Delhi District Court
State vs Joginder Kumar on 20 March, 2025
IN THE COURT OF DEEPALI SHARMA,
SPECIAL JUDGE: PC ACT (ACB-01):
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11-001709-2019
C.C. No. 329/2019
FIR No. 50/2010
PS: Crime Branch
U/S: 7/13(1)(d) P.C. Act and u/s 384 IPC
State
Versus
Joginder Kumar,
S/o Late Sh. Krishan Lal,
R/o Quarter No. 116, Pocket-II,
Paschim Puri,
Delhi-110063.
Date of Institution : 02.08.2019
Date of Arguments: 03.03.2025
Date of Judgment : 20.03.2025
Appearance :
For the State : Sh. Sukhbeer Singh,
Ld. Chief Public Prosecutor.
For accused : Sh. Rajiv Mohan and Sh. Rehan
Khan, adv.
JUDGMENT
1. Brief facts of the case are that on 16.04.2010 complainant Vikas Bakshi came to Anti Extortion Cell, Crime CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 1 of 82 Branch, and his fresh statement was recorded by IO/Insp. Rajiv Kumar wherein he stated that he was running a CNG Workshop at Shop No. 11, DDA Shopping Complex, Site No, 42, Kalkaji, since December 2005 in the name of AV Motors. He alleged that he was repeatedly harassed and threatened by Insp. Joginder Kumar - SHO Kalkaji, that he will get him falsely implicated in a case if he did not fulfill his illegal demands. The complainant alleged that on 23.11.2007 SHO Joginder Kumar came to his office and asked him to close his workshop as repair work was not allowed in residential complex i.e. DDA complex. He was called by SHO Joginder Kumar at his office that day, where he abused the complainant and told him that he could carry on with his work from his shop but in return he would have to give him a 'Nokia N-73' mobile phone. As he did not have any option, therefore, on the very next day i.e. 24.11.2007 the complainant purchased a 'Nokia N-73' mobile set from Sigmen Radio, K-1-A, Kalkaji, New Delhi-19 for Rs. 14,900/-. Payment for the same was made by him from his HSBC Credit card no.
4476921208536312 and total payment made was Rs. 15,198/- as it included surcharges. The IMEI No. of the said Nokia mobile phone was 358973011349210 and he handed over the mobile phone to Joginder Kumar, the then SHO/Kalkaji on 24.11.2007, who immediately shifted his SIM card to his mobile phone. The official mobile number of Joginder Kumar was 9811183305.
2. The complainant stated that Joginder Singh used to demand one thing after another as a routine and used to call him CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 2 of 82 through the Beat Constable or his Reader. He used to ask the complainant for his Accent car for his personal use regularly. He started exchanging currency of small denomination to high denomination notes from him. He asked the complainant to entertain his friend Tom mobile no. 999022388 and forced him to take his friend to a bar. All the expenses were incurred by the complainant.
3. On 15.05.2009 SHO Joginder Kumar called the complainant at the police station and forced him to install a CNG kit in someone's car telling him that the owner was relative of Commissioner of Police. When the complainant questioned him, the SHO threatened him that if he refused, he will be implicated in a false case. On 02.06.2009 Reader HC Ashok came to the workshop of the complainant and showed him a fake complaint bearing diary no. 603 and again forced him to install a CNG kit in the car of relative of Commissioner of Police. The complainant stated that he was receiving threats and pressure from several persons on behalf of SHO Joginder Kumar to withdraw his complaint unconditionally. He had recorded some calls and could produce the recording. The complainant was distressed by such harassment and therefore, he had approached the Commissioner of Police, Delhi, to take action against Insp. Joginder Singh, the then SHO Kalkaji.
4. On the basis of the above statement Ex. PW29/A FIR bearing no. 50/2010, under section 384/506 IPC was CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 3 of 82 registered on 16.04.2010.
5. During investigation the complainant produced the cash memo of mobile phone, relevant Credit Card statement, photocopy of Credit Card, which were seized by the IO vide seizure memo Ex. PW29/C. Subsequently, on 22.04.2010 the complainant produced two recorded CDs containing audio recording of conversation with Const. Nirpal Singh and Tom conducted on 10/11.06.2009 and another CD containing video recording done by the complainant with the help of his spy cam at the office of friend of accused Insp. Joginder Kumar and at his own workshop conducted on 15.06.2009. Both the CDs were seized vide seizure memo Ex. PW29/E.
6. Further investigation was conducted and on 04.05.2010 complainant produced one CD containing recordings i.e. five audio and one video recording between him and the accused and the same was seized vide seizure memo Ex. PW29/F. On 21.05.2010 the complainant produced one CD containing two recordings i.e. one audio and one video recording. The CD was seized vide seizure memo Ex. PW29/G. The IO prepared transcripts of the recordings provided by the complainant in different CDs. The transcripts are Ex. PW9/H(colly).
7. Further investigation was conducted and IO CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 4 of 82 recorded statements of witnesses and also seized photocopy of the cash memo of the mobile phone vide seizure memo Ex. PW1/D.
8. Further investigation of the case was assigned to SI Sharad PW26, who collected the CDR/CAF of the mobile no. 9810196022 (registered in the name of Proprietorship firm of the complainant) and 9811183305 (registered in the name of accused). IO also recorded the statements of witnesses. During investigation, Anjani Kumar Mishra produced photocopy of cash memo of AV Motors and a complaint addressed to Commissioner of Police, which were seized by the IO. An enquiry report on the complaint of Anjani Kumar Mishra is Ex. PW26/B. IO also examined one Satnam Singh. Copy of relevant entry Ex. PW26/C of Register No. 16 of PS Kalkaji was placed on record as per which accused Joginder, who was the then SHO PS Kalkaji, was using mobile no. 9811183305. Despite efforts, the mobile hand-set used by the accused could not be traced. During investigation, upon analysis of CDR of mobile no. 9811183305, it was found that mobile no. 9811183305 was used in phone with IMEI no. 358973011349210, which was purchased by Vikas Bakshi complainant through his Credit Card. IO collected the posting details of the accused. He also collected the original bill book of M/s Sigmen Radio. Since Section 7/13 of P.C.Act were added, the file was marked to ACP Hoshiyar Singh
- PW24.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 5 of 829. IO/ACP Hoshiyar Singh obtained the Bio-data of the accused from the security unit. He got collected the FSL result from FSL Rohini, which was deposited in the Malkhana. He obtained sanction under section 19 P.C.Act against the accused. Further investigation of the case was assigned to ACP Kailash Chand - PW28, who issued notice under section 91 Cr.P.C. Ex. PW28/A to the Branch Manager, HSBC Bank, Punjabi Bagh, Delhi, to provide details regarding the credit card and other queries and received a reply Ex. PW28/B. Another notice under sanction 91 Cr.P.C. Ex. PW28/C was issued to Sh. Tajender Pal of M/s Sigmen Radio, K-1-A, Kalkaji, New Delhi, to furnish the details of bank Account and he gave a reply Ex. PW1/J alongwith bank statement Ex. PW1/K. Further enquiries were made from Sh. Tajender Pal Singh by sending notice under section 91 Cr.P.C. Ex. PW1/H to which he replied vide his reply Ex. PW1/I.
10. During investigation IO obtained possession of the spy camera vide handing over cum sealing memo Ex. PW8/A. On 17.07.2015 the spy camera alongwith other exhibits were sent to FSL Rohini. On 14.07.2015 voice sample of the complainant was recorded and the audio cassette make 'Sony' containing voice sample of the complainant was seized vide seizure memo Ex. PW18/A. The exhibits were deposited at FSL, Rohini. Efforts were made to search the mobile phone, however, the accused claimed that the said mobile phone was lost. Vide his letter Ex. PW28/J, the IO sought posting/transfer orders of the accused CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 6 of 82 vide which he was transferred from SHO PS Kalkaji to Security Unit in the year 2009 and the information submitted by the accused regarding purchase of "Nokia Mobile from his service record to which he received reply Ex. PW28/L. He also sent a letter Ex. PW28/N to DCP Vigilance for supply of CDRs received by the enquiry officer of the vigilance branch, from the service provider in the year 2009. IO recorded the statement of witnesses. Upon his transfer, the investigation was assigned to ACP Ishwar Singh - PW25.
11. IO/ACP Ishwar Singh got collected the FSL result, recorded the statement of witnesses under section 161 Cr.P.C. and prepared the draft charge-sheet. He also made a request for grant of sanction under section 19 P.C.Act to DCP South-East District vide Ex. PW25/A. Further investigation was assigned to ACP Arvind Kumar - PW30, who received the sanction order dated 18.03.2019 Ex. PW23/B from the office of Joint C.P., Southern Range to prosecute the accused, which was placed on the file. After completion of the necessary investigation the charge-sheet was filed under section 384 IPC read with 7/13 of Prevention of Corruption Act (hereinafter referred to as PC Act).
12. Cognizance of offence was taken against accused on 21.08.2018. Thereafter, accused was summoned and after hearing arguments, accused was charged for the offence under section 7 & 13(1)(d) of P.C.Act, punishable under section 13(2) P.C.Act, for demanding mobile phone 'Nokia N73' from the complainant CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 7 of 82 in lieu of allowing him run his workshop in the jurisdiction of PS Kalkaji, which was handed over to the accused by the complainant on 24.11.2007 and thereby the accused obtained pecuniary advantage from the complainant by corrupt or illegal means by abusing his official position. Accused was also charged for the offence under section 384 IPC for extorting a mobile phone 'Nokia N-73' from the complainant. Accused pleaded not guilty to the charged offences and claimed trial.
13. In order to prove its case, prosecution has examined 32 witnesses. The brief summary of deposition of prosecution witnesses is as under:-
i) PW1 Tajinder Pal Singh - owner of the shop namely M/s Sigmen Radio from where the complainant purchased the mobile phone in issue.
ii) PW2 Naveen Goel posted as Cluster Head, HDFC Bank, Old Delhi, deposed that in the year 2015, he was posted as Branch Manager, Kalkaji Branch. In the present case FIR, one notice U/s 91 Cr.P.C. was received in respect of account no.
0343051000004652 in the name of Sigmen Radio. On checking from record, he found that this account pertained to Lord Krishna Bank which was taken over by Centurion Bank of Punjab and later on it was merged into HDFC Bank. As per record, the aforesaid account number has been changed to 03430510000004652. He provided statement of account of CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 8 of 82 aforesaid account for the period w.e.f. 01.11.2007 to 30.11.2007 Ex.PW2/A and he had also issued certificate under the Bankers Book Evidence Act in respect of aforesaid statement of account Ex.PW2/B and same were sent to investigating agency alongwith his covering letter Ex.PW2/C.
iii) PW3 SI Hans Raj deposed that in the year 2009, he was posted at PS Kalkaji as ASI. A complaint filed by one Anjani Kumar against Vikas Bakshi was marked to him for conducting inquiry. As per the allegation in the complaint, Anjani Kumar had got installed CNG kit in his vehicle from the shop of Vikas Bakshi situated at Kalkaji Shopping Complex. There was some complaint in the CNG kit. PW3 further deposed that Vikas Bakshi told him that Anjani Kumar might have given CNG kit to his servant namely Lal Babu and he will get settled the matter with Anjani Kumar. PW3 further deposed that later Vikas Bakshi had filed some complaint against Insp. Joginder Kumar and some other police officials. PW3 further deposed that the complaint marked to him was also transferred to Vigilance South-East Distt. for further inquiry.
iv) PW4 Ajit Singh, Alternate Nodal Officer, Vodafone Idea Ltd., produced copy of CAF Ex. PW4/C pertaining to mobile number 9811183305 which was retrieved from the computer system of the company. PW4 further deposed that original CAF of this mobile number had been destroyed as per DOT Circular dated 17.05.2012 Ex. PW4/B. Sh. Mangal Singh, Dy. Manager, Customer Service Department, Vodafone Idea CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 9 of 82 Ltd., who was also custodian of the original CAF, had issued a certificate Ex. PW4/A in this regard. PW4 further deposed that the CDR pertaining to said mobile number was not availabe in their system as per DOT guidelines and license conditions for the service provider, as per which, they could have access to past record of one year only and in this regard he produced the letter Ex. PW4/D.
v) PW5 Surender Kumar, Nodal Officer, Bharti Airtel Ltd., produced the certified copy of CAF pertaining to mobile number 9810196022 alongwith supporting documents Ex.PW5/A. PW5 further deposed that original CAF was not available in their office system and had been destroyed as per DOT Circular dated 17.05.2012. PW5 also produced the certified copy of CDR of the aforesaid mobile number for the period from 01.03.2009 to 30.11.2009 Ex.PW5/B and a certificate under Sec. 65B of Indian Evidence Act Ex. PW5/C with regard to the same. PW5 further deposed that CDR for the period 01.07.2007 to 28.02.2009 was not available in their record.
vi) PW6 HC Naveen produced the summoned record i.e. Vigilance Enquiry No.208, P-Section, DCP Vigilance dt. 10.06.2009 and proved the copy of note-sheet as Ex.PW6/A(colly). PW6 also produced copy of documents pertaining to CDR of mobile number 9811183305 and 9810196022 alongwith Index of documents Ex.PW6/B. CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 10 of 82
vii) PW7 ASI Ravinder deposed that on 17.01.2013 on the directions of IO, he went to malkhana of PS Crime Branch and took the case property i.e. four sealed envelopes and one sealed cloth parcel alongwith the FSL form vide RC No.21/21 dt. 17.01.2013 to FSL Rohini, Delhi. He deposited the said case property in the FSL Rohini and obtained case acknowledgment slip Ex.PW7/A and copy of RC, which he handed over to Malkhana of PS Crime Branch.
