to the IO. PW-25 admitted that he was not the nodal officer. He further deposed that the segregation of recorded calls of this case was done by the team of IOs of Special Unit but he (PW-25) was not part of said team. He deposed that he did not remember the name of CBI officer, who had done the segregation in this case. In the light of his version, it is clear that segregation of the calls relevant for the purpose of this case was neither done by PW-25 himself nor by the IO of this case. In view thereof, there remains a major disconnect in the evidence for raising the doubt on the prosecution case qua the legality of interception. No explanation has come forward from the prosecution side for non-examination of said person, who segregated the relevant calls from the total calls intercepted CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 123/180 from the date of interception i.e. 02.01.2015 till 09.01.2015, when the CD of 11 intercepted calls were seized by the IO.
112. In the light of the aforementioned factual and legal position on record, I am of the considered view, that CBI has failed to prove on record that the interception of the mobile phone number 9868394358 was done in accordance with established procedure of law and therefore, CD(Q-1) containing telephonic conversation of the intercepted calls of the mobile phone attributed to accused no.1 B.Sambi Reddy, is inadmissible in law.
Analysis of defence argument on lack of expert opinion on verification calls of DVR
113. Ld. Defence counsels have argued that in the light of the deposition of PW-8, it is clear that the opinion of the expert regarding presence of respective voices of the complainant and the accused no.1 in the verification calls is not based on recorded conversation of the verification calls contained in the DVR but, it is based on the CD i.e. Q-1, which is inadmissible in law.
114. As per the version of PW-8, he had examined the questioned voice of B.Sambi Reddy contained in Ex. Q-1(1) (B) to Q-1(11)(B); the questioned voice of K.V.Singh contained in Ex. Q-1(1)(K) to Ex. Q-1(9)(K) and questioned voice of Sanjay Kumar Jha contained in Ex. Q-1(1)(S) to Ex. Q-1(11)(S) with their respective specimen voice by auditory and spectrographic technique and found that the questioned voices of B.Sambi Reddy, K.V.Singh and Sanjay Kumar Jha tallied with their respective specimen voices in respect of their linguistic, phonetic and other general spectrographic parameters and the detailed result of his examination was described in his report CFSL-2015/P-0052 dated 29.01.2015 running into 23 pages bearing his signature at point A on CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 124/180 each page under his official stamp, which he proved on record as Ex. PW8/A.
115. As already noted above in preceding paras of this judgment that in the cross-examination, PW-8 has specifically deposed that the contents of the verification call DVR (Q-2) and that of CD (Q-1) were same and therefore, he only subjected the content of Q-1 for examination and did not put the content of DVR to examination. However, we cannot lose sight of the fact that DVR (Q-2) containing the recorded conversation of verification calls is a primary piece of evidence and it has been duly proved on record as Ex. P4 (Q-2). During trial, DVR (Q-2) was duly identified and proved through prosecution witnesses, who were part of verification proceedings i.e. by the complainant K.V.Singh (PW-1), independent witnesses Nitin Narang (PW-3), Pradeep Kumar Sharma (PW-13) and the verification officer Shailender Kumar Verma (PW-16).
116. The objection regarding verification memo Ex.PW1/B, lacking any mention of the fact that verification calls were made by keeping complainant's phone on speaker mode is not of much relevance. The very fact that the call made from complainant's mobile phone was recorded on DVR impliedly shows that the phone of complainant was kept on speaker mode otherwise, it was not possible to record the said call on DVR. Although, there is a lapse on the part of the IO for not taking the signature of independent witnesses on the verification memo but, that solely cannot be a ground to disbelieve the verification proceedings especially when the independent witnesses in their examination before the Court duly supported the prosecution case with their consistent version on the aspect of verification.
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117. The recordings contained in DVR (Q-2) were also played in the court during examination of said witnesses, who duly identified said recordings/conversation to be the same as heard by them on the phone call made by the complainant from his mobile phone 7389911901 to the mobile phone 9868394358 attributed to accused no.1 at the time of verification on 04.01.2015. In such a scenario, complainant, who is one of the speakers of verification calls has duly identified the said conversation to be the same which he had with the accused no.1 at the time of verification. Further, there lies no reason not to treat the expert opinion of voice identification given in respect of verification calls contained in CD (Q-1) to be the same even qua the conversation of same very verification calls contained in DVR (Q-2). The expert opinion regarding voice identification of the speakers in the conversation of verification calls contained in CD (Q-1) cannot be different in respect of the recorded conversation of said very calls in the DVR (Q-2). As per the expert PW-8, the recorded conversation of the verification call contained in the DVR i.e. Q-2(4) was found to be the same as contained in the audio files of Q-1(5) and Q-1(6) in CD (Q-1). The said opinion of expert regarding conversation of Q-1(5) and Q-1(6) to be the same as that of Q-2(4) in DVR is not only in respect of content of said conversation but also with regard to the identity of speakers of said conversations of CD Q-1 and DVR Q-2. The content of Q-2(4) was not subjected to separate examination for its spectrographic and auditory comparison with the sample voices of the complainant and accused no.1 because, the identical conversation of same speakers contained in Q-1(5) and Q-1(6) had been chosen to be put to such examination for comparison of their voices with the specimen voice of complainant and accused no.1.
CBI v. B. Sambi Reddy & anr.
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118. In this regard, I may also refer to the relevant para of the report, which reads as under : -
"Exhibit Q-2': It is a digital voice recorder of make "SONY" marked exhibit Q-2. The digital voice recorder marked exhibit Q-2 contains three folders namely, "FOR_MAC", "FOR_WINDOWS" & "VOICE". The relevant folder namely, "VOICE" contain five folders namely, "FOLDER01", "FOLDER02", "FOLDER03", "FOLDER04" & "FOLDER05". The folders namely, "FOLDER02", "FOLDER03", "FOLDER04" & "FOLDER05" are found empty and the "FOLDER01" contain five audio files whose details are given below:-
Audio File Conversation Duration of audio contained in the file (approx.) audio file marked as:
"150104 001" Q-2(1)b 25 seconds
150104_002" Q-2(2) 21 seconds
*150104 003 Q-2(3) 01 minutes 30
seconds
150104_004- Q-2(4) 03 minutes 32
seconds
150104_005 Q-2(5) 28 seconds
(wrongly written as
28 minutes in the
report)
The audio files 150104_002" "150104_001", namely, 150104_003 contained the introduction of witnesses. The recorded conversation marked exhibits Q-2(4) contained in the audio file namely 150104_004" is same as to the recorded conversation marked exhibits Q-1(5) & Q-1(6) contained in the audio namely, files 10- 147236-0-07-20150104-182325′ & 10-147236-0-18- 20150104-182614' contained in the compact disc marked exhibit Q-1. Hence, the recorded conversation marked exhibit Q-2(4) contained in the audio file namely, 150104_004 is not considered for examination. The recorded conversation marked exhibit Q-2(5) contained in audio file namely, "150104_005" is not considered for examination as the transcription is not provided by the forwarding authority."
CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 127/180
119. In the light of the above discussion, I am of the considered opinion that complainant's version regarding the exchange of verification calls and the alleged demand of gratification raised by accused no. 1 during said conversation, has been duly corroborated by the forensic evidence of DVR (Q-2). Further the expert opinion regarding the voice identification of accused no.1 in the questioned conversation of verification call of the DVR contained in voice file no. 150104_004 marked as Q-2(4) has also been duly proved through forensic expert PW-8, who though had not put said call of DVR to spectrographic examination, but he having found the conversation of the said call identical with the voice file of Q-1(5), he (PW-8) preferred to examine only one of the two identical conversation and examined only Q-1(5) and upon its comparison with specimen voice of accused no. 1 and the complainant, he found the voice attributed to B. Sambby Raddy in Q-1 (5) to be the probable voice of said accused. Besides that even the independent witnesses PW-3 Nitin Narang and PW-13 Pradeep Kumar Sharma have also come up with consistent version in this regard. They have successfully withstood the test of cross- examination and their testimonies with respect to verification proceedings remained unshaken and unimpeached.
120. It is an undisputed position of law that subject to the proving of time, place, accuracy of tape recorded conversation as well as its relevancy to the case, any previous statement of the person contained in such conversation is admissible in law and can be used to corroborate the evidence given by the witness in the Court. The tape recorded conversation are admissible in evidence subject to following conditions as laid down in the judgment CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 128/180 Ram Singh & Ors. v/s Col. Ram Singh, 1985 SCC (SUPP) 611:-
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strick proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence -
direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of con text and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
121. In the instant case, prosecution has also examined one more witness from BS&FC i.e. PW-10 Inspector G.M.Rathi from BS&FC, who had identified the voice of the speakers of the conversation contained in CD (Q-1) of intercepted calls available on record as Ex. P-9. As per the version of PW-10, both accused B.Sambi Reddy and accused Sanjay Kumar Jha were known to him as they both were also posted in BS&FC as Technical Officer and Inspector respectively. As per his version, he and his colleague P.Garola were instructed by SP to visit AC Zone, CBI to report to SP and Inspector Lalit phullar. As per his CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 129/180 version, in the office AC Zone, CBI he was made to hear recorded contents of one CD (Q-1) and was asked to identify the voice of the speakers and upon hearing recordings of said CD, he had identified the voices of Sanjay Kumar Jha and B.S.Reddy as he was acquainted with their voices.
122. Careful perusal of the examination of PW-10 shows that during his examination CD (Q-1) Ex. P-9 was played on the laptop and it was found containing 11 audio files. PW-8 correctly identified the voice of B.Sambi Reddy in the conversation of verification call i.e. voice file no.10- 147236-0-07-20150104-182325.wav. (referred as Q-1(5) duration 2 minutes 37 seconds in the forensic report/voice identification report Ex. PW8/A). He was also shown the transcript of said conversation already exhibited as Ex. PW1/R and he deposed that the sentences mentioned in said transcript against alphabet 'A' had been spoken by B.S.Reddy and their contents were correctly mentioned against typed alphabet 'A' in the transcript. Similarly, he correctly identified the voice of B.Sambi Reddy in another file of verification call i.e. voice file no. 10-147236-0-18- 201501014-182614.wav (referred as Q-1(6) of call duration 54 seconds in the forensic report/voice identification report Ex. PW8/A) and also deposed similarly with regard to the contents of said call mentioned in the corresponding transcript Ex. PW10/B.
