Delhi District Court
Cbi vs 1 S S Bindra Dy. Labour Welfare on 31 January, 2011
1
IN THE COURT OF SH. V K MAHESHWARI :SPECIAL
JUDGE; TIS HAZARI DELHI
Corruption Case No. 73/2001
CBI Vs 1 S S Bindra Dy. Labour Welfare
Commissioner, CPWDII, Y Shape
building IP Etate, New Delhi
2 Sh. Rakesh kumar Chaurasia, steno
to S S Bindra, Dy. Labour Welfare
Commissioner.
R. C No. 19(A)/01/CBI/ACB/ New Delhi.
Under Section U/s 120B r/w 7 of PC Act & Section 13
(2) r/w 13 (1) (d) of PC Act
Date of Institution of 17.11.2001
case
Arguments concluded 18.1.2011
on
Date of Order 28.1.2011
Judgment
According to prosecution this case was registered on
22.2.2001 on the complaint of Sh. S K Sehgal prop. of M/s J S
Engineering Enterprises, 40 Yusuf Sarai Market, New Delhi
alleging that Sh. Sehgal, the complainant, executed the contract for
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providing of Cubical Panel Board for M P Flats in North and South
Avenue, New Delhi vide agreement No. 42 & 43/EE/PWED/T/899
in the month of March, 1999. He completed the work on 31.7.2000
& applied for the payment of the said work. He received his
payment against the contract. But 10% payment of the total bill
amount to Rs.1,80,000/ (Approx.) with held as security, for this
amount Labour Clearance Certificate was required to be obtained.
Sh. S K Sehgal proprietor of company applied for issuance of
Labour Clearance Certificate on 14.2.2001 in the office of Dy.
Labour Welfare Y Shape building IP Etate, New Delhi. On
16.2.2001, he sent his supervisor Sh. Sujit Kumar Chakravorty to
office to pursue the matter. Sh. Rakesh kumar Chaurasia, steno to S
S Bindra, Dy. Labour Welfare Commissioner demanded a bribe of
Rs.2700/ for getting the said certificate. Sh. Sujit Kumar
Chakravorty informed accordingly to Sh. S K Sehgal on 20.2.2001
Sh. Sehgal himself met Sh.S S Bindra and apprised him about the
said demand of bribe made by his steno. Sh.S S Bindra told that the
amount of Rs.2700/ is very less for this purpose and he will have to
pay the bribe amount. Finally after his repeated requests Sh.S S
Bindra reduced the bribe amount to Rs.2500/ and directed Sh. S K
Sehgal to pay the amount on 22.2.2001 forenoon in his office. Sh.S
S Bindra further threatened him that if the bribe amount was not
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paid, the LCC will not be issued. The complainant said to the
accused that his supervisor Sh. Sujit Kumar Chakravorty would
come to pay the bribe amount.
2 Complainant did not want to pay the bribe amount, so
he lodged a written complaint on 22.2.2001 to SP, CBI, ACB, New
Delhi for taking necessary legal action. The case was registered and
investigation was entrusted to Sh. A K Malik, Inspector, CBI, ACB,
New Delhi.
3 On 22.2.2001, two independent witnesses Sh. Vinod
Goswami, Senior observer Meteorological Department Mausam
Bhawan, New Delhi. Sh. R K Tripathi, UDC, AD (Works)1E
Block, Ist Floor, Vikas Sadan, New Delhi were arranged. A trap
team comprising of S/Sh. A K Malik, Azad Singh, Surender Malik,
A K Singh and Vivek Dhir, all inspectors of CBI, ACB, New Delhi
and Sh. Prem Nath SI CBI, ACB, New Delhi and the above said two
independent witnesses, was constituted.
4 Thereafter Sh. S K Sehgal produced a sum of Rs.
2500/ i.e. 15 GC notes of Rs.100/ denomination and two notes of
Rs. 500/ denomination each. Sh. A K Malik directed Vivek Dhir
to treat the GC notes with phenolphthalein powder. A demonstration
was conducted by Vivek Dhir. All pretrap formalities were
completed and mentioned in Handing Over Memo. A micro cassette
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recorder and a micro cassette were arranged. Specimen voice of Sh.
R K Tripathi and Sh. Vinod Goswami was recorded. After that said
cassette was inserted in micro cassette recorder and that micro
cassette recorder was given to Sh. Sujit Kumar. He kept the same in
his pocket. He was directed to switch on the cassette recorder
before contacting the accused persons. In this regard a memo was
prepared which was signed by all the persons present there.
5 The personal search of Sujit Kumar Chakravorty,
Supervisor of the complainant firm was taken by Sh. R K Tripathi
and he was not allowed to retain anything on his person. These
powder treated GC notes were kept in the left side shirt pocket of
Sujit Kumar Chakravorty with the direction to hand over the tainted
GC notes of Rs.2500/ to Sh. S S Bindra, or to Sh. Rakesh
Chaurasia, on the direction of S S Bindra, only on specific demand
of bribe. He was also directed not to shake hand with any of the
accused persons.
6 Sh. Vinod Goswami, independent witness was
directed to act as a shadow witness and remain as close as possible
to Sujit Kumar Chakravorty to hear the conversation which will
take place between the complainant and the above mentioned
accused persons and also to see the passing of bribe amount. He
was directed to give the signal, after completion of the transaction
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by scratching his head with both of his hands. All the pre - trap
proceedings mentioned in the Handing Over Memo were completed
by 11.15 AM.
7 After completion of these pretrap proceedings at about
11.25 AM the trap party accompanied with Sh. Sehgal and Sh. Sujit
Kumar Chakravorty and both the independent witnesses left for the
office of accused persons. CBI raiding party accompanied with
witness Sh. R K Tripathi and Sh. Vinod Goswami and complainant
Sh. S K Sehgal and his supervisor Sh. Sujit reached near the office
of CPWD at Y Shape building, IP Bhawan, ITO, New Delhi at about
11.50 AM. Since Sh. Sehgal had some preoccupation he asked Sh.
Malik for permission to leave and Sh. Malik accordingly allowed
him to leave. Thereafter Sh. Malik directed Sh. Vinod Goswami
and Sh. Sujit to proceed to the office of Dy. Labour Welfare
Commissioner CPWDII, located in Y Shape building, IP Bhawan,
ITO,at 5th floor and contact the accused persons. After reaching at
5th floor, all the CBI trap party members including independent
witness Sh. R K Tripathi took suitable position. Sh. Vinod
Goswami and Sh. Sujit entered in the room No. A516, after few
seconds they came out and entered in the office room of Sh. S S
Bindra, located in room No. A519 at about 12.05 Pm. Thereafter
they came out from room No. A519 and entered in the room No.
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A516.
8 After few minutes i.e. 12.20 PM shadow witness Sh.
Vinod Goswami came out and gave the preappointed signal. On
receipt of signal Sh. A K Malik alongwith member of the raiding
party and Sh. R K Tripathi independent witness entered in the room
No. A516. On entering the room, at the instance of Sh. Sujit
Kumar Chakravorty, the CBI team challenged the person whose
identity was disclosed as Rakesh Kumar Chaurasia PA/Steno to Sh.
S S Bindra as to whether he had demanded and accepted bribe of Rs.
2500/ from Sh. Sujit Kumar Chakravorty. At this Rakesh Kumar
Chaurasia accused became perplexed and kept mum. In the
meantime Rakesh Kumar Chaurasia accused was caught hold of
from his left and right hand wrists by Sh.Surinder Malik and Sh.
Azad Singh, both Inspectors respectively. On being asked Sh. Sujit
Kumar Chakravorty told that he alongwith shadow witness Sh.
Vinod Goswami contacted Sh. Rakesh Kumar Chaurasia steno
sitting at room No. A516 and asked about said LCC. Sh. Rakesh
Kumar Chaurasia directed them to meet Sh. S S Bindra. Thereafter
they met to Sh. S S Bindra Dy. LWCII in his office no. at A519
and enquired about the labour clearance certificate (LCC) pending
for issuance by him. Sh. S S Bindra accused enquired about the
identity of Sh. Vinod Goswami whom he introduced as Accountant.
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Sh. S S Bindra directed Sh. Sujit Kumar Chakravorty to contact his
PA/Steno for issuance of LCC. Sh. Sujit Kumar Chakravorty
further informed that accordingly he alongwith shadow witness Sh.
Vinod Goswami contacted Sh. Rakesh Kumar Chaurasia and
requested him for issuance of necessary LCC. Sh. Sujit Kumar
Chakravorty further told that at this Sh. Rakesh Kumar Chaurasia
enquired about money. On confirmation that he has brought the
bribe money. Sh. Rakesh Kumar Chaurasia directed Sh. Sujit
Kumar Chakravorty to hand over the same. On this Sh. Sujit
Kumar Chakravorty requested Sh. Rakesh Kumar Chaurasia to give
the LCC. At this Sh. Rakesh Kumar Chaurasia prepared the
necessary documents and handed over the same after
keeping/putting the same in one register after making an entry in the
same, to Sh. Brahm Singh, peon for obtaining the necessary
signatures of Sh. S S Bindra. Accordingly as soon as Sh. Brahm
Singh, peon left for obtaining the signatures of Sh. S S Bindra, Sh.
Rakesh again demanded the bribe money on which Sh. Sujit Kumar
Chakravorty requested Sh. Rakesh Kumar Chaurasia to let the peon
came with the LCC duly signed by accused S S Bindra. In the
meantime Sh. Brahm Singh, peon came back with duly signed LLC
and Sujit Kumar Chakravorty took out the said tainted bribe money
of Rs.2500/ with his right hand from his left side shirt pocket and
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handed over the same to accused Sh. Rakesh Kumar Chaurasia
declaring the amount to be Rs.2500/. Accordingly Sh. Rakesh
Kumar Chaurasia accused accepted the bribe money of Rs.2500/
with his right hand after counting the same with both of his hands,
kept the same in second drawer of his office table with his right
hand.
9 The right hand wash and left hand wash of accused
Rakesh Kumar Chaurasia were taken in colourless solution of
sodium carbonate, which turned pink in colour which were sealed in
two separate bottles with CBI seal.
10 Thereafter on the direction of Sh. A K Malik, Sh. R K
Tripathi recovered the tainted amount from the second drawer of the
office table of accused Rakesh Kumar Chaurasia and Sh. Sujit
confirmed the demand and acceptance of bribe. The cassette were
kept back in its cover and wrapped in a piece of cloth which was
sealed with CBI seal. Both the witnesses Sh. Vinod Goswami and
Sh. R K Tripathi signed at the piece of cloth.