viii) PW8 HC Krishan deposed that on 03.06.2015, he was posted as constable/Malkhana Clerk at PS C.R. Park and on the directions of the then SHO, he alongwith the then ATO Insp. Sanjeev Kumar took the case property i.e. one spy cam (audio- video recorder), which was lying in their Malkhana as seized in DD No.23A dated 09.09.2010, PS C.R. Park, in unsealed condition, kept in a plastic envelope, to the court of Sh. Narottam Kaushal, Ld. ASJ, Tis Hazari Courts, Delhi, vide RC No.19/21/15 dated 03.06.15 Ex.PW8/C. On the directions of Ld. Court, ATO Insp. Sanjeev Kumar took the said case property a spy-cam black colour on which "2GB" capacity was mentioned and handed over the same to IO of the present case ACP Kailash Chander, who seized the same after duly sealing the same with the seal of "KC" and marked "Exhibit- R" on the pullanda. IO also prepared the sample seal memo Ex. PW8/B and seized the case property by preparing handing over-cum-sealing memo Ex.PW8/A. CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 11 of 82
ix) PW9 ASI Balram deposed that on 30.07.2015, as per directions of IO/ ACP Kailash Chander, he obtained FSL Form and against the said FSL Form MHC(M) HC Jag Narain of PS Crime Branch handed over him one cloth pullanda duly sealed with the seal of KC containing voice sample marked "SV- 2" and sample seal, which he took vide RC No.225/21/15 dt. 30.07.15 and deposited the same at FSL Rohini against acknowledgment. He handed over original acknowledgment / case acceptance receipt and copy of RC to MHC(M) HC Jag Narain. So long as the case property remained in his possession, it was not tampered with.
x) PW10 ASI Yadvir Singh - MHC(M) of PS C.R. Park from 28.04.14 to 23.12.14. He deposed that on 28.04.2014 he had taken charge as MHC(M) from HC Ramesh and as per entries mentioned in register no.19 at Srl. No. 732 dated 09.09.2010 Ex. PW10/A there was one audio-video recorder seized and kept in the Malkhana vide DD No.23A under Section 91/93/97 DP Act dt. 9.9.10, PS C.R. Park and during his tenure it was not tampered with. After his transfer, he handed over charge of Malkhana to HC Jasram.
xi) PW11 HC Gurjee Ram Meena - MHC(M) at PS C.R. Park from 21.11.12 to 19.08.13. He deposed that on 21.11.2012 he had taken charge from HC Rajender Kumar Meena and as per register no. 19 there was one audio-video recorder seized and kept in the Malkhana vide DD No.23A under Section 91/93/97 DP Act dt. 9.9.10, PS C.R. Park. During his CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 12 of 82 tenure, the said audio video recorder was not tampered with. After his transfer, he handed over charge of maalkhana to HC Ramesh.
xii) PW12 ASI Ramesh - MHC(M) at PS C.R. Park from 19.08.13 to 28.04.14. He deposed that he had taken charge from HC Gurjee Ram. During his tenure, one audio-video recorder which was seized and kept in the Malkhana vide DD No.23A under Section 91/93/97 DP Act dt. 9.9.10, PS C.R. Park, was not tampered with in any manner.
xiii) PW13 HC Jasram - MHC(M) at PS C.R. Park from 23.12.2014 to 18.03.2016. He deposed that he had taken charge from HC Yadvir. During his tenure, one audio-video recorder which was seized and kept in the Malkhana vide DD No.23A under Section 91/93/97 DP Act dt. 9.9.10, PS C.R. Park, was not tampered with in any manner. On 03.06.2015, he had handed over the audio-video recorder to Malkhana Munshi Ct. Krishan Kumar to submit the same at the Tis Hazari Courts through road certificate Ex.PW8/C. After his transfer, he handed over charge of Malkhana to HC Radhey Shyam.
xiv) PW14 ASI Rajinder - MHC(M) at PS C.R. Park from 11.01.2012 to 21.11.2012. He deposed that he had taken charge from HC Neeraj. During his tenure, one audio-video recorder which was seized and kept in the Malkhana vide DD No.23A under Section 91/93/97 DP Act dt. 9.9.10, PS C.R. Park, was not tampered with in any manner. After his transfer, he CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 13 of 82 handed over charge of Malkhana to HC Gurjee Ram.
xv) PW15 ASI Satbir Singh - MHC(M) at PS Kalkaji. He deposed that on 23.02.2013, he had handed over photocopy of entry no. 7 at Page-3 of Register no. 16, in which official mobile phone number of accused Joginder Kumar was mentioned, Ex. PW15/A to SI Sharad Kumar.
xvi) PW16 Vikas Bakshi - complainant. xvii) PW17 HC Ajay Kumar deposed that on 16.12.2016,
on the instruction of ACP Sh. Ishwar Singh, he went to FSL, Rohini with authority letter and obtained FSL result and exhibits in sealed condition, which he produced before ACP Sh. Ishwar Singh. Thereafter, on his instruction he deposited the sealed exhibits in the Malkhana Crime Branch. The envelope of the FSL result and the sealed exhibits remained intact till they remained in his possession.
xviii.a) PW18 SI Rajbir Singh deposed that on 20.11.2012, ACP Kailash Chand handed over case file of present case for getting recorded the voice sample of accused Joginder. PW18 correctly identified accused Joginder before the court. He further deposed that he alongwith HC Sanjay went to Physics Division, FSL, Rohini, Delhi where the FSL authorities asked for empty cassettes. Accused was also present there. He provided them four empty cassettes. In his presence, the voice sample of the accused Joginder was taken by the FSL officials in two cassettes CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 14 of 82 and the original two cassette and recording of the same was done in two cassettes. Both the cassettes having original recording were converted into pulandas and marked as A, while the two cassettes containing the recording of the aforesaid original voice samples were marked as B. Both the pulandas were sealed and seized vide seizure memo Ex.P3. Seal after use was handed over to HC Sanjiv. The case property was deposited in the Malkhana. xviii.b) On 29.07.2015, he accompanied IO ACP Kailash Chand to Physics Department of FSL, Rohini where complainant Sh. Vikas Bakshi also joined investigation at about 10:30 am and provided two empty cassettes of make Sony. The relevant transcript was also given to Vikas Bakshi. The sample of voice recording of the complainant was recorded in FSL in his presence and after the recording SV-2 was marked on original cassette whereas SV-2A was marked on the copy of the voice recording cassette. Both the cassettes were wrapped in a cloth and two pulandas were prepared and were sealed with the seal of KC and seized vide seizure memo Ex.18/A. Seal after use was handed over to him (PW18).
xviii.c) PW18 identified his handwriting and signature on the two cassettes marked 1 and 2 on which "awaj ka namuna inspector Joginder, FSL-2015/P-4776/Phy-245/15, Ex.A" was written, which were handed over to FSL for recording sample voice of the accused as Ex.P4 and Ex.P5 respectively. xviii.d) PW18 also identified one audio cassette alongwith cover on which "Sh. Vikas Bakshi Exhibit SV-2A C" was written as the same which was handed over to the FSL by ACP Kailash Chand as Ex.P6.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 15 of 82xviii.e) PW18 also identified his signatures on two cassettes Marked 1 & 2 on which "copy aawaj namuna insp. Joginder Kumar" was written as Ex.P7 and Ex.P8.
xviii.f) PW18 also identified his signatures on one audio cassette of make Sony on which "Vikas Bakshi Exhibit SV-2"
and "Exhibit-C" was written as the same which was handed over to the officials of FSL as Ex.P9.
xix) PW19 HC Neeraj Kumar - MHC(M) at PS C.R. Park from 26.01.2011 to 11.01.2012. He deposed that he had taken charge from HC Rameshwar. During his tenure, one audio-video recorder which was seized and already kept in the Malkhana vide DD No.23A under Section 91/93/97 DP Act dt. 9.9.10, PS C.R. Park, was not tampered with in any manner. After his transfer, he handed over charge of Malkhana to HC Rajinder.
xx) PW20 ASI Rameshwar Prasad - MHC(M) at PS C.R. Park. He deposed that on 09.09.2010 SI Dhananjay Pratap Singh deposited one audio-video recorder alongwith copy of seizure memo DD no.23A U/s 91/93/97 D.P. Act dated 09.09.2010. The audio-video recorder was deposited in the Malkhana and he made entry in Register no. 19 at serial no. 732 of PS C.R. Park dated 09.09.2010 Mark-X. On 26.01.2011, he handed over the charge of MHC(M) of PS C.R. Park to HC Neeraj. Till the audio-video recorder was in the Malkhana, it was not tampered with.CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 16 of 82
xxi.a) PW21 Insp. D.P.Singh deposed that on 09.09.2010, he had arrested one Vikash Bakshi s/o K. R. Bakshi vide DD no. 23-A u/s 91/93/97 DP Act PS C. R. Park dated 09.09.2010 and one video/audio recorder device black colour with 2 GB written on it was recovered from the left side pocket of his wearing shirt, which was seized by him and same was deposited in the Malkhana of PS C.R. Park. Till the recorder remained in his possession, he had not tampered or destroyed any part of the video/audio in the recorder.
xxi.b) One audio/video recorder Ex. PW-21/Article-1 of black colour on which 2GB was printed and CFU-782/16 'SPY1' was written and an initial also appearing on the same, was shown to PW21 and he identified it as the same which was recovered from Vikash Bakshi and seized by him.
xxii) PW22 Binoy N.C., Relationship Manager, HSBC Bank, Noida Branch, U.P., deposed that in the year 2015, he was working as Deputy Branch Manager, HSBC Bank, Punjabi Bagh, Delhi. In response to the notice U/s 91 Cr.P.C. relating to case FIR No. 50/10, PS Crime Branch, he had furnished the reply dated 16.04.2015 Ex. PW22/A relating to the query of the investigating agency. The statement of credit card pertaining to December 2007 of Vikas Bakshi was already provided to the investigating agency earlier by Sh. Paresh Taparia, Branch Manager, Punjabi Bagh. He proved certified copy of the statement of credit card Ex.PW22/B and the transaction details dated 24.11.2007, which he had mentioned in his reply at point X in Ex.PW22/B. CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 17 of 82 xxiii) PW23 Devesh Chandra Srivastava deposed that in the month of December 2017, a request letter Ex. PW23/A was received in the office of Joint Commissioner of Police, Southern Range for sanction of prosecution U/s 19 of POC Act against Insp. Joginder Kumar. On 18.03.2019, while he was posted as Joint Commissioner of Police, Southern Range, he was competent to take appropriate action of removing Insp. Joginder Kumar from the service. After examining the entire record of the present case and on the basis of aforesaid material and after applying his mind, he accorded sanction U/s 19 of POC Act 1988 for the prosecution of Insp. Joginder Kumar vide sanction order dated 18.03.2019 Ex.PW23/B. xxiv) PW24 ACP Hoshiyar Singh - IO of the case. He deposed on 08.05.2013, investigation of the present case was transferred to him from SI Sharad Kumar as Section7/13 of POC Act were invoked in the case. The information of invoking section 7/13 of POC Act in the present case was given to the accused, who was posted at Security Unit at that relevant time.
He procured the bio-data of the accused Ex.P8 from the Security Unit. He got collected the FSL result from FSL, Rohini through HC Yashpal, Crime Branch which was deposited in the Malkhana of Crime Branch. A request letter was sent alongwith relevant documents i.e. the case file for obtaining sanction U/s 19 POC Act against the accused to the Security Unit. he prepared draft charge-sheet and recorded supplementary statements of witnesses. Sanction was granted by the competent authority i.e. CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 18 of 82 Joint C.P., Southern Range to prosecute the accused. In the month of January 2015, he was transferred and he handed over the case file to ACP Kailash Chand in the branch.
xxv) PW25 ACP Ishwar Singh deposed that on 13.10.2016, investigation of this case was assigned to him. Most of the investigation was already completed and FSL result regarding certain exhibits was pending. On 16.12.2016, he deputed HC Ajay who collected the FSL result and sealed envelopes from FSL, Rohini, and handed them over to him. He recorded statements of prosecution witnesses. He prepared draft charge-sheet. He also wrote a letter dated 04.10.2017 Ex. PW25/A to the Deputy Commissioner of Police, South-East District whereby request was made to grant sanction U/Sec.19 of PC Act.
xxvi.a) PW26 Insp. Sharad Kumar Bishnoi deposed that on 20.08.2011, the investigation of the present case was assigned to him. During investigation, he collected the CDRs/CAFs of the mobile no. 9810196022 and 9811183305. As per CAF, the mobile no. 9810196022 was registered in the name of A.V. Motors Workshop no. 11, DDA Shopping Complex, Kalkaji and its proprietor was Sh. Vikas Bakshi. As per CAF Ex. PW4/C, the mobile no. 9811183305 was registered in the name of accused Joginder Kumar. The forwarding letter of the service provider was Ex.PW26/A. The CAF and CDR of mobile no. 9810196022 belonging to Sh. Vikas Bakshi were Ex.PW5/A and Ex.PW5/B (colly) and the certificate U/s 65B of Indian Evidence CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 19 of 82 Act was Ex.PW5/C. He recorded statements of ASI Hansraj, HC Ashok Kumar - Reader to SHO PS Kalkaji and Beat Constable Nirpal Singh.
