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Delhi District Court

Cbi vs Rakesh Kumar on 30 November, 2012

                                                        1

                     IN THE COURT  OF  MS. RAVINDER KAUR,

                             SPECIAL JUDGE ( PC ACT)­03, CBI,

                                   SAKET COURTS, NEW DELHI 




C C No. 34/12

CBI                 Versus                       Rakesh Kumar 

                                                 S/o Sh.Laxmi Chand

                                                 R/O  Qtr. No. E­12. Sec.7. 

                                                 Type­II, Enquiry  office, 

                                                 CPWD,  Pushp Vihar, 

                                                 New Delhi­17




R C No. 4(A)/2009/CBI/ACB/ND.

U/S. 7, 13(l)(d) r/w Sec.13(2)of the P C Act, 1988.




Date of Institution                                                  :         19.07.2010


C C No.34/12                                  CBI Vs. Rakesh Kumar                                              Page no. 1 of  77
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Received by transfer on                                              :         16.03.2012

Date of Decision                                                     :         30.11.2012


                                                 JUDGMENT 

1. The prosecution case is that Kanhiya Lal Balai lodged a complaint Ex. PW 2/A with CBI wherein he claimed himself to be civil contractor with CPWD. He was awarded tender in respect of award No. 54(568)/PVMD/AB/930 dated:20.11.06 for development of Model Park, Sector­7, Pushp Vihar, MB Road, New Delhi and the total amount of the tender was Rs. 25,26,195/­. He completed the work in respect of the tender on 26.12.2007. He had deposited initially Rs.1,26,310/­ as earned money deposit ( security deposit) CPWD in PVMD Division. After completion of the work, final bill was prepared by JE Rakesh Kumar and the payment was received by the complainant but the security amount was still lying deposited with CPWD for which he had written a letter dt. 24.12.2008 to Executive Engineer PVMD, CPWD Pushp Vihar, New Delhi. It is alleged that when about 4/ 5 days ago he met JE Rakesh Kumar, he told the complainant that he will have to pay bribe amount of Rs. 7,000/­ for the final bill payment already made and Rs.

C C No.34/12 CBI Vs. Rakesh Kumar Page no. 2 of 77 3 3,000/­ towards the refund of the security amount or otherwise he would raise some objections. Since the complainant did not want to pay any bribe, he lodged the complaint with the CBI.

2. The complaint was marked to SI Manish Upadhaya for verification who conducted verification and confirmed the allegations contained in the complaint Ex. PW 2/A to be true and prepared verification memo dt.19.1.2009 Ex. PW 2/D. During verification of the complaint, in the blank DVR the introductory voice of Shiv Kumar, an independent witness was recorded and the verification officer alongwith the independent witness and the complainant proceeded towards the office of suspect officer ie accused Rakesh Kumar at Pushpa Bhawan, CPWD, Maintenance Division, Pushp Vihar and reached there at 10:30am. After explaining the function of DVR to the complainant, it was put in switch on mode and kept in the inner pocket of the jacket of the complainant. Thereafter as per directions of the verification officer, the complainant alongwith the independent witness went to the office of the accused. The complainant went inside his cabin and came out after sometime and DVR was taken from him which was played and the conversation recorded therein revealed demand on the part of the C C No.34/12 CBI Vs. Rakesh Kumar Page no. 3 of 77 4 accused as well as the motive for which he was demanding the bribe money of Rs. 10,000/­. Accused also agreed to lower down the demand to some extent. Thereafter they went to the office of CBI and the conversation recorded in the DVR was transferred to an audio cassette Mark Q­1 in the presence of independent witness and then it was sealed in a cloth wrapper with the seal of CBI. Seal after use was handed over to independent witness Shiv Kumar in safe custody. The verification proceedings concluded at 12:15hours. Consequently, case FIR No. RC­DAI­2009­A­0004 dt.19.01.2009 was registered U/s 7 of PC Act, 2988. The investigation was entrusted to Inspt. Rajesh Chahal, CBI, ACB, New Delhi. A trap team consisting of inspectors Rajesh Chahal, Karan Arya, Prem Nath and subordinate staff, two independent witnesses namely L R Meena,PRI(P) and Shiv Kumar,( Inspt. Post) was formed. The complaint was read over to all the members of the trap team including independent witnesses. The complainant confirmed the complaint that the same was written and signed by him. The independent witnesses also satisfied themselves about the genuineness of the complaint by putting some questions to the complainant. During the pre trap proceedings, the complainant produced 16 G C notes of Rs.

500/­   denomination,   total   amount   of   Rs.   8,000/­   as     the   accused   had 

C C No.34/12                                  CBI Vs. Rakesh Kumar                                              Page no. 4 of  77
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agreed to accept gratification of Rs. 8,000/­ as per the recording in the DVR. The number of the G C notes were reduced in writing in the handing over memo. A leather bag containing empty clean glass bottles, tumblers, sodium carbonate powder, sealing material, phenolphthalein powder was arranged from the malkhana.

3. The G C notes were treated with phenolphthalein powder and its practical demonstration was shown by making independent witness Shiv Kumar to touch the tainted notes with his hand fingers and washed them in colourless solution of sodium carbonate. On doing so the colourless solution turned into pink. After conducting the personal search of the complainant, the treated G C notes were kept in the left side chest pocket of his shirt. The complainant was directed to hand over the G C notes to the accused Rakesh Kumar on his specific demand and not otherwise or to hand over the same to any other person on his specific direction. Thereafter all the team members including the independent witnesses washed their hands with soap and water. The independent witness L R Meena deputed as shadow witness. He was also directed to give signal on completion of transaction of bribe by rubbing his face by his both hands or giving a call/missed call from his C C No.34/12 CBI Vs. Rakesh Kumar Page no. 5 of 77 6 mobile phone to the mobile phone of Inspt. Rajesh Chahal, the TLO. The DVR, compact cassette recorder and two sealed blank audio cassettes for recording the conversation at the spot and then transferring the recorded conversation from DVR to audio cassette was arranged ensuring that DVR did not contain any pre recorded voice. After recording the formal introductory voice of both the independent witnesses, the DVR was given to the complainant explaining its function and directing him to switch it on before entering into conversation with the accused. The pre trap conversation was recorded in the handing over memo and was signed by all the members of the team and left for the spot. The complainant accompanied by Sh LR Meena proceeded towards the office of accused Rakesh Kumar in Pushpa Bhawan, whereas other team members took appropriate positions in the vicinity. After 10 minutes the complainant and L R Meena came out and informed that accused Rakesh Kumar was not in the office. The complainant contacted him on telephone and the accused told him to come to his residence in the Inquiry Office Complex of CPWD, Sector­7, Pushp Vihar. Thereafter the entire team reached there. The complainant and L R Meena entered the Inquiry Office Complex CPWD. The complainant made a telephone call from his mobile and then he alongwith L R Meena stood in the C C No.34/12 CBI Vs. Rakesh Kumar Page no. 6 of 77 7 parking lot in front of the main entrance of the office building. After 5 minutes, accused came there and then entered into some conversation with the complainant The complainant and the accused then walked about 2 /3 meters from the main gate towards the parking lot and had some conversation. The shadow witness remained standing and watched them from the main gate of office building. The complainant was seen taking out the tainted money from the left side chest pocket of wearing shirt and extended the same with his right hand towards the accused who accepted the same with his right hand and kept the same in the right side pocket of his pant. Pre appointed signal was given by the shadow witness at 1635hours. Consequently, the trap team members and other independent witness Shiv Kumar rushed towards the accused who was disclosed the identity of the trap team members and was challenged for having demanded and accepted illegal gratification of Rs. 8,000/­ from the complainant as a reward for preparation and payment of his final bill and as a motive for processing the documents for the release of his security deposit for the work of development of Model Park, Sector­7, Pushp Vihar, New Delhi, to which he turned pale and did not utter anything. The accused was caught hold of from his both hands by Inspectors Prem Nath and Rajesh Chahal, the TLO and was C C No.34/12 CBI Vs. Rakesh Kumar Page no. 7 of 77 8 taken to his office chamber in the Inquiry Office building. The complainant disclosed his telephone number as 9910955123 from which he had conversation with accused Rakesh Kumar on his mobile phone No.9968009116.

4. The right hand wash of the accused was taken in freshly prepared colourless solution of sodium carbonate and the colour of the solution turned into pink. The said wash was then kept in a clean glass bottle which was given marked as RHW. The said bottle was sealed with the seal of CBI.

5. The recovery of Rs.8,000/­ was effected from the right side pant pocket of the accused. The number and denomination of these G C notes were tallied with the handing over memo and were found to be same. Thereafter a pant was arranged from the residence of the accused for changing the same with his wearing pant. The wash of inner right side pocket of the pant of the same was also taken in freshly prepared colourless solution of sodium carbonate and its colour also turned into pink which was kept in a clean glass bottle which was given marked as RSPPW. The said bottle was sealed with the seal of CBI.

6. The DVR was played at the spot which confirmed the demand of C C No.34/12 CBI Vs. Rakesh Kumar Page no. 8 of 77 9 bribe by the accused and the said conversation was transferred to cassette Mark as Q­2 which was sealed with the seal of CBI and investigation copy of this recording was also prepared. The rough transcription of the recording was prepared and the transcription memo was also prepared in this regard. The accused was arrested. The post trap proceedings were recorded in the recovery memo.

7. The cassettes Mark Q­1 Ex. P­17, Q­2 Ex.P­20 alongwith the cassette Mark S­1 Ex. P­24 containing the specimen voice of the accused were sent to CFSL for opinion and as per the report of CFSL it gave positive opinion regarding the similarity of the specimen and questioned voice.

8. The hand wash and the right side pocket wash was also sent to CFSL for opinion. As per report of the CFSL on chemical analysis, the positive opinion was given regarding the existence of phenolphthalein powder.

9. The sanction to prosecute the accused was obtained from the competent authority. After completion of investigation, the charge­sheet was filed to the Court for trial of the accused U/s.7 and 13(2) r/w Sec. 13(1(d) of P C Act, 1988.

C C No.34/12 CBI Vs. Rakesh Kumar Page no. 9 of 77 10

10. On the basis of material available on record charge u/s 7, 13(1)(d) r/w 13(2) of the PC Act was framed against the accused to which he pleaded not guilty and claimed trial.

11. The prosecution in supports of its case has examined 14 witnesses.

12. PW 1 is Rabindra Kumar, Supdt. Engineer CPWD, Circle­7, R K Puram, New Delhi, who had accorded sanction U/s.19 of Prevention of Corruption Act, 1988 Ex. PW 1/A.

13. PW 2 is Kanhiya Lal Balai is the complainant who proved his complaint Ex. PW 2/A, deposed about the verification of the complaint, pre trap proceedings and trap laying proceedings. He proved the documents the FIR Ex. PW 2/B, Handing Over Memo Ex. PW 2/C, the GC Notes Ex. P­1 to P­16, Verification Memo Ex. PW 2/D, Recovery Memo Ex PW 2/E, Transcription cum Voice Identification Memo Ex. PW 2/F, the application of the complainant addressed to Executive Engineer for refund of security amount and for Labour Clearance Certificate Ex. PW 2/G, the Labour Clearance Certificate Ex PW 2/G­1, Application Form for telephone connection Ex. PW 2/H, Cassette Q­1 Ex. P­17 and its transcription Ex. PW 2/J, Cassette Q­2 Ex. P­20 and its transcription Ex. PW 2/K. C C No.34/12 CBI Vs. Rakesh Kumar Page no. 10 of 77 11

14. PW 3 Shiv Kumar is an independent witness who deposed on the similar lines as that of PW 2 Kanhiya Lal Balai, the complainant with some discrepancies which shall be discussed lateron. He proved Arrest cum Personal Search Memo, Rough Siteplan and Specimen Voice Recording Memo as Ex. PW 3/A, Ex PW 3/B and Ex. PW 3/C respectively.