11 Thereafter accused Rakesh Kumar Chaurasia
voluntarily disclosed that on 22.2.2001, he was called by Sh. S S
Bindra, DLWCII in his room and directed him that Sh. Sujit Kr. Of
M/s J S Engineering will come to his office on 22.2.2001 for the
purpose of issuance of LCC and directed him to take Rs.2500/ as
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bribe from Sh. Sujit. Sh. S S Bindra had also directed accused
Rakesh Kumar Chaurasia to get signatures on LCC after taking the
bribe amount from Sh. Sujit Kumar. Rakesh Kumar Chaurasia
further disclosed that in compliance with the direction of Sh. S S
Bindra conveyed to him on 22.2.2001, he had demanded and
accepted the bribe of Rs.2500/ from Sh. Sujit, which was recovered
from him. Sh. A K Malik recorded a disclosure statement of
accused Rakesh Kumar Chaurasia. At about 3 PM accused
Rakesh Kumar Chaurasia was arrested.
12 At about 3.30 PM accused Sh. S S Bindra was also
arrested. A rough site plan was prepared which was duly signed by
both the independent witnesses. The recovery memo was prepared
containing post trap formalities.
CHARGE
13 Copies required U/S 207 Cr P C supplied to accused.
After hearing both the parties vide order dt. 31.3.2004 a charge for
the offence punishable U/s 120B IPC r/w 7 & 13 (2) r/w Section
13 (1) ( d) of the Prevention of Corruption Act, 1988 has been
framed against accused S S Bindra . A charge for the offence
punishable U/s 120B IPC r/w 7 & 13 (2) r/w Section 13 (1) ( d) of
the Prevention of Corruption Act, 1988 has been framed against
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accused Rakesh Kumar Chaurasia. Both the accused pleaded not
guilty to the charges and claimed trial, hence this trial.
PROSECUTION EVIDENCE
14 Prosecution, in order to prove its case, has produced
following witnesses:
PW1 Sh A C Suri has proved sanction order as Ex.
PW1/A granted by him for the prosecution of accused Rakesh
Kumar Chaurasia.
PW2 S K Sehgal is the complainant. He has proved his
complaint Ex PW 2/A, handing over memo Ex PW 2/B, micro
cassette recorder handing over memo Ex PW 2/C, application for
issuance of labour clearance certificate Ex PW 2/D and case
property i.e. G C notes Ex P1 to P17.
PW3 Sh Vinod Goswami has proved recovery memo Ex
PW3/A, personal search memo of accused SS Bindra and Chaurasia
Ex PW3/B and Ex PW3/C. He has also proved memo Ex PW3/D
and documents Ex PW3/E and Ex PW3/F.
PW4 Sh Rajinder Prasad, UDC in CPWD has not proved any
document.
PW5 Inspector A K Malik , is the TLO of this case, has
proved the copy of FIR Ex PW5/A , site plan Ex PW 5/B. He has
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also proved recovery memo Ex PW3/A, personal search memo of
both the accused Ex PW3/B and PW3/C. He has proved seizure
memo of documents recovered from the drawer of accused Rakesh
Kumar Ex PW2/D, PW2/F, PW3/E, PW2/E, PW3/F , Ex PW5/D,
PW5/E and Ex PW5/F.
PW6 A K Mittal Superintendent Engineer CPWD has proved
Extract of Manual relating to General terms and conditions of the
contract, Mark PX.
PW7 Sh K S Chhabra, Senior Scientific Officer Grade1 has
proved chemical analysis report Ex PW7/A.
PW8 Dr Rajinder Singh, Principal Scientific Officer has
proved his report Ex PW8/C.
PW9 Sh R K Tripathi has proved transcription Ex PW9/A,
specimen voice recording memo of accused Rakesh Kr Chaurasia
and SS Bindra Ex PW9/B and Ex PW 9/C.
PW10 S I M M Ansari has also proved documents already
proved by PW2 and PW5 as Ex PW 5/A, Ex PW2/A, PW2/B. He
has proved charge sheet Ex PW10/A.
PW11 Shri Braham Singh, Peon in the office of Labour
Commissioner has not produced any document but has deposed
orally.
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DEFENCE OF ACCUSED AND DEFENCE EVIDENCE.
15 Statement of both the accused U/s 313 Cr PC recorded .
Accused S S Bindra has denied the entire story of the prosecution.
He has stated that he is innocent . He has refuted all the evidence
produced by the prosecution against him and stated that he has been
falsely implicated in this case , however, he has admitted that Brahm
Singh was posted as peon in his office and he used to bring various
official documents for his signatures in the discharge of his official
functions. As per rule labour clearing certificate is not require for
release of any amount after a lapse of six months from the date of
the completion of the work. Rakesh Kr has not accepted any bribe
money on his behalf. The tape is manipulated and tempered one .
There is nothing in tape to suggest that Rakesh Chaurasia had
demanded bribe money on his behalf . Transcript of the recorded
conversation is incorrect. Report of Rajinder Singh is biased and
false. He is not a qualified expert to give any opinion with reference
to suspect voice conversation.
16 Accused Rakesh Kumar Chaurasia has also denied the
entire story of prosecution . He has stated that he is innocent and
has been falsely implicated in this case. He has further stated that
Sh A C Suri, was not his appointing authority and the sanctioned
accorded by him is invalid. The sanction order was passed
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mechanically. He did not demand any money nor he accepted any
money. He did not keep any money in any drawer. He was
apprehended from the Corridor. He does not know anything about
the activity of CBI officials. Contents of Ex PW3/A are false. No
wash of his hand was taken. No recovery was effected from the
drawer of his office table in his presence. He did not state to CBI or
anyone that he had accepted the bribe money on behalf of accused S
S Bindra. Report Ex PW 8/A is perfunctory and against the
scientific principles. His voice sample was not taken. There is no
order of Court for taking of his sample voice. There is no evidence
to connect him with any conspiracy .
17 Both the accused have not produced any evidence in
their defence.
PROSECUTION ARGUMENTS
18 It is argued by Ld Prosecutor that accused S S
Bindra(A1) the then working as Dy Labour Welfare Commissioner
entered in a criminal conspiracy with Rakesh Kr Chaurasia (A2)
who was the then his Steno, in furtherance of criminal conspiracy
SS Bindra had demanded Rs.2700/ on 16.2.2001 from Surjit Kr
Chakravorty who was the supervisor of complainant Sh S K Shegal
proprietor of M/S J S Engineering for issuing Labour Clearance
certificate ( LCC) . S S Bindra had directed the complainant and his
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Supervisor to pay the amount to his Steno Rakesh Chaurasia . On
20.2.2001 complainant himself had gone alongwith his Supervisor
Mr Chakravorty to S S Bindra who had demanded the illegal
gratification of Rs.2700/ but on pursuation of complainant he has
reduced the amount to Rs.2500/ and directed them to pay the
amount to his Steno ( A2) on 22.2.2001 and to receive the LCC . It
is argued that complainant S K Shegal himself appeared as PW 1
and proved his complaint Ex PW2/A. Demand and acceptance of
illegal gratification by the accused persons have also been proved by
PW 3 Vinod Goswami. PW9 R K Tripathi has proved the recovery
of the tainted amount from the drawer of A2. It is argued that
besides these witnesses prosecution has also produced PW5 A K
Malik TLO of the case, PW10 SI Sh M M Ansari, IO of the case
both these witnesses have proved various memos prepared by them
in presence of witnesses. Complainant and both the independent
witnesses have fully supported their version.
19 It is argued that PW 1 has proved sanction Ex PW1/A
accorded by him for the prosecution of A2. A1 was retired from
his service prior to filing of charge sheet hence no sanction for his
prosecution is required. PW8 Dr Rajinder Singh proved the voice
comparison report of accused and complainant with their sample
voice . PW7 K S Chhabra has proved his report of chemical analysis
C C No.73/2001 14/86
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of hand washes of A2 which is Ex PW7/A. It is argued that besides
these witnesses other official witnesses have also been examined .
Ld SPP argued that prosecution has proved its case beyond
reasonable doubts against both the accused, hence they may be
convicted.
ARGUMENTS OF ACCUSED NO.1
20 Brief submissions on behlaf of accused S S Bindra are
that defacto complainant Sujit Kumar Chakravorty has not been
produced for his evidence in court. All that he allegedly told S K
Sehgal, who lodged a report with CBI, is inadmissible being
hearsay. (2003 (III) AD (Crl.) 346 para 6/10 and 2010 (2) CCC
(SC) 181. The allegation that Sujit Kumar Chakravorty told S K
Sehgal of demand of Rs.2700/ for issuance of LCC is inadmissible.
21 It is argued that complainant S K Sehgal has a motive to
implicate S S Bindra. Notice for production of labour record was
issued to him by the predecessor of S S Bindra which is Ex PW 2/E.
He repeatedly failed to produce the record on which S S Bindra
issued him a notice on 20.1.2000.
22 It is argued that evidence of complainant S K Sehgal is
otherwise inconsistent, contradictory and unreliable. He stated to
have made the report to CBI on the day when he met S S Bindra in
his office regarding demand of bribe money by Rakesh Chaurasia.
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According to the prosecution case the report to the CBI is made by
him on 22.2.2001. Therefore, it rules out his meeting S S Bindra on
20.2.2001 when S S Bindra allegedly confirmed the demand. If it is
taken that S K Sehgal met S S Bindra on 22.2.2001 and thereafter he
went to CBI office on the same day and made a complaint, then his
complaint of 20.2.2001, which is not on record, has been malafidely
withheld by the CBI, which is fatal to the prosecution case.
23 It is argued that subsequent to the receipt of the penalty
notice, the LCC is applied by S K Sehgal to falsely get the accused
persons involved for demand of money for issuance of LCC,
although such a certificate is not required under the rules for release
of security amount after the lapse of six months from the completion
of the work. It is so stated by PW6 Sh. A K Mittal. This fact is also
well known to the complainant, who in his complaint Ex PW 2/A to
CBI specifically stated "I applied for the labour clearance certificate
on 14.2.2001 after the expiry of the stipulated period of six months".
The complainant was otherwise working as a contractor for the last
20 years and must be well acquainted with it. In his evidence he
tried to get out of it by stating that "the work was completed by
13.3.2001" but when confronted with his complaint in cross
examination, he admitted that the work was completed in July, 2000.
He also admitted in his cross examination that " labour clearance
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certificate relates only to the extent of pendency of any complaint
from the labour."
24 It is argued that evidence of S K Sehgal that he went
with Sujit Kumar Chakravorty and met Bindra on 20.2.2001 and that
he "asked my supervisor to collect the certificate" is an
improvement made by him and is confronted with Ex PW 2/A
where these facts are not recorded.