xxvi.b) On 07.09.2011, Anjani Kumar Mishra joined the investigation of the present case and he produced photocopy of cash memo no. 378 of A.V. Motors Mark-X and photocopy of complaint Mark-Y addressed to Commissioner of Police, Delhi, which were seized vide seizure memo Ex.P4. An enquiry report was also sought from the South-East District in this regard and the reply of the same was received vide letter no. 3357/AC-3/HAC/SED dated 16.09.2013 Ex.PW26/B. He also examined and recorded statement of Satnam Singh. He collected certified copy of relevant entry of Register no. 16 of PS Kalkaji Ex.PW26/C, as per which accused Joginder was the then SHO of PS Kalkaji and was using the mobile no. 9811183305. He made efforts to recover the mobile handset used by the accused but it was not traced. During investigation from the analysis of the CDRs provided by the Vigilance/PHQ regarding mobile no. 9811183305 it was confirmed that the said number was used in IMEI No. 358973011349210. As per investigation, the said mobile phone was purchased by Vikas Bakshi through his credit card. He placed the CDRs provided by the Vigilance/PHQ regarding the aforesaid mobile number on the file. xxvi.c) PW26 further deposed that the letter dated 28.09.2011 Ex.PW26/D was regarding request to supply CDR used in the enquiry conducted by the Vigilance into the complaint of Vikas Bakshi and the CDR was Mark-Z (colly). He obtained posting details of accused Joginder Kumar Ex. P8 from CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 20 of 82 Security Unit.
xxvi.d) PW26 further deposed that on 23.03.2012, Tejender Pal Singh produced the original bill book bearing no. 8901 to 8977 vide book no. 90 M/s Sigmen Radio Ex. PW1/G, which was seized vide seizure memo Ex.PW1/F. Thereafter, the file was marked to ACP Hoshiyar Singh as sections 7/13 of PC Act were attracted in the present case. PW26 correctly identified accused Joginder Kumar before the court.
xxvii.a) PW27 ASI Jag Narayan - MHC(M) at PS Crime Branch, Malviya Nagar. He deposed that on 20.11.2012, SI Rajbir deposited sealed exhibits alongwith copy of seizure memo in the present case with the seal of RS and he made entry in the Register no. 19 at serial no. 1772 Ex.PW27/A. He further deposed that on 03.06.2015, ACP Kailash Chand deposited sealed pulanda with the seal of KC alongwith copy of memo and he made entry in the register no. 19 at serial no. 2314 Ex.PW27/B. xxvii.b) PW27 further deposed that on 29.07.2015, ACP Kailash Chand deposited sealed exhibits i.e. SV2 and SV-2A and he made entry in the register no. 19 at serial no. 2423 Ex.PW27/C. PW27 further deposed that on 17.01.2013, all the sealed exhibits which were deposited vide entry no. 1772 on 20.11.2012 were sent to FSL through HC Ravinder vide RC no. 21/21 dated 17.01.2013 Ex. PW27/E and he made entry in the register no. 19 Ex.PW27/D. He further deposed that on the same day, HC Ravinder returned back from the FSL and handed over the acknowledgment of case acceptance Ex. PW27/F with a CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 21 of 82 remark that sealed Exhibit-B has been returned by the FSL and he made entry Ex.PW27/G. xxvii.c) PW27 further deposed that on 02.09.2013, one sealed parcel was again returned from the FSL and the same was deposited in the Malkhana by HC Yashpal and he made entry in the register no. 19 Ex.PW27/H. PW27 further deposed that on 17.07.2015, six sealed pulandas with the seal of KC alongwith sample seal were sent to FSL by SI Kuldeep Sharma vide RC no. 211/21 dated 17.07.2015 Ex. PW27/J and he made entry in the Register no. 19 Ex.PW27/I and the acknowledgment of case acceptance regarding the aforesaid entry was Ex.PW27/K. PW27 deposed that on the same day, one clothe pulanda sealed with the seal of KC was sent to FSL, Rohini through Ct. Balram vide RC no. 225/21 Ex. PW27/M and he made entry in Register no. 19 Ex.PW27/L. The acknowledgment of the case acceptance regarding the aforesaid entry was Ex.PW27/N. PW27 further deposed that on 16.12.2016, seven sealed parcels with the seal of FSL alongwith the result of the FSL were deposited in the Malkhana by HC Ajay Kumar and he made entry in the register no. 19 Ex.PW27/O. The result was handed over to the IO.
xxviii.a) PW28 ACP Kailash Chandra was part IO of the case. He deposed that on 23.01.2015 investigation of present case was entrusted to him and he issued notice U/s 91 Cr.P.C. Ex.PW28/A to the Branch Manager, HSBC Bank, Punjabi Bagh, Delhi. He received reply alongwith the copy of credit card statement Ex.PW28/B (colly) reflecting the transaction as well as certificate issued under Bankers Book Evidence Act. The name CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 22 of 82 of the card-holder was revealed as Mr. Vikas Bakshi. PW28 further deposed that he also issued the notice u/s 91 Cr.P.C. Ex.PW28/C to Tajinder Pal of M/s Sigmen Radio, K-1-A, Kalkaji, New Delhi to furnish the details of his bank account regarding the entry of Sh. Vikash Bakshi in his HSBC credit card in respect of mobile phone make Nokia N-73 purchased vide bill no. 8955 dated 24.11.2007. PW28 received the reply alongwith the bank statement Ex.PW1/J and Ex.PW1/K. PW28 also sought clarification from Tajinder Pal Singh, Proprietor of M/s Sigmen Radio as well as from HSBC Bank as the credit card transaction amount in the account of Sigmen Radio was Rs.35,750/- on 27.11.2007 and the mobile phone was purchased for Rs.15,198/- including surcharges. PW28 received reply of Tajinder Pal Singh of M/s Sigmen Radio Ex.PW1/J that the amount of Rs.15,198/- came in his bank alongwith other transactions/swipe done on his credit card machine and the total amount including the amount of that sold mobile phone was Rs.35,750/-. Mr. Tajinder Pal Singh also apprised vide his reply Ex.PW1/J that his account in question was in Lord Krishna Bank which was changed to Centurion Bank of Punjab and lastly to HDFC Bank. He also provided the copy of Bank statement from 15.11.2007 to 15.12.2007 Ex.PW1/K. xxviii.b) PW28 further deposed that he also issued a notice dated 30.12.2015 to Tajinder Pal Singh U/s 91 Cr.P.C. Ex.PW1/H seeking clarification that on the enclosed copy of bill no. 8955, book no. 90 the words "cash" and "Vikas Bakshi" was written and asked him to supply the list of staff who was working on 24.11.2007 at his shop to identify the person/employee of his CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 23 of 82 shop in whose handwriting the bill was issued and he received the reply Ex.PW1/I. PW28 also enquired from Sh. Tajinder Pal Singh that though the payment regarding the purchase of said mobile phone was received by him through credit card but why "cash" was mentioned on the bill and also regarding the name of 'Vikas Bakshi' which was appearing on the original bill and not on the carbon copy. Tajinder Pal Singh informed PW28 that initially the purchaser told that he would make the payment through cash but later on he might have made the payment through credit card and that he could not tell who had written name of Vikas Bakshi on the original bill subsequently and also verified that the name of Vikas Bakshi was not mentioned on the carbon copy. He also told PW28 that the staff used to change as the service provider used to provide them salesmen from time to time.
xxviii.c) PW28 further deposed that during investigation Ld. CMM, South-East issued notice to the IO regarding the status of the case and as PC Act was invoked, he moved an application dated 10.04.2015 Ex.PW28/D before the court of Ld. CMM, Saket Court to transfer the case to the court of Ld. Special Judge, PC Act, Tis Hazari Court.
xxviii.d) PW28 further deposed that on 28.05.2015, he moved an application Ex.PW28/E regarding custody of spy camera which was deposited in the malkhana of PS CR Park. He deposed that the Hon'ble court issued the notice to the concerned SHO, pursuant to which Insp. Sanjay Kumar, Additional SHO, CR Park alongwith Ct. Krishan Kumar appeared before the court and produced the spy cam in unsealed condition and with the CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 24 of 82 permission of the Hon'ble court, PW28 took possession of the spy cam vide handing over/taken over-cum-sealing memo Ex.PW8/A and he also prepared memo of sample seal Ex.PW8/B. Thereafter, PW28 deposited the spy cam in the Malkhana of PS Crime Branch. PW28 also issued one notice U/s 91 Cr.P.C. to Vikas Bakshi to provide any other device other than the spy cam, if any, and he gave the reply Ex.PW28/F. xxviii.e) PW28 deposed that on 17.07.2015, the spy cam alongwith other exhibits i.e. total six exhibits alongwith forwarding letter were sent to FSL, Rohini through SI Kuldeep Sharma and thereafter, he brought the acknowledgment of case acceptance Ex.P-7.
xxviii.f) PW28 deposed that on 14.07.2015, he issued a notice Ex.PW28/G to Sh. Vikas Bakshi asking him to be present at FSL, Rohini on 29.07.2015 for obtaining his voice sample. Accordingly, Vikas Bakshi visited FSL on 29.07.2015 and his voice sample was recorded in audio cassette make SONY which was provided by him, to the FSL authorities and after recording the voice sample, the cassette was handed over to PW28 which he took in his possession vide memo Ex.PW18/A and deposited the same with MHC(M), PS Crime Branch.
xxviii.g) PW28 further deposed that on 30.07.2015, he deputed Ct. Balram alongwith forwarding letter to deposit the exhibits after taking from MHC(M), PS Crime Branch to FSL, Rohini alongwith cassette of sample voice. The forwarding letter alongwith certificate was Ex.PW28/H. PW28 also obtained certificate U/s 65B Indian Evidence Act issued by Vikas Bakshi regarding the telephonic conversation. PW28 also issued CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 25 of 82 letters/reminders to service providers Ex.PW28/I (colly) to trace the mobile phone in question through IMEI search, which was given by the complainant to accused and the accused claimed that the said mobile phone was lost. On 20.06.2016, PW28 was transferred. PW28 correctly identified the spy cam Ex.PW21/Article-1, which was seized vide handing over/taking over memo Ex.PW8/A. xxviii.h) Ld. Chief P.P. for the State moved an application u/s 311 Cr.P.C. for recalling PW28 for further examination and said application was allowed. Accordingly on 21.07.2023 PW28 was further examined by Ld. Chief P.P. for the State. PW28 deposed that on 09.04.2015, he sent a letter Ex. PW28/J to DCP, South- East District for providing the copy of posting orders of Insp. Joginder Kumar vide which he remained posted as SHO, PS Kalkaji, South District during the year 2007 to 2009 and copy of posting/transfer order of Insp. Joginder Kumar by which he was transferred from SHO, PS Kalkaji to Security Unit in the year 2009 and information submitted by Insp. Joginder Kumar for purchase of Nokia mobile on 24.11.2007 for Rs.14,900/- from his service record maintained in the office. PW28 received reply Ex.PW28/K (colly) alongwith photocopies of the transfer and posting orders of Insp. Joginder Kumar. PW28 further deposed that he was informed by office of DCP, to seek information given by Insp. Joginder Kumar for purchase of Nokia Mobile phone, from South-East District. Thereafter, PW28 received reply Ex.PW28/L from ACP, Headquarters that information submitted by Insp. Joginder for purchase of Nokia mobile phone on 24.11.2007 for Rs.14,900/- was not available on record. PW28 CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 26 of 82 further deposed that he also sent a letter Ex.PW28/N to DCP, Vigilance for supply of CDRs received from service provider by Enquiry Officer of Vigilance Branch during the year 2009.
xxix.a) PW29 Insp. Rajiv Kumar deposed that on 16.04.2010, the complainant Vikas Bakshi came to his office at Anti Extortion Cell of Crime Branch and he recorded his statement Ex. PW29/A and he made an endorsement Ex. PW29/B and the present case FIR was registered. xxix.b) PW29 further deposed that on 17.04.2010, the complainant again visited his office and produced original cash memo dated 24.11.2007 Ex.PW1/A of Nokia N-73M issued in the name of complainant Vikas Bakshi, credit card statement of the complainant from 16.11.2007 to 15.12.2007 Ex.PW29/D and photocopy of credit card of the complainant Mark-X1 and same were seized by him vide seizure memo Ex.PW29/C. xxix.c) PW29 deposed that on 22.04.2010, complainant Vikas Bakshi again visited his office and produced two recorded CDs stated to contain audio recording of conversation with Ct. Nirpal Singh and Tom and second one containing video recording which was done by the complainant with the help of his spy cam. Both the CDs were played in the office computer and after seeing them, both the CDs were seized vide seizure memo Ex.PW29/E. xxix.d) PW29 also testified that on 04.05.2010, complainant Vikas Bakshi again visited his office and produced one CD stated to contain recordings i.e. total of six conversations (i.e. five audio and one video) between him and the accused. The said CD was CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 27 of 82 played in the office computer and after hearing and seeing the contents, the aforesaid CD was seized vide seizure memo Ex.PW29/F. xxix.e) PW29 also deposed that on 21.05.2010, the complainant again visited his office and produced one CD stated to contain two recordings (one audio and one video). The CD was played in office computer and after seeing and hearing the contents, the CD was seized vide memo Ex.PW29/G. xxix.f) PW29 deposed that he with the help of Ct. Ram Kumar prepared the transcripts Ex. PW29/H (Colly) of the audio recordings provided by the complainant in different CDs. xxix.g) PW29 deposed that during investigation, he recorded the statements of Gopal Kakkar @ Tom, Kartik Awasthi and also of Tajinder Pal Singh u/s 161 Cr.P.C. Tajinder Pal Singh produced photocopy of the cash memo/bill no. 8955 dated 24.11.2007 of Nokia N-73 mobile phone Ex.PW1/E issued in cash, which was seized vide seizure memo Ex.PW1/D. On 07.06.2011 he recorded the statement of witness Anjani Kumar Mishra. On 19.08.2011, the investigation of the present case was marked to SI Sharad as per directions of the senior officers. xxix.h) PW29 correctly identified accused Joginder Kumar before the court. PW29 also correctly identified case property i.e. CD on which "Telephonic recording of Ct. Nirpal Singh and SHO's friend Tom" and E-1 were mentioned as the same CD which was produced by Vikas Bakshi and exhibited as Ex.PW29/Article-1. PW29 also correctly identified the CD on which E-3 and "Phone conversation and audio recording Vikas Bakshi + Joginder Kumar" were written as the same CD which CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 28 of 82 was produced by Vikas Bakshi Ex.PW29/Article-2. PW29 also correctly identified the CD on which E-4 and "Recording of Joginder Kumar (SHO) on 6.5.2010" were written as the same CD which was produced by Vikas Bakshi Ex.PW29/Article-3. PW29 also correctly identified CD on which "Video recording at Builder's Office (Vipin Mishra) dated 15.06.2009 08:30 pm"
and E-2 were written as the same CD which was produced by Vikas Bakshi Ex.PW29/Article-4.