15. PW 4 Dr. Rajender Singh had examined the contents of cassettes Mark Q­1 Ex. P­17, Q­2 Ex. P­20 and S­1 Ex. P­24 and compared the questioned voice contained in cassettes Mark Q­1 and Q­2 with specimen voice of the accused recorded in cassette Mark S­1. He proved his report as Ex. PW 4/A and testified that by auditory and voice spectographic techniques, he found that the questioned voice of accused Rakesh Kumar contained in cassettes Mark Q­1 and Q­2 tallied with his specimen voice in cassette Mark S­1.

16. PW 5 L R Meena is another independent witness who was appointed as shadow witness. In the chief examination he did not depose about the pre trap proceedings. At the same time, though he deposed that he alongwith the trap team, independent witness Shiv Kumar and the complainant had gone to the spot but did not testify that he heard the C C No.34/12 CBI Vs. Rakesh Kumar Page no. 11 of 77 12 accused demanding or saw the accused accepting the bribe from the complainant, nor he deposed about the recovery of bribe amount from the possession of the accused. Consequently, he was declared hostile by the prosecution and was cross examined by Ld.PP.

17. PW 6 is Inspt. Manish Kumar Upadhaya to whom the complaint Ex. PW 2/A was marked for verification by the then SP CBI ACB, New Delhi and he carried out the verification of the same in the presence of independent witness Shiv Kumar and submitted his report Ex. PW 2/D to this effect. He deposed in details about the verification proceedings. He proved the cassette mark Q­1 "Verification on 19.01.2009'' as Ex.P­17, the inlay card and cloth wrapper as Ex. P­18 and Ex. P­19 respectively.

18. PW 7 is Dr NM Hashmi who had examined the contents of two bottles Ex. P­29 and Ex. P­30 respectively containing the right hand wash (RHW) and right side pant pocket wash (RSPPW) in pursuance of forwarding letter Ex.PW.7/A. He testified that examination of the contents of these bottles gave positive test for the presence of phenolphthalein powder. He proved his report as Ex. PW 7/B. He further proved the open cloth parcels bearing the seal of CBI as Ex.

C C No.34/12 CBI Vs. Rakesh Kumar Page no. 12 of 77 13 P­27 and Ex. P­28 respectively.

19. PW 8 is Ramesh Chandra, the then Executive Engineer Pushp Vihar Maintenance Division, Pushpa Bhawan, New Delhi. He is a witness to the Search cum Seizure Memo dtd. 19.01.09 Ex. PW 8/A whereby the documents ie Measurement Book No.1318, Hand Receipt dated:

19.01.2009 Ex. PW8/C, photocopy of letter on the letter head of Kanhiya Lal Balai, Govt. Contractor, CPWD Ex. PW 2/G, letter/ objection report No. 34 dt. 18.12.08 pertaining to development of Model Park at Sector­7, Pushpa Vihar Ex. PW 2/G­1, were seized. He testified that the Hand Receipt which was bearing his signature at point A, was for release of security of Rs. 1,26,310/­ in the name of Kanhiya Lal Balai in connection with the development work of Model Park at Sector­7, Pushp Vihar which was undertaken by the contractor Kanhiya Lal Balai.

20. PW 8 further testified that the Measurement Book contains the details of the work executed by the contractor on the basis of which the bill is prepared for payment as per the terms and condition of agreement.

He proved the page 91 of Measurement Book whereby it is certified by the concerned JE that the work has been carried out as per CPWD Specification and that no T & P ( Tools & Plants) issued to the C C No.34/12 CBI Vs. Rakesh Kumar Page no. 13 of 77 14 contractor and that no labour complaints received so far and that necessary recoveries made from the bills and that the contractor made his own arrangement of water and that contractor engaged a graduate engineer at site and that completion certificate record on page 96/MB No. 1295. He further testified that the work of the aforesaid contract awarded to Kanhiya Lal Balai was being supervised by JE Rakesh Kumar. The bills prepared in respect of the said contract used to be passed by him (PW 8). The bills used to be prepared by JE and forwarded by the AE to the EE. He further proved the bill dt. 18.07.08 for Rs.3,29,422/­ as Ex.PW8/B passed by him (PW8) vide voucher No. 62 and cheque No. 384944. He testified that the total amount of the security in the present case was Rs. 1,26,310/­. The complainant had moved an application dt. 24.12.08 Ex. PW 2/G for release of the security amount and he identified his photo signature at point A and that he had marked the said letter to Accounts Officer who further marked it to AE1 vide endorsement at point B and thereon he identified his signature at point A1. He also identified his signature on the Recovery Memo Ex. PW 2/E.

21. PW 9 is Inspt Prem Nath who was member of the trap team. He C C No.34/12 CBI Vs. Rakesh Kumar Page no. 14 of 77 15 made a detailed statement regarding the pre trap proceedings and proceedings conducted after signal was received from the shadow witness. He also partly investigated this case wef 12.2.2009 and as per his testimony he had recorded the statements U/s. 161 Cr PC of SI Manish Updhaya, Inspt Rajesh Chahal and EE Ramesh Chandra.

22. PW 10 is Inspt Pankaj Bansal. Whose testimony is more of formal nature as he had only filed the charge­sheet to the Court under the directions of the then SP on 12.07.2010.

23. PW 11 is Inspt. S S Bhullar who had partly investigated the case and had recorded the statements of three witnesses namely L R Meena, Shiv Kumar and Kanhiya Lal Balai U/s. 161 Cr PC. As per his testimony, further investigation was transferred to Inspt Prem Nath.

24. PW 12 DSP Rajesh Chahal was the TLO. He too made detailed statement regarding the receipt of complaint Ex PW 2/A, FIR Ex PW 2/B, about constituting a trap team of the CBI officials, joining two independent witnesses ie Sh L R Meena and Sh Shiv Kumar, about the pre trap proceedings, proceedings conducted after the pre fixed signal was given by shadow witness L R Meena, about the arrest of the accused and taking of his specimen voice. He also identified the signature of the C C No.34/12 CBI Vs. Rakesh Kumar Page no. 15 of 77 16 then SP Sh Sumit Saran on the forwarding letter addressed to CFSL Ex. PW 12/A vide which cassettes Q­1, Q­2 and S­1 were sent to the Director CFSL. He further identified the signature of Sh Sumit Saran on the forwarding letter Ex PW 7/A vide which the exhibit bottles Mark RHW and RSPPW were sent to Director CFSL for analysis.

25. PW 13 is Sh. R K Singh, Nodal Officer Bharti Airtel Ltd who proved the subscriber enrollment form of mobile phone No. 9910955123 in the name of K L Balai s/o. Sh. N S Balai, R/o E­86, Sector­5, Dr Ambedkar Nagar, New Delhi­62 alongwith the photocopy of driving licence and Pan card and ID proof collectively as Ex.PW 13/A. He further proved the call details of the said mobile phone for the period 18.1.2009 to 19.1.2009 Ex. PW 13/C and the certificate U/s 65­B of the Indian Evidence Act as Ex PW 13/B. He further proved the Cell ID chart of the said mobile number as Ex PW 13/D.

26. PW 14 is Sh R S Yadav from MTNL who produced the summoned record and proved the customer's application form for mobile No. 9968009116 in the name of Rakesh Kumar, R/o Quarter No. 1765, Sector­3, Pushp Vihar, New Delhi and the ID proof collectively, as Ex.

PW 14/A.     He also produced   the call record of the said mobile phone 


C C No.34/12                                  CBI Vs. Rakesh Kumar                                              Page no. 16 of  77
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number w.e.f. 15.1.09 to 16.01.09 and marked PW 14/PX. He deposed that as per call record, an incoming call was received on mobile No. 9968009116 from 9955034005 on 19.01.09 at 4:10:55pm and duration was 38 seconds. He further deposed that as per call record, an incoming call was received on mobile No.9968009116 from 9910955123 on 19.01.09 at 4:17:12pm and duration was 69 seconds.

27. After completion of prosecution evidence, statement of the accused was recorded U/s 313 Cr PC, whereby he admitted that he was posted as JE CPWD Pushp Vihar, New Delhi. He also admitted that PW 2 Kanhiya Lal Balai was contractor with CPWD and in the year 2006 the work regarding development of a park in Sec. 7, Pushp Vihar was awarded to him by the CPWD, wherein the complainant had deposited security of Rs.1,26,000/­ which was refundable after one year of the completion of the work. However, he denied that the complainant had moved an application dt. 24.12.08 Ex PW 2/G alongwith labour clearance certificate Ex PW 2/G­1 in the Divisional Office for return of the security amount. He denied that the complainant had met him in this regard and he ie accused demanded bribe of Rs. 7,000/­ in respect of payment which the complainant had already received and Rs. 3000/­ C C No.34/12 CBI Vs. Rakesh Kumar Page no. 17 of 77 18 for the refund of the security amount. He has denied the entire incriminating evidence appearing on record against him. He admitted that mobile No. 9968009116 was registered in his name. However, he denied for want of knowledge that mobile No. 9910955123 was in the name of the complainant. He has disputed the calls record of both the mobile phones claiming that it is doctored and manipulated record. Even regarding grant of sanction Ex PW 1/A for his prosecution by PW 1, it is submitted that the complete record alongwith the rules on the subject was not produced before the sanctioning authority. He claimed himself to be innocent and filed statement U/s 313(5) Cr PC.

28. Accused has examined six witnesses in his defence.

29. DW­1 is Smt. Veena Dogra, who brought the summoned record i.e. Peon Book vide which the dak was delivered to the concerned officers. She had proved the relevant entry Ex.DW1/A and as per the same, Dak bearing No. 38,35, 204, 31 were received by accused on 17.1.2009.

30. DW­2 is Shri Onkar Nath, the Baledar. He testified that on 17­01­09 at about 4 pm he had delivered the application no. 31 already Ex.PW2/G to accused Rakesh Kumar, JE. He identified the initials of accused Rakesh Kumar on the original entry already Ex.DW1/A vide which C C No.34/12 CBI Vs. Rakesh Kumar Page no. 18 of 77 19 accused had received the application.

31. DW­3 is Shri Kishan Lal, who was also posted as Baledar at Sector ­7, Enquiry Office, CPWD office. He testified that on 19­01­09 at about 4.30 pm he was present in the parking of the Enquiry Office after attending some complaint in the quarters nearby and besides him, Ram Manorat, Shiv Prasad, who were also employee of CPWD and one Dalip Kumar, who was working with a private contractor were also present in the parking lot. He further testified that on 19­01­09 at 4.30 pm while he was present in the parking, accused came to the parking from the Enquiry Office. In the meantime Kanhiya Lal Balai, Contractor also came to the parking. When the accused and Kanhiya Lal Balai faced each other, accused questioned him as to why and for what purpose he had come there, Kanhiya Lal Balai came near the accused and extended his both hands towards the accused for shaking and they both shacked hands. Thereafter they spoke to each other for 2­3 minutes. At that time one thin built tall person was standing at the main gate of the office and came to the parking and asked Kanhiya Lal Balai "chalo" Kanhiya Lal Balai told him "abhi chalte hein". He further testified that he saw that two persons from the side of main gate of the Enquiry Office, C C No.34/12 CBI Vs. Rakesh Kumar Page no. 19 of 77 20 came running towards the parking where the accused and Kanhiya Lal were present. One of those two persons asked Kanhiya Lal Balai pointing out towards the accused "aap hein". Thereafter that person told Kanhiya Lal Balai "Rakh Rakh". Then Kanhiya Lal took out money from the pocket of his shirt and inserted the same in the right side pocket of the pant of the accused. When the accused tried to take out money from his pant, both those persons caught hold of him from his both wrists. The accused questioned them as to what they were doing. He also told Kanhiya Lal as to what was he doing "ye kya kar rahe hein". The accused then said "aap mujhe phasa rahe hein mere sath kya kar rahe hein". The persons who were standing along with him in the parking also told Kanhiya Lal Balai and other two persons "aap kya kar rahe hein". He further testified that those two persons then told them that they were from CBI and that accused had taken bribe. Accused denied having taken any bribe and that he was being falsely implicated. Those two persons who claimed to be CBI officials told them to leave the spot or they would also implicate them. Thereafter, those CBI officials took the accused to the Enquiry Office. Since they got scared they ran away from the spot.