25 It is argued that there is no other evidence against S S
Bindra . The shadow witness Vinod Goswami does not talk of any
demand by Bindra during the conversation with Sujit Kumar
Chakravorty . The statement of Goswami that Bindra asked him to
go and get it done from Chaurasia is an improvement and he is
confronted with his statement under section 161 Cr PC where it is
not so recorded.
26 It is argued that the evidence of Goswami is contrary to
the prosecution case in as much as he stated that he and Charavorty
first went to the room of Bindra whereas the prosecution case is that
they first went to the room of Chaurasia. Recovery of the tainted
money was effected in presence of officers from the adjoining room
who were called by CBI whereas as per the statement of PW5 AK
Malik none was called and joined. He does not depose in the court
that accused Chaurasia made any statement regarding the bribe
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amount whereas the prosecution case is that A2 allegedly received
the bribe amount on direction of S S Bindra.
27 It is argued that Vinod Goswami simply identified his
signatures on Ex PW 3/D, the alleged statement by Chaurasia
without saying a word about interrogation of Chaurasia and thus the
contents of Ex PW 3/D are not proved. For admissibility of a
statement of accused, a new fact should be discovered and such fact
should be deposed by the witness. In the present case neither a new
fact has been discovered nor the witnesses PW3 and PW9 have
deposed about such facts. (2007 (2) JCC 1617).
28 It is argued that Goswami stated in court to have signed
some documents in CBI office where the same were prepared on
return from the raid whereas according to prosecution case, no
document was prepared or signed by him in CBI office. As per his
evidence "his statement was recorded at the spot" whereas A K
Malik stated that statement of Goswami was recorded in CBI office.
He stated that he "had not gone to the office of CBI after the day of
trap". How his signatures appear on the alleged transcription. It
proves the falsity of the proceedings in this regard. His statement on
a simple reading would show that it is prepared by the CBI by using
cut and paste method and it is attributed to him. Evidence of PW9 R
K Tripathi is of no help to the prosecution. He is inconsistent in his
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statement regarding the amount of Rs.200/ and the handing over to
the bribe amount of Rs.2500/ to Sehgal/ Chakravorty. He is not a
witness to the alleged transaction and conversation between
chakravorty and the accused persons. According to the statement of
R K Tripathi "there were only some talks with Chaurasia however
he was not interrogated. Again said now I do not remember whether
Chaurasia was interrogated or not. His changing statement cannot
be acted upon particularly when he admitted in cross examination "
It is correct that CBI had told me that in case I will divert from my
statement recorded u/s 161 cr PC they will inform my department
for action". Even otherwise the statement of co accused is no
evidence of conspiracy (2002 (III) AD (Crl) DHC 127). The reading
of his alleged statement u/s 161 Cr PC proves it to have been
formulated mechanically by CBI and cut and paste method has been
adopted. A K Malik admitted in cross examination that "the printing
mistakes appearing in statement of Goswami also appeared in the
statement of R K Tripathi" which proves the use of cut and paste
method. This is further proved from the evidence of PW9 that his
"statement was recorded on the day of the raid thereafter my
statement was not recorded by CBI". When asked the Learned
Public Prosecutor stated that " there was no statement of this witness
by CBI on day of trap". Similarly as per the statement of A K Malik
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statement of Goswami was recorded on 23.2.01 but there is no such
statement on record. A K Malik further stated that statement of
Chakravorty was recorded on 22nd and 23rd February,2001. But the
Learned Public Prosecutor stated that " there is no statement of Sujit
Kumar Chakravorty dt. 22nd and 23rd February,2001 on record".
29 It is argued that when cross examined by the Learned
Public Prosecutor R K Tripathi changed his statement and admitted
suggestions by Learned Public Prosecutor, which contradict the
statement made by him on the previous date in his examination in
chief. It thus proves that he is under pressure from the CBI to
depose in court as required by CBI.
30 It is argued that according to Tripathi, a copy of the
cassette was prepared in the same room whereas A K Malik stated
that Prem Nath was sent out to make a copy. The investigation is
most perfunctory and unreliable. A K Malik stated that he seized
documents produced by J S Engineering as demanded by the office
of the accused. When confronted with the record no such document
was on judicial file and he was inconsistent in this regard. This
Court observed and recorded that "from the above given answer by
the witness his demeanor is clear that he is not giving rational
answer."
31 It is argued that specific portions of the statements u/s
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161 Cr PC of Goswami, Tripathi and Chakravorty have been put to
him (PW5), to prove that their statements have been prepared
mechanically by cut and paste method. Malik has further stated to
have seized the copy of the entry with regard to J S Engineering of
LCC register of 19.2.2001 and it has been so recorded by him in the
statements u/s 161 Cr PC of the witnesses whereas there is no such
entry in the LCC register. It proves the falsity of the investigation
and the statements recorded u/s 161 Cr PC.
32 It is argued that A K Malik is evasive in his replies
regarding the presence of Hata, other persons, the office from where
the other persons were asked to join and the mentioning of the fact
of calling of the officers from adjoining offices in his case diary and
the time when they returned to CBI office after the raid. It discredits
the reliability of his evidence and investigation. A K Malik is most
inconsistent in his evidence regarding the authenticity of the tape
recorded conversation and its transcription and mentioning of
complete version in the transcript regarding washing and wiping of
his hands, running away of the accused, the accused may have come
to know of the complaint against him and the other CBI officers
saying does not matter if he has washed his hands etc. which talk
appears in the tape.
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33 It is argued that prosecution is heavily relied upon the
tape recorded conversation to prove its case. However, the tape
recorded conversation can only be relied upon as corroborative
evidence of the conversation deposed by a party to the conversation.
(AIR 1982 SC 1043). In this case Sujit Kumar Chakravorty, who
had conversation with accused has not been examined. In absence
of the evidence of Chakravorty it cannot be relied upon. Whatever
has been told by complainant to members of the raiding party
becomes hearsay. (2010 (2)CCC (SC) 181 and 2003 III AD (Crl)
346. The safeguards for use of such evidence like identity of voice
in conversation, possibility of tampering to be ruled out as mandated
have not been proved (2010 V AD (Crl) 682). None from the
Malkhana has been produced to depose the safe custody of the
cassettes. The alleged copy of the tape sent to Dr. Rajinder Singh
(PW8) was opened in the CBI office and transcript prepared before
it was sent to CFSL. The micro cassette on which the conversation
was recorded was not sent to CFSL.
34 It is argued that Dr. Rajinder Singh is not an expert on
voice identification. He admitted that he has not taken any degree or
diploma on the subject. He has otherwise compared only one word
"get lost" in alleged conversation as spoken by S S Bindra which is
otherwise not related to this case. He admitted that there are
C C No.73/2001 22/86
23
variations in question and sample voice which have not been
mentioned in his report. Copy of transcript supplied to him by CBI
mentioned the name of person uttering those words which influences
his opinion.
35 It is argued that no permission was sought from a court
for taking voice samples of the accused. CBI is not competent to
take the voice sample of the accused during investigation (2007 (1)
JCC (482). The report in this respect thus cannot be looked into.
36 It is argued that the evidence of PW10 M M Ansari
does not substantiate the prosecution case. His evidence is more of
a formal nature being the subsequent IO. The statements of the
witnesses recorded by him u/s 161 Cr PC are also suggestive of
fabrication by the CBI. He also admitted to have been handed over
the copy of entry of LCC register dt. 19.2.01 which is not filed by
him with the charge sheet. He stated that voice sample of S S
Bindra was taken by him by asking the accused to repeat the same
words as mentioned in the transcript. But the prosecution evidence
is that the sample voice was taken earlier than the preparing of the
transcript. It falsifies the whole proceedings regarding the voice
sample and the transcript.
37 It is argued that in view of the aforesaid submissions,
the inadmissible evidence cannot be looked into and there is no
C C No.73/2001 23/86
24
reliable evidence against accused S S Bindra. Accused S S Bindra
deserves to be acquitted.
38 Ld. Counsel for A1 placed reliance on following
authorities in support of his arguments:
Mahabir Prasad Verma Vs. Dr. Surinder Kaur, AIR 1982 SC
1043 (para 22), Hare Ram Vs. State of MP 2010 V AD (Crl) 682,
Sahibe Alam Vs. State, 2002 III AD (Crl.) (DHC) 127 Mahadev
Prasad Pant Vs. State of Delhi 2007 (2) JCC 1617 (para 33),
Banarasi Dass Vs. State 2010 (2) CCC (SC) 181, Pawan Kumar Vs.
Sate of Haryana 2003 III AD (Crl.) 346, and Rakesh Bisht Vs. CBI
2007 (1) JCC 482 (Delhi).
ARGUMENTS OF ACCUSED NO.2
39 Ld. Defence Counsel for Accused No.2 has filed his
written submissions and also addressed oral arguments. As the
written submissions are on the file hence I am not reproducing the
same in detail in this judgment on account of brevity.
40 It is argued by Ld. Defence Counsel that prosecution in
order to prove charge framed against accused has to prove that there
was a meeting between Rakesh kumar Chaurasia and Sujit Kumar
Chakravorty on 16.2.01, and in the said meeting, Rakesh kumar
Chaurasia demanded money. On 20.2.2001, S K Sehgal & Sujit
Kumar Chakravorty visited the office of coaccused S S Bindra and
C C No.73/2001 24/86
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in continuation to the earlier demand of Rs.2,700/, S S Bindra ,
negotiated and reduced it to Rs.2,500/ whereby Sh. S K Sehgal
promised S S Bindra that on 22.2.2001, forenoon, Sujit Kumar
Chakravorty would visit the office of S S Bindra and would pay the
sum of Rs.2,500/. On 22.2.2001, at about 12.20 pm, Rakesh kumar
Chaurasia demanded and accepted a sum of Rs.2,500/ from Sh.
Sujit Kumar Chakravorty .
41 It is argued by Ld. Defence Counsel for A2 that Sh.
Sujit Kumar Chakravorty was not produced by prosecution. Sh. S K
Sehgal has not claimed that he participated in the proceedings which
transpired at Y Shape Building, IP Bhawan, ITO, New Delhi on
22.2.2001. Similarly, he has not claimed that he had witnessed the
alleged conversation stated to have transpired between Rakesh
Kumar Chaurasia & Sujit Kumar Chakravorty on 16.2.01 and he
does not claim that he met Rakesh Kumar Chaurasia on 20.2.2001 or
on 22.2.2001. Thus, in view of this admission, the evidence qua the
alleged conversation between the accused Rakesh Kumar Chaurasia
and the alleged person Sujit Kumar Chakravorty, is only hearsay
which is not admissible in evidence.
42 Conversation at Y shape buiilding, which is alleged to
have been recorded in the micro cassette is not admissible and is
doubtful. SI Prem Nath have not been cited as a witness. Story of
C C No.73/2001 25/86
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the prosecution that one CBI official had taken away micro cassette
to get a copy made of the same, is not supported by the witnesses.