xxx) PW30 ACP Arvind Kumar deposed that on 19.11.2018, investigation of the present case was assigned to him. Request for obtaining sanction to prosecute the accused had already been forwarded by the previous IO and draft charge-sheet was already prepared. On 10.05.2019, he received the sanction order dated 18.03.2019 Ex.PW23/B from the office of Joint C.P., Southern Range to prosecute the accused. He finalized the draft charge-sheet and filed it in the court.
xxxi) PW31 Insp. Sanjeev Kumar deposed that on 29.05.2015, he was posted as ATO in PS C.R. Park and a notice from the court of Sh. Narottam Kaushal, Ld. Special Judge was received alongwith copy of an application regarding custody of a spy camera which was lying deposited in the PS C.R. Park.
Accordingly, on 03.06.2015 as per direction of SHO, he alongwith Ct. Krishan Kumar, who was working as MHC(M) clerk, appeared in the aforesaid court with the spy cam which was seized vide DD no. 23 dated 09.09.2010 U/s 91, 93 and 97 D.P. Act, PS C.R. Park. As per direction of Hon'ble Court, he CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 29 of 82 handed over the spy cam which was in a plastic envelope to the IO ACP Kailash Chandra, who prepared a cloth pulanda of the said spy cam and sealed with the seal of KC and marked Exhibit 'R'. The handing over/taking over-cum-sealing memo Ex. PW8/A was prepared by ACP Kailash Chandra. The seal after use was handed over to Ct. Krishan Kumar. He also correctly identified before court the abovesaid cloth pulanda Ex.PW31/A containing one audio-video recorder of black colour 2GB Ex.PW21/Article-1 and submitted that it was the same audio- video recorder which was seized by ACP Kailash Chandra vide memo Ex.PW8/A. xxxii.a) PW32 Sh. V. Laxmi Narasimhan, Assistant Director (Physics), FSL, Rohini, Delhi, deposed that on 17.01.2013, five sealed parcels alongwith specimen seal and forwarding letter bearing particulars of the present case were received in FSL and same were marked to him for examination. He marked parcels Exhibit-E1 to Exhibit-E4 and Parcel-A was marked as Exhibit-A, which was found containing two audio cassettes each of make Maxwell containing specimen voice sample of Insp. Joginder Kumar and same was marked as Exhibit-S1. After examination, he prepared his detailed report Ex.PW32/A (colly) After examining the case exhibits, the exhibits were sealed with the seal of "V.L.N-FSL-DELHI" and sent to the forwarding authority.
xxxii.b) PW32 further deposed that again on 17.07.2015 and 30.07.2015, seven sealed parcels in connection of present case FIR were received in office of FSL alongwith specimen seal and CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 30 of 82 forwarding letter which were also marked to him for examination. After examination of all the exhibits, he prepared his detailed report Ex.PW32/B (colly). The parcel-B which contained Exhibit-B i.e. audio/video recorder was without memory card and connecting wire and same was sent to Computer Forensic Unit of FSL, Delhi for examination and original report of Computer Forensic Unit was Ex.PW32/C. After examining the case exhibits, the exhibits were sealed with the seal of "V.L.N-FSL-DELHI".
xxxii.c) PW32 correctly identified before court the CDs Ex.PW29/Article-1, Ex.PW29/Article-4, Ex.PW29/Article-2, Ex.PW29/Article-3, cassettes Ex.P4 and Ex. P5, one audio-video recorder Ex.PW21/Article-1 and one audio cassette of make Sony Ex.P9.
14. During recording of prosecution evidence, on 20.12.2019 ld. Counsel for the accused admitted documents i.e. copy of FIR with certificate under section 65B of Indian Evidence Act as Ex. P1 and P2 respectively; seizure memo of voice sample of accused dated 20.11.2012 Ex. P3; seizure memo of documents seized from Anjani Kumar Mishra regarding CNG kit Ex. P4; seizure memo of certified copy of register no. 16 to prove mobile no. 9811183305 Ex. P-5; copy of register no. 19 Ex. P-6; FSL acknowledgement no. FSL-2015/P-4776 dated 17.07.2015 with R.C. Ex. P-7 and Bio-data of accused Joginder Kumar Ex. P-8. Accordingly, PWs Anjani Kumar Mishra, DO/HC Ajit Singh, HC Sanjeev Kumar, HC Satyaveer Singh and SI Kuldeep Sharma were dropped from the list of witnesses. Vide CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 31 of 82 order dated 01.02.2020, at the request of Ld. Addl.P.P. for the State, PW Satnam Singh was also dropped from the list of witnesses.
15. After conclusion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C wherein he denied the correctness of all the incriminating circumstances appearing in evidence against him and stated that he was innocent and falsely implicated in the present case. He stated that a complaint was filed by one Anjani Kumar against the complainant Vikas Bakshi regarding fitting of the CNG kit in his car and before he (accused) took action on the said complaint, the complainant filed a false complaint against him, apprehending legal action. Accused further stated that he was having visiting terms with Vikas Bakshi, who also used to visit PS Kalkaji through HC Naresh. Accused further stated that complainant was previously knowing Mr. Tom. He further stated that one Anjani Kumar had already given a complaint against the complainant, who had removed the CNG kit from the car of Anjani Kumar as he had to get insurance of his car. Later, when Anjani Kumar asked the complainant to again provide the CNG kit in his car, the complainant refused and therefore, he made a complaint. Accused further stated that Vigilance Enquiry was conducted but he was not allowed to take his witnesses during enquiry and Addl.C.P. Sh. R.P.Upadhyay conducted one sided enquiry. Accused further stated that prosecution sanction was granted without application of mind in a mechanical manner.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 32 of 8216. The accused preferred to lead evidence in his defence and he examined the following witnesses :
i.a) DW1 Anjani Kumar Mishra deposed that he purchased Honda City car golden colour bearing no. DL-3CAK- 4465 in the year 2006 from South End Honda, Faridabad. After about 1½ - 2 years, he got installed a CNG Kit from A.V. Motors of Vikas situated at DDA Market, Local Shopping Complex, Kalkaji, behind police station. He paid Rs.40,000/- to Vikas for installation of CNG Kit. DW1 further deposed that somewhere in the year 2009 when his driver was returning from airport after dropping him, the car met with an accident near Dhaula Kuan. On the next day, it was towed in his office at Nehru Place. The vehicle was within warranty period but as he got installed the CNG Kit from outside so first of all he took his vehicle to A.V. Motors of Vikas for getting removal of complete CNG Kit from the vehicle so that he could send the vehicle to authorized South End Honda workshop at Faridabad. Vikas got the CNG Kit removed from the vehicle and assured that after repair of the car, he would again install the same kit in the vehicle with nominal labour charge. Thereafter, he got his vehicle repaired from authorized workshop. It took around two months in complete repair of the car. DW1 further deposed that after getting the vehicle from authorized workshop, he again brought the vehicle somewhere in second week of May 2009 for getting reinstalled his CNG Kit in the car, which was entrusted to Vikas after the accident. He met Vikas who informed that the labour who CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 33 of 82 removed the CNG Kit had gone on leave so he would confirm from the labour as to where he had put the CNG Kit and thereafter, he would get the same re-installed in his car. DW1 continued to follow-up for re-installation for about 10 days but Vikas gave one excuse or the other. DW1 further deposed that thereafter he started insisting either to get the same CNG Kit installed in his car or to install a fresh CNG Kit in his car because he had already paid him the money. At the end of May there were some heated arguments between him and Vikas and Vikas totally refused to get the CNG Kit installed in his car and also refused to pay back the money and he also misbehaved with him. Then DW1 went to PS Kalkaji and lodged his complaint Ex. DW1/A, which was received on 01.06.2009 vide DD no. 37B. i.b) DW1 further deposed that accused Joginder Kumar was posted as the SHO, PS Kalkaji at that time and he met him and apprised about his grievance, who said that it was not a big issue and they should sort out the problem while sitting across the table. SHO Joginder Kumar called Vikas in the PS and arranged face to face meeting with him, however, no fruitful result could be arrived at as Vikas was not interested to get the CNG Kit re-installed in his vehicle. DW1 further deposed that he informed the SHO to take action against Vikas and that if he would not take action, he would go to superior officers.
17. On 22.01.2024 ld. Counsel for the accused closed defence evidence.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 34 of 82Arguments :
18. It is argued by the ld. Counsel for the accused that he has been falsely implicated in this case. There is no evidence of demand or acceptance of any amount by the accused. It is urged that the testimonies of the witnesses are full of contradictions and improvements and their version cannot be relied upon to hold the accused guilty. It is urged that the complaint was lodged after more than one and half year of the alleged incident of demand and acceptance of mobile phone make 'Nokia N-73' on 23/24.11.2007. It is urged that the complaint Ex. PW16/A was filed before the Commissioner of Police on 10.06.2009 by the complainant as he was apprehending that the accused would take action against him on the complaint of Anjani Kumar - DW1, which was lodged on 01.06.2009. It is urged that prior thereto, the complainant was having friendly relations with the accused and no threat of false implication was ever meted out to the complainant and the other allegations made by the complainant were not proved during investigation and during Vigilance enquiry, thereby casting a cloud over the version of the complainant which is not reliable. It is also stated that the prosecution has not been able to prove that the mobile phone in issue i.e. Nokia N-73 bearing IMEI No. 358973011349210 was purchased by the complainant through his HSBC credit card or that the same was used by the accused. It is urged that the recordings relied upon by the prosecution do not pertain to the relevant period of alleged demand and acceptance of mobile phone and hence are irrelevant. It is also urged that the sanction Ex. PW23/B is presumptive in nature and no finding has CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 35 of 82 been arrived at by the sanctioning authority that the accused had committed the alleged offence. It is accordingly urged that in absence of any evidence, accused is liable to be acquitted of the offences he is charged with.
19. On the other hand, it is argued by ld. Chief P.P. for the State that there was no delay in registration of the FIR and the delay, if any, has been satisfactorily explained owing to the fact that the complainant was continuously harassed by the accused and the present case was registered only upon the intervention of the Hon'ble Delhi High Court. It is further urged that the allegations of demand and acceptance are proved through the testimony of the complainant PW16, which is corroborated by the testimony of PW1 regarding purchase of mobile phone in issue by the complainant. It is urged that as per the service record of the accused, his mobile number was 9811183305. The said mobile phone number was used in mobile phone make 'Nokia N-73' having IMEI no. 358973011349210, as per the CDR. It is stated that since the mobile phone was demanded by the accused and the same was handed over to him by the complainant upon demand, therefore the accused is liable to be held guilty for the offences he is charged with.
20. I have heard ld. Counsel for the parties and perused the record.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 36 of 8221. Before appreciating evidence in this case, it is important to note that even in a case under Prevention of Corruption Act, 1988, the onus is on the prosecution to prove the the foundational facts. The Hon'ble Supreme Court in State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede Crl.Appeal No. 1350 of 2009, d.o.d. 29.07.2009 held that the foundational facts must be established by the prosecution. It was also observed that that while invoking the presumption under section 20 of PC Act, the court is required to consider the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. The Hon'ble Supreme court made the following observations in this regard:
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions 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 CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 37 of 82 touchstone of proof beyond all reasonable doubt." (emphasis supplied)
22. The Hon'ble Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587] while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
23. The Constitution Bench of Hon'ble Supreme Court in Neeraj Dutta vs. State, Govt. of NCT of Delhi, Crl. Appeal no. 1669 of 2009, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13 (1) (d) (i) & (ii) of the PC Act, summarized as under :-
" 68. (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 Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(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 of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(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 CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 38 of 82 direct oral and documentary evidence.
(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 Section 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 Section 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 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 Section 13 (1)(d) and (i) and (ii) of the Act.
(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 CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 39 of 82 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.
(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.