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32.  DW­   4   is   Shri   Jhabu   Lal   Meena.     He   testified   that   he   remained 

posted from 2006 to 2011 at Pushp Vihar Mandal (Maintenance Division) as Auditor. He testified that as per CPWD Works Manual 2003 para 21.9 on the first day of the month the Accounts Officer prepares a list for release of security money due to towards any contractor and hands over the same to the concerned Executive Engineer. If there is no complaint with the EE regarding defects in the working of the contractor then he releases the security due towards such contractor. In case there is complaint regarding defects in the working of particular contractor then EE seeks report from the AE. For release of security money no application is required to be moved by the contractor and on due date it has to be released by the EE of its own subject to the condition that there is no complaint regarding defects in the work performed by him. The amount of security after the order is passed by the EE is to be released by the Accounts Officer.

33. DW 4 further testified that he knew Kanhiya Lal Balai who is the contractor with CPWD who had executed several contracts with CPWD and used to visit CPWD office at Pushp Vihar several times pertaining to his work contract. That he visited the Accounts Branch of CPWD C C No.34/12 CBI Vs. Rakesh Kumar Page no. 21 of 77 22 office at Pushp Vihar several times in December, 2008 pertaining to some work relating to the work contracts awarded to him and was heard saying several times that due to JE Rakesh (accused) he had suffered losses in some contract as he had to spent Rs. 25 to 30 thousand in rectifying the defects in a particular work contract and that one contract was got canceled by JE Rakesh due to which he suffered huge losses. That Kanhiya Lal Balai also declared that he would not spare JE Rakesh and would take revenge from him.

34. DW­5 is Shri Bachan Singh Latwal, who had brought the summoned record i.e. the cash book for the period w.e.f. 27­07­10 to 28­02­11. He testified that according to entry no. 26/110 dated 22­12­10 at page 155 the performance guarantee of Rs.5838/­ of Kanhiya Lal Balai in respect of restoration of road cuts by IGL in Sector ­7, Pushp Vihar, New Delhi (SH Earth filling and concrete works) was forfeited vide order no. 046311 dated 22­12­10. He proved photocopy duly certified of the said entry as Ex.DW5/A. He further testified that according to entry no. 31/110 dated 13­01­11 at page 171 and as per the same the earnest money of Rs.2123/­ of Kanhiya Lal Balai in respect of restoration of road cuts by IGL in Sector ­7, Pushp Vihar, New Delhi (SH Earth filling and C C No.34/12 CBI Vs. Rakesh Kumar Page no. 22 of 77 23 concrete works) was forfeited. He proved the photocopy duly certified of the said entry as Ex.DW5/B.

35. DW­6 is Shri Dalip Kumar. He testified that during the relevant period he was looking after the work of various contractors. That he knew accused Rakesh Kumar who was JE at Sector ­7, Pushp Vihar in the year 2009. On 19­01­09 at about 4.30 pm he had gone inside the inquiry office Sector ­7, Pushp Vihar to the enquiry clerk to inform him about the complaint/job he had attended. He saw accused coming out of the enquiry office. He was present near the gate of enquiry office, where Kishan Lal, Baledar CPWD, Ram Manorath and Shiv Kumar and some other persons were also present. He saw that Kanhiya Lal Balai coming inside the enquiry office from the main gate. When accused near him, he asked Kanhiya Lal Balai "aap kis liye aye ho bataon kya kaam hein". At this, Kanhiya Lal extended his both hands. Accused extended his right hand and shake hand with Kanhiya Lal for about half a minute. In the meantime one person came from outside and asked Kanhiya Lal Balai "chalo" to which he told him "abhi ruko abhi kahi chalna hai". He further testified that in the meantime two persons running inside from the main gate, out of those, one person pointed out towards accused and C C No.34/12 CBI Vs. Rakesh Kumar Page no. 23 of 77 24 said "aap hai" and then that person said "rakh rakh". At this, Kanhiya Lal took out some currency notes from the pocket of the shirt and inserted in the pocket of the pant of the accused. At this accused tried to take out money from his pocket of the pant and raised alarm "bachao bachao". He tried to save the accused by asking those persons "ye kya ho ra hai ye kya kar rahe ho". Thereafter, the accused also raised alarm "mujhe bachao ye mere sath kya ho ra hai". He further testified that thereafter both those persons caught hold of the accused from both his hands and those persons told them to run away from there and also informed that they were from CBI. He had asked 3­4 persons present there to complain against CBI and they had told him that they would complain and inform their superior officer and thereafter they left.

36. I have heard arguments addressed by Sh Umesh Chandra Saxena, Sr PP for CBI and Sh S P Ahluwalia, the counsel for the accused.

37. The defence counsel has argued that the there was neither any demand nor acceptance of bribe by the accused from the complainant. The bribe amount was planted upon him and in this regard he has drawn the attention of the court towards the spot trap conversation recorded in cassette mark Q2 Ex.P20. It is submitted that the last words in the C C No.34/12 CBI Vs. Rakesh Kumar Page no. 24 of 77 25 transcription Ex.PW2/K "Rakh Rakh" are admittedly in the voice of the TLO Inspector Rajesh Chahal as testified by PW­9 Inspector Prem Nath and coupled with the other evidence on record extracted through cross examination of the witnesses the amount of bribe was planted upon the accused. The accused has been falsely implicated in this case for the reason that the complainant had to suffer losses on account of the accused pointing out the defects in his earlier work which led to cancellation of his work contract. That vide document Ex.PW8/D­1 the defects were pointed out by the accused in the work of the complainant on 26­11­07 and the letter Ex.PW1/DA was written by PW­8 Ramesh Chander, EE to the complainant and consequently the complainant had to incur sufficient expenses to remove the defects. Also that accused had written letter dated 15­04­08 Ex.PW8/DB to the AE that the complainant had not started work relating to restoration of road cuts by IGL in Sector­7, Pushp Vihar, MB Road, New Delhi and letter Ex.PW8/DC was then written to the complainant for taking action against him for non­ starting of the work w.e.f. 15­04­08 and Show Cause Notice Ex.PW8/DD was issued to the complainant by PW­8 Shri Ramesh Chander in this regard and that earnest money and performance money of the complainant was forfeited on account of non starting of the said contract C C No.34/12 CBI Vs. Rakesh Kumar Page no. 25 of 77 26 due to which he felt disturbed and consequently he falsely implicated the accused.

38. The defence counsel has further submitted that it was not for the accused to prepared the Hand Receipt, rather as per Rule 21.9 of CPWD Works Manual 2003 no Hand Receipt was required to be prepared for refund of the security deposit and that even no application was required to be moved by the complainant for refund of security deposit. It is submitted that there is no evidence on record that the complainant who had been awarded various contracts prior to the work contract in question, he ever moved any application for refund of the security deposit. The defence counsel has drawn the attention of the court to the cross­examination of PW­5 L.R. Meena, the shadow witness that complainant had told him in the office of CBI that he had suffered huge losses and he would falsely implicate the accused by saying "ab mein usko fasaunga". It is submitted that the aforesaid statement of PW­5 has been corroborated by DW­4 Shri Jhabbu Lal Meena who was posted as Auditor at Pushp Vihar Mandal (Maintenance Division) during the period from 2006 to 2011 and was not cross­examined by Ld. PP in this regard. It is submitted that once the complainant and the accused were C C No.34/12 CBI Vs. Rakesh Kumar Page no. 26 of 77 27 not on cordial terms, there was no reason for the accused to demand bribe from him. At the same time it is submitted that though it is admitted by the complainant that the he had been receiving work contracts from the CPWD but there is no allegation that the accused had ever demanded bribe from him on earlier occasions.

39. It is submitted that the application Ex.PW2/G moved by the complainant to the EE for refund of the security amount is dated 24­12­08 but as per record the same was received by the accused on 17­01­09 and till that time he was not even aware of any such application moved by the complainant whereas, complainant mentioned in his complaint Ex.PW2/A dated 19­01­09 that he had met the accused 4­5 days ago and demanded bribe amount for the final payment already released and for refund of the security money. That there is no evidence on record that the accused was aware of before 17­01­09 that the complainant had moved any application for refund of the security deposit. It is submitted that he had made false averments in his complaint to this effect. Further that there was no occasion for the accused to demand bribe amount of Rs.7,000/­ for the final payment released to the complainant more than one year ago. That the C C No.34/12 CBI Vs. Rakesh Kumar Page no. 27 of 77 28 complainant has not given any specific date in the complaint as to when he went to the accused and he demanded bribe from the complainant.

40. The defence counsel has further submitted that there are material contradictions in the deposition of the prosecution witnesses regarding the alleged demand of bribe by the accused. Further that there is no cogent evidence that accused had demanded and accepted bribe, rather there is ample evidence on record that the bribe amount was planted on the accused under the directions of the TLO. It is submitted that in the transcription Ex.PW2/K regarding the spot trap conversation there is no mention that the accused had demanded bribe money. That the statement of the complainant that bribe money was demanded by the accused through gesture is not supported by any other evidence nor it is mentioned in the transcription which was prepared in the presence of the complainant that he pointed out to the IO that at a particular stage the accused had demanded bribe amount and the complainant handed over the same to him. It is submitted that the prosecution is relying upon the tape recording conversation between the complainant and the accused during the pre trap proceedings as well as during the trap proceedings. However, the tape recorded conversation in the form of secondary C C No.34/12 CBI Vs. Rakesh Kumar Page no. 28 of 77 29 evidence is not admissible, as the primary evidence in the form of DVR has not been produced. The conversation was transferred from the DVR to the cassettes without seeking any formal permission from the court. PW­4 Dr. Rajinder Singh who compared the questioned and specimen voice of the accused contained in the cassette Q1 Ex.P17 and cassette Q2 Ex.P20 and S1 Ex.P24 was not possessing any diploma or degree in the field of voice identification. That he gave the duration of the pre trap conversation recording found in cassette Q1 Ex.P17 as 11 minutes 38 seconds and the conversation recorded during trap proceedings in cassette Q2 Ex.P20 as 19 minutes 40 seconds. Whereas, as per the evidence on record the DVR remained in On position with the complainant for more than 30 minutes during trap proceedings. Whereas, as per the report Ex.PW4/A of PW­4 Dr. Rajinder Singh the duration of the conversation recorded in cassette mark Q2 Ex.P20 was just 19 minutes 40 seconds and thus the tampering of the cassettes cannot be ruled out. It is submitted that many facts deposed by the witnesses were not found recorded in the cassette Q2 Ex.P20 which further raises doubt about the authenticity of the tape recorded conversation. It is further submitted that PW­4 even could not tell as to whether the questioned cassettes contained telephonic C C No.34/12 CBI Vs. Rakesh Kumar Page no. 29 of 77 30 conversation. That as per his testimony he had compared only six words from the questioned cassette Q1 Ex.P17 and cassette Q2 Ex.P20 and these words are mentioned in the report Ex.PW4/A but important incriminating words and sentences were not compared. That the words which are compared for comparison with the specimen voice had no meaning or concern with the demand or acceptance of bribe.