43 It is argued by Ld. Defence Counsel for A2 that the
claim of the CBI in the testimony of PW5, that the micro cassette
was taken out and SI Prem Nath, went alongwith another witness to
get a copy of the said cassette made, rather reflect tampering
because he does not say that thereafter the micro cassette was
replayed and was found to contain the same voice.
44 Transcription Ex PW 9/A, also reflect that the
investigating copy, so made from micro cassette contained in
complete data, when it does not mention the existence of
introductory voices of the witnesses, as part of the transcription in
the beginning of the cassette.
45 It is argued that tampering of articles/ exhibits made by
officials of CBI reflected because no wash of alleged table drawer
from where, as per PW5 Inspector A K Malik /TLO and as per PW9
Sh. P K Tripathi, recovery witness, was taken to reflect that the
money was recovered from the table drawer. PW3 Sh. Vinod
Goswami, shadow witness in his examination in chief rather states:
"Mr. Chaurasia demanded a sum of Rs.25,000/."
"Search of his person the money was recovered. Perhaps the
money was recovered by Mr. Tripathi. CBI officials counted the GC
C C No.73/2001 26/86
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notes and tallied its number."
46 PW9 does not state that any confessional statement /
disclosure statement was made by accused Rakesh Kumar
Chaurasia. This witness nowhere says that in his presence the
transcription was made. Disclosure statement and transcription Ex
PW 9/A, has a character of statement U/s 161 Cr PC of the witness,
who claims to have identified the voices. PW3, thus, is belying his
statement to the said effect because Ex PW 9/A bears his signatures.
47 This all facts in examination in chief of the witness are
inconsistent with the story of the prosecution regarding demand of
money or recovery of money as per the prosecution case i.e.having
been recovered from the table drawer.
48 These individual and collective facts reflect that the trap
had failed and it is a case of false documents having been prepared
by CBI officials to shield Sh. S K Sehgal from legal punishment u/s
182 IPC and, therefore, they had committed offence punishable u/s
218/219 IPC.
49 Ld. Defence Counsel has referred statements of PW 1,
PW2, PW4, PW5, PW6, PW7, PW8, PW9, PW10 & PW11 with
reference to the contradictions intersee and qua each other in detail
in part B of his written submissions. I have gone through the same
C C No.73/2001 27/86
28
but not producing in this judgment on account of brevity as the
written submission of A2 is already on the judicial file. Ld.
Counsel for A2 placed reliance on following authorities in support
of his arguments:
Hari Dev Sharma Vs. State AIR 1976 SC 1489, Babu Vs.
State of Kerala, 2003 (3) LRC 320 (SC), Amarpal (Rajpal) Vs. State
2010 VII AD (Delhi ) 696, M C Moitra Vs. State AIR 1951 Cal.524
(DB), State Vs. Meenaketan Patnaik AIR 1952 Orissa 267 (DB),
Dhanvantrai Balwantrai Desai Vs. State of Maharashtra 1962 (1)
SCR 485, Suraj Mal Vs. State (Delhi Admn.) AIR 1979 SC 1408,
Kashi Ram & Ors. Vs. State of MP 2002 (1) SC 71, Dayabhai
Chaganbhai Thakkar Vs. State of Guj. AIR 1964 Sc 1563, Vijayee
Singh Vs. State of UP 1990 (3) SCC 190: AIR 1990 SC 1459,
Vikramjit Singh @ Vickey Vs. State of Punjab 2007 (1) Crimes 181;
(SC), Gopal Reddy Vs. State of AP, (1979) 1 SCC 355, Sharad
Birdhi Chand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116,
Tota Singh & Ors. Vs. State of Punjab AIR 1987 SC 1083, Divakar
Neelkanth Hegde & Ors. Vs.State of Karnataka JT 1996 (7) SC 63,
State of Orissa Vs. babaji Charan Mohanty & Ors. (2003) 10 SCC
57, Hem Raj & Ors. Vs. State of Haryana (2005) 10 SCC 614, State
of Maharashtra Vs. Dyneshwar Luxman Wankhede 2009 (VI) SLT
439, A Subair Vs. State of Kerala, 2009 VII AD SC 117, V Kannan
C C No.73/2001 28/86
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Vs. State 2009 IX AD (SC) 293, C M Girish Babu Vs. CBI 2009 (3)
SCC 779, Harbans Singh Vs. State of Punjab 2010 (2) CC Cases
(HC) 287, Major Singh Vs. Vs. State of Punjab 2010 (4) CC Cases
(HC)203; Malkiat Singh Vs. State of Punjab 2010 (4) CC Cases
(HC) 184, Banarsi Dass Vs. State of Haryana 2010 IV AD (SC) 305,
Ramesh Kumar Gulati Vs. State of NCT of Delhi, 2010 (4) LRC 73
(Delhi), Roshan Lal Saini & Anr. Vs. CBI, 2010 (4) LRC 138
(Delhi).
PUBLIC SERVANT AND SANCTION.
50 U/s 7 of P C Act, 1988 prosecution has to prove that :
(i) The accused was a public servant or expected to be a
public servant at the time when the offence was committed.
(ii) The accused accepted or obtained or agreed to accept or
attempted to obtain illegal gratification from some person.
(iii) For himself or for any other person.
(iv) Such gratification was not a remuneration to which the
accused was legally entitled.
(v) The accused accepted such gratification as a motive or
reward for,
(a) doing or forbearing to do an official act, or
(b) doing or forbearing to show favour or disfavour to
someone 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, of with any local
authority, Corporation or Government company referred to in Sec.
2 clause ( c) or with any public servant, whether named or
C C No.73/2001 29/86
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otherwise.
51 It is an undisputed fact that at the time of raid accused S
S Bindra was working as Dy. Labour Welfare Commissioner,
CPWDII, Y Shape Building, IP Estate, New Delhi and Rakesh
Kumar Chaurasia was working as steno to S S Bindra, Dy. Labour
Welfare Commissioner thus there is no dispute that they were
public servants. Even during the course of argument their Ld
Defence counsels have not disputed this fact.
52 Accused S S Bindra Dy. Labour Welfare
Commissioner retired from the service on 30.9.2001 while the
present chargesheet has been filed against both the accused in this
court on 17,11.2001 i.e. after the retirement of accused S S Bindra
from his service, thus on the date of filing of charge sheet he ceased
to be a public servant, hence no sanction has been obtained by the
investigating agency for his prosecution in this case.
53 It is well settled legal preposition that sanction for the
prosecution of a public servant is required if he was a public servant
on the date of commission of offence and continued to be so till the
date of filing of charge sheet. In S.A. Venkatraman Vs. State, AIR
1958 SC 107 the Supreme Court held that where the accused had
C C No.73/2001 30/86
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ceased to be public servant at the time the Court took cognizance of
the offences alleged to have been committed by them as public
servants, the provisions of Section 6 did not apply and the
prosecution against them was not vitiated by the lack of a previous
sanction by a competent authority.
54 In G. V Nair Vs. Govt. of India 1953 (1) Cr.L.J.675, it
has been held that "on a careful reading of Section 6 of the Act, it is
clear that an officer cannot invoke the protection of the section
unless two conditions are fulfilled. Firstly, that he was a public
servant when the offence charged against him was committed; and
secondly that on the date when he is prosecuted, there is some
authority who could remove him from his office. If any one of these
two conditions does not exist his case goes out of the ambit of
Section 6. In other words, Section 6 affords protection to those
public servants who were in office both on the date of commission
of the offence and the date when a court is asked to take cognizance.
So in neither of the following cases would he be protected by
Section 6 and sanction would not be necessary. Firstly, when the
offence charged is alleged to have been committed before he
became a public servant although the prosecution is launched while
he is holding a public office and secondly where the alleged offence
was committed on a date when he was a public servant, but the
C C No.73/2001 31/86
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prosecution was launched after he ceased to be a public servant.
55 In the case of Kalicharan Mahapatra Vs. State of Orissa
1998 (6) SCC 411 it was held that a public servant who committed
an offence mentioned in the act, while he was a public servant, can
be prosecuted with the sanction contemplated in section 19 (of the
Act of 1988 corresponding to Section 6 of the Act of 1947) of the
Act if he continues to be a public servant when the court takes
cognizance of the offence. But if he ceases to be a public servant by
that time, the court can take cognizance of the offence without any
such sanction.
56 Following the above legal position it was held in State
of Kera Vs. Padmanabhan Nair 1999 VI AD (SC) 363 that an
accused facing prosecution for offences under the P C Act can not
claim any immunity on the ground of want of sanction, if he ceased
to be a public servant on that date when the court took cognizance of
the said offences.
57 Even Ld. Defence Counsel Sh. S P Manocha for
accused S S Bindra has not disputed this preposition during the
course of argument.
58 It is argued by Ld. Defence Counsel for accused Rakesh
Kumar Chaurasia that CBI had sent a model draft sanction order to
C C No.73/2001 32/86
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the competent authority, thus he had passed the sanction order on
the dotted lines without application of his mind. It is correct that
sanctioning authority had received a draft proforma of the sanction
order, however, sanctioning authority has categorically stated that he
had gone through the documents and applied his mind before
granting the sanction. He has also denied the suggestion that he had
granted sanction without application of mind.
59 Hon'ble Supreme Court in this regard in State of Tamil
Nadu Vs. Damodaran, 1993 Supreme Court Cases (Crl) 272 has
held as follows:
"Prevention of Corruption Act, 147 - Ss. 5 (1) (e) and 5 (2)
read with S. 161, IPC - Non application of mind and grant of
sanction mechanically by sanctioning authority - Basis of acquittal
by High Court - High Court deeply influenced in its decision by
the fact that a model sanction order was enclosed with the
record sent to the sanctioning authority - Held, acquittal not
justified - There was no infirmity in the order granting sanction
- Criminal Procedure Code, 1973 S. 197".
60 Hon'ble Supreme Court in Indu Bhushan Chatterjee vs.
State of West Bengal, AIR 1958 SC page 148 has held as follows :
C C No.73/2001 33/86
34
" In his evidence in Court the Sanctioning Authority stated
that the sanction was prepared by the police and put before him by
the personnel branch of his office and that before according
sanction we went through all the relevant papers put before him.
The sanction granted U/S 6 was perfectly valid. The statement of the
sanctioning authority did not prove that he merely put his signatures
on the readymade sanction presented by the police without applying
his mind to the facts of the case. It was not for him to judge the truth
of the allegations made against the accused by calling for the record
of the connected claim cases or other records in connection with the
matter from his office . The paper which were placed before him
apparently gave him the necessary material upon which he decided
that it was necessary in the hands of justice to accord his sanction."