(g) In so far 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 Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is discretionary in nature." (emphasis supplied)
24. Viewed in light of law discussed herein-above, it has to be examined as to what extent the prosecution has succeeded in proving the charge against the accused. It is the CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 40 of 82 case of the prosecution that the accused Joginder Kumar extorted and obtained a mobile phone "Nokia N-73" from the complainant in lieu of allowing him to run his workshop and accordingly he committed the charged offences.
TESTIMONIES OF MATERIAL PUBLIC WITNESSES :
25. The complainant PW16 Vikas Bakshi deposed that at the time of incident, he was running a CNG and car repair workshop in the name of AV Motors at Shop No. 11, Site No. 42, DDA Local Shopping Complex, Kalkaji. Accused Joginder Kumar, the then SHO PS Kalkaji, continuously humiliated and threatened him on one or other pretext by saying that if his illegal demand was not fulfilled, he would be implicated in a false case. PW16 correctly identified accused Joginder Kumar before the Court.
26. PW16 further deposed that on 23.11.2007, accused Joginder Kumar came to his workshop and asked him to close his workshop as repair work was not allowed in a residential complex/area. On the same day accused Joginder Kumar called PW16 at his office at PS Kalkaji. When PW16 reached there, initially accused abused him and after some time accused told him that in his opinion PW16 looked like a gentleman, hence, if PW16 wanted to carry on his business, then he would have to give him a 'Nokia N73' Mobile Phone.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 41 of 8227. PW16 further deposed that under compulsion of the said demand of accused Joginder Kumar, he purchased one mobile phone make 'Nokia N73' from Sigmen Radio, K Block, Main Market, Kalkaji on 24.11.2007. The price of aforesaid mobile phone was Rs. 14,900/-. PW16 paid Rs. 15,198/- for the aforesaid mobile phone including the other charges required for payment by credit card as told by the shopkeeper. PW16 used his HSBC credit card for the payment.
28. On the same day i.e. on 24.11.2007, PW16 went to the office of accused Joginder Kumar at PS Kalkaji and handed over the said mobile phone make 'Nokia N73', to him. PW16 further deposed that immediately thereafter, accused Joginder Kumar inserted his SIM in the said Mobile Phone 'Nokia N73'. The said SIM of the accused was his official SIM/ mobile number i.e. 9811183305.
29. PW16 further deposed that after said incident, it became a routine for accused Joginder Kumar to call him at his office by giving a missed call on his mobile phone or by sending Const. Nirpal and HC Ashok (reader of accused Joginder Kumar). Accused Joginder Kumar also used to take Hundai Accent Car of PW16 for his personal use under compulsion.
30. PW16 stated that thereafter, accused Joginder Kumar started exchanging currency notes of small denomination to currency notes of higher denomination i.e. Rs. 500/- and Rs. 1000/-, through PW16. PW16 further deposed that accused CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 42 of 82 Joginder Kumar used to carry Rs. 40,000/- or Rs.50,000/- with him.
31. PW16 further stated that one day accused Joginder Kumar called him at his office at PS Kalkaji and asked PW16 to make arrangements for entertainment of his friend namely Mr. Tom, who was present in the office of accused. Accused further asked PW16 and forced him to take Mr. Tom to a bar for his entertainment. Under compulsion, PW16 was forced to take Mr. Tom to a bar and was forced to bear all the expenses incurred on his entertainment.
32. PW16 deposed that this routine of pressure and compulsion continued for some time and he was forced to visit office of the accused and was also forced to fulfill his illegal demands, without considering whether PW16 was free or not at that time.
33. PW16 also stated that on 15.05.2009 accused Joginder Kumar called him at his office at PS Kalkaji and forced him to install a new CNG Kit free of cost stating that the said CNG Kit had to be installed in car of one of the relatives of Commissioner of Police, Delhi. In pursuance of said demand of accused, PW16 told him that he had heard that the Commissioner of Police was an honest person and in his opinion no such demand could be made on his behalf. Thereafter, accused Joginder Kumar threatened PW16 by saying that if PW16 refused to install CNG Kit, he would implicate him in a false case.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 43 of 8234. PW16 further stated that after some days accused Joginder Kumar again called him at his office at PS Kalkaji where his reader HC Ashok met him and he threatened PW16 that in any condition he will have to install CNG Kit free of cost, otherwise, he will have to face dire consequences. Thereafter, PW16 returned to his workshop.
35. PW16 deposed that on 02.06.2009 HC Ashok, Reader of accused, came to his workshop and showed him a fake complaint and forced him to install a CNG Kit free of cost either in his Santro Car or in the car of the person, whose complaint was with him.
36. PW16 deposed that on 04.06.2009 accused Joginder Kumar called him at Police Booth situated at Krishna Market, Main Road Kalkaji and PW16 reached there at 08:30 p.m. There accused abused him, threatened him and slapped him without any reason. Thereafter, accused Joginder Kumar threatened PW16 that if he did not install CNG Kit free of cost in the car of relative of Commissioner of Police Delhi, he would implicate him in false case.
37. Due to continuous threat and illegal demands of accused Joginder Kumer, PW16 was frightened and become concerned for his family. Thereafter, PW16 lodged a complaint with the Commissioner of Police and the said complaint was marked to Vigilance Department for enquiry.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 44 of 8238. PW16 stated that he made first complaint dated 10.06.2009 against the accused, which was addressed to The Commissioner of Police vide Ex.PW16/A.
39. PW16 also identified his signatures on the statement/complaint Ex. PW-29/A.
40. PW16 stated that the present case FIR was registered on his statement Ex.PW29/A. PW16 stated that the present case FIR was registered pursuant to the directions of Hon'ble High Court of Delhi in Crl. Writ Petition no. 1049/2009 vide order Ex.PW16/B. PW16 further deposed that the accused and his friends started pressurizing him not to pursue his complaint and to turn hostile in the departmental enquiry which was going on at that time against the accused, on his complaint.
41. PW16 stated that on 22.04.2010, he visited the office of Crime Branch, R.K. Puram and submitted two CDs containing the recorded conversation between him and Ct. Nirpal. One CD contained the audio conversation between him and Ct. Nirpal and the other CD contained video recording between him, Kartik Awasthi and Vipin Mishra, who were friends of the accused. The said CDs were taken into police possession by the IO after preparing a seizure memo Ex. PW29/E. CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 45 of 82
42. On 17.04.2010, PW16 visited the office of Crime Branch and handed over original cash memo dated 24.11.2007 of Nokia N-73 mobile Ex.PW1/A, credit card statement showing the transaction regarding the purchase of the said mobile phone and photocopy of the credit card of HSBC Bank, which were seized vide seizure memo Ex.PW29/C.
43. On being shown the original bill of Sigmen Radio Ex.PW1/A, PW16 stated that it was the same bill which was issued after purchase of mobile phone Nokia N-73. PW16 further stated that at point X on the bill, word "cash" was mentioned although the said payment was made by his credit card. When he objected to the sales girl who was present at the shop as to why payment was being mentioned as cash on the bill, she added his name on the bill at point Y and handed over to him the receipt of transaction which was made through credit card regarding the said mobile phone. PW16 deposed that his name was mentioned on the original copy of the bill when he objected and the same was not added on the carbon copy of bill book of shop as the bill had already been handed over to him. PW16 further stated that the bill amount was Rs.14,900/- but the actual payment made for the purchase was Rs.15,198/- and it was informed to him that the difference of Rs.298/- was in respect of the surcharge for making payment through credit card, which was to be paid by him.
44. On being shown the document Ex.PW29/D i.e. statement of the credit card showing the transaction regarding CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 46 of 82 purchase of aforesaid mobile phone, PW16 stated that the amount of Rs.15,198/- was reflected at point X on the statement of credit card.
45. PW16 deposed that on 04.05.2010, he again visited the office of Crime Branch and handed over one CD containing the audio files and one video relating to the accused. The same was played in the office computer and the CD was seized by the IO vide seizure memo Ex.PW29/F.
46. PW16 stated that on 21.05.2010, he again visited the office of Crime Branch and handed over one CD containing audio and video recordings relating to the accused. The same was played in the office computer and seized by the IO vide seizure memo Ex.PW29/G. PW16 also stated that he recorded some conversations of the accused as he was pressurizing him to turn hostile in departmental proceedings and when he informed about this to Inspector, Crime Branch, he was asked to record those conversations as a proof.
47. PW16 also deposed about his visit to FSL, Rohini, Delhi, for getting his voice sample recorded in an audio cassette and the copy of the same was also prepared in another audio cassette and that they were seized vide seizure memo Ex.PW18/A.
48. PW16 deposed that he had done the audio recordings contained in the aforesaid CDs from his mobile phone CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 47 of 82 make Nokia and his mobile number was 9810196022. He further stated that the video recordings in the CD were done by him through a spy cam/audio-video recorder. He stated that after about five years of the registration of the case, the IO asked him about the mobile phone with which he had made the recordings and he informed the IO that the same was not in his possession at that time. His spy cam/audio-video recorder was seized in a Kalandara under section 91/93/97 DP Act at the behest of the accused by PS C.R. Park.
49. PW16 stated that on 09.09.2010, he was called by the SHO, PS C.R.Park namely Insp. Anil Dureja to review his security where ACP Mahipal Singh and Insp. Sanjay were also present. His wife, PSO and his son aged about 14 months also accompanied him but they were asked to sit outside the room of SHO. ACP asked the SHO to take his search and thereupon the audio-video recorder/spy cam which was in 'on' condition was taken by them while saying "tumne sabko Joginder samjha hua hai jo sabki recording kar loge" and they enquired from PW16 whether it was the same recorder with which he recorded the video of accused Joginder. When PW16 affirmed they snatched the same from him and later on shown it as a case property of Kalandara under section 91/93/97 DP Act. PW16 told the IO of present case to take possession of the original audio-video recorder but he told PW16 to take it himself on Superdari from court. Later PW16 came to know that on his application filed before CMM, the police seized the original audio-video recorder/spy cam through which he had recorded the video of CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 48 of 82 present case. PW16 stated that departmental proceedings were also initiated against the ACP and other officers, who roped him in a false kalandara and a criminal case was also filed against them.
50. PW16 deposed that he had issued a certificate under section 65B Indian Evidence Act dated 04.09.2015 (Ex. PW28/DA) regarding the genuineness of the audio and video recorded by him and handed over the same to the IO.
51. PW16 further deposed that he was proprietor of M/s A.V. Motors, Shop no. 11, Local Shopping Complex, Site No. 42, Kalkaji, New Delhi at the relevant time. When he got issued the credit card probably in the year 2002, his office address was Shop no. 10, Vasant Marg, Vasant Vihar, New Delhi which was also mentioned in statement of account Ex.PW29/D. PW16 deposed that he had also stated during Vigilance Enquiry that accused had also taken cash of Rs.12,000/- and Rs.8,500/- from him in the year 2009, which was given by him after withdrawing from ATM of HDFC Bank. PW16 also stated that on one day, date and month of which he did not remember but in the year 2009 at about 10:00 pm, he received a call from accused, who asked him to come at Moti Sweets, Malviya Nagar and when PW16 reached there at about 10:30 pm, accused asked him to wait there while he was coming. At about 11:10 pm, accused came and took him to a flat after parking his police gypsy nearby, where one of his couple friends met and he had drink with them and thereafter, he went in the adjoining room alongwith the lady CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 49 of 82 and PW16 remained seated. The accused came to that room again and had a drink and thereafter at about 01:00 am, he dropped PW16 at his house on the police gypsy as some other vehicles had blocked his vehicle and the accused asked him to take his vehicle next day.
52. PW16 identified one audio-video recorder of black colour on which 2 GB was printed and CFU-782/16 'SPY1' was written, as the same audio-video recorder/spy cam through which he prepared the videos related to accused which was later on transferred in CDs by him for which he had issued certificate under section 65B Indian Evidence Act. The audio-video recorder/spy cam was Ex.PW21/Article-1.
53. PW16 identified his voice in the audio cassette make 'Sony' Ex. P-6 on which Ex. SV-2A C was written and in the audio cassette make 'Sony' Ex. P9 on which "Vikas Bakshi Exhibit SV-2" and "Exhibit-C" was written.
54. PW16 also identified the telephonic conversation between him and Tom, who was friend of the accused, and Ct. Nirpal with him in CD Ex. PW29/Article-1 on the cover of which "Telephonic recording of Ct. Nirpal Singh and SHO's friend Tom" was written.
55. PW16 also identified the telephonic conversation between him and the accused in CD Ex. PW29/Article-2 on the cover of which "Phone conversation and audio recording Vikas CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 50 of 82 Bakshi + Joginder Kumar" was written.
56. After seeing and hearing the contents of CD Ex. PW29/Article-3 on the cover of which "Recording of Joginder Kumar (SHO) on 6.5.2010" was written, PW16 stated that the audio file was regarding the recording of the accused while he was talking on a mobile phone belonging to one Sandeep and the video file contained the recording which was done by him at Sunder Nursery Nizamuddin in which accused was also visible.
57. CD Ex. PW29/Article-4, on the cover of which "Video recording at Builder's Office (Vipin Mishra) dated 15.06.2009 08:30 pm" was written, was played on the computer of court but the same could not be played, however, PW16 identified his signature on the CD and stated that it was same CD relating to conversation between him and friend of accused.