123. During cross-examination, PW10 remained consistent with his version as to the identification of voice of his colleagues B.S.Reddy and Sanjay Jha in the recorded conversation played before him in the court. PW10 categorically denied the suggestion that he wrongly identified the voice of accused no.1 in the court or that he during investigation of this case, he had never identified his CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 130/180 (accused no.1) voice or that he never joined the investigation of this case.
124. The prosecution has also placed on record of CDR/CAF/location chart of the mobile phone of the complainant and the accused persons. The said record Ex. PW5/C which is CDR of mobile phone of accused no.1. B.Sambi Reddy also lends support to the prosecution case in as much as that it clearly portrays the exchange of said two verification calls between the complainant and accused no.1 at the relevant time and date. However, there is a difference of few seconds in call duration reflected in the verification calls in DVR Q-2 and the corresponding calls in the CD (Q-1). In this regard, the deposition of witness PW-25 is important, as per whom the service provider maintains the call record for billing purpose only i.e. to know when the call gets connected whereas, in Special Unit the recording starts for any call when the call ringer starts ringing. He further deposed that in some cases, the duration at CBI end may be shorter than the CDR record and that may be due to the loss of signals of the calls, but the IO may draw an algorithm to understand that there was a uniformity in the log of service provider and log of intercepted call. In the light of said testimony of PW-25, the small difference of few seconds in the call duration is immaterial and is not going to adversely effect the prosecution case especially when the defence failed to put any question to the IO to seek explanation regarding said difference of call duration during his cross-examination.
Discussion on defence argument regarding lack of element of demand in the conversation of verification calls
125. The 2nd limb of defence argument is that the verification calls do not contain any incriminatory material to CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 131/180 reflect any demand of illegal gratification being raised by the accused no.1. B.Sambi Reddy. It was further argued that in the entire conversation, it is the complainant who spoke substantially and there is no material communication from the side of accused no.1. I have carefully perused the transcript of the verification call of 04.01.2015 made at 18:23:15 which is available on record as Ex. PW1/R. The gist of said conversation is already given in preceding para of this judgment. However, it is pertinent to note that the conversation in the verification calls cannot be read in isolation and has to be read in the context of previous communication which was already going on between them in the month of December 2014 or on any date prior to the date of verification. As regard the alleged prior demand of 6th December 2014, when on the asking of accused no.1, the complainant had visited Delhi and met accused no.1 in McDonald Restaurant, Sector 18, Noida, a demand of Rs.25 lacs was allegedly raised by accused no. 1 from complainant. In this regard, the complainant's own deposition before the court is the only direct evidence available with the prosecution, which has though been corroboration by CDR/Call location chart Ex. PW-5 as already discussed in the preceding paras of the judgment.
126. For the subsequent sequence of events which transpired between the complainant and accused no.1 on the exchange of telephonic calls on 14 th, 15th, 16th, 22nd, 29th December 2014 and 03rd January 2015, it has been alleged that vide said calls the complainant was pressurized to make early payment of the demanded bribe amount. In this regard, complainant has come up with the clinching version and deposed on the lines of his complaint Ex. PW1/A. To corroborate complainant's version in this regard, CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 132/180 prosecution has also placed reliance on the electronic evidence of complainant's mobile phone Q-3, which is a primary piece of evidence. The CD (S4) prepared by the complainant of the recorded conversation of aforementioned 6 calls copied from his mobile phone has also been relied upon as a secondary evidence. Primary evidence however, is always the best evidence to prove any fact and it is only in absence of primary evidence, parties may lead secondary evidence in accordance with law. However, in the presence of primary evidence of Q-3, there is no need for this court to take into account the secondary evidence of S-4 for seeking proof of recorded telephonic conversation of pre-complaint calls. The content of telephonic conversation of Q-3 has been referred in detail in later part of this judgment in para 141-145.
Analysis of defence argument on inadmissibility of expert report Ex.PW8/A for lack of notification u/s 79A of IT Act
127. In respect of admissibility of expert opinion on the electronic evidence adduced on record by the prosecution, a legal issue has been raised by the defence that in absence of notification under section 79A of IT Act either in favour of the expert or of CFSL, the expert witness PW8 was not competent to render any opinion in respect of voice identification on the questioned conversation contained on any of the exhibits Q-1, Q-2 or Q-3. Further that, the aspects of continuity, tempering and doctrine of CD S-4 were not checked as the hash value of files stored in the mobile phone Q-3 not was compared with the hash value of the files stored in CD S-4.
128. The above contention regarding lack of notification of CFSL by the Central Government u/s 79A of the Information Technology Act, has been refuted by Ld. PP by submitting that CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 133/180 the word 'may' used under Section 79A of IT Act, makes it clear that the provision is not mandatory as it provides that the Central Government may authorize or notify any department, body or agency to examine the electronic evidence. The provision would not mean that unless an agency/laboratory is notified by the Central Government, it would not be competent to examine the electronic evidence. He further submitted that CFSL is a scientific department which was established by the Central Government in the year 1968 and same is under the administrative control of the CBI and overall control of the Ministry of Home Affairs, Government of India. It is also certified from National Accreditation Board of Testing and Calibration Laboratories and therefore, it is competent to examine any electronic record and give its report.
129. I have considered the above submissions raised from both the sides and also perused the relevant provision of Section 45A of Indian Evidence Act and Section 79A of the Information Technology Act, which read as under:-
Section 45A Evidence Act :- When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer recourse or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.
Section 79A I.T. Act :- Central Government to Notify Examiner of Electronic Evidence The Central Government may, for the CC No.98/19 State Vs Subhash Borker Pages: 23/37 purposes of providing expert opinion on Electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence."
130. Perusal of the aforementioned provisions however, shows that they nowhere provide that in absence of such CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 134/180 notification, opinion based on scientific examination given by a person well versed or skilled in such science, would not be admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of section 79A of I.T. Act that the report given by any other authority/lab would be inadmissible in evidence. In this regard, I draw support from the judgment of Hon'ble Madras High Court in the case of K. Ramajayam Vs Inspector of Police, Chennai 2016 Cr.LJ 1542, on the issue of Section 79A of I.T. Act, wherein it was observed that "It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW 23) and Pushparani (PW24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."
131. In this regard, I may also refer to section 293 Cr.P.C. which refers to certain government scientific experts and provides that report of such experts may be used as evidence even without calling such expert to formally prove their reports before the court. Thus, report of certain experts are given special status and are admissible without formally calling such expert in the witness box to prove the same. In the year 2005, legislature added one more category in section 293(4) Cr.PC by adding clause (g) to same to include any other government scientific expert specified by notification by the Central Government for this purpose. This addition took effect from 23.06.2006. Thereafter, w.e.f. 27.10.2009, legislature CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 135/180 again came up with section 45A Indian Evidence Act, which provided that the opinion of examiner of electronic evidence referred in Section 79 A of I.T. Act shall be a relevant fact in respect of any information stored in any computer resource or any other electronic devise. The purpose of Incorporation of these new provisions is to give legal recognition to electronic evidence in formal manner.
132. Notification under section 79A of I.T. Act may further lay down a basis to accept report of such notified expert under Section 293(4)(g) Cr.P.C., without formal proof of the same. It is also to be appreciated that other experts viz. handwriting experts have to prove their opinion or report before the court, after appearing as witness. Their opinion/reports are evaluated and appreciated by court on merits rather than being rejected on the grounds that they are not notified experts. As the CFSL was not notified under section 79A of the I.T. Act, the formal proof of report of such experts cannot be dispensed under section 293(4)(g) of Cr.P.C. and the prosecution has to prove their report by calling such experts as witnesses.
133. In the present case, PW8 appeared in the court and proved his report and was also subjected to lengthy cross- examination by the defence. As per the version of PW-8, he adopted prevalent scientific instrument and spectrographic and audio graphic methods and his opinion/report is based on scientific examination, rather than personal opinion. Therefore, the same cannot be discarded or be said to be inadmissible for want of notification under section 79A of I.T. Act.
Discussion on defence argument on inadmissibility of Q-3 and S-4 for lack of any expert opinion on continuity, tempering and doctrine of said exhibits
134. The second part of the above argument is a challenge raised as to the admissibility of the expert report qua CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 136/180 the identification of the voice in the recorded conversation of Q- 3 and S-4 on the ground that the continuity, tampering and doctrine of these exhibits were not checked by the expert. In this regard, I may point out that in answer to query no. (v) of the IO in respect of CD S-4, which contained the copy of recorded conversation of complainant's mobile phone (Q-3), the expert has given a categoric opinion that there was no pause, no discontinuity of speech and no change in background noise in speech conversation, no spikes in speech wave form and same might not have been tempered. The said version of PW8 itself shows that speech conversation of secondary evidence of CD (S-4) was found to be untempered after its comparison with the primary evidence in Q-3 (recorded conversation of mobile phone) and it is only on the comparison of contents of said two devices, the conversation contained in CD S-4 was found to be untampered with no discontinuity of speech and no change in background noise in speech conversation, no spikes in speech wave form. In the light of said version, no doubt can be raised regarding genuineness of Ex. Q-3, which is a primary piece of evidence and the defence argument that Q-3 cannot be read in evidence is liable to be rejected. Even otherwise, nothing has been bought on record to show any discontinuity of speech or any possibility of tempering in the recorded conversation of Q-
3. Material on record shows that integrity of parcels were duly maintained as they were sent to CFSL in duly sealed conditions without any inordinate delay.
Link/connecting evidence pertaining to mobile phones used in alleged transaction
135. I have carefully perused the transcripts of recorded calls of Q-3 and from the contents thereof, it is quite apparent that accused no.1 was demanding illegal gratification from the complainant in lieu of showing him favour in ongoing investigation of some case pending against him. As per CDR/ CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 137/180 call location chart Ex. PW5/C(colly), the mobile phone of the complainant on the date of said calls made on 14th, 15th, 16th, 22nd, 29th December 2014 and 03rd January 2015, was located in Bhopal. Prosecution has also duly proved on record that the mobile phone no. 7389911901 attributed to complainant K.V.Singh belonged to him and same has been proved by placing on record the CAF and Premium Number Declaration Form etc. which are part of Ex. PW5/C(colly). As per said documents, said number was issued in the name of Sushil Kumar Sharma, Chief Manager of Regional office, Dena Bank, Bhopal and after his transfer, the same was used by complainant K.V.Singh as he came as Zonal Manager at the place f Sushil Kumar Sharma. Said documents Ex.PW5/C (Colly) have been duly proved on record by PW-5 Nodal Officer, Bharti Airtel Limited.