61 Hon'ble Supreme Court has held that where the
sanction order itself is a speaking order in such circumstances it is
not necessary to prove it by leading evidence that sanctioning
authority has applied his due mind. Reliance is placed on C S
Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141
wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself
and in case the facts do not so appear, it should be proved by leading
evidence that all the particulars were placed before the sanctioning
C C No.73/2001 34/86
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authority for due application of mind. In case the sanction speaks for
itself then the satisfaction of the sanctioning authority is apparent by
reading the order. In the present case, the sanction order speaks for
itself that the incumbent has to account for the assets
disproportionate to his known source of income. That is contained
in the sanction order itself. More so, as pointed out, the sanctioning
authority has come in the witness box as witness No.40 and has
deposed about his application of mind and after going through the
reports of the Superintendent of Police, CBI and after discussing the
matter with his legal department, he accorded sanction. It is not a
case that the sanction is lacking in the present case. The view taken
by the Additional Sessions Judge is not correct and the view taken
by learned Single Judge of the High Court is justified."
62 In this regard, Hon'ble Supreme Court in
Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 SCC
(Crl.) 1095 has held as follows:
''We find force in the contention. The grant of sanction is only
an administrative function, though it is true that the accused may be
saddled with the liability to be prosecuted in a court of law. What is
material at that time is that the necessary facts collected during
investigation constituting the offence have to be placed before the
sanctioning authority and it has to consider the material. Prima
facie, the authority is required to reach the satisfaction that the
relevant facts would constitute the offence and then either grant or
C C No.73/2001 35/86
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refused to grant sanction. The grant of sanction, therefore, being
administrative act the need to prove an opportunity of hearing to the
accused before according sanction does not arise. The High Court,
therefore, was clearly in error in holding that the order of sanction is
vitiated by violation of the principles of natural justice.''
63 I have carefully gone through the sanction order Ex
PW1/A, it is a detailed order running in four sheets having all the
material particulars of this case. A bare perusal of this order reflects
that sanctioning authority has passed this order after due application
of his mind. In view of above discussion, this Court is of opinion
that prosecution has proved a valid sanction for the prosecution of
accused Rakesh Kumar Chaurasia in this case.
Demand, acceptance and recovery of bribe amount
64 Complainant S K Sehgal has appeared in the witness
box as PW2. He has proved his complaint lodged with CBI dt.
22.2.2001 Ex PW 2/A. He has specifically mentioned in his
complaint with regard to demand of bribe made by accused S S
Bindra on 16.2.2001 from his supervisor Sujit Kumar Chakravorty
who was directed by A1 to hand over the amount of Rs.2700/ as
illegal gratification to his steno (A2) for issuing LCC. It is also
specifically mentioned in the complaint Ex PW 2/A that
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complainant himself had gone alongwith his supervisor Sujit Kumar
Chakravorty and met with Mr. S S Bindra for LCC. Mr. S S Bindra
had demanded Rs.2700/ from him also but on his repeated request
Mr. Bindra reduced the amount to Rs.2,500/ and directed to give
the amount on 22.2.2001 and told the complainant that without
paying the bribe amount LCC will not be issued.
65 It is correct that Sujit Kumar Chakravorty has not
appeared in the witness box. Complainant S K Sehgal appeared in
the witness box and proved his complaint Ex PW 2/A. He has also
corroborated the averments made in his complaint. Relevant portion
of his statement in this regard is as under:
"Mr. Sujit Kumar Chakravorty informed me that Mr. Bindra
and his stenographer were demanding Rs.2,700/ as bribe for issuing
the labour clearance certificate. I went with Mr. Chakravorty and
met Mr. Bindra on 20.2.2001. Mr. Bindra is the accused present in
the court. I had a talk with him. Mr. Bindra reduced the demand to
Rs.2500/ and directed that the payment be made on 22.2.2001 and
asked my supervisor to collect the certificate.
I returned from the office of Mr. Bindra and made a complaint
to SP, CBI. My complaint is Ex PW 2/A which was written by me
and bears my signature at point A. The SP marked this complaint to
Inspector Malik."
C C No.73/2001 37/86
38
66 From the statement of PW2 it is clear that he himself
went to A1 alongwith his supervisor Sujit Kumar Chakravorty and
verified the demand of illegal gratification made by A1. A1 has
also directed complainant to pay the amount on 22.2.2001.
Complainant had told him that his supervisor will come to collect
the LCC. In view of the statement of PW2 that A1 had demanded
bribe from him, there is no merit in the argument that evidence of
complainant is hearsay and cannot be relied upon.
67 Referring the cross examination of PW2 it is argued
that he has stated that he had gone to CBI office on 20.2.2001 and
not afterward therefore, his evidence with regard to going of CBI
office on 22.2.2001and lodging his complaint is false and unreliable.
Statement of this witness was recorded on 3.11.04 i.e.after more
than three and half years from the date of raid, therefore, such
contradictions are bound to come because of lapse of time. In view
of specific averment made by him in his complaint that he had gone
to A1 on 20.2.2001 and lodged his complaint with CBI on
22.2.2001, there is no reason to disbelieve this version made by him.
Moreover, FIR Ex PW 5/A has also been registered on 22.2.2001
which also confirms the version that complainant had gone to CBI
office on 22.2.2001 and lodged his complaint on the basis of which
FIR has been registered as the contents of complaint are
C C No.73/2001 38/86
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reproduced in the FIR as it is. PW2 had not stated that he had
gone to CBI office to lodge report "immediately" after coming from
the office of A1, therefore the interpretation that PW2 had gone to
CBI office on 20.2.2001 is wrong.
68 It is correct that PW2 had not participated in the trap
proceedings and left the spot after telling his urgency as disclosed by
PW5 A K Malik, TLO of this case. Relevant portion of his
statement in this regard is as under:
"The complainant S K Sehgal left the spot after taking
permission as he was having some urgent work."
69 But PW3 Vinod Goswami and PW9 R K Tripathi have
proved demand, acceptance and recovery of the bribe at the time of
trap. PW3 Vinod Goswami had accompanied Sujit Kumar
Chakravorty to A1 and A2 has also confirmed that A1 asked
Chakravorty to go to Chaurasia for obtaining LCC. Chaurasia
demanded the bribe which was paid by Chakravorty and the same
was accepted by Chaurasia and kept in the second drawer of his
office table. Relevant portion of his statement in this regard is as
under:
"From CBI office, we reafhed office of CPWD at IP Estate. I
and Mr. Chakravorty went inside the office. On the 5th floor in room
no.516A. Mr. Bindra was sitting in that room. Mr. Chakravorty
C C No.73/2001 39/86
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asked Mr. Bindra for the LCC on which Mr. Bindra asked him to go
and get it done from Mr. Chaurasia. Thereafter we went to the room
of Mr. Chaurasia who prepared the form of LCC on the asking of
Chakravorty. Mr. Chaurasia then demanded a sum of Rs.2500/.
Mr. Chaurasia asked for the money, on which Mr. Chakravorty paid
him. Mr. Chaurasia accepted the money in his right hand and kept it
in the drawer of his i.e. second drawer of office table. I came out
and gave the signal".
70 Thus, demand of bribe amount by A1 in furtherance
of criminal conspiracy with A2 and its voluntarily and conscious
acceptance by A2 has also been proved by PW3.
71 The tainted GC notes of bribe amount were recovered
by PW9 R K Tripathi from the conscious possession of A2 from
second drawer of his office table. Relevant portion of statement of
PW9 R K Tripathi in this regard is as under:
"On reaching the spot S K Sehgal remained down stairs and
we went to the fifth floor. We took the positions at the fifth floor.
Sujit Kumar Chakravorty alongwith shadow witness Mr. Goswami
was directed to go inside. Both of them went to the room of S S
Bindra. Thereafter they went to another room of Sh. Rakesh. After
a short while another witness Goswami came out and gave the signal
by scratching his head with both of his hands. Thereafter all the trap
C C No.73/2001 40/86
41
team members alongwith me went inside. One of the Inspector of
CBI challenged accused Rakesh Chaurasia. He became perplexed.
He was caught hold of by both of his hands by CBI officers.
Thereafter CBI officials asked Sujit Kumar Chakravorty about the
incident. Sh. Sujit Kumar Chakravorty narrated the incident.
(Objected to on behalf of accused). CBI officer had asked me to
take out the money. Surjeet had told that money is in second
drawer (objected to) therefore, I had taken out money from
second drawer. Thereafter the recovered GC notes numbers
were tallied from the handing over memo by me and I put the
tick marks also. I identify my signatures at point D in the Handing
Over Memo Ex PW 2/B prepared at CBI office".
72 PW3 Vinod Goswami, PW9 R K Tripathi have
specifically stated that phenolphthalein powder was applied to GC
notes and were given to Sujit Kumar Chakravorty for handing over
the same to accused on their specific demand. Recovery of tainted
GC notes has also been proved from the washes of both the hands
of A1. In this regard relevant portion of statement of PW3 is as
under:
"The hands of Chaurasia were washed in a powdered water,
which turned pink. Said pinkish water was put in a bottle and sealed
C C No.73/2001 41/86
42
the same."
73 In his cross examination, in this regard, on behalf of
A2, he has stated as follows:
" It is incorrect to suggest that no hand washes took place in
my presence. I cannot tell whether there were no bath rooms in both
the rooms where the CBI officers had entered. There was a
washbasin in one of the room. Typewriter was also available in that
room. Chakravorty had not shook hands with Chaurasia".
74 From the above cross examination of PW3 it is clear
that nothing such has come out in his cross examination to
disbelieve his version in this regard.
75 In this regard relevant portion of statement of PW9 R
K Tripathi is as follows:
" After the arrest of accused Rakesh Kumar Chaurasia , the
wash of both the hands were taken in a freshly prepared colourless
solution the solution turned pink in colour. The pink colour solution
was transferred into a glass bottle and the same was sealed at the
spot. I and another witness signed the paper slip as well as cloth
wrapper."
76 This witness has been cross examined at length on
behalf of both the accused but not even a single question has been
C C No.73/2001 42/86
43
put to him in this regard. Thus, there is no reason to disbelieve the
version of this witness in this regard.
77 Ld. Defence Counsel for A2 argued that hand wash of
A2 was taken after his hands were caught by the CBI officer,
therefore, no reliance should be placed on handwashes as
phenolphthalein powder could appear on the hands of accused from
the hands of CBI officers. There is no merit in this argument
because it is in the evidence that hands of A2 were caught by
Surinder Malik and Azad Singh while demonstration of chemical
reaction of phenolphthalein powder with the sodium carbonate
solution was given by Inspector Vivek Dhir in pre trap proceedings.
PW9 R K Tripathi has also stated that after giving demonstration of
the chemical reaction during the pre trap proceedings all the
persons washed their hands This version has also been supported by
PW5 A K Malik, TLO.