58. Tajinder Pal Singh from whose shop the mobile phone 'Nokia N-73' was purchased by the complainant was examined as PW1. He deposed that he was having business of mobile phones in the name 'Sigmen Radio' and his showroom was situated at K-1A, Kalkaji, New Delhi-19. PW1 further deposed that on 24.11.2007, one person namely Vikas Bakshi had come to his shop and had purchased one mobile phone make Nokia N-73 for Rs.14,900/- by Bill No. 8955 and had made payment of the said bill by his credit card.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 51 of 8259. On 07.10.2010, IO had shown him the original bill Ex.PW1/A and he had confirmed to IO that this bill was issued from his shop in respect of sale of aforesaid mobile phone to Sh. Vikas Bakshi. PW1 had shown second copy/carbon copy book no. 90 containing bill no. 8955 dated 24.11.2007 and had stated to IO that the words "Vikas Bakshi" reflected on the original copy Ex.PW1/A was not written by their shop at the time of its issuance and it was also not reflected on the carbon copy Ex.PW1/B. Payment slip issued by credit card swipe machine Ex.PW1/C bearing signature of Vikas Bakshi at Point-A and same was also annexed with the carbon copy. He had provided photocopy of the aforesaid carbon copy of the bill Ex. PW1/E to the IO which was seized vide memo Ex.PW1/D.
60. PW1 deposed that on 23.03.2012, he provided carbon copy book no. 90 ( Ex.PW1/G) containing the aforesaid carbon copy bill Ex.PW1/B alongwith swipe machine paper slip Ex.PW1/C apart from other bills from bill no. 8901 to 8977 to the IO, which was seized by the IO vide memo Ex.PW1/F.
61. On 30.12.2015, he was served a notice under section 91 Cr.P.C. Ex.PW1/H to provide details about the employee, who had issued aforesaid bill no. 8955 dated 24.11.2007, and he gave written reply Ex.PW1/I wherein he stated that several promoters of the mobile company used to come to his showroom and he could not confirm about the handwriting of the person who issued the bill Ex.PW1/A, but the same was issued from his shop.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 52 of 8262. PW1 further deposed that he was again served a notice by the IO and he had given point-wise written reply Ex.PW1/J in respect of details of payment received through credit card against the sale of aforesaid mobile vide bill no. 8955. PW1 deposed that the account in which payment for the aforesaid sale of mobile was received, was in Lord Krishna Bank having account no. 0343051000004652 in the name of Sigmen Radio and it was credited to his account on 27.11.2007 alongwith some other payments and the total amount which was credited to his account on 27.11.2007 was Rs.35,750/- including the payment for sale of aforesaid mobile. PW1 further stated that Lord Krishna Bank was taken over by Centurion Bank of Punjab which later merged into HDFC Bank. PW1 also stated that the entire amount upon swiping of cards for the day gets credited under a single total amount shown in the ledger book as per Banking Rules. PW1 also provided statement of account of his aforesaid account Ex.PW1/K to the IO.
63. It may be noted that the prosecution has also relied upon the following electronic evidence in the present case.
i) One CD containing audio conversation between the complainant, Tom and Const. Nirpal Ex. Pw29/Article-1. PW16 identified the telephonic conversation between him and Tom, who was friend of the accused, and Ct. Nirpal with him in CD Ex. PW29/Article-1. As per the seizure memo Ex. PW29/E dated 22.04.2010 the said audio recordings pertained to 10.06.2009 and 11.06.2009;
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 53 of 82ii.a) A CD containing video recording conducted by the complainant with a Spy cam at the office of friend of Ins. Joginder Kumar and at his own workshop. PW16 identified his signature on the CD and stated that it was same CD related to conversation between him and friend of accused. ii.b) However the said CD could not be played on the computer of the court. The said CD is Ex. PW29/Article-4, on the cover of which "Video recording at Builder's Office (Vipin Mishra) dated 15.06.2009 08:30 pm" was written. As per the seizure memo Ex. PW29/E dated 22.04.2010, the video recordings pertained to 15.06.2009;
iii) The complainant handed over another CD vide seizure memo Ex. PW29/F dated 14.05.2010. PW16 also identified the telephonic conversation between him and the accused in CD Ex. PW29/Article-2 on the cover of which "Phone conversation and audio recording Vikas Bakshi + Joginder Kumar" was written. As per the seizure memo Ex. PW29/F the said conversations were recorded by him when accused Joginder Kumar himself and through his friends contacted him and compelled him for settlement and withdrawal of the case. The complainant stated that he had recorded some of the conversations of the accused as he was pressurizing him to turn hostile in the Departmental Proceedings and when the complainant informed about this to the Inspector Crime Branch, he asked the complainant to record those conversations as a proof.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 54 of 82iv) The complainant PW16 also handed over the CD containing two recordings to the IO which was seized by the IO vide seizure memo Ex. PW29/G dated 21.05.2010. After seeing and hearing the contents of CD Ex. PW29/Article-3 on the cover of which "Recording of Joginder Kumar (SHO) on 6.5.2010"
was written, PW16 stated that the audio file was regarding the recording of the accused while he was talking on a mobile phone belonging to one Sandeep and the video file contained the recording which was done by him at Sunder Nursery Nizamuddin in which accused was also visible. As per the seizure memo Ex. PW29/G the audio recording was conducted on 05.05.2010 and the video recording was conducted on 06.05.2010.
64. In his cross-examination by the accused, the complainant stated that all the above CDs i.e. Ex. PW29/Article 1 to 4, which he had provided to the IO contained telephonic conversations/audio recordings made after the registration of the FIR except the recording with Builder Vipin Mishra, who was friend of the accused and with Const. Nirpal. Accordingly, the aforesaid audio and video recordings relied upon by the prosecution pertained to the period after filing of the FIR and cannot be held to be corroborative of the demand made by the accused on 23.11.2007. The accused has been charged for the offences under section 7/13(1)(d) of Prevention of Corruption Act and Section 384 IPC in connection with the incident of 23/24.11.2007 when he obtained a 'Nokia N-73' mobile phone from the complainant. Since there are no recordings of the date CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 55 of 82 of incident i.e. 24.11.2007 or prior thereto, the said recordings do not aid the prosecution in corroborating the allegations of demand and extortion by the accused on 23/24.11.2007. In these circumstances, the evidence regarding collection of voice samples, the FSL results thereon and the transcripts prepared on the basis of the aforesaid CDs is only academic and does not further the case of the prosecution as the same do not pertain to the relevant period.
65. In order to prove that the accused had obtained a mobile phone 'Nokia N-73' from the complainant on 23/24.11.2007, the prosecution has relied upon the testimony of PW16 Vikas Bakshi, the complainant, who deposed that during the days of incident, he was running a CNG and car repair workshop in the name of A.V.Motors at Kalkaji, Delhi. On 23.11.2007 accused Joginder Kumar came to his workshop and asked him to close it as repair work was not allowed in a residential area. That day accused Joginder Kumar called him at his office at PS Kalkaji where he told the complainant that he looked like a gentleman and if he wanted to carry on his business then he will have to give him a Nokia N-73 mobile phone. Under compulsion of the aforesaid demand, on 24.11.2007 the complainant purchased the mobile phone make Nokia N-73 from Sigmen Radio, K Block, Main Market, Kalkaji, the cost of which was Rs. 14,900/-. The complainant paid Rs. 15,198/- for the said mobile phone, including other charges through his HSBC Credit Card. On 24.11.2007 itself, the said mobile phone was handed over by the complainant to the accused at PS Kalkaji, who CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 56 of 82 inserted his official SIM bearing no. 9811183305 in that mobile phone.
66. The complainant handed over the documents pertaining to purchase of the said Nokia N-73 mobile phone to the IO during investigation, which included the original cash memo dated 24.11.2007 pertaining to Nokia N-73 mobile bearing IMEI No. 358973011349210 Ex. PW1/A; his credit card statement between 16.11.2007 to 15.12.2007 for his credit card bearing no. 4476921208536312 in the name of Vikas Bakshi Ex. PW29/D reflecting transaction of Rs.15,198/- with 'Sigment Radio' on 24.11.2007 Ex. PW29/D and photocopy of the credit card no. 4476921208536312 Mark-X1. All the aforesaid documents were seized by the IO vide seizure memo Ex. PW29/C dated 17.04.2010.
67. In this regard, PW1 Sh. Tejender Pal Singh, who was running the business in the name of 'Sigmen Radio' at Kalkaji, New Delhi, deposed that on 24.11.2007 one Vikas Bakshi had come to his shop and purchased one mobile phone make 'Nokia N-73' through bill no. 8955 and had made the payment through Credit Card. He also stated that he had shown the carbon copy of book no. 90 containing bill no. 8955 dated 24.11.2007 to the IO and had informed the IO that the words 'Vikas Bakshi' reflected on original copy Ex. PW1/A was not written at their shop at the time of its issuance and it is also not reflected in the carbon copy of the said bill Ex. PW1/B. The carbon copy book no. 90 containing the carbon copy of bill no.CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 57 of 82
8955 alongwith payment slip of credit card swipe machine is Ex. PW1/G Payment slip of the credit card swipe machine Ex. PW1/C was also stated to be annexed with the carbon copy, and stated to be bearing the signatures of Vikas Bakshi. The photocopy of the carbon copy of the bill Ex. PW1/E was seized by the IO vide seizure memo Ex. PW1/D on 23.03.2012. PW1 however could not give the details of the person who had issued bill Ex. PW1/A, however, the same was stated to be issued from his shop.
68. PW1 also deposed that the payment against the said bill Ex. PW1/A was received in the bank account of Sigmen Radio with Lord Krishna Bank in account no.
03430510000004652 and was credited in the account on 27.11.2007 alongwith other payments totaling to an amount of Rs. 35,750/- as reflected in the statement of account Ex. PW1/K.
69. In his cross-examination PW1 affirmed that it was not possible for him to confirm in whose name Ex. PW1/A was issued unless the name 'Vikas Bakshi' was not mentioned therein. Ex. PW1/A was not issued by him personally and was issued by some staff persons and he could not be identified. He stated that he could not say who had written the name Vikas Bakshi on Ex. PW1/A. He also affirmed that upon seeing Ex. PW1/C i.e. the credit card payment slip, it could not be ascertained if it was in respect of the bill Ex. PW1/B i.e. carbon copy of bill no. 8955 and further that the ink on the slip generally evaporates after some time. He also affirmed that by seeing the CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 58 of 82 payment slip of credit card Ex. PW1/C, it could not be stated if the slip was with respect to the sale of the mobile phone and the amount mentioned in Ex. PW1/B. He also affirmed that in the original bill no. 8955 Ex. PW1/A and the carbon copy of bill no. 8955 i.e. Ex. PW1/B, it is mentioned that the payment was received through cash. He also affirmed that the statement of account Ex. PW1/K does not mention an entry on 27.11.2007 for an amount of Rs. 15,198/- or Rs. 14,900/-. PW1 stated that there were six entries in Ex. PW1/K for 27.11.2007. There was only one entry for credit for credit card, one entry for cash deposit and other four were debit entries. He deposed that he did not produce any document to show that at any point of time any payment to the extent of Rs. 15,198/- or Rs. 14,900/- was ever received by 'Sigmen Radio' from the credit card account of Vikas Bakshi and for the said purpose he relied upon Ex. PW1/C i.e. the credit card payment slip. PW1 also affirmed that upon seeing Ex. PW1/C he could not tell about use of credit card by Vikas Bakshi and about him making the payment with his credit card. He also affirmed that no date is visible on Ex. PW1/C and that no date was manually mentioned on Ex. PW1/C. He denied that the mobile phone sold against carbon copy of the invoice Ex. PW1/B was not sold by payment through credit card. He denied that he had made a false statement that Ex. PW1/C pertained to that payment and that it was a procured and manipulated document which was stapled with Ex. PW1/C at the asking of the police. PW1 deposed that his firm did not have any account in any bank with the name of 'Sigment Radio'.CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 59 of 82
70. PW1 also affirmed that on 07.10.2010 when photocopy of the bill Ex. PW1/E from the bill book Ex. PW1/G was given to the IO, the document Ex. PW1/C was not handed over to him and the same was not seized vide seizure memo Ex. PW1/D. He also denied that on 07.10.2010 the slip Ex. PW1/C was not in existence and for that reason neither the slip nor its copy was handed over to the IO. He denied that no phone was sold from his shop to Vikas Bakshi against credit card or that he had deposed falsely at the instance of the IO.
71. In this context, the complainant Vikas Bakshi PW16 in his cross-examination deposed that he did not hand over the customer slip of the transaction made through the credit card to the IO. He stated that the customer slip regarding purchase of mobile phone was issued from credit card swipe machine which fades after 2-3 days and therefore it was not handed over to the IO. He denied that he did not purchase any mobile by use of credit card or that for this reason no slip was in his possession and therefore it was not handed over to the IO.
72. It is vehemently contended by ld. Counsel for the accused that the prosecution has failed to prove that the complainant had in fact purchased mobile 'Nokia N-73' from 'Sigmen Radio' on 24.11.2007 against payment through Credit Card. It is stated that the original invoice Ex. PW1/A is a manipulated document and the Credit Card slip Ex. PW1/C is also fabricated to implicate the accused in the present false case. It is stated that the original bill Ex. PW1/A bears the name of CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 60 of 82 purchaser as Vikas Bakshi, however, the carbon copy of the same Ex. PW1/B does not bear the name of the purchaser, thereby indicating that Ex. PW1/A is a manipulated document. It is also urged that Ex. PW1/C is entirely faded and the name of the issuing company or the purchaser is not visible thereon and hence the same cannot be relied upon to prove payment by credit card for the said mobile phone. Moreover both Ex. PW1/A and Ex. PW1/C indicate payment by cash and not by a credit card. It is argued that there is no document on record including the statement of account which categorically points to the purchase of the mobile phone in issue by the complainant.