41. The defence counsel has further argued that there are various missing links in the chain of the prosecution case. It is claimed that non examination of SP who had sent the complaint for verification is fatal to the prosecution as it is he who had to apply his mind and under his directions FIR was registered and chargesheet was filed. Further that the independent witnesses were stock witnesses of the CBI, so there evidence is to be dealt with great caution. It is submitted that the defence witnesses particularly DW­3 Krishan Lal and DW­6 Dalip Kumar were present at the time of the alleged incident and their presence is admitted by the complainant in the cross examination and they have given the true version of the incident which took place which shatters the entire case of the prosecution. It is submitted that the prosecution has miserably failed to prove that the accused had C C No.34/12 CBI Vs. Rakesh Kumar Page no. 30 of 77 31 demanded and accepted bribe and as such no presumption can be drawn against the accused u/s 20 of PC Act 1988.

42. On the other hand the Ld. PP has submitted that the complainant has proved his complaint Ex.PW2/A and has categorically testified that accused had demanded bribe of Rs.10,000/­ i.e. Rs.7000/­ in respect of the payment already made to him regarding the work relating to the development of a park in sector ­7, Pushp Vihar and Rs.3000/­ for refund of the security amount of Rs.1,26,000/­ which was refundable after one year of the completion of the work, which completed in December, 2008. Further that the verification of the complaint was conducted by PW­6 Inspector Manish Kumar Upadhaya along with PW­2 the complainant and PW­3 Shiv Kumar and it is duly proved on record vide the testimony of these witnesses as well as through the conversation between the complainant and the accused recorded in cassette Q1 Ex.P17 vide its transcript Ex.PW2/J that the accused had demanded bribe of Rs.10,000/­ for release of security deposit and final bill payment already made. It is further submitted that the pre trap proceeding have also been duly proved vide the testimony of the complainant, independent witnesses and CBI officials. The demand, acceptance and C C No.34/12 CBI Vs. Rakesh Kumar Page no. 31 of 77 32 recovery of bribe amount is proved vide the testimony of PW­2 Kanhiya Lal Balai, PW­3 Shiv Kumar, PW­5 LR Meena, PW­6 Inspector Manish Kumar Upadhayay, PW­9 Inspector Prem Nath and PW­12 Shri Rajesh Chahal, the TLO. The prosecution has also relied upon the right hand and right side pant pocket wash of the accused that the colour of sodium carbonate turned into pink and has also submitted that both these wash were examined by PW­7 Dr. N.M. Hashmi and as per the laboratory examination and analysis the presence of phenolphthalein powder in both these exhibits is proved vide report Ex.PW7/B. It is further submitted that the prosecution has proved on record the call records of telephone no. 9910955123 Ex.PW13/A and telephone no. 9968009116 ex.PW14/A, which proves that there had been conversation between the complainant and the accused.

43. After hearing the submissions of both the parties, I have gone through the material on record carefully.

Section 7 of the PC Act provides as under :

"Public Servant taking gratification other than legal remuneration in respect of an official act - Whoever, being, or expecting to be a public servant, accepts or obtains or C C No.34/12 CBI Vs. Rakesh Kumar Page no. 32 of 77 33 agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government of any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."

In view of the various judgments of the Hob'ble Apex court, the following requirements have to be satisfied to attract Sec. 7 P C Act, 1988:-

1. the accused at the time of the offence was, or expected to be a public servant;

2. that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification;

3. that such gratification was not a legal remuneration due to him;

and,

4. that he accepted the gratification in question as a motive or C C No.34/12 CBI Vs. Rakesh Kumar Page no. 33 of 77 34 reward, for:

(a) doing or forbearing to do an official act, or

(b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or

(c)rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant.

The prosecution is required to prove the above ingredients by way of acceptable and clinching evidence.

In State of Maharasthra Vs. Dnyaneshwar Laxman Rao Wankhede VI (2009) SLT 439, the apex court while discussing the ingredients of offence u/s 7 of PC Act inter alia held as under :

"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-a-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 C C No.34/12 CBI Vs. Rakesh Kumar Page no. 34 of 77 35 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 touchstone of proof beyond all reasonable doubt."

It is held by the Hon'ble Apex Court in the case of Banrasi Dass Vs State of Haryana, (2010) 4 Supreme Court Cases 452 :

"It is settled cannon of criminal Jurisprudence that the conviction of accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond the reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that record so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence.'' In Surajmal Vs. State (Delhi Administration) (1979) 4 SCC 725, it was held that :

"mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in absence of any evidence to prove payment C C No.34/12 CBI Vs. Rakesh Kumar Page no. 35 of 77 36 of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."

44. To constitute an offence U/s 7 of P C Act, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused for doing a favour to the complainant in discharge of his official duties. Demand and acceptance of bribe is sine qua non to the conviction of the accused. Presumption U/s 20 of P C Act can only be drawn against accused, when prosecution proves by clinching evidence that accused demanded and accepted bribe from the complainant, in discharge of his official duties.

45. In the light of above principles we may examine the evidence on record with specific emphasis to the demand and acceptance of illegal gratification by the accused from the complainant for release of his security deposit and with regard to final bill already paid long back. In the present case, the material witnesses regarding demand and acceptance are PW2 Kanhiya Lal Balai, the complainant, PW 3 Shiv Kumar and PW 5 L R Meena, independent witnesses, PW 9 Inspt Prem Nath and PW 12 Inspt Rajesh Chahal, the TLO.

46. So far the complainant PW 2 Kanhiya Lal Balai is concerned, he testified that in the year 2006 the work regarding development of a park in Sector­7, Pushp Vihar was awarded to him for a sum of Rs. 25 lacs by CPWD Pushp Vihar Office and he deposited C C No.34/12 CBI Vs. Rakesh Kumar Page no. 36 of 77 37 security amount of Rs. 1,26,000/­ which was refundable after one year of completion of the work. The said work was completed in December 2008. Accused Rakesh Kumar used to supervise the said work. After one year of completion of the work, he moved an application for return of the security amount in the Divisional Office, where he met the accused as he was to prepare Hand Receipt. The accused demanded bribe from him regarding passing of his bills regarding the work which he had already completed and payment was already received by him as well as for refund of the security amount. He testified that initially the accused demanded Rs. 10,000/­ ie Rs. 7,000/­ in respect of payment which was already received by the complainant and Rs. 3,000/­ towards refund of security amount.

47. PW 2 further testified about his filing complaint Ex PW 2/A with the CBI on 19.1.2009. He deposed about the verification proceedings carried out by the CBI officer CBI Inspt Mr Upadhyay under the directions of Sh Sumit Saran IPS and joining of independent witness Shiv Kumar in the verification proceedings. He deposed that at the gate of Pushpa Bhawan he met the accused and asked him about his security. The accused told him to wait there and then went upstairs. After 10­15 minutes he came downstairs and took him to his room where C C No.34/12 CBI Vs. Rakesh Kumar Page no. 37 of 77 38 he again demanded bribe of Rs. 10,000/­. He stated that PW Shiv Kumar was not with him at that time but was at the gate of the room at a distance of 10­15 steps. He further stated that he told the accused that he was not having that much amount and would arrange for money, requesting him to prepare the document regarding refund of security ie Hand Receipt. Thereafter he came out of the room and went straight to the place where the government vehicle was parked, followed by Shiv Kumar. He also deposed about recording of conversation between him and accused during verification proceedings. He further deposed regarding transferring of the conversation from the voice recorder to two audio cassettes, out of which one was sealed and signature of independent witness was obtained thereon. He further testified about hearing of the conversation recorded in the cassette by Sh Sumit Saran and issuance of directions to Inspt Manish Upadhaya for laying trap. That on the basis of his complaint Ex PW 2/A, FIR Ex PW 2/B was registered and he identified his signature thereon at point A. He further deposed about the pre trap proceedings carried out by Inspt Chahal in his room. That Inspt Chahal had arranged one more independent witness namely Mr Meena. Mr Chahal enquired from him (PW2) as to how much money he was having and he told him that he had Rs. 8,000/­ C C No.34/12 CBI Vs. Rakesh Kumar Page no. 38 of 77 39 ie 16 G C notes of Rs. 500 denomination and gave the same to Mr Chahal. He deposed about the noting down of the serial numbers of the G C notes and about their being treated with some powder, about the currency notes being touched by Shiv Kumar and that thereafter the wash of his right hand was taken in some solution which turned pink which was thrown away. He further testified that the G C notes were kept in the left side pocket of his shirt by independent witness Shiv Kumar and a recorder was also kept in his pocket. That Mr Meena was asked to accompany him and to give signal by moving his both the hands on his face after the transaction and that he was directed to hand over the bribe money on demand or to any other person at the instance of the said person.

48. PW 2 further testified that the CBI team left the office of CBI at 3pm. Mr Meena accompanied him on his motorcycle, whereas rest of the members of the trap team left in government vehicle. They reached Pushpa Bhawan at 4pm where he went to the cabin of the accused alongwith Mr Meena but he was not found there. There he met one person who was known to him and from him he took the mobile number of the accused and gave a call to him on mobile phone No. 9968009116 from his mobile phone No. 9910955123 and told him that he C C No.34/12 CBI Vs. Rakesh Kumar Page no. 39 of 77 40 had come in connection with his security and enquired about his position. Accused told him that he was at his residence at Pushp Vihar and told him to come there. Thereafter the entire team reached the inquiry office Pushp Vihar, Sec. 7 where the accused was residing. He testified that on reaching there he gave a telephone call to the accused at the gate of Inquiry Office. The accused was residing at fourth floor and he called him upstairs. On the request of PW2 that he had pain in his legs and he would not be able to go upstairs, the accused came downstairs and wished him. He inquired about Mr Meena and PW 2 told him that he was his relative. He testified that accused demanded bribe by gesture. That thereafter the accused moved ahead by 8/10 steps. The complainant took out the treated G C notes from the pocket of his shirt and gave in the right hand of the accused which he kept in the right side pocket of his pant. He further testified that he told the accused that it was not full amount but only Rs. 8,000/­ and he shall pay the balance lateron. He further testified that he inquired from the accused about the hand receipt who told him that it was duly prepared and was only required to be signed. He further deposed about PW Meena giving prefixed signal, arrival of the members of the raiding party, about apprehension of the accused and being caught hold of from his wrist, C C No.34/12 CBI Vs. Rakesh Kumar Page no. 40 of 77 41 accused becoming perplexed on being challenged about acceptance of bribe.

49. PW 2 further testified about the accused being taken inside the inquiry office and the proceedings carried out there, regarding taking of wash of his right hand and pocket of the pant, the sealing of the bottles in which the said wash was kept, recovery of the bribe money from the possession of accused by witness Shiv Kumar, the tallying of the numbers of the currency notes recovered with the number of the notes recorded earlier, regarding playing of the recorder and transferring of the conversation in two cassettes, out of which one was sealed and about joining of Executive Engineer Ramesh Chand in the proceedings. He deposed that writing work was done on the computer installed at the inquiry office. All the proceedings were prepared at the spot and signatures of independent witnesses were obtained. The accused was arrested and his specimen voice was also taken and was transferred to a cassette which was sealed at the spot.

50. The argument of the defence counsel is that the accused was falsely implicated by the complainant since on account of the official acts of the accused the complainant had suffered losses and C C No.34/12 CBI Vs. Rakesh Kumar Page no. 41 of 77 42 that he had even declared publically that he would falsely implicate the accused.