78 PW 7 Sh. K S Chabra, Retired Sr. Scientific Officer,
CFSL had chemically examined both the washes. He has confirmed
presence of Sodium Carbonate and Phenolphthalein in both the
washes in his report Ex PW 7/A. Relevant portion of his statement
in this regard is as under:
" Both the bottles received in CFSL with light pink colour
C C No.73/2001 43/86
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liquid with marking RHW and LHW. On chemical analysis both the
bottles gave positive test for Phenolphthalein and Sodium
Carbonate."
79 It proves the presence of phenolphthalein powder on
both the hands of A2. Phenolphthalein powder appeared on the
hands of A2 because he had received the phenolphthalein quoted
GC notes from Sujit Kumar Chakravorty and kept the same in
second drawer of his office table.
80 It is correct that wash of drawer of the office table of
A2 has not been taken. In view of the fact that hand wash of both
the hands of accused has been taken, it is of no significance that
wash of table drawer has not been taken. When accused is disputing
his hand wash will he accept if the wash of table drawer , if taken by
the TLO? Is it not a mere flimsy argument?
81 The importance of phenolphthalein test was underline
by the Hon'ble Supreme Court in Som Parkash Vs State of Delhi
AIR 1974 Supreme Court 989, where in para 10 it is held as
under:
" ............... of course, the oral evidence of PWs 1and 4
by itself, if believed as rightly believed by the High Court , proves
C C No.73/2001 44/86
45
the passing of the money to the accused and its production by him
when challenged by P.W 7 . The fact is indisputable that the hands,
the handkerchief and the inner lining of the trouser pocket of the
accused turned violet when dipped in soda ash solution. From this
the State counsel argues that on no hypothesis except that the notes
emerged from the accused's Pocket or possession can the triple
colour change be accounted for . The evidence furnished by
inorganic chemistry often outwits the technology of corrupt
officials, provided no alternative reasonable possibility is made
out. The appellant offers a plausible theory. PW 1 kept the notes
with him and his hands thus carried the powder. He gave a bottle of
cake to the accused and the bottle thus transmitted particles of
phenolphthalein to the latter's hands. He ( the accused ) wiped his
face with the handkerchief and put it into his trouser pocket thus
contaminating the lining with the guilty substance. Moreover, the
inner lining was dipped by PW 7 with his hands which had the
powder . Thus, all the three items stand explained, according to him.
These recondite possibilities and likely freaks have been rejected by
both the courts and we are hardly persuaded into hostility to that
finding. It is put meet that science oriented detection of crime is
made a massive programme of police work, for in our
C C No.73/2001 45/86
46
technological age nothing more primitive can be conceived of than
denying the discoveries of the sciences as aids to crime suppression
and nothing cruder can retard forensic efficiency then swearing by
traditional oral evidence only thereby discouraging the liberal use of
scientific research to prove guilt."
82 In Raghbir Singh Vs State of Punjab (1976) 1 SCC
145 while discarding the oral and documentary evidence laid on
behalf of the prosecution is not such as to inspire confidence in the
mind of the Court, the Supreme Court observed in para No.11 as
follows:
" We may take this opportunity of pointing out that it would
be desirable if in cases of this kind where a trap is laid for a public
servant, the marked current notes, which are used for tte purpose of
trap, are treated with phenolphthalein power so that the
handling of such marked currency notes by the public servant
can be detected by chemical process and the court does not have
to depend on oral evidence which is something of a dubious
character for the purpose of deciding the fate of the public servant."
83 From the above discussion, it is again proved that
C C No.73/2001 46/86
47
accused had voluntarily and consciously accepted the bribed
money from complainant Sujit Kumar Chakravorty and kept the
same in second drawer of his office table and the same was
recovered from his conscious possession of PW9 R K Tripathi.
84 When acceptance and recovery is proved by direct or
circumstantial evidence then in view of section 20 of P C Act, the
statutory presumption has to be drawn, then no further burden cast
on the prosecution to prove the demand or motive, in view of
Section 20 of PC Act, 1988. It has been held so by our Hon'ble
Supreme Court in B. Noha Vs. state of Kerala, 2006 IV AD 465.
85 Hon'ble Supreme Court in State of Andhra Pradesh Vs.
R Jeevaratnam, 2004 (2) JCC 1161 has held as follows in this
regard:
"Prevention of Corruption Act, 1988 - Sec. 20 (1)
Presumption under - Respondent caught redhanded with the
marked money in a briefcase carried by him - Presumption that he accepted illegal gratification arose".
86 Hon'ble Supreme Court in Madhukar Bhaskarrao Josi Vs. State of Maharashtra (2000 (8) SCC 571) has held as follows in C C No.73/2001 47/86 48 this regard:
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it".
87 This decision was followed by Hon'ble Supreme Court in M. Narsinga Rao Vs. State of A.P. (2001 (1) SCCC 691). wherein it has been held that " There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW1. It was held in the C C No.73/2001 48/86 49 decision in State of A P Vs. Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused."
88 A2 has not given any explanation as to how the tainted amount came in his possession in his defence.
WHETHER DISCLOSURE STATEMENT OF A2 IS NOT ADMISSIBLE: 89 It is argued by Ld. Defence Counsels that disclosure
statement of A2 Ex PW 3/D is not admissible in evidence because it is a statement made by an accused in police custody, neither any recovery has been affected nor any new fact has been discovered in pursuance of it. It has also not been proved properly. 90 I have carefully gone through the disclosure statement of A2 Ex PW 3/D. Relevant portion of the same is as under:
"On 20.2.2001 at about 4.15 PM Sh. S S Bindra, Dy. Labour Welfare Commissioner called me in his room where Sh. S K Sehgal proprietor of M/s J S Engineering Enterprises was also present and directed me that on 22.2.2001, supervisor of M/s J S Engineering Enterprises will come to this office before lunch, to collect the labour clearance certificate of his firm and will pay Rs.2500/ for C C No.73/2001 49/86 50 issuance of the said certificate. He further directed to accept the same and get the labour clearance certificate (LCC) signed from him and issue immediately. I further disclose that in pursuance of the said direction of Sh. S S Bindra , I accepted Rs.2500/ from Sh. Sujit Chakravorty,supervisor of M/s J S Engineering Enterprises and got the LCC signed from him (Sh. S S Bindra ) and issued the same to Sujit Kumar Chakravorty."
91 In furtherance of this disclosure statement there is recovery of LCC dt. 22.2.2001 Ex PW 3/E which was signed by A1 on the note forwarded to him by A2 after obtaining bribe amount of Rs.25,00/ from Sujit Kumar Chakravorty, under his signatures on the back of Ex PW 2/D. The same is as follows:
" The cont. has applied LCC for the works mentioned overleaf. No complaint of any nature has come to this office against the cont. till date. If approved, LCC may be issued for the same. Put up for sign. pl.
DLWC ( C) .II. Sd/ 22.2
Steno"
92 This fact that LCC was signed by A1 on the basis of
note forwarded by A2 and after receiving the amount had given to Mr. Chakravorty has been proved by PW3. Relevant portion of his statement in this regard is as under:
C C No.73/2001 50/86 51
"Thereafter we went to the room of Mr. Chaurasia who prepared the form of LCC on the asking of Chakravorty. Mr. Chaurasia then demanded a sum of Rs.2500/. Mr. Chaurasia asked for the money, on which Mr. Chakravorty paid him. Mr. Chaurasia accepted the money in his right hand and kept it in the drawer of his i.e. second drawer of office table. I came out and gave the signal".
93 PW5 A K Malik, TLO of the case has stated that he had recorded the disclosure statement of A2. Relevant portion of his statement is as under:
"Rakesh Kumar disclosed that he had accepted the bribe money on behalf of accused S S Bindra which is Ex PW 3/D (Objected to)"
94 This disclosure statement has been recorded in presence of PW3 Vinod Goswami and PW9 R K Tripathi. PW3 after seeing this disclosure statement, during his statement has stated that it bears his signatures. Relevant portion of his statement is as under:
"I have seen memo Ex PW 3/D which bears my signature at point A (objected to)".
95 PW3 has been cross examined at length on behalf of both the accused but not even a single question has been put to this witness with regard to Ex PW 3/D in his cross examination, thus, there is no reason to disbelieve his statement in this regard. It is C C No.73/2001 51/86 52 argued on behalf of accused that PW3 has only identified his signature, therefore, he has not proved this disclosure statement. This argument is not acceptable because PW3 has specifically stated in his statement as quoted above that he had seen Ex PW 3/D which bears his signatures, meaning thereby he has proved the contents of disclosure statement Ex PW 3/D. 96 This fact that A2 had sent the LCC to A1 for signing during the raid proceeding prior to trapping of A2 has also been confirmed by PW11 Brahm Singh, who was the then working as peon in the office of accused.. Relevant portion of his statement is as follows:
"I know accused S S Bindra , who is present in the court; He was labour officer. I also know Rakesh Chaurasia. Office of Labour officer was in fifth floor, I P Bhawan, New Delhi. On 22.2.2001, I was working as peon. On that day I had attended my office. I had gone downstairs to bring lunch of both the accused present in the court. I do not remember the time. After serving the lunch to both the accused, I had gone to accused S S Bindra for getting signature on LCC. I do not know what was that LCC and to whom the same pertained to. Thereafter, giving the LCC to Rakesh Chaurasia I came back and occupied my seat on the C C No.73/2001 52/86 53 bench kept in galary. Thereafter some person came, I remained busy in service tea etc."
97 Though this witness is hostile to the prosecution still he has clearly admitted that at the time of raid A2 had given him LCC for getting the same signed from A1 and he got the LCC signed from A1 and handed over the same to A2. The LCC was lateron recovered which proves the discovery of a new fact in furtherance of disclosure.
98 However, U/s 27 of Indian Evidence Act only that much portion of disclosure statement made by accused in police custody is admissible in evidence which is directly related to the recovery/discovery of a new fact, in these circumstances this disclosure statement proves that on 22.2.2001 during the trap proceedings Rakesh Kumar Chaurasia got signed LCC Ex PW 3/E from accused S S Bindra.