73. Admittedly, the mobile phone make 'Nokia N-73' was not recovered during investigation and the same was stated to be not traced. On 17.04.2010 the complainant produced the original cash memo dated 24.11.2007 Ex. PW1/A of Nokia N-73 mobile phone issued in the name of complainant Vikas Bakshi. The complainant also produced his Credit Card statement for the period between 16.11.2007 to 15.12.2007 Ex. PW29/D and photocopy of his HSBC credit card Mark-X1. The aforesaid documents were seized by PW29 Insp. Rajiv Kumar vide seizure memo Ex. PW29/C dated 17.04.2010. On 07.10.2010, PW1 Tejender Pal Singh produced photocopy of the cash memo/bill no. 8955 dated 24.11.2007 (Ex. PW1/E) pertaining to mobile Nokia N-73 which was seized vide seizure memo Ex. PW1/D. Subsequently, on 23.03.2012, PW1 produced the original bill book bearing no. 8901 to 8977 vide book no. 90 of M/s Sigmen Radio (Ex. PW1/G) and the same was seized by PW29 IO/Insp.CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 61 of 82
Sharad Kumar Bishnoi vide seizure memo Ex. PW1/F dated 23.02.2012.
74. Perusal of Ex. PW1/A reveals that same has been issued in the name of the complainant 'Vikas Bakshi', however, the photocopy thereof Ex. PW1/E, which was seized by the IO from PW1 on 07.10.2010 does not bear the name of 'Vikas Bakshi' as the purchaser. It may however be noted that both Ex. PW1/E and Ex. PW1/A are in respect of the same mobile phone Nokia N-73 having IMEI No. 358973011349210 and the amount for which it was purchased is indicated to be Rs. 14,900/-. Subsequently, on 23.03.2012, the original bill book no. 90 having carbon copies of the bills from serial no. 8901 to 8977 Ex. PW1/G was seized by the IO. The original carbon copy of the bill is Ex. PW1/B and the same also does not bear the name of the purchaser. It may be noted that from the testimony of PW1 it emerges that the name Vikas Bakshi on Ex. PW1/A was not written by his shop at the time of its issuance and that is why it is not reflected on the carbon copy of the same.
75. Complainant Vikas Bakshi stated that his name was mentioned on the original copy of the bill when he objected and the same was not added on the carbon copy of the bill book as the bill has already been handed over to him. He also stated that the bill amount was Rs. 14,900/- but the actual payment which was made for the purchase was Rs. 15,198/- and he was informed that the difference of Rs. 298/- was towards sur-charge for making payment through Credit Card. In his cross-examination CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 62 of 82 by accused PW16 denied that Ex. PW1/A is a forged document as his name is not mentioned in the carbon copy of the bill Ex. PW1/B and for that reason there was no record of making payment by card in the name of 'Sigmen Radio'.
76. The bill Ex. PW1/A was not issued by PW1 himself and had been issued by his staff but he could not tell by whom and the name Vikas Bakshi reflected on Ex. PW1/A was not written at his shop at the time of its issuance. The complainant has sought to explain his name Vikas Bakshi appearing on Ex. PW1/A and not on its carbon copy Ex. PW1/B by stating that he had objected that his name was not written on the carbon copy but his name was not added thereon as the bill had already been handed over to him. Be that as it may, it is manifest that the name was added on the bill later. Moreover, PW1 has specifically stated that the word 'Vikas Bakshi' was not written on Ex. PW1/A at his shop at the time of its issuance and was also not reflected on the carbon copy of the same Ex. PW1/B. PW1 stated that he had given his reply ex. PW1/I to the IO in response to the notice under section 91 Cr.P.C. Ex. PW1/H, wherein it is also stated by PW1 that the writing of the word 'Vikas Bakshi' was different from the writing on the bill and he was unable to give details of the person who had issued the said bill. Hence, it emerges that the name 'Vikas Bakshi' was inserted on Ex. PW1/A at a later stage.
77. PW1 also stated that the Credit Card slip Ex. PW1/C was stapled alongwith the bill Ex. PW1/B as per the usual CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 63 of 82 practice, however, he could not say upon seeing Ex. PW1/C as to whether the slip was with respect to sale of mobile phone and for the amount mentioned in Ex. PW1/B. PW1 denied that Ex. PW1/C was stapled with Ex. PW1/B at the asking of IO. Ex. PW1/C available on court record is a faded credit card payment slip. PW1, owner of 'Sigmen Radio', also stated that Ex. PW1/C bears the signatures of Vikas Bakshi, however, in his cross- examination he admitted that neither the mobile phone was sold by him nor the bill Ex. PW1/A was issued by him personally. PW1 also stated that if the name of Vikas Bakshi was not mentioned on Ex. PW1/A, it was not possible for him to tell in whose name the bill was issued. PW1 only being a shopkeeper could not have identified the signatures of Vikas Bakshi on the credit card payment slip Ex. PW1/C. The said slip Ex. PW1/C was not put to Vikas Bakshi for identification of the signatures thereon. Hence, it cannot be stated without doubt that the credit card payment slip Ex. PW1/C was in respect of Ex. PW1/A or Ex. PW1/B.
78. The statement of account of 'Sigmen Radio' is Ex. PW1/K. There is no entry dated 24.11.2007 regarding any amount credited on that day. PW1 deposed that the amount in respect of sale of the aforesaid mobile phone was received in Lord Krishna Bank in his account no. 03430510000004652 in the name of 'Sigmen Radio' and it was credited in his account on 27.11.2007 alongwith other payments and the total amount credited was Rs. 35,750/- on 27.11.2007 which included the payment of the aforesaid mobile. He also stated that the amount CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 64 of 82 against credit card for a particular day used to get credited under a single total amount. In his cross-examination PW1 stated that there was no entry on 27.11.2007 for an amount of Rs. 15,198/- or Rs. 14,900/- in Ex. PW1/K and stated that the entire payment of a particular day is reflected in the account. He stated that he did not produce any document to show that any payment to the extent of Rs. 15,198/- or Rs.14,900/- was ever received by 'Sigmen Radio' from the credit card account of Mr. Vikas Bakshi. He stated that for the said purpose he relied upon Ex. PW1/C. However, he affirmed that upon seeing Ex. PW1/C, he could not tell about the use of credit card by Vikas Bakshi or making of payment from his credit card. He stated that his firm did not have any account in the name of 'Sigment Radio'.
79. From the aforesaid, it emerges that the credit card statement Ex. PW29/D indicates that an amount of Rs. 15,198/- was swiped against 'Sigment Radio' on 24.11.2007. IO/ACP Kailash Chandra PW28 deposed that he did not obtain any clarification regarding the merchant name mentioned on Ex. PW28/B as 'Sigment Radio'. PW28 volunteered that the name of the Credit Card holder was mentioned as Vikas Bakshi and it appeared to him that the merchant name was inadvertently mentioned as 'Sigment Radio' instead of 'Sigmen Radio'. He also stated that he did not conduct any investigation to inquire as to whether 'Sigment Radio' and 'Sigmen Radio' were one and the same. It may be noted that the credit card statement Ex. PW29/D is an auto generated statement and hence it cannot be stated that the name 'Sigment Radio' was mentioned therein CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 65 of 82 inadvertently. Moreover, PW1 deposed that his firm did not have any account in any bank with the name of 'Sigment Radio".
The statement of account of 'Sigmen Radio' (i.e. the firm of PW1) Ex. PW1/K indicates that an amount of Rs. 35,750/- was credited to the account of 'Sigmen Radio' for payments through credit cards as stated by PW1. The name of the merchant against whom the credit card slip Ex. PW1/C was issued is not visible and thus cannot be ascertained. There is no clarification given by PW1 or by the representative of the banker of the complainant PW22 as to how the amount swiped against 'Sigment Radio' was credited to the account of 'Sigmen Radio', if at all. In these circumstances, it cannot be stated beyond doubt that the amount of Rs. 15,198/- or Rs. 14,900/- was credited to the account of 'Sigmen Radio' for payment of the mobile phone in issue by Vikas Bakshi on 24.11.2007. Hence, even though PW1 has stated that the amount of Rs. 35,750/- included the payment for the sale of aforesaid mobile phone, however, even then it is not established on record beyond doubt that the said payment was received from the complainant only.
80. In order to prove that the accused was using mobile no. 9811183305, the prosecution has placed on record certified copy of relevant entry of register no. 16 of PS Kalkaji Ex. PW26/C, which indicates that the mobile no. of the accused is 9811183305. As per Ex. PW28/C Insp. Joginder Kumar, No. D/1036, PIS No. 16850014 was received on transfer from West District vide PHQ order dated 29.08.2007 as SHO PS Kalkaji. PW4 Alternate Nodal officer Vodafone Idea Ltd. deposed that CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 66 of 82 the original CAF of the said mobile number had been destroyed and he produced a copy of the same as retrieved from the computer as Ex. PW4/C. PW4 was not cross-examined by ld. Counsel for the accused despite opportunity given. Accordingly, it is proved on record that the accused was using the aforesaid mobile number when he joined PS Kalkaji on 29.08.2007 as SHO.
81. It may however be noted that in order to prove that the accused was using the aforesaid mobile number 9811183305 on Nokia N-73 mobile phone bearing IMEI No. 358973011349210, the prosecution has relied upon the CDR of the said mobile number as was available with the Vigilance Department, New Delhi. In this regard PW4 Alternate Nodal Officer, Vodafone Idea Ltd., deposed that CDR pertaining to mobile no. 9811183305 was not available in their system as they have access to past record of one year only. The CDR for the relevant period was thus not available with the Service Provider. Accordingly, the IO/Insp. Kailash Chand requested for supply of CDRs to PS Vigilance vide Ex. PW28/N and in reply thereto, copy of the CDR available in the Vigilance enquiry file in connection with complaint of Vikas Bakshi was provided and the same is Mark-Z (colly) running in two pages. It may be noted that Mark-Z(colly) are the analysis of the CDRs with calls between specific mobile numbers (i) between mobile no. 9811183305 (of accused) and 9810196022 (of complainant) and
(ii) 9811183305 (of accused) and 9999022388 (stated to be of Tom).
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 67 of 8282. PW26 IO/Insp. Sharad Kumar Bishnoi deposed that during investigation from the analysis of the CDRs provided by Vigilance/PHQ regarding mobile no. 9811183305, it was confirmed that the said number was used in IMEI No. 358973011349210. In his cross-examination PW26 stated that he collected the Vigilance Enquiry report and the CDR [Mark-Z (colly) 2 pages] from 01.06.2008 to 14.05.2009 from the enquiry conducted by the Vigilance. He stated that the said CDR is not certified by the service provider and there is no certificate under section 65B Indian Evidence Act with respect to the said CDRs. He also volunteered that the CDR collected by him was the analysis report and not the CDR provided by the company and that he did not collect the record on the basis of which the analysis report was prepared.
83. It is thus manifest that the prosecution has not placed on record the CDRs of mobile number 9811183305 belonging to the accused and has placed reliance upon the analysis of CDRs of the mobile number of the accused which was used in Vigilance enquiry to show that the mobile number of the accused was used with IMEI No. 358973011349210 i.e. the mobile phone in issue. However, the said analysis of CDRs Mark-Z (colly) is neither the CDR as certified by the service provider nor is supported by the certificate under section 65B of Indian Evidence Act and hence the same cannot be relied upon by the prosecution to prove the use of mobile number 9811183305 with IMEI no. 358973011349210 of mobile phone CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 68 of 82 make "Nokia N-73" which was stated to have been purchased by the complainant and handed over to the accused on 24.11.2007. In his statement recorded under section 313 Cr.P.C., the accused has denied that he was using mobile no. 9811183305 with IMEI No. 358973011349210 which was stated to be purchased by PW16 Vikas Bakshi through his credit card. In these circumstances, the handing over of the mobile phone by the complainant to the accused on 24.11.2007 is not established on record. Accordingly, necessary acceptance of mobile phone in issue by the accused from the complainant is not established on record beyond doubt.
84. It is contended by ld. Chief.P.P. for the State that from the oral testimony of complainant it is manifest that the accused had demanded one mobile phone make 'Nokia N-73' from the complainant on 23.11.2007 after calling him to PS Kalkaji by telling him that if he wanted to carry on his business/workshop then he will have to give him a 'Nokia N-73' mobile phone. In his testimony recorded before the court, the complainant PW16 also stated that after this incident it became a routine of accused Joginder to call him at his office by giving a missed call on his mobile phone or by sending Const. Nirpal and HC Ashok, Reader of the accused, and the accused also used to take his 'Hyundai Accent' car for his personal use under compulsion. He also used to exchange currency notes of small denomination to those of higher denomination and he used to carry Rs. 40,000/- to Rs. 50,000/- with him. PW16 also deposed regarding entertainment provided by him to a friend namely Tom CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 69 of 82 of the accused. PW16 deposed that all these demands of the accused were fulfilled by him under compulsion.
85. PW16 stated that on 15.05.2009 he was called by the accused at his office at PS Kalkaji and he told him to install a CNG kit free of cost in the car of relative of Commissioner of Police, Delhi, which he refused saying that the Commissioner being an honest person would not have told him to do so, at which the accused threatened him to implicate him in a false case if he refused to do so. Subsequently, on 02.06.2009 HC Ashok came to his workshop and showed him a fake complaint and forced him to install a CNG kit free of cost either in his 'Santro' car (of HC Ashok) or in the car of the person whose complaint was with him.