136. As per version of PW-21, Ajoy Kumar Thakur, Assistant GM, Zonal mobile phone no. 7389911901 was in the name of Dena Bank, Zonal office, Bhopal for their Zonal Manager and said number was used by Zonal Manager Sushil Kumar till 19.11.2014 and after transfer of Sushil Kumar, the said mobile number was used by K.V.Singh, Zonal Manager w.e.f. 24.11.2014 till 29.01.2015. PW-21 duly proved on record the seizure memo Ex.PW21/A, vide which the relevant documents were seized from him.
137. As per Ex.PW12/B, which is the CAF of the mobile phone number 9868394358 attributed to B.Sambi Reddy, it was issued in the name of Syndicate Bank, Regional Office, Raj Nagar, Gaziabad and said record was seized from the Nodal officer of the MTNL vide seizure memo Ex. PW12/A. As per version of Nodal Officer PW-12/Sh. Naeem Akhtar, the said phone number 9868394358 was issued in the name of Syndicate Bank, Regional Office, Raj Nagar, Gaziabad. In this CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 138/180 regard, prosecution has also examined PW-4 Sushil Kumar Gupta, Manager, Syndicate Bank, who proved on record seizure memo Ex. PW4/A vide which he handed over three documents i.e. the original application of B. Sambi Reddy written to Regional Office Syndicate Bank for providing him the mobile phone, as Ex. PW4/B (colly). There is one more document, which is the extract of MTNL issue connection register and same is also part of Ex. PW4/B (colly). As per Sr. no. 107 of said document, the phone number 9868394358 was issued to B.S. Reddy against his signature.
138. An argument was raised by the defence that on the aforementioned register the date of 20.12.2014, appearing under the initials of accused no.1 is indicative of the fact that, he had collected the phone number on said date and in that eventuality, it was not possible for him to make the alleged calls from said phone number to the complainant on 4th, 14th, 15th, 16th December, 2014, as alleged by the complainant. Careful perusal of said document Ex. PW4/B (Colly), however, shows that there is a certificate of Chief Manger, Syndicate Bank dated 19.01.2015 which is also the part of Ex. PW4/B (at page no.5), and as per said certificate, the MTNL SIM 9868394358 had been taken by accused no.1 on 01.11.2014 and not on 20.12.2014, as alleged by the defence. Rather the date of 20.12.2014 under the initial of accused no.1 is the date when the mobile set was purchased by accused no. 1 with the money disbursed to him by the bank for the said purpose.
139. In view of the aforementioned document, it is clear that the SIM carrying said mobile number was collected by the accused no. 1 on 01.11.2014 and it is only the mobile set, which was purchased on 20.12.2014 and considering the fact that the SIM number can be used by putting it in any hand set, it cannot be said that there was no possibility for B. Sambi CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 139/180 Reddy to have made calls to complainant from said number prior to 20.12.2014.
140. The direct and primary evidence of recorded conversations contained in the mobile phone Q-3, which at the time of examination of complainant, was played in the Court and was also identified by the him to be the same conversation which he had with the accused no. 1 and the other link evidences establishing the exchange of said calls at the relevant time and date as well as the locations of the mobile phone used in making said calls at the respective places of the speakers and further the evidence on the ownership and usage of said mobile numbers at the relevant time, is sufficient to establish the complicity of accused no.1 in raising the demand of illegal gratification from the complainant on said various dates prior to the date of complaint.
Discussion on inculpatory content of pre-complaint telephonic conversation
141. As noted above, there are 05 pre-complaint telephonic conversation, transcripts of which are available on record as Ex. PW1/L to Ex. PW1/P. During the course of final argument, this court had asked the prosecution/CBI to bring the complainant's mobile phone Q3 as well as the CD prepared from said mobile phone S-4 and some were played and conversations contained therein were attentively heard by the undersigned. As per the CD-S4, the 05 voice files were copied on the CD on 06.01.2015, but the recording were instantly stored in the mobile phone Q-3 on the respective dates of the calls and the same is clearly evident from the properties of each voice files of S-4 as well as from the voice files contained in the mobile phone Q-3. In view thereof, the objection raised by the Defence that there is nothing to show as to when said calls were actually recorded in the mobile phone is not CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 140/180 sustainable.
142. The gist of conversation of call no.1 to 5 has been given herein below in order to ascertain as to what extent, the content of said conversations are incriminatory against the accused in respect of demand of illegal gratification.
Call No. 01 conversation between Shri K. V. Singh (07389911901) & Shri B. Sambi Reddy (9868394358) and dtd. 14/12/2014 at 06:16 PM vide Voice File No. 0001.aac A-K.V. Singh B-B. Sambl Reddy XXXXXXXXXX A हैलो B ...........आ गए सर Delhi A सर नहीं मैं आं छु ट्टी apply की थी। छु ट्टी तो sanction हुई नहीं।
B .....................
A जी सर, तो आप ने 10 दिन का बोला था, तो अभी कर रहा हूं मैं इन्तजाम, जी B ...........................
A इन्तजाम कर रहा हूं, सर XXXXXXXXXXX A आं सर आप ने जो Demand किया था वो थोड़ा ज्यादा पड़ रहा है मेरे को B ......... नहीं ............ तो बता दीजिएगा।
A नहीं, नहीं, नहीं चीज ये नहीं है, चीज ये है कि आप ने जो Demand किया था, that was on higher side, तो मेरे को थोड़ा टाइम लग रहा है उसका करने में ।
B .................
A जी सर तो इसमें एक और चीज थी आं। सर ये जो आप अभी करें गे इसमें होगा क्या वो थोड़ा में समझना चाह रहा था सर। जैसे उस दिन तो में out of B ......अच्छा नहीं लगेगा A जी CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 141/180 XXXXXXX B ...............मुझे भी कोई बोलता है करके बता दीजिएगा A अच्छा XXXXXXX A आपने जो Demand किया था वो तो 10 था तो मेरे लिए एकदम से उतना Arrange करना possible नहीं हो पा रहा था तो मैं इसीलिए मैं लगा हुआ हूं इस काम में ।
B हां, हां A तो इसमें ये था कि कितने से काम चल जाएगा लगभग कि भई इतना हो जाए तो पहले B ..................आप बता दीजिए सर............ मैं बताऊं गा सर....................
A अच्छा B ........................
A जी, क्योंकि मेरे को भी थोड़ा, जैसे मैंने आपको बताई थी अपनी position, एकदम से इतना मेरे लिए Arrange करना possible नहीं था, आप ने तो 10 के लिए बोला है, 10-12 तो एकदम से उतना नहीं कर पा रहा मैं । फिर भी मैं पूरा अपनी तरफ से कोशिश करता हूँ maxi- mum करने के लिए। तो इसीलिए मैं पूछ रहा था आपसे कि आप कु छ ऐसे बताना चाहें कि भई इतना हो जाए तो B नहीं, सर................ आप बता दीजिए में कल फोन पे...........
A अच्छा XXXXXXX Call No. 02 conversation between Shri K. V. Singh (07389911901) & Shri B.Sambi Reddy (9868394358) and dtd. 15/12/2014 at 05:07 PM vide Volce File No 0005.acc A- K.V. Singh B-B. Sambl Reddy XXXXXX A आप बताएं सर, कै से करूं मैं तो, उसको थोड़ा कु छ reduce कर सकते हैं क्या सर?
B सर वो तो बात हो गया है मैंने तो बता दिया है अब तो मैं दोबारा नहीं कर सकता हूं मैं बात A अच्छा CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 142/180 B ऐसे बात नहीं कर सकता हूं मैं A हां हां B आप, आप नहीं तो दो-दो instalment बता दीजिए, कब-कब दें गे आप, तो बताऊं गा मैं A अच्छा XXXXXXX A first minimum कितना करना पड़ेगा सर B ये आपका जितना availability होगा सर, उतना कर दें गे जल्दी A नहीं फिर भी एक figure हो तो दिमाग में ये होता है ना सर calculation करूं उस हिसाब से, अभी कु छ B सर.................सर में कु छ नहीं बोल सकता A अभी तो 3, अभी तो 3 B आपको सब पता है। पता है सर, मैं आप जितना भी आप बोल रहे थे उस दिन आज तक मैं ............ करूं गा करके ।
A सर अभी तक तो 3 का maximum लग पा रहा है मेरे को B नहीं, नहीं सर वो 5 तक कर देना......................