99 It proves the meeting of mind of A1 and A2 and their involvement in this criminal conspiracy. Nowadays people have become wiser they take all precaution not to be deducted while indulging illegal activities such like demanding of illegal gratification. Accused in this case are senior officers. Will they demand bribe from complainant by asking loudly in words " Hamee C C No.73/2001 53/86 54 Rishwat De Do". People generally neither take or give bribe in presence of witnesses. In these circumstances it is not expected from the prosecution that it will produce the witnesses before whom accused held meeting and decided to commit conspiracy. 100 Conspiracy consists in a combination or agreement between two or more person to do an unlawful act or to do a lawful act by unlawful means. A conspiracy is an inference drawn from the circumstances. There cannot always be much direct evidence about it. Conspiracy can be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Since Conspiracy is often hatched up in utmost secrecy, it is most impossible to prove conspiracy by direct evidence. It has to be inferred from the acts, statements and conduct of parties to the conspiracy. Thus, if it is proved that the accused pursued, by their acts, the same object often by the same means, one performing one part of the act and the other another part of the same act so as to complete it with a view to attainment of the object which they were pursuing, the court is at liberty to draw the inference that they conspired together to effect that object. Conspiracy has to be treated as a continuing offence and whosoever is a party to the C C No.73/2001 54/86 55 conspiracy, during the period for which he is charged, is liable under this section.
101 Though to establish the charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination , nor need the parties be brought into each other's presence; the agreement may be inferred from the circumstances raising presumption of a common concerted plan to carry out the unlawful design. Conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence. Conspiracy hatched in secrecy and executed in darkness. In a case of conspiracy, it is not expected from the prosecution that it will produce evidence to show that conspirators executed agreement to commit crime before the witnesses to prove the existence of conspiracy. Conspirators take all precautions to keep their plan secret hence prosecution cannot produce direct evidence to prove agreement to commit conspiracy.
LEGAL AND FACTUAL ANALYSIS OF DEFENCE ARGUMENTS 102 Ld. Defence Counsel on behalf of accused S S Bindra has submitted synopsis of arguments on 17.1.2011. In para No.1 of synopsis he has submitted that defacto complainant Sujit Kumar Chakravorty has not been produced for his evidence in court. All that he allegedly told that S K Sehgal who lodged a report with CBI is inadmissible being hearsay. Contrary to it perusal of record C C No.73/2001 55/86 56 signifies that dejure complainant S K Sehgal has been examined. His evidence cannot be treated as hearsay because FIR was registered pursuant to the verification of the fact mentioned in complaint and during verification he( S K Sehgal ) participated in verification. Relevant portion of the statement of PW 2 in this regard is as under:
" Mr Sujit Chakervarty informed me that Mr Bindra and his stenographer were demanding Rs.2,700/ as bribe for issuing the labour clearance certificate. I went with Mr Chakervarty and met Mr Bindra on 20.2.2001 . Mr Bindra is the accused present in the Court. I had a talk with him. Mr Bindra reduced the demand to Rs. 2500/ and directed that the payment be made on 22.2.2001 and asked my supervisor to collect the certificate."
103 In para 2 of synopsis it is submitted that complainant S K Sehgal has a motive to implicate S S Bindra as notice for production of labour record was issued to him even by his predecessor. Notice Ex PW2/E was issued by A1 on 20.1.2000 thereafter no action was initiated till the accused was trap on 22.1.2001 that is for more than one year. In cross examination PW2 has specifically denied the suggestion given to him in this regard which is as follows:
" It is wrong to suggest that I was annoyed with the C C No.73/2001 56/86 57 office of the Dy Labour Welfare Commissioner for the pursuing the penalty for the labour records to be produced."
104 This averment of defence is wrongly interpreted rather he tried to twist the fact by issuing notices which in other sense arose occasion on his part for accepting the bribe. It is worth important to mention here that LCC was prepared and issued on 22.2.2001 without asking or demanding the record from the complainant S K Sehgal. According to accused they have been falsely implicated by the complainant as A1 had issued notice to him to produce the record. Had there been any truth in this defence, A1 would not have issued the LCC without obtaining the record from the complainant. Mere issuing LCC on 22.2.2001 without obtaining the record proves that actually it was the malafide intention of A1, of arm twisting of complainant by issuing notice so as to extort money from him.
105 Thus this itself shows that it is an after thought defence and there is no genuity in it. Circumstances and the evidence in hand if taken together it can be safely adhered that there was motive on the part of accused person to accept the bribe. 106 In third para of synopsis it is submitted that subsequent to the receipt of penalty notice the LCC applied by S K Sehgal to C C No.73/2001 57/86 58 falsely get the accused persons involved for demand of money for issuance of LCC as such certificate is not required under the rules for release of security amount after the lapse of six months from the completion of the work. It is further mentioned that it is so stated by A K Mittal, PW6. The reasoning advanced by Ld. Defence Counsel to falsely implicate accused persons is not sound enough as he has wrongly mentioned the deposition of PW6 A K Mittal who has stated as follows:
"At that time security deposit of 10% used to be kept by department in and after completion of work. This amount of 10% of the contract money was to be released lateron, on furnishing labour clearance certificate.".....
He has further made the position clarified in his cross examination as under:
" It is correct that after six months of the completion of work and communication by the Engineer Incharge if no reference is received from the Labour Officer / Labour Welfare Commissioner the Labour Clearance Certificate is not required for the release of security amount."
107 In above said statement the sentence " if no reference is received" by the Engineer Incharge has been mentioned and PW2 has very categorically stated that "I had been asked by Executive C C No.73/2001 58/86 59 Engineer to bring the Labour Clearance Certificate for the release of security." Moreover in his cross examination PW2 has stated that he did not know the Labour Clearance Certificate is not required after six months of completion of work. Accused No.1 has tried to stress the legal position otherwise which generally remains far away from the approach of ordinary prudence; as such half baked facts are put forth for convincing the strature of factual position cannot be recognised for evaluating the evidence.
108 In para 4 & 5 of synopsis it is submitted that evidence of complainant is otherwise inconsistent, contradictory and unreliable. It is mentioned in the synopsis that PW2 stated to have made the report to CBI on the day when he met S S Bindra in his office regarding demand of bribe money by Rakesh Kumar Chaurasia. Submissions in para 4 &5 are not correct rather misleading and contrary to the record. The deposition of PW2 in respect of lodging complaint is as under:
" Mr. Sujit Kumar Chakravorty informed me that Mr. Bindra and his stenographer were demanding Rs.2,700/ as bribe for issuing the Labour Clearance Certificate. I went with Mr. Chakravorty and met Mr. Bindra on 20.2.2001. Mr. Bindra is accused present in the court. I had a talk with him. Mr. Bindra reduced the demand to Rs. 2500/ and directed that the payment to be made on 22.2.2001 and C C No.73/2001 59/86 60 asked my supervisor to collect the certificate. I returned from the office of Mr. Bindra and made a complaint to SP, CBI. My complaint is Ex PW 2/A which was written by me and bears my signature at point A."
109 PW2 has not stated that he made complaint to CBI on the same day i.e. on 20.2.2001. Thus, no inference can be drawn that he had gone to lodge his complaint on 20.2.2001 only and not on 22.2.2001.
110 These utterance are short, in simple language, spoken in plain way signify the innocence of PW2 and no question relating to date of complaint was asked by defence in his cross examination. As such the submissions of Defence are wrong, stretched and appears on the score of soothing probabilities interpreting the deposition of PW2 are not tenable in the eyes of law. 111 In para 6 of synopsis it is submitted that Sujit Kumar Chakravorty has been deliberately withheld in connivance with the complainant is not believable as order sheets of this court are apparently clear on this issue that several efforts were made to produce Sujit Kumar Chakravorty in court.
112 Summons were got issued to PW Surjit Chaktroboty by the prosecution more than 10 times but the summons received back with the report that he has left the given address. Thereafter my Ld C C No.73/2001 60/86 61 Predecessor vide his order dated 11.9.2007 has deemed him to be a dropped witness. Relevant portion of his order dt 11.9.2007 is as under:
" PW Surjit Kr is again reported to be not available at the given address. Vide order dt 1.2.07 prosecution has been directed to find out the fresh address of witness and serve him. Under these circumstances, the witness is deemed to be dropped."
113 Prosecution has also got issued summons to this witness inspite of the above order which was opposed on behalf of accused hence, in these circumstances, it cannot be held that prosecution has deliberately and intentionally withheld this witness . Thus no adverse inference can be drawn against prosecution. 114 In para 7 of synopsis it is submitted that shadow witness Vinod Goswami does not talk of any demand of Bindra during his conversation with Sujit Kumar Chakravorty. It is correct that PW 3 in this Court has stated that he alongwith the complainant had gone to the room of SS Bindra first while in the charge sheet it is mentioned that first they had gone to the room of Rakesh Chaurasia.
115 In the charge sheet sequence of events with regard to entering in the room of Rakesh Chaurasia and SS Bindra is mentioned as follow:
C C No.73/2001 61/86 62
" After reaching at 5th floor, all the CBI trap party members including independent witness Sh R K Tripathi took suitable positions. Sh Vinod Goswami and Sh Sujit entered in the office room No. A516 after few seconds they came out and entered in the room of Sh S S Bindra, located in Room No. A519 at about 12.05 pm. Thereafter they came out from room No. A519 and entered in room No. A516."
116 He came out of the room of Rakesh Kumar Chaurasia in few seconds only and thereafter entered in the room of S S Bindra. The sequence of events was so fast that it was difficult to describe by a witness as to when and to whom he had gone first particularly, when the witnesses has appeared in the witness box after a long lapse of time from the date of event. It is not expected from a witness that he was having a photogenic memory to reproduce the sequence of events exactly in the same manner. 117 Raid was conducted on 22.2.2001 while the examination in chief of PW3 was recorded on 25.2.2005 and his cross examination was conducted on 28.7.2008 and 12.2.2009 i e after a long lapse of time. Such variations are bound to come in a statement of witness due to the lapse of time.
118 It is held by our Hon'ble Supreme Court with regard to minor variation that the same cannot be considered as improvement C C No.73/2001 62/86 63 and a witness cannot be disbelieved on such ground. Hon'ble Supreme Court in Chandrasekhar Sureshchandra Bhatt & Co Vs State of Maharashtra JT 2000 (9) SC 598 has observed as follows:
" Section 3 with Criminal Procedure Code, 1973 Section 161 Improvement Elaboration obtained by prosecutor - Marginal variations from statement under Section 161 Cr P C - Witness himself informant Basic position of witness remaining same as in FIR . Held that such variation cannot be dubbed as improvement with the sinister motive.
Section 3 Witness - Circumstances. Sub inspector of Police informant also - Variation in statement - However, statement corroborated by circumstances, like recovery of postal, revolver and a bullet from vest of inspector Held that statement is truthful and reliable."
119 Submissions that statement of Goswami that Bindra asked him to go and get it done from Chaurasia is an improvement is also incorrect because in view of above discussion and the fact that consistency and coherency in narration of facts asked in cross examination, if slips away from the gloves of defence the same cannot be termed as improvement. According to legal position no witness can be forced to give the reply of any question put in cross examination by remaining in the circumference and surrounding of C C No.73/2001 63/86 64 his statement made u/s 161 Cr PC.