51. So far the demand of the bribe by the accused is concerned, nodoubt PW 2 has mentioned in his complaint Ex. PW 2/A that on 24.12.2008 that he had written application to Executive Engineer PVMD, CPWD Pushpa Bhawan, New Delhi for return of his security money of Rs. 1,26,310/­ and that 4/5 days ie before lodging the complaint on 19.1.2009 he had met the accused who told him that the final bill payment had already been made and demanded Rs.7,000/­ as bribe for the same as well as Rs. 3,000/­ for release of the security money. Admittedly, the complainant has not given the specific date as to when he had met the accused, when such demand of bribe was made by him. The prosecution has also not led any evidence on record as to when the accused came to know that the application dt. 24.12.08 of the complainant ie Ex. PW2/G was moved for release of the security amount. It is submitted by the defence counsel that accused had no knowledge of the application Ex. PW 2/G except on 17.1.2007 when it was C C No.34/12 CBI Vs. Rakesh Kumar Page no. 42 of 77 43 received by him and as such the averments contained in the complaint that 4/5 days before the filing of the complaint when the complainant met the accused, he demanded bribe are false. The defence counsel has drawn my attention towards the statement of DW 1 Smt. Veena Dogra, UDC in Pushp Vihar, Maintenance Division Pushpa Bhawan, New Delhi, who produced the Peon Book vide which the Dak is delivered to the concerned officers and proved the relevant entry Ex. DW 1/A, whereby Rakesh Kumar, the accused was marked letter No. 38, 35, 204 and 31. As per the statement of DW 2 Sh. Onkar Nath who was posted as Baledar in Division No. IV CPWD, Sector­4 Pushp Vihar and was duty of distribution of correspondence ( Dak) at Pushpa Bhawan, Office of CPWD, the application No. 31 ie Ex. PW 2/G moved by complainant for release of security deposit was delivered by him to Rakesh Kumar JE, the accused on 17.1.2009 at about 4:00pm. During cross examination by Ld. PP, he admitted that all the entries in Ex.DW 1/A relates to the correspondence delivered by him and application No. 31 Ex. PW 2/G forms part of the same.

C C No.34/12 CBI Vs. Rakesh Kumar Page no. 43 of 77 44 Thus, the defence has proved on record that the said application was received by the accused only on 17.1.2009. There is no evidence on record that prior to 17.1.2009 accused had any knowledge of any such application. Moreover, the defence counsel has drawn my attention towards the CPWD Works Manual 2003 and as per Rule 21.9 it is the Divisional Accountant who should put up to the Divisional Officer, every month a list of all the cases where the security deposit becomes due for refund so that the requisite certificate is immediately obtained by the Divisional Officer from the Sub Divisional Officer concerned and security deposit is refunded without waiting for any application from any contractor. The accused thus had no role in the refund of security deposit. In the present case, as per record the security was to be refunded back to the complainant one year of the completion of the work contract which was completed on 26.12.07. The security deposit was not to be refunded before 26.12.2008 and there was no occasion for the complainant to move any application before 26.12.2008. Even if the said application was moved by the C C No.34/12 CBI Vs. Rakesh Kumar Page no. 44 of 77 45 complainant it was addressed to and received by the Executive Engineer on 24.12.2008 itself and then he marked the same to AE­1, PVMD, CPWD, ND on 14.1.2009 and was further marked to accused Rakesh Kumar JE on 15.1.2009. As per the record Ex. DW 1/A, the application Ex. PW 2/G was received by the accused on 17.1.2009 which happened to be Saturday. 18.1.2009 was Sunday and as such the accused had no occasion to prepare the Hand Receipt for release of the security deposit prior to 19.1.2009. Moreover, as per Rule 21.9 of CPWD Manual 2003, no Hand Receipt was required to be prepared by the JE for refund of the security deposit and as such there was no occasion for him to demand bribe for release of the security deposit. The seizure of the Hand Receipt dt. 19.1.2009 Ex. PW 8/C from the office of the accused on 19.1.2009 itself suggest that the accused had prepared the same only on that day on receipt of the application Ex. PW 2/G on 17.1.2009 at 4:00pm as deposed by DW2 and there was no malafide appearing on his part on record. It is the argument of the defence counsel that the complainant was on enimical terms with C C No.34/12 CBI Vs. Rakesh Kumar Page no. 45 of 77 46 the accused and thus had every reason to get him falsely implicated. The complainant has denied in his cross examination that he was inimical towards the accused and has thus falsely implicated him. However, he could not admit or deny during his cross examination that accused Rakesh Kumar JE had made a complaint Mark DA ie Ex. PW 8/DB to the Assistant Engineer against the complainant regarding non­ completion of the work of contract for restoration of road cuts by IGL in Sector ­7 Pushp Vihar, MB Road, New Delhi which was to be completed by 15.4.2008. He also could not admit or deny that he had received letter dt. 5.6.2008 Mark DB Ex. PW 8/DC from concerned AE in this regard. Complainant denied for want of knowledge that accused had written some internal letter to Executive Engineer dt. 4.8.08 Mark DC. He also denied that he received any show cause notice from the Executive Engineer dt. 23.8.08 Mark DD Ex. PW 8/DD. He denied the suggestion of the defence counsel that the letters Mark DA Ex. PW 8/DB, Mark DB Ex. PW 8/DC and Mark DC were in his knowledge and were conveyed to him on the C C No.34/12 CBI Vs. Rakesh Kumar Page no. 46 of 77 47 respective dates mentioned thereon but he was deliberately concealing this fact. It is observed that the complainant has tried to conceal the material facts qua the acts of the accused pointing out the defects in the work of the complainant and consequently action was taken against him by CPWD. There is no reasonable explanation on the part of the prosecution as to why the complainant withheld such important information in the complaint as well as in his testimony which reflects upon his being a truthful witness.

52. Lateron, the complainant in his cr

44.oss examination has admitted that the work which was not finished by him was awarded to contractor Raju Lal. He admitted that he had deposited an FDR of Rs. 6,000/­ as performance guarantee in favour of EE which was forfeited. He also admitted that the work for development of Model Park in Sec. 7 Pushp Vihar New Delhi was assigned to him vide letter dt. 29.11.2006 and the job was to be completed by 28.3.2007 but it was completed by 26.12.2007. It is the said contract regarding which the complainant C C No.34/12 CBI Vs. Rakesh Kumar Page no. 47 of 77 48 had alleged that the accused was demanding bribe for release of the security deposit and for the amount already released. He admitted that vide letter Ex. PW 2/DA dt. 20.12.07 the EE ie PW 8 Ramesh Chandra had pointed out the defects and these were got removed by him by incurring some expense, though he could not admit or deny that the amount spent for removal of defects was around Rs. 25,000/­. Here, it is observed that the letter Ex PW 2/DA dt. 20.12.2007 was written by the EE to the complainant pointing out defects in his work only on the basis of the information received by him from accused Rakesh Kumar vide document Ex. PW 8/D­1. It is the accused who had pointed out the defects in the work of the complainant and consequently show­cause notice was issued to the complainant and he had to incur additional expenses for the removal of the defects in his work.

53. PW 8 Ramesh Chandra, the then Executive Engineer during his cross examination admitted that the accused Rakesh Kumar JE vide document Ex. PW 8/D­1 had pointed out certain defects in the job assigned to the complainant and in pursuance to C C No.34/12 CBI Vs. Rakesh Kumar Page no. 48 of 77 49 the same he had received a letter from AE­1, consequently, he (PW

8) wrote letter Ex.PW 2/DA to the complainant. He also admitted that complainant had to incur sufficient expenses to remove the defects. He further admitted that letter dt. 15.4.08 Ex. PW 8/DB was written by accused Rakesh Kumar to the AE­1 complaining against the complainant that he had not started the job of restoration of road cuts by IGL in Sec. 7 Pushp Vihar MB Road, New Delhi. He further admitted that letter ExPW 8/DC was addressed to the complainant by AE and copy was sent to EE. The perusal of the said letter shows that the complainant was issued a notice that he had not completed the work relating to restoration of road cuts by IGL in Sec.­7 Pushp Vihar, MB Road New Delhi by 15.4.08 and action was likely to be taken against him. He further admitted that vide letter Ex. PW 8/DD ( inadvertently mentioned as Ex PW 8/D in his testimony) show cause notice was issued to the complainant for breach of contract on his part. PW 8 further admitted that the earnest money and performance guarantee of the complainant was forfeited on account of his non starting of the said C C No.34/12 CBI Vs. Rakesh Kumar Page no. 49 of 77 50 work contract due to which the complainant was feeling disturbed. Even the accused has proved on record vide the testimony of defence witness DW 5 Sh Bachan Lal Latwal who was posted as UDC with Pushp Vihar Maintenance Division CPWD and produced the record ie the Cash Book for the period w.e.f 27.7.2010 to 28.2.2011, that as per the entry No 26/110 dt. 22.12.2010 Ex. PW 5/A at page No. 155 of the summoned record, the performance guarantee of Rs. 5838/­ of the complainant Kanhiya Lal Balai, in respect of restoration of road cuts by IGL in Sec. 7 Pushp Vihar New Delhi was forfeited vide order No. 046311 dt. 22.12.2010. This defence witness further proved entry No 31/110 dt. 13.1.2011 Ex. PW 5/B at page No. 171 of the summoned record and as per the same the earnest money of Rs. 2123/­ of the complainant in respect of the same work contract was also forfeited. Nodoubt, DW 5 was cross examined by the Ld. PP. However, nothing material could be extracted nor any doubt could be created that the record produced by DW 5 was not genuine.

54. The accused has also produced witnesses in his defence C C No.34/12 CBI Vs. Rakesh Kumar Page no. 50 of 77 51 to prove that the complainant was enimical towards him and had all the intentions to get him falsely implicated. The relevant defence witness to this effect is DW 4 Jhabu Lal Meena who was posted as Auditor with Horticulture Division at Pushp Vihar Mandal ( Maintenance ) Division from 2006 to 2011. He testified that he knew the complainant Kanhiya Lal Balai who was contractor with CPWD and had executed several contracts with CPWD. He stated that the complainant used to visit the office of CPWD at Pushp Vihar several times pertaining to the work contract awarded to him. That in Dec. 2008 also the complainant visited the Accounts Branch of CPWD office at Pushp Vihar several times, pertaining to some work relating to the work contracts awarded to him and was heard saying several times that due to JE Rakesh he had suffered losses in some contracts and he had to spend Rs. 25,000/­ to Rs.30,000/­ in rectifying the defects in a particular work contract and that he had also suffered huge losses on account of one contract which was got cancelled by the accused. Complainant had declared that he would not spare the accused and would take revenge from C C No.34/12 CBI Vs. Rakesh Kumar Page no. 51 of 77 52 him. During cross examination by Ld. PP though he could not tell the date of Dec. 2008 when the complainant had extended such threats but he testified that even prior to Dec. 2008 the complainant had threatened to implicate the accused. No specific suggestion was given to the witness that he did not know the complainant or that he had not heard the complainant accusing Rakesh Kumar JE that on his account he had suffered losses and he would not spare him. Even prosecution witness ie PW 5 L R Meena in his cross examination by the defence counsel admitted that the complainant present in the office of CBI had told the CBI officials that his outstanding bills were not being paid and as such he was angry with the accused. Further on the way to the office of accused, the complainant informed him that he had suffered huge losses and he would implicate him­ ''Aap Mein Usko Fasaunga.'' In view of the sufficient evidence on record that the complainant had suffered financial loss in the work contracts awarded to him by the CPWD on account of pointing out defects in the work by the accused being JE at the relevant time and that the complainant C C No.34/12 CBI Vs. Rakesh Kumar Page no. 52 of 77 53 had also openly threatened that he would not spare the accused, it is not plausible that the accused would demand bribe from the complainant. In such circumstances, the testimony of the complainant that accused had demanded bribe requires independent corroboration.

55. Now it is to be seen what other evidence has been led by the prosecution to prove that accused had demanded bribe from the complainant in the discharge of his official duties.

56. The verification of the complaint Ex. PW 2/A was carried out by PW 6 Inspt Manish Kumar Upadhaya joining the complainant and PW 3 Shiv Kumar. From the testimony of PW 6 Inspt Manish Upadhaya, it is clear that he had not verified from the office of accused as to whether any work relating to the complainant was pending with JE Rakesh Kumar 4/5 days before 19.1.2009 when he had raised demand of Rs. 7,000/­ and Rs. 3,000/­ respectively. He also admitted that he had not verified as to what were the rules for refund of the security and performance guarantee. Though PW 6 testified that he had verified that he had C C No.34/12 CBI Vs. Rakesh Kumar Page no. 53 of 77 54 a reason to demand bribe from the complainant as the bill of the complainant for refund of security money as well as the final bill payment was pending but his said testimony does not inspire credence and rather in my opinion he had not carried out any such verification as it is admitted case of the prosecution that the final bill of the complainant had already been cleared more than one year ago. Had it been verified by PW 6 then he would not have testified that he was not aware of if the final bill payment was already made to the complainant on 18.7.2008 or that accused had already cleared his file on 7.4.2008.