A अच्छा B सर बाद में मैं बता दूंगा आपको A हां ठीक है B .....Time देते हैं वो, बात करूं गा साहब से A जी सर XXXXXX A तो कल और परसो तो वो हैं तो I hope you can understand the problem, एक दम से नहीं B हां सब पता होता है मैं हां exactly date बता दीजिए मुझे! क्योंकि वो आज, आज ही ex- pect कर रहे थे, इसीलिए CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 143/180 A तो अभी तो minimum B सर आपका भलाई के लिए में बोल रहा हूं सर नहीं तो में बीच में नहीं आता A अच्छा B ठीक है सर A मैं समझ गया, समझ गया तो ठीक है बताता हूं सर B सर आज Monday है सर A हां B आप बता दीजिए कि कौन सा date को वो मिलेगा सर first वाला तो मैं बोल दं अभी A अहां B तो exact date बताओ ना सर, इसलिए मैंने गया नहीं उनके पास अभी ! A अच्छा B क्योंकि जाने नहीं दें गे आज घर अभी, बुलाएंगे पक्का A ओ हो, आप बात कर लीजिए फिर बताता हूं, फिर मैं आपको अभी तो दिमाग इधर ही है video conference पे ही सब चालू है! B वो तो ठीक है सर कोई बात नहीं। Just date बता दीजिए बस। Amount भी बता दिया मैंने, date बता दीजिए A आं......... इस week end पर रखें गे सर क्योंकि working day तो B Saturday तक wait करेगा पता नहीं Sir में बताऊं गा A मजबूरी ये है कि में यहां से बिना छु ट्टी के मैं आ नहीं सकता न।
XXXXXX Call No. 03 conversation between Shri B. Sambi Reddy (9868394358) & Shri K. V. Singh (07389911901) and dtd. 16/12/2014 at 09:26 PM vide Voice File No 0006.acc A- B. Sambi Reddy B- K.V. Singh CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 144/180 XXXXXX B वो, जो, बताया था SLBC की मीटिंग थी, फिर दिन में यो, arrangement में लगा रहा, तो जैसा आपने कहा था वो 50 प्रतिशत में पहले सोच रहा था कि किसी तरीके से एक बार हो जाए, क्योंकि A हां जी B तो हं, उतना arrange किया था, अब बताएं कै से A हां, आप कब आएंगे सर B अ सर ज्यादा टाइम नहीं लूंगा, मैं टिकट बुक करा लेता हूं, क्योंकि एकदम without reserva- tion तो आ नहीं पाउंगा मैं A हां कोई बात नहीं सर, आप जब आएंगे तब दे देना B अच्छा, तो अभी, जैसे आपने कहा था सर वो single chance में नहीं कर पा रहा हूं! A हां कोई बात नहीं सर कोई बात नहीं B ठीक है ना A वो बात हो चुका है, वो कर दें गे B अच्छा, मतलब कोई दिक्कत तो नहीं आएगी, सर वो मेरे को ये, एक वो था नहीं, A नहीं सर वो तो हो गया, आपको last week को ही बता दिया ना सर B अच्छा A last week में बता दिया ना, last week हो गया, साहब से बात हो गया, वो, ये, यो, आप अब free भी हो गये सर B है सर A अ....... इसमें नहीं था, अभी discussion ठीक नहीं है ऐसा B अच्छा, ठीक है A फोन पे XXXXXX Call No. 04 conversation between Shri K. V. Singh (07389911901) & Shri B. Sambi Reddy (9868394358)) and dtd. 22/12/2014 at 10:01 CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 145/180 AM vide Voice File No 0008.acc A - K.V. Singh B - B. Sambi Reddy XXXXXXX B आप आया नहीं दिल्ली में A नहीं, नहीं मैं तो इधर भोपाल में ही हूं सर आज credit camp है उसके लिए सब तैयारी कर रहे थे B अरे सर वो, मैं ....बोल रहा हूं सर आप देख लेना जल्दी A जी, जी B कब का है सर plan?
A अभी तो सर छु ट्टी मिलेगी तभी आ पाऊं गा छु ट्टी के बिना तो आ नी सकता ना I can not leave the place B ............इधर A ............अ B Date बताना है मैंने आज वो पूछें गे A सर कु छ करते हैं credit camp हो जाये उसके बाद देखते बात करता हूं छु ट्टी कै से, क्या बनता है programme, कल भी यो camp के चक्कर में ही busy थे वो मध्य प्रदेश में वो चार जगह अलग-अलग organise हो रहा है XXXXXXX A आपने जो बोला था 50 परसेन्ट के लिए, उसके लिए करता हूं ठीक है चार-पांच B आप................. से पूछें गे यार ये कै से करें , कै से करें .. मैं क्या बोलूं A नहीं, नहीं यो मैं समझ गया चार-पांच तक के लिए कोशिश करता हूं सर B चार-पांच तीन दिन में A हूं, जी सर XXXXXX Call No. 05 conversation between Shri K. V. Singh (07389911901) & Shri B. Sambi Reddy (9868394358) and dtd. 29/12/2014 at 09:23 AM vide Vol0ice File No 0010.acc CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 146/180 A - K.V. Singh B - B. Sambi Reddy Hello XXXXXX A तो आप ने जो दस बोला था उसमें से पांच तो arrange किया है तो वो मैं 1st के 1 बाद, जो है tie-up करता हूं B हां ठीक है, ठीक है वो तो हमें पता है ना date कु छ बता नहीं सकते A हां, नहीं, आप मेरी, you are a Banker, you can understand कि छु ट्टी उससे पहले possible होती नहीं है B yes, yes मैंने explain किया था, explain किया था मैंने A I was expecting your call in between, लेकिन सर आपकी कॉल नहीं आई, तो मैंने कहा, अब ऐसे ठीक नहीं लगता, आप अक्सर कहते हैं कि फोन पर बात मत करा करो B yes, yes, yes फिर इसलिए मैंने, वो भी किया नहीं A हां B और आज पूछें गे, इसलिए मैं XXXXXXX A अच्छा, पता नहीं तो आपका not reachable आ रहा था कई बार, तो फिर इसको first week of January में रखते हैं सर, Once the closing is over आपने जो दस मांगा था, उसमें से 5 तो arrange किया है B पूरा, पूरा कर देना नहीं तो उस time पे A ठीक कोशिश करता हूं, कोशिश करता हूं B हां, पूरा कर देना क्योंकि वो तो मेरा word पर आपको जो yes बोल दिया उसी से ही आपको free कर दिया इसलिए A ठीक, ठीक XXXXXXX
143. From the aforementioned conversation, it is clear that accused no.1 had been raising a demand of illegal gratification from the complainant to favour him in some case.
CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 147/180 Specifically in call no. 2 of voice file no. 0005.acc dated 15.12.2014 and call no. 5 of voice file no. 0010.acc dated 29.12.2014, the conversation exchanged between accused no.1 and complainant is clearly reflective of the demand of Rs. 5 lakh coming from the side of accused no.1. In call no. 2, when complainant said that that 'सर अभी तक तो 3 का maximum लग पा रहा है मेरे को', the accused no.1 responded by saying 'नहीं, नहीं सर वो 5 तक कर देना......'. Similarly, in call no. 5 of voice file no. 0010.acc, when the complainant said that '.........आपने जो दस मांगा था, उसमें से 5 तो arrange किया है', the accused no.1 told him to make the complete payment by saying that 'पूरा, पूरा कर देना नहीं तो उस time पे' and further stated that 'हां, पूरा कर देना क्योंकि वो तो मेरा word पर आपको जो yes बोल दिया उसी से ही आपको free कर दिया इसलिए'.
144. The above conversations also reflect that one more person was also in the loop, whose name is though nowhere mentioned in the conversation but accused no. 1 was in constant touch with said person, he (PW1) was also updating him and also receiving instructions from him regarding alleged transaction. From the conversation, it also appears that said unknown person who remained behind the curtain was in the decision making of ongoing investigation of the case pending against the complainant.
145. If the conversation of the verification calls is seen in the light of the conversation of aforementioned pre- complaint calls, the same will prima facie show that the demand raised during pre-complaint period was continuing even on the date of verification and trap and it is only pursuant to said demand, the complainant was asked to reach the previous venue of Mac Donald restaurant in Sector-18, Noida, CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 148/180 to deliver the payment. Though the venue was subsequently changed to a place near red light of Mayur Vihar, metro station. As per prosecution case, it is on said place near red light of Mayur Vihar metro station, the accused no.1 had accepted the envelope containing tainted money of Rs.1 lakh from the complainant and he was seen while accepting said envelope by the shadow witnesses as well as by the other members of the trap team, who duly corroborated complainant's version in this regard.
Discussion of evidence on pre-trap and spot proceedings
146. The pre-trap proceedings conducted in this regard by the TLO were duly recorded in pre-trap memo/handing over memo Ex. PW1/E, which also shows that even at the time of trap, TLO Vipin Kumar Verma had carried the same DVR which was used at the time of verification, to record the likely conversation of demand/acceptance of bribe at the spot. However, it is an admitted case of the prosecution that the said DVR could not be handed over to the complainant and therefore, no conversation exchanged between the complainant and accused no.1 at the time of trap, could not be recorded.
147. The deposition of the complainant in this regard has been carefully perused. After the verification was done, he reached to the office of DSP Vipin Kumar Verma at 8 th floor of the CBI office, where the other two independent witnesses also reached. The rest of the version of complainant regarding pre- trap proceedings conducted by the TLO is more or less on the lines of content of charge-sheet and for brevity sake, the same is not reproduced again. As per complainant's version they left for trap in 03 vehicles. He alongwith the shadow witness Nitin Narang travelled in a private car and on the way before reaching the spot of meeting, he was instructed by accused CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 149/180 no.1 to reach Mayur Vihar Phase-I, metro station and when he reached near said place, a call was again received from accused no.1, who asked him to stop his vehicle immediately after crossing the red light of Mayur Vihar, Phase-I Metro Station. Accordingly, complainant stopped his vehicle after he saw accused no.1 standing on the left side of the road. The other vehicles of the trap team, which were following them were also parked at some distance. After getting down from the vehicle, PW-1 moved towards B.S.Reddy, while the independent witness Nitin Narang kept sitting in a car but he was in a position to see them. Accused no.1 asked the complainant if he had brought the money and when complainant answered in affirmative, he was asked to hand over the same. Thereafter, complainant took out the envelope from the right side of his jacket and handed over the same to the accused no.1, who took it with his right hand and put it behind with both hands. Then accused no.1 asked him that the money appeared to be less then the settled amount. When the complainant replied that he could arrange only that much money, he was asked to also arrange the remaining amount. PW-1 asked the accused no.1 to count the money but he refused and started moving away from the complainant.
148. As the other team members were also watching the same and after the transaction was over, the trap team reached and caught the accused no.1 red handed and challenged him for having demanded and accepted the bribe amount upon which the accused took out the packet in his hand and said that the money did not belong to him. He tried to get off his wrist and threw away the packet across the road which upon the direction of the TLO was picked up by the independent witness Nitin Narang. Thereafter, hand wash proceedings were conducted by using the fresh solution of CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 150/180 sodium carbonate and accused no.1 was asked to dip his hand one by one in said solution but the colour of the solution did not change and it was transferred to clean glass bottles, which was subsequently sealed and marked as LHW and RHW. The GC notes contained in the envelope were also tallied by the independent witness Nitin Narang from the pre-trap memo and the GC notes were found to be having the same distinctive number as mentioned in pre-trap memo.