86. Thereafter on 04.06.2009 the accused called him at police booth situated at Krishna Market, Main Road, Kalkaji where PW16 reached at 08.30 pm and he was abused, slapped and threatened by accused Joginder without any reason. Accused threatened the complainant that if he did not install the CNG kit free of cost in the car of the relative of Commissioner, he would implicate him in a false case. In these circumstances, the complainant was constrained to lodge a complaint with the Commissioner of Police vide Ex. PW16/A dated 10.06.2009. It is urged by ld. Chief P.P. for the State that the contents of the complaint Ex. PW16/A corroborate the testimony of the complainant.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 70 of 8287. The complainant further stated that on the basis of his statement dated 16.04.2010 Ex. PW29/A, the present case FIR was registered in pursuance of the directions of the Hon'ble Delhi High Court in Criminal Writ Petition No. 1049/2009 vide order Ex. PW16/B.
88. It is vehemently contended by the Ld. Counsel for the accused that there is unexplained delay of one and half years in making the initial complaint to the Commissioner of Police on 10.06.2009 from the alleged date of demand/acceptance of the mobile phone on 23/24.11.2007. It is urged that the complainant has admitted that no complaint was made by him prior thereto. It is stated that on 23.11.2007 the complainant came to know that the accused was SHO of PS Kalkaji and he tried to become friendly with him so that he would allow him to carry on his unauthorized business/activities and when the accused started taking action against the complainant particularly after receiving the complaint of Anjani Kumar on 01.06.2009, he made a false complaint against the accused after 17 months on 10.06.2009 before the Commissioner of Police. The accused also examined Anjani Kumar as DW1 to prove the complaint filed by him against the complainant on 01.06.2009 vide DD No. 37B Ex. DW1/A regarding installation of CNG kit in his car which the complainant PW16 had refused to re-install after damage.
89. PW16 during his cross-examination denied the suggestions regarding the aforesaid defence taken by the accused. It may be noted that in the sanction for prosecution order Ex.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 71 of 82PW23/B dated 18.03.2019, the sanctioning authority has taken note of the aforesaid allegations of the complainant including entertainment provided to one Tom by the complainant, use of 'Accent' car, exchange of currency notes and about compelling the complaint to install a CNG kit in the car, however, since the said allegations could not be substantiated during investigation, therefore, sanction was not accorded for the said allegations. It was also noted that the conversation recorded in the CDs produced by the complainant were not found to be containing any threat or demand of any money. Thus the sanction under section 19 PC Act for prosecution was granted only for the allegation of purchase of mobile phone by the complainant and its use by the accused for a long period. It was accordingly stated in the sanction order dated 18.03.2019 that all these facts constituted an offence under section 384 IPC and 7/13 Prevention of Corruption Act for which the sanction under section 19 of P.C.Act was granted.
90. It is contended by ld. Chief P.P. for the State that even though the allegations apart from demand of mobile phone remained unproved during investigation, however, these facts show that the complainant was continuously harassed by the accused and he was constrained to file a Writ Petition before the Hon'ble Delhi High Court being Criminal Writ Petition No. 1049/2009 and it is only pursuant to the order dated 19.11.2009 of the Hon'ble Delhi High Court that the present FIR was registered on 16.04.2010. It is urged that the accused was an SHO of PS Kalkaji and therefore the complainant could not have CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 72 of 82 rushed to file a case against him at the time of initial demand of the mobile phone and it is only when he was unable to handle the harassment that he approached the Commissioner of Police on 10.06.2009 and thereafter the Hon'ble Delhi High Court to file a case against the accused. In these circumstances, the delay in registration of the present FIR is satisfactorily explained and cannot be held against the complainant.
91. In order to explain the delay, the complainant deposed in his cross-examination that the reason for not lodging any complaint before any authority prior to 10.06.2009 vide Ex. PW16/A was that he had given a mobile phone to the acused on 24.11.2007 and thereafter the accused repeatedly started making demands and when the complainant got fed up with his demands, he made a complaint to the Commissioner of police.
92. Perusal of testimony of the complainant PW16 reveals that in his cross-examination he stated that prior to 23.11.2007 he was not on friendly terms with accused and after 24.11.2007, there was exchange of about 100-150 calls between him and the accused. He stated that those calls were made for fulfilling the illegal demands of the accused. He further stated that he used to visit the office of the accused whenever he called him i.e. within a month or within 40-45 days. Though the complainant denied that he tried to become friendly with the accused upon introduction by one Naresh, who was posted at PS Kalkaji, however, PW29 IO/Insp. Rajiv Kumar deposed that during investigation after examining various witnesses, he came CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 73 of 82 to know that the complainant Vikas Bakshi and the accused were friends prior to filing of the complaint dated 10.06.2009. He further stated that this fact was not disclosed by the complainant either in his complaint Ex. PW29/A or in any of the supplementary statements recorded by him. The fact that the complainant and the accused had friendly relations is also noted in the sanction order Ex. PW23/B. Perusal of Mark-Z (colly) i.e. the analysis of the CDR calls between the accused from his mobile no. 9811183305 and the complainant having mobile phone no. 9810196022, placed on record by the prosecution reveals that between June 2008 to May 2009, 34 calls were made by the complainant to the accused and 11 calls were made by the accused to the complainant, thereby showing that the complainant and accused were in constant touch with each other, with the complainant having made more calls to the accused than the calls made to him by the accused. The aforesaid facts point to amicable relations between the accused and the complainant.
93. It is urged by the counsel for the accused that the present case was lodged against the accused as the accused was insisting upon the complainant to close his hazardous business in a residential area. One Anjani Kumar DW1 lodged a complaint on 01.06.2010 against the complainant and when the accused started enquiring about the same, the complainant apprehending action against him lodged the present false case against the accused.
CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 74 of 8294. In his cross-examination the complainant deposed that in the complaint Ex. PW16/A dated 10.06.2009 , it is not mentioned that on 15.05.2009 or thereafter the SHO had directed him to install CNG Kit free of cost in the vehicle of the relative of Commissioner of Police. He volunteered that he had made complaint only due to the reason that the accused was asking him to install the CNG kit free of cost in the vehicle of the relative of commissioner of police. He admitted that it is not mentioned in the complaint Ex. PW16/A regarding the incident of 15.05.2009 that the accused threatened to implicate him in a false case. However, he volunteered that the accused had threatened him. He denied that the accused had never asked him to install any CNG kit free of cost in that vehicle and for that reason the said fact was not mentioned either in the complaint Dated. 10.06.2009 Ex. PW16/A or in his statement dated 16.04.2006 Ex. PW29/A.
95. From the aforesaid discussion, it emerges that the complainant had friendly relations with the accused and the complaint Ex. PW16/A dated 10.06.2009 was filed by the complainant against the accused before the Commissioner of Police after their relations turned sour. The complainant had also alleged that the accused had harassed him and used his Accent Car under pressure, got exchanged his currency notes of small denomination to notes of higher denomination, made the complainant provide entertainment to his friend Tom and that the accused was pressurizing him to install CNG kit in car of relative of the Commissioner of Police. It may be noted that in the sanction order Ex. PW23/B dated 18.03.2019, the sanctioning CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 75 of 82 authority has taken note of the aforesaid allegations of the complainant including entertainment provided to one Tom by the complainant, use of 'Accent' car, exchange of currency notes and about compelling the complaint to install a CNG kit in the car, however, since the said allegations could not be substantiated during investigation, therefore, sanction was not accorded for the said allegations. Sanction was thus accorded for the allegation of obtainment of mobile phone 'Nokia N-73' by the accused from the complainant. As per the complainant PW16, he filed the complaint Ex. PW16/A as he was asked by the accused to install a CNG kit in the car of relative of Commissioner of Police on 15.05.2009 and owing to the said reason, on 04.06.2009, he was called by the accused at Police Booth Krishna Market, Kalkaji where he was abused and slapped. It may be noted that admittedly the complaint Ex. PW16/A was filed before the Commissioner of Police after about one and half years of the initial demand and purchase of the mobile phone in issue on 23/24.11.2007. Though the complainant has alleged solely harassment at the hands of the accused during that period, however, it has emerged on record that the complainant and the accused continued to have cordial relations with each other and the aforesaid allegations made against the accused could not be substantiated during investigation. The complaint Ex. PW16/A was eventually filed on 10.06.2009 when the accused asked the complainant to install a CNG Kit in the car of a relative. It may be noted that it is the defence of the accused that one complaint was filed by Anjani Kumar on 01.06.2009 vide DD No. 37B Ex. DW1/A against the complainant regarding re-installation of the CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 76 of 82 CNG kit in his car by the complainant and the complainant filed the complaint dated 10.06.2009 Ex. PW16/A as he apprehended that the accused was taking legal action against him.
96. As discussed hereinabove, the prosecution has not been able to prove beyond doubt that the mobile phone in issue was purchased by the complainant through his credit card or that it was used by the accused. Even if the purchase of mobile phone by the complainant or its user thereof by the accused is taken as proved, which could corroborate acceptance by the accused, still the prosecution has to climb uphill to prove demand by the accused as a fact, which is an essential ingredient of an offence under section 7 PC Act. It may be noted that substantial time had elapsed from the initial demand and acceptance of the mobile phone in issue on 23/24.11.2007 and the complaint was not filed at that point of time, and thereafter the complainant and accused continued to have amicable relations with each other which soured subsequently and thus considerable water had flown under the bridge, since the initial demand on 23.11.2007. Therefore, the testimony of the complainant regarding the circumstances under which the demand of the Mobile phone Nokia N 73 was initially made by the accused on 23.11.2007 and its acceptance thereof by him on 24.11.2007 cannot be treated as gospel truth, entirely trustworthy and wholly reliable to base the conviction of the accused solely thereupon.
97. In Vadivelu Thevar v. State of Madras, AIR 1957 Supreme Court 614, the Hon'ble Supreme Court classified oral CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 77 of 82 testimony into three categories (i) wholly reliable, (ii) wholly unreliable, (iii) neither wholly reliable nor wholly unreliable and held as under :
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that " no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's I Law of Evidence -9th Edition, at pp. 1 100 and 1 101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s. 134 quoted above. The section enshrines the well recognized maxim that " Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 78 of 82 the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses.
Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable."
98. Accordingly, it has been held that if the testimony of a sole witness is found to be wholly reliable, conviction can be based on such testimony and law of evidence does not require CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 79 of 82 any particular number of witnesses to be examined in proof of a given fact. In case of testimony of a single witness the court may clasify oral testimony into three categories i.e. (1) Wholly reliable, (2) Wholly unreliable and (3) Neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. However, in case of third category, the court has to be circumspect and has to look for corroboration in material particulars in form of a reliable testimony, direct or circumstantial evidence before acting upon the testimony of a single witness. The view taken in the aforesaid judgment has also been followed in Lalu Manjhi v. State of Jharkhand, 2003 (2) SCC 401 and Prithipal Singh v. State of Punjab , 2012 (1) SCC 10 and others.
99. As discussed, in the present case, the complainant PW16 cannot be stated to be a wholly reliable witness, hence the court has to be circumspect and has to look for corroboration in material particulars. It may be noted that the present case is not the one in which a trap was laid by any law enforcement agency following legal procedures in terms of pre-trap proceedings, independent witnesses, panch witnesses etc. The initial complaint was itself filed after about one and a half years and considering the delay and the relations between the complainant and the accused during that period, the circumstances as deposed by the complainant, under which the mobile phone was handed over to the accused by the complainant PW16, cannot be made the sole CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 80 of 82 basis to convict the accused, unless corroborated.
100. As discussed, the audio and video recordings placed on record do not pertain to the period of demand and acceptance ie 23/24.11.2007 and are of the year 2009 and 2010 and hence do not further the allegation of demand and acceptance of mobile phone on 23/24.11.2007. It is not the case of prosecution that there is any admission of demand of mobile phone in the conversations contained therein. No other witnesses of the incident of demand of the mobile phone on 23.11.2007 have been examined by the prosecution. Thus there is no corroborative evidence of the testimony of the complainant PW16 and hence the testimony of the complainant regarding demand of mobile phone make 'Nokia N-73' remains uncorroborated.
101. As discussed, PW16 has been held to be a witness who is neither wholly reliable nor wholly unreliable. In absence of due corroboration of testimony of complainant PW16 Vikas Bakshi regarding demand of mobile phone "Nokia N-73" on 23.11.2007, his testimony cannot be solely relied upon to convict accused Joginder Kumar. Even acceptance of the mobile phone in issue by the accused has not been proved beyond reasonable doubt.
102. In view of the aforesaid discussion, the prosecution has thus, failed to prove its case against the accused for the offences he is charged with and to bring home the guilt of the CC No.329/2019 FIR No.50/2010, PS Crime Branch St. vs Joginder Kumar Page 81 of 82 accused beyond reasonable doubt. Accused Joginder Kumar is thus entitled to benefit of doubt and therefore, acquitted of the charged offences.
103. Bail bond of accused stands cancelled and surety stands discharged.
104. File be consigned to record room after due compliance.
DEEPALI Digitally signed by
DEEPALI SHARMA
Announced in the open Court SHARMA Date: 2025.03.20
15:20:36 +0530
on 20th March, 2025 ( Deepali Sharma )
Special Judge (PC Act) (ACB-01)
Rouse Avenue Court Complex
New Delhi
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