57. So far PW 3 Shiv Kumar is concerned, he is not a witness to the demand of bribe by the accused during the verification proceedings. PW 3 Shiv Kumar deposed about his joining in the verification proceedings alongwith SI Manish Upadhaya and the complainant and visited the office of the suspect at Pushpa Bhawan. He testified that there was SBI Bank by the side of the office of CPWD where few chairs were lying and he sat on one of the chairs. One person was seeing coming out of CPWD office and C C No.34/12 CBI Vs. Rakesh Kumar Page no. 54 of 77 55 complainant talked to him. That person asked the complainant to wait for sometime and thereafter went upstairs. After 5/7 minutes that person came downstairs and then both the complainant and that person went inside the office of CPWD. PW 3 testified that he kept sitting on the chair lying outside the Bank. After about 10 minutes the complainant came, gave him a signal and he followed him. From the testimony of this witness, it is clear that he did not accompany the complainant to the office of the suspect nor he heard any conversation between the complainant and the person with whom the complainant had gone upstairs in the office of CPWD nor PW 3 testified that the said another person was the accused present in Court. As such, PW 3 is of no help to the prosecution. Even the complainant in his testimony admitted that PW 3 Shiv Kumar had not accompanied him to the office of the complainant. Thus the testimony of the complainant that even during verification of the complaint, the accused had demanded bribe of Rs. 10,000/­ does not find corroboration from PW 3.

58. Now we have to find out as to what evidence has been led by the prosecution to prove that during trap proceedings the C C No.34/12 CBI Vs. Rakesh Kumar Page no. 55 of 77 56 accused had demanded and accepted bribe in discharge of his official duties. It is the case of the prosecution that complainant was told to hand over bribe on specific demand. PW 5 LR Meena was deputed as shadow witness alongwith the complainant. However, in his entire examination in chief he has nowhere testified that the accused had demanded bribe from the complainant or he saw the bribe money being handed over to the accused by the complainant. He testified that he alongwith the complainant went inside the office but he again corrected himself and stated and after alighting from the motorcycle the complainant went towards the gate of the office of the accused, whereas he remained near the motorcycle, thereafter the complainant might have asked somebody to call the accused. Thereafter the person to whom the complainant had to give the bribe money came downstairs and conversation took place between them. The complainant gave him some signal which he passed on to the CBI officials, who came and apprehended the accused and then they all went to the office of the accused. He then testified that the hands of accused were got washed in water in glass and the colour of the same had turned to red. In answer to the court question as to why the hands of the accused were got washed, he stated " Paise Liye They Usney Aur Noto Ko Touch Kar Ne Se Rang Lag Jata Hain." He then again testified -"

Paise Ki Kuch Hulchal Huin Aur Meine CBI Ko Ishara Kar Diya." "

Jab Complainant Ke Hath Hiley Maine CBI Ko Ishara Kar Diya."

C C No.34/12                                  CBI Vs. Rakesh Kumar                                              Page no. 56 of  77
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As per this statement of PW 5,                                     there is no evidence that he had

witnessed the transaction of bribe. In Answer to Court question, he categorically testified- " I did not see money being handed over by the complainant to the accused.'' Thus this witness is no help to the prosecution as he is neither a witness to any demand or acceptance of bribe by the accused from the complainant. This witness was cross examined by Ld. Prosecutor and he testified that he had not seen the complainant taking out currency notes from the pocket of his shirt and handing over to the accused and then accused putting the same in his pocket since he was at a distance of 20/25 feet from them. Nodoubt, PW 5 testified during cross examination of Ld. PP that money transaction had surely taken place, since the said money was lateron recovered from the accused.

59. So far PW 2 the complainant is concerned, he testified that he alongwith PW 5 went to the Inquiry Office followed by the members of the raiding team. He gave a telephone call to the accused at the gate of Inquiry Office. The accused was residing at the 4th floor and called him upstairs. The complainant told him that on account of pain in his legs he was not able to go upstairs and requested to come downstairs. Thereafter the accused came downstairs and he ( complainant) wished him. Accused inquired about Mr Meena ie PW5 and complainant told him that he was his relative. That the accused demanded bribe by gesture. Thereafter the accused moved ahead by 8/10 steps. However, the aforesaid C C No.34/12 CBI Vs. Rakesh Kumar Page no. 57 of 77 58 testimony of PW 2, the complainant does not find corroboration from the testimony of PW 5 Sh L R Meena, the shadow witness, as PW 5 has nowhere stated that on reaching the Inquiry Office the complainant had given a telephone call to the accused and told him that on account of pain in his legs he would not be in a position to go upstairs and requested him to come downstairs nor he testified that the accused inquired about him and then complainant told him that PW 5 was his relative. PW 5 also did not corroborate the testimony of the complainant that the accused had demanded bribe by gesture. To the contrary, PW 5 stated that when they reached the office of accused at Pushp Vihar, the accused came and met the complainant downstairs. It is observed that even during cross examination by Ld. Prosecutor PW 5 was not suggested that the accused had demanded bribe by gesture. 60. Admittedly as per the transcription Ex. PW2/K, there is no demand of bribe by the accused. The complainant has testified that the accused had demanded bribe by gesture, whereas it is not so reflected in the transcription which was prepared in the presence of the complainant and independent witnesses. No other witness who claimed to have witnessed the acceptance of bribe money by the accused from the complainant, have testified that they saw the accused making gesture of demand C C No.34/12 CBI Vs. Rakesh Kumar Page no. 58 of 77 59 and thereafter he was handed over the bribe money by the complainant. It is further observed that this is a material improvement in the testimony of the complainant as in his statement U/s 161 Cr PC he did not state before CBI that the accused had demanded bribe by gesture. He was confronted with his statement U/s 161 Cr PC Ex. PW 2/DA, whereby this fact does not find mention. No other witness including PW 9 and PW 12 the TLO have testified that they had seen the accused making demand by gesture and then he accepted the bribe amount from the complainant. As such, there is no evidence on record except the improved statement of the complainant that the accused had demanded bribe and that too by gesture.

61. At the same time, the testimony of the complainant on material particulars does not find corroboration to the transcription Ex. PW 2/K of the conversation between the complainant and the accused recorded during trap proceedings in cassette Q-2 Ex. P-20 as therein it is nowhere mentioned that the accused called the complainant upstairs and then the complainant told him that on account of pain in his legs he was unable to go upstairs and requested him to come downstairs. Nor C C No.34/12 CBI Vs. Rakesh Kumar Page no. 59 of 77 60 there is anything in the transcription which could suggest that the accused inquired about PW 5 Mr Meena and the complainant told him that he was his relative. At the same time, at no point in the transcription Ex. PW 2/K which was prepared in the presence of the complainant and independent witnesses, it was pointed out by the complainant that accused had demanded bribe by gesture. The testimony of complainant to the effect that while handing over the GC notes to the accused he had told him the amount was not complete, it was only Rs. 8,000/- and he shall pay the balance amount lateron, also does not find mention in the transcription Ex. PW 2/K. The testimony of the complainant that he inquired from the accused about the Hand Receipt and accused told him that it is duly prepared and is only required to be signed, again does not find mention in the transcription Ex.PW2/K. Further statement of the complainant that CBI officials had challenged the accused of acceptance of the bribe also does not find mention in the transcription Ex. PW 2/K. The evidence of the complainant is thus not corroborated by the testimony of PW 5 as well as by the tape recorded conversation contained in cassette Q-2 Ex. P-20 and its transcription Ex PW2/K.

62. The prosecution has thus failed to prove on record that there was any specific of demand of bribe by the accused at the spot and consequently was handed over the bribe money to him by the complainant which he accepted voluntarily. Thus the only evidence C C No.34/12 CBI Vs. Rakesh Kumar Page no. 60 of 77 61 left with the prosecution against the accused is the recovery of the bribe money from the possession of the accused. As held in the case of Surajmal, Supra- mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

63. PW 9 Inspt Prem Nath and PW 12 Inspt. Rajesh Chahal, both have claimed that to have witnessed the accused accepting the bribe from the complainant. As per the testimony of PW 9 Inspt Prem Nath, he alongwith PW 12 Inspt Rajesh Chahal had taken the position outside near the gate of the office and testified that he had seen the complainant taking out currency notes from the pocket of his shirt and extended towards the accused,who accepted the same with his right hand and kept in right side pocket of his pant. Thereafter the shadow witness had given the prefixed signal. However, the sequence of events narrated by PW 12 the TLO are totally different from the testimony of PW9. PW 12 testified that he alongwith PW 9 Inspt Prem Nath were standing on the other side of the road in front of the complex ie the Inquiry Office, from where they could see the complainant and the shadow witness. However, PW 9 testified that he alongwith C C No.34/12 CBI Vs. Rakesh Kumar Page no. 61 of 77 62 Inspt Rajesh Chahal had taken position near the gate of the office. PW 12 testified that he had seen both the complainant and the shadow witness moving towards the office complex and thereafter the complainant was seen making a telephone call from his mobile phone and after 5 minutes one person who was lateron identified as Rakesh Kumar JE came out of the Inquiry Office and entered into conversation with the complainant, whereas PW 9 is silent about any telephone call being made by the complainant and stated that after sometime of their taking position outside near the gate of the office, they noticed that complainant and shadow witness were talking to some person near the parking lot. Here it is observed that PW 5 L R Meena the shadow witness has nowhere testified that he and the complainant had any talk with the accused. Though both PW 9 and PW 12 have testified that they had witnessed from the place where they were present outside the office of accused that the accused had accepted bribe from the complainant. However, PW 2 the complainant in his cross examination has testified that all the members of the team had reached at the spot before the transaction took place. This part of the testimony of PW 2 demolished the case of the prosecution that both PW 9 and PW 12 had witnessed the handing over of bribe money by the complainant and its acceptance by the accused while being present outside the office and then they reached the spot on getting prefixed signal from PW 5 the shadow witness.

C C No.34/12 CBI Vs. Rakesh Kumar Page no. 62 of 77 63

64. The defence counsel has pointed out during the course of arguments that the last words in the transcription Ex. PW 2/K ie " Rakh Rakh" speaks volumes of the high handedness of the CBI in connivance with the complainant who as per the material on record was not on cordial terms with the complainant and had sufficient reasons to falsely implicate him. Rather the use of words- ''Rakh Rakh" by PW 12, the TLO proves that CBI had reached the spot before transaction took place. The accused in his written statement U/s313 (5) Cr PC has not denied that the complainant had met him on the day of the incident. However, he has stated therein that the bribe amount was forcibly inserted in his pant pocket by the complainant at the instance of CBI Inspt Rajesh Chahal. The defence counsel has drawn my attention towards the cross examination of PW 9 Inspt Prem Nath who admitted that the words- 'Rakh Rakh' mentioned in the end of the transcription Ex. PW 2/K were in the voice of Inspt Rajesh Chahal. The prosecution has not explained as to in what circumstances Inspt Rajesh Chahal had spoken these words. Though PW 9 Inspt Prem Nath testified that these words were spoken by PW 12, the TLO when the accused was about to throw money, however this testimony has not been corroborated by PW 12, as he did not testify that accused on seeing them tried to throw the money. Neither PW 2, the complainant nor PW 5 L R Meena, the shadow witness testified that accused had tried to know money on seeing CBI officials. Hence, there is no explanation on the part of C C No.34/12 CBI Vs. Rakesh Kumar Page no. 63 of 77 64 prosecution as to why words-''Rakh Rakh" were spoken by PW

12. The last lines of transcription Ex. PW 2/K reveals that the CBI team questioned "aap hain" followed by words "rakh rakh". PW-9 Inspector Prem Nath had admitted the same to be in the voice of PW-12, the TLO. DW-3 and DW-6 have stated that there were two persons who were lateron identified as CBI officials and one of them while pointing out towards the accused had said "aap hain"

then used words "rakh rakh" followed by planting of the bribe money on the person of the accused. Here, the testimony of the defence witnesses particularly, DW 3 Kishan Lal and DW 6 Dalip Kumar is also important to be discussed.