149. Complainants/PW1 was cross-examined at length on behalf of accused no.1 but substantial part of his cross- examination is relating to investigation of the bank fraud case of M/s HRM Sports Pvt. Limited. With regard to the trap proceedings, PW-1 deposed in his cross-examination that he himself had not conveyed the place i.e. Mayur Vihar to CBI team but the vehicle of CBI was following his vehicle. The said version of PW1 is alleged to be inconsistent with version of PW13 Pradeep Kumar, as per whose version the complainant was in touch with the CBI team through phone and he kept updating them regarding change of venue. However, the version of PW13 does not seem to be true in the light of the fact that, as per the CDR record Ex.PW7/C of the complainant's mobile phone, which has been proved by the Nodal Officer Rajeev Sharda of Reliance Communication Ltd., all the call of 04.01.2015 exchanged from complainant's phone number during the period w.e.f 18:15:35 to 20:16:00, were with only one phone number i.e. phone number 9868394358 attributed to accused no.1, meaning thereby, that after leaving from the CBI office for the trap, complainant did not exchange any call with any person other than accused no.1 till he (accused no.1) was trapped by CBI and same is consistent with complainant's version that till accused no.1 was caught by CBI team, he did not have any communication with CBI team.
CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 151/180
150. In his cross-examination, PW1 reiterated that accused no.1 B.Sambi Reddy had called him by gesture and he went towards him and handed over the money and the person sitting in his (complainant's) car i.e. the shadow witness Nitin Narang was in a position to see the same. He denied the suggestion that no money was accepted by accused no.1; or that a false story of throwing of envelope was created; or that it was not possible for accused no.1 to through the envelope when CBI team members had caught both his hands; or that accused no.1 had not called him by gesture. PW-1 further denied the suggestion that he got the accused no.1 apprehended by CBI in order to take revenge from him; or that after apprehension of accused no.1,/ false documents and evidences were created.
151. I have also carefully perused the deposition of the independent witnesses namely, PW-3/Nitin Narang and PW-13/Pradeep Kumar Sharma, who were allegedly present at the time of trap. Barring few inconsistencies, which are not going to the root of the matter, I found their testimony in conformity with each other and also with the deposition of complainant. As per the shadow witness PW3, while he was sitting in the car, he saw the accused no.1 accepting the tainted money from the complainant. In the light of the previous sequence of events, which had taken place between the complainant and accused no.1 prior to the filing of complaint, the factum of acceptance of the tainted money by accused no.1 from the complainant at the time of trap itself leads to a presumption of demand of gratification as otherwise, there was no occasion for accused no.1 to ask the complainant to meet him initially at previous place of their meeting in Sector 18, Noida though subsequently, the venue got changed to near Mayur Vihar metro station. Furthermore, the other link CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 152/180 evidences of CDR, Call Location Chart etc which have already been discussed above, are also lending support to complainant's version in this regard.
Discussion on the credibility of Chemical Examiner Report
152. Besides that, prosecution has also duly proved on record the report of the chemical examiner Ms. Deepti Bhargava as Ex PW 18/A. As per her version, two seized glass bottles mark RHW and LHW of B. Sambi Reddy were received at CFSL vide memo no. 171 dated 06.01.2015 from SP, ACU-V, CBI, ND and same were marked to HOD, Chemistry Division from where the same got marked to her for laboratory examination and expert opinion. As per her version, on chemical examination of their contents, both the said bottles/exhibits had given positive test for the presence of phenolphthalein and sodium carbonate. She proved the forwarding letter dated 30.01.2015 vide which the forensic report was forwarded to CBI as Ex. PW18/B and also proved on record the worksheet as Ex. PW18/C. During examination of said witness, it was observed by the court that the liquid contained in the bottles Ex. P-2 of RHW was slight pink colour but the witness had mentioned in her report that the liquid was colourless. The witness was, therefore, asked to clarify in this regard. In response, PW-18 stated that at the time of receipt of said exhibit, the solution was colourless but with the passage of time solution got concentrated and pH of solution came to the limit wherein it started appearing pink. She further explained that as per her worksheet observation, at the time when Ex. P-2 was examined, it was having pH of the level 8, which was slightly alkaline.
153. As per her version, both the cloth wrappers of Ex.P- 2 and Ex. P-3 were sealed with specimen seal impression of the forwarding authority and the seal was found intact and tallying CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 153/180 with the specimen seal impression forwarded with the exhibits. Exhibits were examined through physico-chemical method, chemical test, high performance thin layer chromatographic technique. The witness was though cross-examined at length but nothing material came out from her deposition to raise any doubt on the genuineness of the methods used for examination of the exhibits or regarding authenticity/ admissibility of her report.
154. Ld. Defence counsel for accused no.1 raised doubt on the credibility of chemical examination report by submitting that as per examination-in-chief of complainant K.V.Singh, when the trap team left the CBI office for the trap, the TLO was carrying PPL powder and therefore, theory of contamination and false implication cannot be ruled out. However, careful persual of the examination-in-chief of the complainant dated 06.06.2016, shows that he has nowhere mentioned that the trap team carried PPL (phenolphthalein powder) in the trap kit. Indeed, the complainant has deposed that TLO also carried with him clean glass bottle, powder, sealing material, CBI seal, Laakkh, DVR etc. Here, I may point out that the powder carried in the trap kit was the powder of sodium carbonate and not the phenolphthalein powder as alleged by the defence counsel. Since the sodium carbonate powder was required to be used by the trap team for taking the handwash of accused after the trap, it was necessary for the TLO to carry such powder in the trap kit. But, there is nothing on record to show that trap team had carried phenolphthalein powder in the trap kit.
155. I have also carefully perused the deposition of the other CBI witnesses of the trap proceedings. As far as the pre- trap and post-trap proceedings are concerned, their versions on all material aspects are found to be in consonance with the versions of the complainant and the independent witnesses.
CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 154/180 Few inconsistencies were though pointed out with regard to the place of post-trap call allegedly made by accused no.1 to accused no.2 and regarding pre-determined signal, which the complainant was instructed to give after bribe transaction, but none of said inconsistencies are found to be that material so as to make the entire trap proceedings fake and untrue. It is the consistent deposition of all the witnesses of trap team that before leaving for the trap, personal search of complainant was conducted and the details of the articles found in the possession were noted down in the pre-trap memo and thereafter, the envelope containing GC notes of Rs. 1 lakh was kept in the right pocket of his jacket with the instructions not to touch the said amount until it was demanded by accused no.1. Further, the shadow witness Nitin Narang (PW-3) was instructed to accompany the complainant and to overhear likely conversation with complainant and accused no. 1 while the other independent witness Pradeep Kumar Sharma (PW-13) was instructed to remain present with the trap team. Their versions are also consistent on the demonstration of the phenolphthalein powder given by the Verification Officer, Shailendra Kumar Verma to the trap team as he remained present during trap proceeding conducted in CBI office before leaving for the spot.
Defence argument on faulty trap and post-trap proceedings
156. It has been argued by the defence that the very purpose of joining the independent witnesses got defeated as neither they accompanied the complainant at the time of alleged transaction nor they heard the alleged conversation between the complainant and accused no.1. However, in the light of entire sequence of events which took place after the trap team left for the spot and till they reached the spot, the said flaws pointed out by the defence do not carry much value CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 155/180 to raise the doubt on the prosecution case. As per prosecution case, the initial venue of the meeting got changed and the complainant had to suddenly stop his vehicle near the red light of Mayur Vihar Metro Station. In said circumstance, accused might have got suspicious if the shadow witness had also got down from the vehicle and accompanied the complainant to the spot where accused no. 1 was standing. The circumstances turned in such a way that it was not possible for the witnesses to stay close to the complainant even in a discreet manner. The entire episode of complainant reaching the spot, meeting the accused no.1 and handing over him the envelope of tainted money had happened within the duration of a few minutes, thereby giving no chance to the members of trap team to stay close to complainant so as to be able to overhear what all transpired between complainant and accused no.1 on the spot.
157. One more argument has been raised to challenge the admissibility of forensic report Ex. PW8/A. It has been argued that the expert opinion on voice identification is of no value unless the specimen voice sample with which the questioned voice of alleged speaker is compared, contains common auditory words picked up from the questioned conversation. While in this case, the specimen voice of accused no.1 and accused no.2 were taken on 05.01.2015 vide specimen voice recording memo Ex. PW3/D and Ex. PW14/A respectively. However, by that time, none of the transcripts either of the verification calls or of pre-complaint calls or even that of post-trap call were not available with the TLO or the verification officer, who are the signatories of said memos and in view thereof, a serious doubt has arisen on the veracity of whole trap proceedings as well as on the credibility of expert report on voice identification.
158. Ld. Defence Counsels have argued that as per the CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 156/180 testimony of the PW-16 Shailender Kumar Verma (S.K.Verma), who had got the specimen of accused persons recorded on 05.01.2015, he got the specimen voice recorded on the basis of the transcript of questioned conversation given by IO. Whereas, IO in his cross examination admitted that he had never got any transcript of verification call prepared nor it is even mentioned in the verification memo.
159. It is an admitted position on record that the transcript of verification call exchanged between complainant and accused no. 1 and the post-trap call exchanged between accused no.1 and accused no.2 were prepared from the CD (Q-
1) of intercepted calls seized on 09.01.2015 from Special Unit, CBI. The transcript of verification calls contained in Q-1 are available on record a Ex.PW-1/R and Ex.PW-10/B. The transcript of post-trap call are Ex. PW-1/W and Ex. PW-1/X. Now the question that arises is from where the common auditory words were picked up by Verification Officer Shailender Kumar Verma (S.K.Verma) for getting the specimen of accused no.1 and accused no.2 recorded on 05.01.2015.
160. As per prosecution case, the conversation of verification calls was recorded by verification officer in the internal memory of DVR (Q-2) in the presence of both the independent witnesses. So the conversation was first heard by the verification officer at the time when the call was made in CBI Guest House, Akbar Road, where verification proceedings were conducted. Thereafter, at the time of pre-trap proceedings conducted in the office of TLO/DSP Vipin Kumar Verma on the 8th floor of CBI Office, CGO Complex, where the DVR was again played in the presence of Verification Officer Inspector Shailender Kumar Verma (S.K.Verma) and the independent witnesses as is also recorded in pre-trap memo Ex. PW1/E (D-6).
CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 157/180
161. Although, Inspector Shailender Kumar Verma (S.K.Verma) was not made part of trap team and never accompanied them to the spot but, he very well remained part of pre-trap proceedings and again heard the conversation of verification call contained in the DVR and he heard the said conversation twice within a gap of 2-3 hours. The specimen voice was taken on the very next date of verification i.e. on 05.01.2015 and there is possibility that PW-16 might be remembering the contents of verification calls or might have noted down it on some rough sheet. The specimen voice of accused no.1 was taken in the presence of independent witnesses Nitin Narang and Pradeep Kumar Sharma, who both were also part of verification and trap and it is quite possible that they might have also assisted the verification officer in picking up auditory words from the questioned conversation. The mere fact that Verification Officer /PW-16 gave a discrepant version of his having got the specimen voice recorded on the basis of transcript supplied by IO/TLO will not make the entire trap proceedings fake, untrue and unbelievable.
162. Even otherwise, one cannot ignore the fact that certain inconsistencies, omissions and contradictions are bound to creep in and there would rarely be a full proof case. The endeavour of the court is to find out whether because of any such inconsistency, omission or contradiction, the authenticity of the prosecution case has come under any cloud or not and whether on that account, the defence of the accused has been seriously prejudiced or not. If the answer is in affirmative, then the benefit should be passed on to the accused but not otherwise. The aforesaid inconsistencies, as pointed out by defence, are too trivial to be given any importance. It really does not matter from where the common auditory words were taken for recording of specimen voice, whether the same were CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 158/180 based on the memory or some text of transcript already prepared. Because, the human memory is not perfect and after a gap of time, may not recall the facts with complete precision and exactitude.
163. What is material is that the specimen voice must contain the auditory words common to the content of questioned speech. The broad purpose of this requirement to have commonality of words is to facilitate spectrographic examination, which is a technique that transforms a acoustical signals produced by the human voice into visual representation. The examiner listens to tapes of known voices and select similar words and phrases to compare it with the questioned voice. I have carefully perused both specimen voice recording memo Ex. PW3/D and Ex. PW14/A and the same are found containing the common auditory words picked up from the questioned voice of verification cal and post-trap call. It is also important to note that post trap call was made in the presence of TLO Vipin Kumar Verma, who is also one of the signatories of the specimen voice memo Ex. PW14/A of accused no. 2.
164. The objection taken by the defence that no permission of the court was taken before recording specimen voice of the accused is also meritless as no suggestion was put to any of the signatories of aforementioned memos regarding the specimen voice being not voluntary or that the same was taken forcibly. As per prosecution case, both the accused gave their specimen voice voluntarily as such, there was no reason for CBI to approach the court for seeking any such permission.
Discussion on defence argument on want of valid sanction under Section 19 of PC Act qua accused no.1
165. On behalf of accused no. 1, one more important legal issue regarding want of valid sanction under Section 19 of CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 159/180 PC Act has been also raised. Before shifting the discussion to the case of prosecution qua the other co-accused i.e. accused no. 2, I deem it appropriate to discuss the aforementioned issue. As per section 19 (1) of PC Act, no court shall take cognizance of an offence punishable u/s 7, 10, 11, 13 and 15, alleged against the public servant except with the previous sanction of the authority which is competent to remove such public servant from the office. In this regard prosecution has examined PW-19 Santosh Kamat, General Manager, Syndicate Bank, who proved the sanction order dated 25.02.2015 Ex. PW19/A, vide which he accorded the sanction for the prosecution of accused no. 1 B. Sambi Reddy. As per his version, the sanction was accorded by him after going through the report submitted by CBI, relevant documents, statement of witnesses and on the basis of said documents, he applied his mind and took the decision to accord sanction for the prosecution of accused no. 1.
166. Ld. Defence Counsel Mr. Rajiv Mohan has vehemently argued that as per the record produced by defence witness D1W1 Amit Kumar Sharma, who had brought the office file Ex.D1/W1 pertaining to the sanction granted against accused B. Samby Reddy, the charge sheet of this case was forwarded by CBI to CVO, Dena Bank on 20.02.2015, the documents were processed on the Head Office on 24.02.2015 and one office note dated 24.02.2005 was prepared, wherein it was mentioned that since the mater was investigated by specialized agency and the report of IO had been scrutinized many a times by high level officers of the rank of DIG, IG and DG (CBI), there would hardly be a case for competent authority to disagree with the request of sanction.
167. It was argued that the said sanction note was placed before the competent authority on 24.02.2015 wherein CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 160/180 he made the endorsement to the effect "I permit sanction for prosecution" and on the very next date i.e. on 25.02.2015, the sanction was granted under his (PW-19) signature vide sanction order Ex. PW19/A. Ld. Counsel further argued that the file for grant of sanction kept lying with the head office for 4 days and within 1 day of placing the file before sanctioning authority, the sanction order was passed which itself shows that there was no application of mind by the sanctioning authority as it passed the sanction order in a mechanical manner with pre-determined notion that after the scrutiny of the file at high levels of police and CBI, it had no reason to disagree with the request for sanction. To buttress his argument the defence counsel has placed reliance on the judgment of Hon'ble Apex Court in Ashok Kumar Vs. CBI; Manshukhlal Bitthal Das Chauhan vs. State of Gujarat and one more judgment of Hon'ble Bombay High Court in Sri Anand Murlidhar Salvi vs. State of Maharashtra (1997) 7 SCC 6 22.
168. Per contra, Ld. PP refuted the above argument and submitted that the sanction order was passed with due application of mind which is evident from the deposition of PW-
19. The mere fact that the office note put up before the sanctioning authority contained some noting suggesting lack of any reason to disagree with the request for sanction, will not mean that the sanction was accorded without application of mind. In this regard, he has relied upon the judgment of the Hon'ble Court in CBI Vs. Mahesh Jain 2013 (8) SCC 119 wherein following principles were culled out on the issue of sanction.
"14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2 The sanction order may expressly show that the sanctioning authority has perused the CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 161/180 material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prime facie reach the satisfaction that relevant facts would constitute the offence.
14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6 If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
169. Thus, grant of sanction is an administrative function and only prima facie satisfaction of the sanctioning authority is needed. The adequacy or inadequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. Also, flimsy technicalities cannot be allowed to become tools in the hands of accused.
170. In Mansukhlal Vithaldas Chauhan vs State Of Gujarat AIR 1997 SC 3400, decided on 03.09.1997 by the Hon'ble Supreme Court of India, it has been observed that :
CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 162/180 "The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force by acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
171. There is nothing on record to suggest that the sanctioning authority was under any obligation or compulsion to grant sanction or had not applied his independent mind. Here I may also refer to the judgment relied upon by the defence counsel in CBI Vs Ashok Kumar Aggarwal in Crl. Appeal No. 1838/2013, decided on 31.10.2013 by the Hon'ble Supreme Court, wherein it was held as under :
CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 163/180 "(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material.
The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withheld the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
172. Certainly, it is the duty of the prosecution to send entire record of the case to the sanctioning authority and the emphasis of the Hon'ble Supreme Court in the above case is also that the record should be sent alongwith material and document that may tilt the balance in favour of the accused and on the basis of which competent authority may refuse the sanction. It is no where the defence CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 164/180 argument that the material placed before the sanctioning authority was incomplete. Rather the argument is that the material placed on record was not gone through as it was not possible for the sanctioning authority, to do so in a day because the sanction order was passed immediately on the next date of the file being placed before the sanctioning authority.
173. For correct understanding the argument, I may refer the cross examination of PW-19 conducted on behalf of accused no.1. Perusal of the cross-examination shows that although the record of CD of voice recording was not available to the sanctioning authority but the transcription of the voice recording supplied by the CBI was duly gone through. PW-19 categorically denied having received any letter 1007/A/217205A0001 dated 25.02.2015. PW-19 denied that he have received any summery of the case from CBI Officer. His version shows that the sanction letter was prepared by Industrial Relation Department under his direction. He categorically denied the suggestion that he had not gone through any document or for that reason he had not specified the document in the sanction order on the basis of which the charges against accused no.1 were invoked. PW-19 also denied the suggestion that any draft sanction was received by him or he had signed the same without application of mind and issued sanction in a mechanical manner.
174. PW-19 has categorically denied the suggestion that he had not applied his mind. There is nothing established on record to suggest that any draft sanction order was placed before competent authority before grant of sanction to accused no.1. Therefore, it cannot be said that there was any non-application of mind and hence, the CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 165/180 defence argument in this regard is liable to be rejected.
Concluding discussion on sufficiency of evidence qua the offence alleged against accused no.1
175. Though Section 7 & Section 13(1)(d) of PC Act are generally applied together and invariably accused in such type of matter related to trap and demand of illegal gratification and acceptance thereof, are charged under Section 7 as well as under Section 13(1)(d) of PC Act. But, the subtle distinction between the two penal provisions needs to be kept in mind. A bare perusal of Section 7 of PC Act makes it clear that if any such accused 'agrees to accept' or 'attempts to obtain' any such illegal gratification, he would be also squarely covered by Section 7 of PC Act. Thus, element of acceptance or obtainment may or may not be present while invoking Section 7 of PC Act. For example, if there is an offer to pay by the bribe giver without there being any demand from the public servant and later simply accepts the offer and receives illegal gratification, it is a case of acceptance as per Section 7 of PC Act (unamended). In such cases, there need not to be a prior demand from the public servant. However, if there is a demand from the public servant and he also accepted the illegal gratification then such act besides being punishable under Section u/s 7 of PC Act would also simultaneously attract Section 13(1)(d) of PC Act, being a criminal misconduct. In case of obtainment, prior demand for illegal gratification emanates from the public servant so as to bring such act within the ambit of Section 13(1)(d) of the PC Act (unamended).
176. In context of Section 13(1)(d) of PC Act, concerned accused must obtain any valuable thing or pecuniary advantage either for himself or for any other person. Thus, element of obtainment is the prime ingredient CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 166/180 for Section 13(1)(d) of PC Act. By necessary implication, if there is no obtainment or acceptance then Section 13(1)(d) PC Act would not stand attracted. It thus becomes obvious that though the act of accepting illegal gratification may fall under both the aforesaid two penal provisions, question may arise about applicability of Section 13(1)(d) of PC Act, if there is mere demand, not followed by any act of obtainment. But, the unambiguous language of Section 7 of PC Act makes it clear that mere demand of illegal gratification without any subsequent acceptance, is also punishable under Section 7 of PC Act.