65. DW 3 in his examination in chief testified about his presence in the parking of Inquiry office on 19.1.2009 at about 4:30pm alongwith Ram Manorath and Shiv Prasad, the employee of CPWD as well as one Dalip Kumar who was working with a private contractor. The accused came to the parking from the Inquiry Office and in the meantime the complainant also came there from the main gate and both the accused and the complainant faced each other. The accused questioned him as to why and for what purpose he had come there. The complainant came near the accused and shaked his both the hands with him and they spoke to each other for 2/3 minutes. One thin built tall person who was standing at the main gate of the office came there and told the complainant ' Chalo' and the complainant told him- "

Abhi Chale Hain. Then he saw, two persons from the side of main C C No.34/12 CBI Vs. Rakesh Kumar Page no. 64 of 77 65 gate came running towards the parking where the accused and the complainant were present. One of those persons asked Kanhiya Lal pointing towards the accused Aap Hain. Thereafter, that person told the complainant - Rakh Rakh'. The complainant then took money from the pocket of his shirt and inserted the same in the right side pant pocket of the accused. When the accused tried to take money from his pant, both those persons caught hold of him from his wrist. The accused as well as all the person who were present in the parking told the complainant and those two persons as to what they were doing and then they were informed that those two persons were from CBI. To the similar effect is the testimony of DW 6. Both these witnesses were cross examined by Ld. PP. However, their testimony could not be shattered and nothing material could be extracted therefrom in favour of the prosecution. Rather it is observed that no suggestion was given to any of the witnesses that they were not present at the time of incident or that the incident had not taken place in the manner they deposed. The prosecution case that the accused had demanded bribe by gesture and accepted the bribe from the complainant was not put to them. The complainant had already admitted the presence of DW 6 Dalip Kumar in his cross examination at the time of transaction of bribe and for this reason it was all the more necessary for Ld. PP to have put the entire case of prosecution to him during cross examination. So far DW 3 is concerned, the complainant had not denied specifically that he C C No.34/12 CBI Vs. Rakesh Kumar Page no. 65 of 77 66 was not present at the spot. In the circumstances of the case, when the complainant and accused were not alone but were joined by other persons from the office of the accused, the conduct of the accused demanding and accepting bribe in their presence does not appear to be natural.

66. In view of testimony of DW 3 and DW 6 as well as the cross examination of PW 2 the complainant and PW 8 Ramesh Chandra, the EE who proved that the complainant and the accused were not on compatible terms as the complainant was put to financial loss and inconvenience by the accused due to his pointing out the defects in the work of the complainant relating to the contract of development of park in Sec. 7 Pushp Vihar, the security deposit of which was to be released on favour of the complainant, it creates reasonable doubt that the accused had demanded and accepted bribe in this regard.

67. The prosecution has also relied upon the testimony of PW 13 Sh R K Singh, Nodal Officer as well as PW 14 Sh. R S Yadav, Junior Telecom Officer MTNL in support of their case. It is submitted by Ld. PP that PW 13 has proved on record that mobile No. 9910955123 was in the name of K L Balai, as per the Subscriber Enrollment Form and its annexures ie Driving Licence and Pan Card collectively Ex. PW 13/A. It is also submitted that PW 13 has proved the call record of the aforesaid mobile number for the period 18.01.09 to 19.01.09, as Ex. PW 13/C. It is further submitted that as per the testimony of PW 14, mobile No. C C No.34/12 CBI Vs. Rakesh Kumar Page no. 66 of 77 67 9968009116 was in the name of Rakesh Kumar ie the accused, in view of the Customers Application Form and ID proof collectively Ex. PW 14/A. That as per the call record Mark PW 14/PX wef 15.01.09 to 19.01.09, the accused had received a call from mobile No. 9955034005 on 19.01.2009 at 4.10.55pm and duration was 38 seconds and received another call on the same day at 4.17.12pm and duration was 69 seconds. Again, there is a entry of call on the mobile No. 9968009116 from mobile No. 9910955123 on 19.01.2009 at 4.17.12pm and duration was 69 seconds. It is submitted that this proves that the complainant had contacted the accused as deposed by him for delivery of bribe amount. However, on the other hand, the defence counsel has submitted that the evidence of PW 13 Sh R K Singh, Nodal Officer, Bharti Airtel Ltd is not admissible because he had admitted before the court that in the certificate U/s 65-B of Indian Evidence Ex. PW 13/B, it is not mentioned therein that it pertains to the call record Ex. PW 13/C. It is further submitted that the evidence of PW 14 Sh. R K Yadav from MTNL is inadmissible for want of certificate U/s 65-B of Indian Evidence Act.

68. I have gone through the call record furnished by both PW 13 and PW 14. Admittedly in the call record Ex. PW 13/C pertaining to mobile No. 9910955123, it is observed that in the certificate U/s 65-B of Indian Evidence Ex. PW 13/B, it is nowhere mentioned that the said certificate pertains to the call record Ex.

PW 13/C. Moreover, merely                                   there were some calls between the

C C No.34/12                                  CBI Vs. Rakesh Kumar                                              Page no. 67 of  77
                                                        68

complainant and the accused on 19.1.09, this by itself does not prove that the same were related to the transaction of bribe, as it is admitted case of both the parties that the complainant was known to the accused since he was awarded some work contracts by CPWD where the accused was employed as JE. What transpired between the complainant and the accused through these telephone calls mentioned in the call record Ex. PW 13/C is not proved on record by the prosecution, though it is claimed by the prosecution that the said conversation between the two, was recorded in the cassette Q-2 Ex. P-20, the transcription of which is Ex. PW 2/K as there are material contradictions in the testimony of the complainant and the transcription. Besides, PW 4 Dr Rajender Singh, who had examined the questioned voice of the accused in cassettes Q-1 Ex. P-17 and Q-2 Ex.P-20 alongwith specimen voice, testified during his cross examination by the defence that he was not aware of that the questioned cassettes contained telephonic conversation. Thus it is also not proved on record by the prosecution that the conversation recorded in cassette Q-2 Ex.P-20 pertains to any such telephonic conversation between the complainant and the accused in terms of call record Ex. PW 13/C. At the same time, the call record of mobile No. 9968009116 produced by PW 14 is inadmissible in evidence for want of certificate U/s 65-B of the Indian Evidence Act. Besides, the authenticity of the call record is otherwise also doubtful, as there is repetition of calls in the said call record. The C C No.34/12 CBI Vs. Rakesh Kumar Page no. 68 of 77 69 call dt. 19.1.09 received on mobile No. 9968009116 of accused from mobile No. 9910955123 of the complainant is shown twice in the said call record which creates doubt about the authenticity of the same. Hence, no benefit is given to the prosecution.

69. The prosecution has relied upon the tape recorded conversation between the complainant and the accused in the cassette Q­1 Ex.P­17 and its transcription Ex.PW 2/J as well as cassette Q­2 Ex.P­20 and its transcription Ex. PW 2/K It is submitted by Ld PP that regarding the demand of bribe by the accused during verification proceedings and trap proceedings, there is scientific evidence on record in the form of tape recorded conversation between the complainant and the accused and has relied upon the testimony of PW 4 Dr. Rajender Singh. He had contended that the specimen voice of the accused was taken and was sent to the CFSL and while using auditory and voice spectographic techniques, Dr Rajender Singh came to the conclusion that the questioned voice contained in cassette Q­1 Ex. P­17 and cassette Q­2 Ex. P­20 on comparison with specimen voice of the accused was found similar in respect of their linguistic and C C No.34/12 CBI Vs. Rakesh Kumar Page no. 69 of 77 70 phonetic features and then questioned was probably of the accused. The defence counsel on the other hand has vehemently argued that the prosecution has failed to discharge its duty beyond reasonable doubt and no reliance can be placed on the report Ex. PW 4/A, as it has failed to prove that the alleged tape recorded cassette and other exhibits were sealed and seized properly at the spot and deposited in the malkhana of CBI as per rule 13.21 to 13.26 of the CBI Manual safely on the same day without tampering and that the same also reached the CFSL in intact condition and there was no tampering with the same, so long it remained in the custody of investigating agency, malkhana or CFSL I find force in the argument of the defence counsel as the prosecution has not produced on record any entry made in malkhana register in the official course of business regarding deposit and withdrawal of the case property/exhibits so as to prove that the same were deposited in the malkhana on the same day at the earliest opportunity and remained in the safe custody of malkhana incharge. At the same time no entry in the malkhana register has been produced as to when the case property/exhibits were sent to CFSL for expert's opinion/ chemical analysis, who took them and whether the sample seals were also taken alongwith the exhibits to CFSL, to facilitate the expert /chemical examiner to compare the seal on the exhibits, to rule out the possibility of tampering. The prosecution was under legal C C No.34/12 CBI Vs. Rakesh Kumar Page no. 70 of 77 71 obligation to show and establish by cogent evidence that such case property remained intact throughout till it reached the safe hands of forensic experts. This is to ensure that case property was not tampered with by anyone at any point of time and to rule out the possibility of any false implication as well. However, in the present case the prosecution has not resorted to any such safeguards. The malkhana Incharge has not been cited or examined as prosecution witness to prove as to when the case property/exhibits were deposited in his safe custody and it is only he who could depose whether the seals were intact and as to when the case property/exhibits were sent to the CFSL that too in intact condition and through whom.

70. The road certificate vide which the exhibits were sent to CFSL has also not been proved adding to one more missing link. As such there is no evidence on record that the case property/ exhibits were infact deposited with their seals intact in the safe custody of the malkhana incharge on the same day when they were seized and thereafter till they deposited in the CFSL, there was no possibility of their being tampered with. Thus the prosecution is to be blamed for the said serious lapse. The prosecution has failed to bring sufficient material on record that the exhibits of the case property C C No.34/12 CBI Vs. Rakesh Kumar Page no. 71 of 77 72 including cassettes Q ­1 Ex P­17 and Q­2 Ex. P­20 containing the alleged conversation between the complainant and the accused regarding demand of bribe were kept in safe custody till their examination in the CFSL. As held by the Hon'ble Apex Court in the case of Ram Singh Vs Col. Ram Singh reported in AIR 1986 Punjab & Haryana Supreme Court-3- ''every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context, and, therefore, inadmissible." It also held that " the recorded cassette must be carefully sealed and kept in safe or official custody.