177. Various judgments have been cited by the defence counsels to urge the point that in order to make out a case under Section 13(1)(d) of PC Act and Section 7 as well, the prosecution is required to establish the demand, acceptance and recovery. Such broad and general principle cannot be disputed but it is very much evident from the bare language used under Section 7 of PC Act that as far as invocation of Section 7 of PC Act is concerned, it can be pressed into service on the basis of mere demand alone. It is precisely for this reason that in trap cases immediately after the verification, the FIR is registered.
178. In this regard, I may refer to V. Kasi Vs. State of Tamilnadu 2013 Crl. L.J. 53 Madras whereby, Hon'ble Madras High Court has held that Section 7 of PC Act bars the demand itself whereas Section 13 of PC Act prohibits obtaining pecuniary advantage and, therefore, they both were distinct offences. Thus, in a given situation, where there is only a demand which is either not followed by any acceptance or obtainment or where the aspect related to acceptance or obtainment is not proved beyond shadow of doubt, the Court can still, on the basis of the impeccable CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 167/180 evidence pertaining to demand on the part of such accused, return finding of guilt of commission of offence under Section 7 of PC Act.
179. In Pandurang Shinde (Paraswale) Vs State Of Maharashtra (CRIMINAL APPLICATION NO.1076 OF 2017, decided on 13th March, 2018), a similar question arose before Hon'ble Bombay High Court, whether mere demand was sufficient to invoke Sec 7 of PC Act or not and Hon'ble Bench held that it could not be said that mere demand was not an offence and thus refused to quash the FIR. In this regard, I may also refer to the judgment of Hon'ble Apex Court in State of Rajasthan v. Ashok Kumar Kashyap (criminal appeal no. 407 of 2021) decided on 13.04.2021, wherein similar view was taken.
180. Undoubtedly, demand of illegal gratification is sine qua non to constitute an offence under Section 7 of PC Act and mere recovery of the bribe amount would not prove offence under Section 7 of PC Act unless it was proved beyond all reasonable doubts that accused voluntarily accepted the money knowing the same to be bribe. Reference in this regard be made to C.M. Sharma Vs. State of AP (2010) 15 SCC 1, C.M. Girish Babu Vs. C.B.I. (2009) 3 SCC 779 & B. Jayaraj Vs. State of Andhra Pradesh (2014) 13 SCC 55.
181. It has been vehemently argued on behalf of the accused no.1 that as per Section 7 of PC Act, demand of illegal gratification must be raised as a motive or reward for doing or for bearing to do any official act or for doing any favour or disfavour in exercise of official function. Whereas, in the instant case, prior to the date of filing of the complaint dated 04.01.2015, no official act or official function concerning the complainant was pending with any of the CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 168/180 accused. As per note-sheet dated 27.11.2014, which is part of Ex. PW9/A, the complainant K. V. Singh was already exonerated from criminal prosecution in the bank fraud case as only RDA for major penalty was recommended against him. Furthermore, on 04.12.2014, the recommendations were signed by the head of Zone and on 12.12.2014, same were accordingly communicated to CVO of Dena Bank. The charge-sheet in said case was filed on 24.12.2014 before the Special Judge, Panchkula, Haryana, without arraying the complainant as an accused. It is argued that in the backdrop of said circumstances, there existed no reason to allege that the gratification was accepted by accused as a motive or reward for doing or forbearing to do any official act in exercise of any official function.
182. In this regard, it is necessary to refer to Explanation (d) of Section 7 PC Act, which says that a person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done comes within the expression "a motive or reward for doing" within the meaning of Section 7 of PC Act. In the light of said expression, it hardly matters if the accused at the time of alleged demand was or was not in a position to do any official act to favour or disfavour the complainant. What is material is the intention of the accused to receive gratification as a motive or reward for doing or forbearing to do any official act. Even otherwise, as per Section 20 of PC Act, if the prosecution succeeds in proving the foundational fact of demand and acceptance, any gratification or valuable thing accepted by such public servant shall be presumed to have been accepted as a motive or reward within the meaning of Section 7 of PC Act.
183. Thus, in a given situation, possession and CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 169/180 recovery, without the proof of demand may not be held as sufficient to bring home the guilt under Section 7 of PC Act. Indubitably, prosecution is required to prove the foundational facts. Sh. Rajiv Mohan, Ld. Counsel for accused no. 1 has relied upon B. Jayaraj Vs. State 2014 STPL (Web) 214 SC, P. Satyanarayana Murthy VII (2015) SLT 554,C. Sukumaran Vs. State of Kerala I (2015) SLT 694 SC and re-asserted that demand is sine-qua-non for both the alleged offences of Section 7 and 13(1)(d) of PC Act and the same is required to be proved by cogent evidence. He has argued that in the present case neither the initial demand allegedly raised prior to filing of complaint has been proved nor the evidence produced on record indicates any such demand even at the time of verification or trap. Elaborate discussion has already been made with respect to the evidence appearing on record and therefore, defence cannot dig out any advantage from said precedents as both the element of 'demand' as well as 'recovery and acceptance' have been duly established on record by the prosecution.
184. In such type of matters, demand can be raised at various stages. Naturally, it has to be prior to making of complaint to CBI. Until and unless, there is a prior demand, no complainant would report the matter to any investigating agency. Such demand can be deciphered during the verification process and finally at the time of trap. Demand can be direct or even inferential. Fortunately for the prosecution, in the present case the demand is direct. The conversation, as recorded in Q-2 and Q-3, clearly indicates that accused no.1 had no hesitation in discussing about the bribe amount. So much so that, he repeatedly told the complainant to pay at least Rs.5 lakh and asked him to CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 170/180 come to Delhi for payment of said money at the earliest. The complainant was further told that he had already been set free (exonerated) on the words given by accused no.1 and asked further not to go for any further negotiation on the amount.
185. As per the case of prosecution initial demand was made on 06.12.2014, when the complainant upon asking of accused no.1 visited Delhi and met him at McDonald Restaurant, Sector-18, Noida and it continued on various other dates when the accused no.1 during telephonic calls exchanged with the complainant kept insisting for the payments of illegal gratification by initially reducing it to 10 lakh and then agreeing for its payment by the complainant in two installment of Rs. 5 lakh each. Even on the date of verification, the complainant was asked to reach the venue of Sector 18, Noida for making the payment of 1st installment, though the venue got subsequently changed to Mayur Vihar metro station where the accused no.1 accepted the bribe amount from the complainant and same was later recovered from his possession after he was trapped by CBI.
186. The defence argument that recovery has not been proved from the possession of accused no.1 because the envelope containing tainted money was picked up by the trap team member from the road and not from the possession of the accused no.1, does not hold any water for the reason that as per the version of the complainant and the independent witness Nitin Narang, the envelope was taken by the accused no.1 from the complainant and it is only after the trap team reached the spot and challenged him for having accepted the illegal gratification, the accused no.1 got perplexed and threw the envelope on the road and CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 171/180 it is under said circumstances, the envelope was picked by the independent witness Nitin Narang from the road. On all the essential ingredients of demand,acceptance and recovery, the prosecution has adduced credible and clinching evidence both oral and documentary, which has already been discussed in detail in the preceding paras of this judgment.
187. In the light of aforementioned evidence adduced on record, I am of the considered view that the prosecution has successfully proved the foundational facts regarding demand and acceptance on the part of accused no.1 so as to raise the presumption of Section 20 of PC Act, 1988 for the purpose of Section 7 of PC Act. Whereas, no substantial evidence has been brought on record by the accused no. 1 either by way cross-examination of prosecution witnesses or by leading any positive evidence to rebut said presumption having arisen in favour of the prosecution. During his supplementary statement under Section 313 Cr.P.C, the accused no.1 was put a question that as per evidence of PW-1, CBI team was following his (Complainant's) vehicle and when complainant's vehicle was stopped, the CBI team also stopped their vehicle. In answer to this question, accused no.1 replied that at that time he was talking to his friend Ravi Shanker, who had come from Andhra and therefore, he had not seen the same. From the said reply it appears that, accused no. 1 has not disputed his presence on the spot at the time of the trap and rather his friend Ravi Shankar to whom he was allegedly talking at that time was also present at the spot. However, despite opportunity, the accused did not examine any such person in his defence to disprove the prosecution case regarding his having accepted the tainted money or his being caught red handed from the spot while doing so.
CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 172/180 Evaluation of material brought on record qua the alleged charges framed against accused no.2
188. Having discussed the material brought on record by the prosecution for proving the alleged charges against accused no.1, let us now advert to the role attributed to accused no.2. It is an admitted case of prosecution that neither in the complaint nor in the FIR, any allegation has been raised by the complainant against accused no.2. First time, when the role of accused no.2 came into picture is only after the apprehension of accused no.1, when he (accused no.1) was caught red handed at the spot by the CBI team on 04.01.2015. As per prosecution, after apprehension of accused no.1, he made a disclosure that he had demanded and accepted the bribe amount from the complainant as per the directions of accused no.2, who had given him the phone number of complainant and asked him to raise demand for Rs. 25 lakh. Pursuant to the disclosure of accused no.1, the TLO in order to verify the truthfulness of said disclosure asked accused no.1 to make a call from his mobile number 9868394358 to the mobile number 9868386107 of accused no.2. As instructed by the TLO, the accused no.1 made a telephonic call to accused no.2 by putting his mobile phone on speaker mode so as to enable the members of trap team to hear the likely conversation between him and accused no.2.
189. But, it is also an admitted position that said calls were not recorded on the DVR. As per the IO, he forgot to switch on the DVR at the time when the accused no.1 was asked to make the call to accused no.2. The said lapses on the part of TLO/DSP Vipin Kumar Verma (PW-22) in not recording the conversation of said calls on DVR reflects poorly upon him as I found said conduct grossly negligent and I am not inclined to treat it as mere insignificance omission. On the date of trap i.e. on 04.01.2015, TLO had no knowledge that the mobile CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 173/180 phone of accused no.1 was on surveillance by the Special Unit, CBI. The knowledge of interception of the phone of accused no. 1 by the Special Unit of CBI, was gained by the IO Inspector Lalit Khullar much later on 09.01.2015. In view thereof, recording of said calls on the DVR was immensely important as there was no other direct evidence on the content of said speech or on the identification of the speaker on the other side of the call. There is absolutely no reason for the TLO for not recording the said calls on the DVR, especially when the DVR was available with the trap team at that time. The casual explanation of TLO that he forgot to switch on the DVR is unacceptable and highly unbecoming of a DSP rank officer of top notch agency like CBI. The said conduct of the TLO is certainly going to raise an eyebrow on the genuineness of the reason so furnished by him for said omission especially in the light of the fact that a person, who got benefited from said omission is also an Inspector from CBI.
190. As per prosecution case, the two calls were exchanged between the accused no.1 and accused no.2 post- trap and during the course of investigation these calls were found to have been recorded on the call recording server of Special Unit, CBI. During relevant time, the mobile number of accused no.1 was on interception by virtue of the interception order dated 02.01.2015 issued by the Secretary, Ministry of Home Affairs. The CD (Q-1) Ex. P-9 of 11 intercepted calls pertaining to this case, prepared by Special Unit, CBI was seized by the IO of this case from SI Suraj Majumdar vide seizure memo dated 09.01.2015 Ex.PW25/A (colly).
191. For corroborating the version of the members of trap team regarding said calls made by accused no. 1 after his trap in this case, the prosecution has relied upon the aforementioned CD(Q-1) containing 11 intercepted calls CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 174/180 including the two post trap calls made by accused no.1 to accused no.2. The said two post trap calls have been referred in the expert report Ex. PW8/A as Q1(10) and Q1(11) contained in audio file no. 10-147236-0-06-20150104-204135 and audio file no. 10-147236-0-13-20151014-204333 respectively. The corresponding transcriptions of said audio files are also available on record as Ex. PW1/W and Ex. PW-1/X.
192. Besides above 02 calls, the prosecutor has drawn attention of the court to one more intercepted call of 03.01.2015 exchanged between accused no.1 and accused no.2 at 18:13:05 vide voice file no. 10-147236-0-12-20150104- 181305.wav which is referred in the forensic report Ex. PW8/A as Q1(4). In said call, the accused no.1 is alleged to have informed accused no.2 regarding the complainant having left Bhopal for Delhi after taking leave from his office. Ld. Prosecutor has argued that if the content of the conversation of said 3 calls is read and analyzed in the light of the earlier conversation of pre-complaint calls exchanged between the complainant and the accused no. 1, it becomes amply clear that the accused no. 2 was managing the scene from behind the curtain and it was he who hatched the conspiracy and executed it in connivance with accused no. 1, who was kept in forefront to raise the demand from the complainant and accept it. But, it was all done as per the instructions of accused no. 2, who was the IO of the case wherein complainant K.V.Singh was facing allegations of corrupt practices to cheat and defraud Dena Bank, where he was working as a Regional Manager at the relevant time.
193. In this regard, Ld. Prosecutor drew attention of the court to the transcript of the conversations of the pre-complaint calls recorded by the complainant in his mobile phone Q-3, more specifically the call no. 2 dated 15.12.2014 and call no.3 CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 175/180 dated 16.12.2014 transcripts of which are available on record as Ex. PW1/M and Ex. PW1/N respectively. In call no. 2, accused no. 1 was asking complainant about the exact date on which he would be making payment and said that ".....Time देते हैं वो, बात करूं गा साहब से ..........क्योंकि वो आज, आज ही expect कर रहे थे , इसीलिए". In call no. 3, when complainant asked "अच्छा, मतलब कोई दिक्कत तो नहीं आएगी, सर वो मेरे को ये , एक वो था नहीं,", to which accused no. 1 replied "नहीं सर वो तो हो गया, आपको last week को ही बता दिया ना सर ........ "last week में बता दिया ना, last week हो गया, साहब से बात हो गया, वो, ये , यो, आप अब free भी हो गये सर". Ld. PP has submitted that even in the complaint Ex. PW1/A, it has been mentioned by the complainant that the accused no.1 had told him that he would confirm about the amount of Rs 10 lakh after discussing it with someone, and this again shows that accused no. 1 was getting instructions from someone else regarding the demand raised from the complainant.
194. I have carefully perused the transcription of the aforementioned pre-complaint calls and post-trap calls pertaining to accused no.2 and also heard the conversation contained therein during the course of final arguments. I have also given my thoughtful consideration to the submissions raised from both the sides in this regard.
195. As per prosecution case, the complainant and the trap witnesses had heard the conversation of said two post-trap calls which were made by accused no.1 in their presence by keeping his mobile phone on speaker mode. Neither the complainant nor the other trap witnesses were aware about the identity of the person on the other side of the call, which was allegedly made on the mobile phone of accused no.2. The speakers of said conversation are the accused facing trial in this case and therefore, for the purpose of identification of voice of CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 176/180 speakers of said calls, the prosecution examined PW-10 Inspector G.M.Rathi from BS&FC, who being the colleague of the accused persons claimed that he was acquainted with their voices. During his examination, when the recordings of said audio files contained in CD (Q-1) were played in the court, he correctly identified the voices of both the accused persons in said audio files. On the identification of the voice, CBI has also relied upon the forensic report Ex. PW8/A, which has been proved on record through PW-8. Since said calls were never recorded in the DVR, the only evidence available with the prosecution on the content of conversation of said post-trap calls is the secondary evidence of CD (Q-1) of 11 intercepted calls recorded by the Special Unit of CBI.
196. However, in the preceding para of this judgment, this court has discussed at length about the challenge raised against the admissibility of the CD of the intercepted calls seized from the Special Unit, CBI i.e. CD(Q-1) and after due consideration of the submissions and the material on record, this court has already recorded its finding to the effect that said electronic evidence CD (Q-1) is not admissible in evidence as the prosecution has miserably failed to prove that interception was done in accordance with the established procedure laid down in Indian Telegraph Act, 1885 and the Rules made thereunder. In the light of said findings of the court, no reliance can be placed by the prosecution on said CD (Q-1) even for the purpose of proving the content of said post-trap call.
197. As noted above, Q-1 is the only direct evidence available with the prosecution to prove the content of the speech and identification of speaker on the other side of said post-trap calls, which allegedly contained the incriminating material against accused no.2. However, a finding has already been recorded by this court on Q-1 to be not admissible in law CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 177/180 and there is no other evidence available with the prosecution so as to prove the criminal conspiracy against the accused persons. Although the content of conversation of pre-complaint telephonic calls exchanged between complainant and accused no.1 do disclose about the involvement of one more person in the alleged transaction but, none of said conversation gives any indication regarding name or identity of said person. In such circumstances, no liability can be fastened upon accused no.2 for lack of any cogent material to prove his involvement in the alleged offences.
198. In absence of the electronic evidence Q-1, which is not admissible on account of being collected illegally, the only other evidence available with the prosecution is the ocular testimony of the complainant and the other witnesses of trap in whose presence the said two calls were made. Their version, however, can only prove the fact that the accused no.1 had made a telephonic call from his mobile number 9868394358 to the phone number 9868386107 (attributed to accused no.2). But, their testimony as to the content of the speech and identification of speaker on the other side of the call finds no corroboration from any independent source. In absence of any other cogent and clinching material, the same is not at all sufficient to base the conviction against accused no.2 for any of the alleged offences. Furthermore, as already noted above there is no mention of the name of the accused no. 2 either in the complaint or anywhere in the conversation of pre-complaint calls or verification calls.
199. The alleged disclosure statement of the accused no.1 having not led to any discovery of new fact, will not cover the prosecution case under Section 27 of Indian Evidence Act. It is argued on behalf of the prosecution that the said disclosure has led to a discovery of a fact that it was accused no.2, who CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 178/180 was the mastermind of the conspiracy and it was on his instructions, accused no.1 had raised the demand of illegal gratification. However, the discovery of said fact remained unproved because the only direct evidence available to prove the complicity of accused no.2 was the telephonic conversation of intercepted calls contained in Q-1, which however, is found to be inadmissible on account of interception being illegal and not in accordance with law. In absence of said evidence, the prosecution has remained unsuccessful in proving that the alleged disclosure of accused no.1 had led to discovery of any new fact. In the backdrop of said circumstances, accused no.2 is liable to be acquitted for all the alleged offences.
Conclusion
200. In the light of abovementioned discussion, I feel no hesitation in holding that prosecution has successfully proved beyond all reasonable doubt the charges against accused no.1 for the offences punishable under Section 7 and 13(1)(d)(i) &(ii) r/w 13 (2) of PC Act,1988 (unamended as it existed before the amended Act 16 of 2018). However, there no iota of evidence for the alleged offence of Section 8 PC Act as it is nowhere established that illegal gratification was demanded, accepted or obtained by the accused no.1 as a motive or reward for inducing any other public servant and therefore, no such finding can be recorded against accused no.1. In absence of any role of accused no.2 being proved on record in the alleged offences, the offence of criminal conspiracy alleged against accused no.1 also remained unproved.
201. Accordingly, accused no.1 is acquitted from the charges of the offences punishable under Section 8 of PC Act and Section 120 B IPC r/w Section 7, 8 and 13(1)(d)(i)&(ii) r/w 13(2) of PC Act. Accused no.1 is however, convicted for the CBI v. B. Sambi Reddy & anr.
CC no. 236/2019 (16.07.2024) Page no. 179/180 substantive offences punishable under Section 7 and 13(1)(d)
(i)&(ii) r/w 13 (2) of PC Act, 1988 (unamended as it existed before the amended Act 16 of 2018).
202. Accused no.2 is acquitted of all the charges framed against him and is directed to furnish the bail bond in the sum of Rs. 50,000/- with one surety in the like amount under Section 437 A Cr.PC.
203. Let the case be now put up for arguments on sentence qua accused no.1 on 23.07.2024. Digitally signed by SUNENA SUNENA SHARMA Announced in the open court SHARMA Date:
2024.07.16 21:13:42 on 16th July, 2024 +0530 (Sunena Sharma) Special Judge (PC Act), CBI-20 Rouse Avenue Court Complex New Delhi.
CBI v. B. Sambi Reddy & anr.
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