71. In view of the circumstances of the case, the necessary precautions were not taken during investigation to rule out the possibility of tampering of the cassettes. Besides, as pointed out by defence counsel PW 2 the complainant stated that during verification proceedings he was handed over the voice recorded when he was about half a kilometer away from Pushpa Bhawan, the office of the accused and at that time it was in switch on condition. That the vehicle was parked at a distance of about 200 KM from C C No.34/12 CBI Vs. Rakesh Kumar Page no. 72 of 77 73 the office of accused on the main road itself and then he alongwith Shiv Kumar alighted from the vehicle and the accused met them at gate of Pushpa Bhawan where they exchanged pleasantry and then accused went upstairs in Pushpa Bhawan and told them to wait near the gate where their own room was situated and after 10/20 minutes accused came back and then took him to his room where they had a talk for about 5 to 10 minutes. After he left the room and proceeded towards the vehicle followed by PW Shiv Kumar, he sat in the vehicle and then voice recorder was taken from him and it was switched off. Calculating the period consumed in this process comes to approximately 40 to 45 minutes but it is observed that as per the report Ex. PW 4/A of PW 4 Dr Rajender Singh, the recording in the cassette Q­1 Ex.P­17 was only about 11 minutes 38 seconds approximately, which is far less than the time for which the DVR remained in 'ON' position. Thus the possibility of tampering of the conversation found recorded in the cassette Q­1 Ex. P­17 cannot be ruled out. It is also observed that as per the testimony of PW 4 Dr Rajender Singh, he had compared only six C C No.34/12 CBI Vs. Rakesh Kumar Page no. 73 of 77 74 words from the questioned cassette Q­1 Ex P­17 with the specimen voice. As per his report Ex PW 4/A, he had compared the words " Haan Ji '', '' Mein Kuch Nahi Keh raha Hu'', '' Yaad Nahi, Lamba Choda '', Chal Zayega" in cassette Q­1 Ex. P­17 with respect to the specimen voice contained in cassette S­1 Ex. P­24. Here it is observed that there is no comparison of the specimen voice of the accused with the incriminating sentences in the questioned cassette Q­1 Ex. P­17. No reason has been assigned by the prosecution as to why the incriminating sentences were not got compared through the expert as to whether the same were in the voice of the accused or not. It is further observed that as per the report Ex. PW 4/A the rough transcription was sent alongwith the cassettes to the CFSL. However, the forwarding letter Ex. PW 12/A shows that therein, there is no reference with regard to any such document being sent to the CFSL alongwith the cassettes, it appears that this fact has been concealed for ulterior motive. Besides, the text was not required to be sent alongwith the cassettes as an expert witness is required to work independently of any such C C No.34/12 CBI Vs. Rakesh Kumar Page no. 74 of 77 75 facilitation.

72. The transcription of the tape recorded conversation is also one of the important aspect of the case. The incident is dt. 30.10.2006. As per the forwarding letter Ex. PW 12/A wherein the date of the forwarding letter is mentioned as "19.01.2008" may be by mistake as testified by PW 12 the TLO that it should have been mentioned as 21.01.2009. However, as referred above even assuming that the forwarding letter is dt. 21.1.2009, the rough transcriptions of the cassettes Q 1 Ex. P­17 and Q2 Ex. P­20 were sent alongwith the cassettes, whereas as per the case of the prosecution the transcriptions Ex. PW 2/J and Ex. PW 2/K of conversation recorded in both these cassettes Ex.P­17 and Ex. P­20 were prepared on 09.11.2009 ie after about 10 months of the sending of the cassettes alongwith the rough transcriptions to the CFSL. If one goes through the document Ex. PW 2/F ie the Transcription cum Voice Identification Memo, then one would feel that vide said memo the transcriptions of the recorded conversation were prepared words by word as audible and then the said C C No.34/12 CBI Vs. Rakesh Kumar Page no. 75 of 77 76 transcriptions were explained to all the witnesses present there and they confirmed the same to be true and correct by putting their signatures on the memo Ex. PW 2/F as well on the transcriptions Ex PW2/J and Ex. PW 2/K respectively. However, it is also very much evident from the record that before said transcriptions were officially prepared, if I may say so, investigating agency had already prepared identical transcriptions. Prosecution is duty bound to come up with complete clarity and precision with respect to such vital fact. It should have made ample clear as to who had prepared such transcriptions and when.

73. PW 12 the TLO has neither in his chief examination nor in his cross examination testified that he had prepared any rough transcriptions of the conversation recorded in cassettes Q1 Ex. P-17 and Q2 Ex. P-20. No other witness has testified that any such transcriptions were prepared and by whom. There is no explanation on behalf of the prosecution that if the transcriptions were prepared and sent alongwith the cassettes to the CFSL on 21.1.2009 then where was the necessity to prepare it again on 9.11.2009 and to obtain the signatures of the complainant and independent witnesses thereon.

74. The bare reading of para -1 of the forwarding letter Ex PW 12/A also shows that all the relevant details of the case including the name, the amount of bribe allegedly demanded C C No.34/12 CBI Vs. Rakesh Kumar Page no. 76 of 77 77 and the alleged assurance given by the accused are mentioned which amounts to nothing but to provide all the clues to the expert as to on what lines he was to compare the specimen voice of the accused with the questioned voice contained in cassette Q-1 Ex.P-17 and and Q-2 Ex. P-20, rather it facilitated the expert in identifying a particular voice in the cassettes Q-1 Ex. P-17 and Q-2 Ex. P-20 as that of the accused. However, forensic experts are not required to be guided. Providing identity of speakers to them would act like suggesting them which is not warranted as that can influence them.

75. It is further observed that the transcription Ex. PW 2/J of the conversation between the complainant and the accused during verification of the complaint is not in accordance with the testimony of the complainant. The complainant has testified that at the gate of Pushpa Bhawan he met the accused and asked him about the security and accused told him to wait there and went upstairs then he came downstairs after 10/15minutes. However, in the transcription Ex. PW 2/J there is no mention that the complainant had asked the accused about release of his security amount nor there is any mention that the accused told the complainant to wait there and then went upstairs. Even PW 3 C C No.34/12 CBI Vs. Rakesh Kumar Page no. 77 of 77 78 Shiv Kumar, who was accompanying the complainant at the time of proceedings relating to verification of the complaint, did not testify in this regard that the accused had told the accused to wait and then had gone upstairs. The perusal of the transcription Ex.PW 2/J rather reflects that the conversation between the complainant and the accused was in flow and there was no interruption on account of the accused going upstairs asking the complainant to wait for him and this creates doubt about the authenticity of the recorded conversation and possibility of the tampering of the same cannot be ruled out. The transcription Ex. PW 2/J was prepared in the presence of the complainant and the independent witnesses and that was the appropriate stage when the complainant could point out to the investigating officer that at a particular stage of the conversation between them, the accused had gave upstairs and returned after 10/15minutes. As per the testimony of the complainant, the accused returned after 10/15 minutes. Admittedly, DVR was in ON position. It was never switched off in between, so there needs to be full recording of even those 10­15 minutes when C C No.34/12 CBI Vs. Rakesh Kumar Page no. 78 of 77 79 the accused had gone upstairs and the noise/voices of the surroundings could have been found recorded in the DVR but the same are missing, which creates doubt about the authenticity of the tape recorded conversation. In view of such circumstances, the prosecution has failed to lead any cogent evidence of demand of bribe by the accused from the complainant 4/5 days before he lodged the complaint and on 19.1.2009 during the verification proceedings of the complaint vide cassette Q­1 Ex. P­17 similarly as already discussed, the conversation recorded in cassette Q­2 Ex. P­20 is not in terms of the testimony of PW 2.

76. It is settled law that merely on the basis of recorded conversation and transcriptions, prosecution cannot bring home the guilt of the accused persons. Court has to ensure existence of mandatory requirements. The CBI has not bothered to place on record primary evidence ie DVR. In such type of delicate cases, such DVR should be made case property. After all, DVR does not cost that big. There is no harm in transferring the contents from DVR to cassette, CD or DVD while taking adequate precautions but C C No.34/12 CBI Vs. Rakesh Kumar Page no. 79 of 77 80 that does not mean that thereafter such DVR has to be held back from the court. Such DVR, by no means, is a primary piece of evidence. It is very handy and portable unit and, therefore, prosecution cannot claim that such unit was too heavy to be transported to the Court.

77. The law regarding admissibility of tape recorded conversation has come up for discussion in several cases before the Apex Court recently in Nilesh Dinkar Paradkar Vs. State of Maharashtra, III (2011) SLT 35, the Apex Court held as under:

"30. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification. Reliance can also be placed upon Ziyauddin Burhanuddin Bukhari Vs. Brijmohan C C No.34/12 CBI Vs. Rakesh Kumar Page no. 80 of 77 81 Ramdass Mehra & Ors., (1976) 2 SCC 17, Ram Singh & Ors . Vs. Col. Ram Singh , 1985 (Supp) SCC 611, Mahabir Prasad Verma Vs. Dr. Surinder Kaur, (1982) 2 SCC 258'' I consider that in view of the discussions made herein above, the evidence regarding tape recorded conversation is not reliable piece of evidence.

78. The prosecution has also heavily relied upon the proven fact that the colourless solution of sodium carbonate changed into pink upon dipping of the right hand and the right side pocket of the pant of the accused. The accused in his statement U/s 313 Cr PC has denied that his right hand and right side pant pocket wash were taken in the sodium carbonate colourless solution and the same turned into pink. The defence counsel has submitted that the evidence led by the prosecution to this effect is not admissible again for the reasons that the link evidence is missing in various forms. He has drawn my attention to the forwarding letter Ex. PW 7/A vide which the exhibit bottles RHW Ex.P-29 and RSPPW Ex.P-30 were sent to the CFSL, wherein it is mentioned "specimen seal impression enclosed." However, in the receiving issued from CFSL dt 22.1.2009 there is no mention of receiving C C No.34/12 CBI Vs. Rakesh Kumar Page no. 81 of 77 82 of the specimen seal, though, in the report Ex. PW 7/B it is mentioned that CBI seals on the sealed bottles were tallied with the specimen seal impression. The official who carried the exhibits( bottles) to CFSL and the official who received the same have neither been cited or examined by the prosecution to prove whether the specimen seal impression were sent to CFSL alongwith the exhibits, to ensure that the exhibits examined were relating to the present case and there was no tampering. Though PW 12 the TLO has testified that he had deposited the exhibits in the malkhana on 20.1.2009, however, the malkhana incharge has not been examined nor the register maintained in the malkhana containing the relevant entires of deposit and withdrawal of the case property was produced in the court. Besides, no witness has been examined who has withdrawn the exhibits from the malkhana and deposited in the CFSL to prove that the exhibits were not tampered with till they were deposited with the CFSL. So there is a missing link in the chain of the prosecution case.

79. In view of the above discussion, the prosecution has miserably failed to bring home the guilt of the accused Rakesh Kumar U/s. 7 & 13(1)(d) r/w Sec. 13(2) C C No.34/12 CBI Vs. Rakesh Kumar Page no. 82 of 77 83 of P C Act, 1988. Hence, giving him benefit of doubt he is acquitted of the charges.

80. Accused is on bail. Surety is discharged. Bail bond/ surety bond cancelled. Original documents, if any, on record may be returned to him against proper acknowledgment.

81. In terms of Section 437(A) Cr. PC, accused Rakesh Kumar is directed to furnish bail bond in the sum of Rs.25,000/- with one surety in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.

File be consigned to the Record Room.

Announced in the open                                                          Ravinder Kaur
court on 30.11.2012                                                                 Special Judge ( PC
Act)
                                                                               CBI-03,Saket Courts,
                                                                               New Delhi




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C C No 34/12


CBI Vs Rakesh Kumar
30.11.2012

Present: Sh. Umesh Chandra Saxena, Ld. Senior PP for CBI.

Accused on bail alongwith Sh Puneet Ahluwalia, adv. Vide separate judgment announced in open Court, accused Rakesh Kumar is acquitted of the charges U/s. 7 & 13(1(d) r/w Sec. 13(2) of P C Act, 1988.

Accused is on bail. Surety is discharged. Bail bond/ surety bond cancelled. Original documents, if any, on record may be returned to him against proper acknowledgment.

C C No.34/12 CBI Vs. Rakesh Kumar Page no. 84 of 77 85 In terms of Section 437(A) Cr. PC, accused Rakesh Kumar is directed to furnish bail bond in the sum of Rs.25,000/- with one surety in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.

File be consigned to the Record Room.

                                                                     Ravinder Kaur
                                                                     Special Judge ( PC Act)
                                                                     CBI-03,Saket Courts,
                                                                     New Delhi/30.11.2012




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