120 In para 8 of synopsis Ld. Defence Counsel has submitted 8 points from a to h which are mere defects/ short comings which do not implies the sense of innocence on the part of accused. Evidence after long gap certainly invite trifle contradictions. Statement of PW2, PW3 and PW9, if taken together for consideration of evidence it corroborates the demand and acceptance of bribe on the part of both accused persons in conspiracy with each other. In other words, it is squarely true that no one can be expected to depose in the manner desired by any party. Under Prevention of Corruption Act there is Section 20 which gives mandatory scope for presumption on the part of court. In the case of Public Prosecutor vs. A Thomas AIR 1959 Mad. 166, the term "shall be" presumed, as enshrined u/s 20 of P C Act, means that court is bound to take the fact as proved until evidences is adduced to disprove it and the party interested in disproving it must produce such evidences if he can. In totality prosecution has convinced that its case, inspite of remaining certain hitches on parochial clustering of ancillary natural phenomena in deposition, element of demand, acceptance and recovery are meticulously established against both the accused persons.
C C No.73/2001 64/86 65 121 Ld. Defence Counsel for A1 referring the cross examination of PW3 argued that he has admitted that he had signed so many documents in the office of CBI after returning from the raid and he was unable to disclose the details of those documents, hence it is proved that all the relevant documents i.e. recovery memo etc. were fabricated by CBI afterward. There is no merit in this argument that CBI had forged recovery memo etc. afterward in the office because this witness in the next sentence has denied that recovery memo Ex PW 3/A was signed by him in CBI office. Relevant portion of his statement, in this regard, is as under:
" It is incorrect to suggest that I had signed the recovery memo Ex PW 3/A in the office of CBI. Vol. I had signed this document at the spot".
122 Accused has not confronted this witness with any other relied upon document by CBI against the accused about which accused has any doubt that the same was prepared in the office of CBI afterward.
123 In para 9 to 15 and remaining paras of the synopsis Ld. Defence Counsel has tried to count the errors committed by the prosecution or the witness or by IO. It is not obligatory on the part of court to declare who, among the parties has performed better. Evidences in hand cannot be left in lurch taking the shelter of C C No.73/2001 65/86 66 defects. Each and every point raised by Ld. Defence Counsel, when tallied from the deposition the clarifications were found in existence which are sufficient to ignore the natural repercution cropped up during the cross examination of witnesses. Trial is not solely based on 161 Cr P C statement, as highlighted on behalf of accused that basically the portion of statement prepared mechanically by cut and paste method. Deposition in court always becomes the crux of evidence, therefore, the significance of statement made u/s 161 Cr PC, can be of educative value only which may be taken into consideration when entire evidences brought on record appears to be concocted on the score of surmises and conjectures but evidences in hand in this case and relating circumstances has established the basic ingredient of section 7 and 13 (2) r/w Sec. 13 (1) (d) of P C Act fixing the accusation of both the accused persons. 124 Even otherwise Defence cannot take advantage of bad investigation where there is evidence available on the record against the accused. In this regard our Hon'ble Supreme Court in a latest judgment titled Zindar Ali Vs. State of West Bengal & Anr., 2009 III AD (S C ) 7 held as follows:
"Indian Penal Code, 1860 Secs. 376 and 417 - Immediate disclosure of rape by the prosecutrix - Version of prosecutrix unchallenged - Admission by the accused in village panchayat - Medical evidence also another proof - Accused behind bar for five C C No.73/2001 66/86 67 years - SC held - Defence cannot take advantage of bad investigation where there is clinching evidence available to the Prosecution."
125 Hon'ble Supreme Court in Rohtash Vs. State of Rajasthan (2007) 2 SCC (Crl.) 382 has held that that defective investigation would not lead to total rejection of prosecution case. 126 Hon'ble Supreme Court in State of MP Vs Man Singh ( 2007) 2 SCC 390 in this regard has held as follows:
" Criminal Trial Investigation Deficiencies in investigation Effect Held, cannot be a ground to discard the prosecution version which is authentic, credible and cogent Criminal Procedure Code, 1973 S.157."
127 In Karnail Singh Vs. State of MP 1995 SCC 977it has been held by Hon'ble Supreme Court that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer.
128 Ld. Defence Counsel relying upon Mahabir Prasad Verma Vs. Dr. Surinder Kaur, AIR 1982 SC 1043 (para 22), Hare Ram Vs. State of MP 2010 V AD (Crl) 682, Rakesh Bisht Vs. CBI 2007 (1) JCC 482 (Delhi) argued with regard to admissibility of tape recorded conversation and taking of sample voice of accused by the police during the investigation. There is no dispute with the ratio of law laid down in these authorities. From the above discussion it is clear that this court has not relied upon the tape recorded conversation at all.
C C No.73/2001 67/86 68 129 Ld. Defence Counsel relying upon Sahibe Alam Vs. State, 2002 III AD (Crl.) (DHC) 127 Mahadev Prasad Pant Vs. State of Delhi 2007 (2) JCC 1617 (para 33) argued that admissibility of statement of an accused without discovery of new fact cannot be relied upon and mere disclosure of co accused is no evidence of conspiracy. As discussed above there is discovery of new fact/recovery of LCC in furtherance of disclosure statement of A2, hence it is admissible. It is also clear from the above discussion that in addition to disclosure statement of A2 there is evidence of PW11 Brahm Singh coupled with the circumstantial evidence to prove the existence of criminal conspiracy, thus the facts of the case in hand are different than the facts of these authorities, therefore, ratio of law laid down in these authorities is not applicable to the facts and circumstances of this case.
As discussed above demand of illegal gratification, acceptance of the bribe amount and its recovery is well proved in this case thus the ratio of laid down in Banarasi Dass Vs. State 2010 (2) CCC (SC) 181 is not applicable to the facts and circumstances of this case.
As discussed above it is clear that evidence of PW2 S K Sehgal cannot be termed as hearsay evidence hence the ratio of laid down in Pawan Kumar Vs. Sate of Haryana 2003 III AD (Crl.) 346, is not applicable to the facts and circumstances of this case. 130 Considering the case from all the angles there is no merit in these arguments.
131 Written submissions on behalf of A-2 has also been submitted. In part A charges under three heads, three points that prosecution was required to prove, two points denoting fundamental defects in prosecution case are mentioned. In addition to it under column 3 two points regarding evidenciary value of admissibility of C C No.73/2001 68/86 69 micro cassette preparation of transcription Ex PW 9/A and on the basis of these facts tried to impress upon the court that the trap had failed and it is a case of false document having been prepared by CBI to shield Sh. S K Sehgal from legal punishment u/s 182 IPC. 132 After carefully perusing the record I found that the above said submissions on behalf of A2 Rakesh Kumar Chaurasia are more or less the same, may not be identical in language, which have been discussed in detail in foregoing paras, proliferation of the same changing the language would not be of high gravity. In nutshell I found that ingredients of criminal mis conduct and demand have been established even against A2 Rakesh Kumar Chaurasia on the grounds detailed above. So far as section 182 IPC is concerned it deals with false information with intend to cause public servant to use his lawful power to the injury of another person could not be unveiled; as such at this juncture focus of A2, in my view is nothing but seeking misplaced generosity of court in his favour.
133 In part B of the submissions name of PWs, description of evidence and effects of the evidence are described. According to defence evidence of PW1 A C Suri demolishes the motive of alleged demand of bribe. Infact, PW1 in his evidence recorded in chief has narrated as under:
C C No.73/2001 69/86 70
"A certificate is also required from the Dy. Labour Welfare Officer for release of 10% payment."
134 Basic perusal of deposition of PW1 in totality makes it clear that there was occasion on the part of A2 Rakesh Kumar Chaurasia for accepting illegal gratification as a motive or reward, on the basis of which PW1 has accorded sanction Ex PW 1/A. PW2 S K Sehgal, according to synopsis is not supporting the contention regarding demand of bribe. This point has also been adjudicated for both the accused while dealing the identical submission on behalf of A1 S S Bindra. Effect of evidenciary value of deposition made by PW4 Sh. Rajinder Prashad has not been mentioned in submission. Only cross examination conducted by Sr. PP has been highlighted. According to submission PW5 Sh. A K Malik has been termed as witness of convenience whose testimony is full of contradictions. I am of the opinion that convenience is the freedom of trouble/difficulty. Any system enforced upon humanity is used for convenience. Even in judiciary witnesses of convenience are produced by parties for testing the veracity of evidence but to acquire the habit of speaking the truth in our day to day lives is a vital manifestation of our respect for those we deal with, and of our concern for society as good. System of trial is seeking the truth from entire facts appearing on the face of record. Similarly, C C No.73/2001 70/86 71 according to submission evidence of PW6 A K Mittal demolishes the motive of alleged demand of bribe, which is absolutely incorrect. It has also been dealt in respect of A1 S S Bindra and the same I hold even for A2 Rakesh Kumar Chaurasia. In respect of PW7 Sh K S Chhabra, it is mentioned in the submission that analysis of CFSL report was not personally by him. This averment, are mentioned for the sake of defence only without having any legal sanctity as the CFSL report Ex PW7/A is self speaking. According to synopsis evidence of PW 8 Dr Rajinder Singh are dealt in such manner which attract offence U/S 218/219 IPC. In my view such inflictions are immature repercution spoken in haste. According to submission evidence of PW9 Sh R K Tripathi, PW10 MM Ansari and PW 11 Brham Singh are full of contradictions . From the perusal of record and analysis the same keeping the submissions in view I found that certainly there are contradictions. 135 The law regarding contradiction was considered by the Hon'ble Supreme Court in case of Bharuda Broginbhai Harjibhai V/S State of Gujrat AIR 1983 SC 753 where in it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving of this conclusion:
C C No.73/2001 71/86 72
i) " By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
ii) Ordinarily, it is so happen that a witness is over taken by events the witness could not have anticipated the occurrence which so often has an element of surprise.
Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
iii) The powers of observance differ from person to person, but one may noticed another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
iv)By and large people cannot accurately recall a conversation and reproduced the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
v) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their C C No.73/2001 72/86 73 estimate by guess work as spare of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimate in such matter. Again it depends upon the time sense of individuals which varies from person to person.
vi) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession of in a short time span. A witness is liable to get confuse or mixed up when interrogated later on.
vii) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness mixed up facts, get confused regarding sequence of events., or fill up details of imagination at the spur of moment. The sub conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and an honest account of the occurrence witnessed by him perhaps it is a sort of physiological movement".
C C No.73/2001 73/86 74 136 In view of the law discussed above it cannot be said that the contradiction pointed out by Ld. Counsel for accused are very vital contradictions. These are contradiction which are likely to occur with the passage of time. The Hon'ble Supreme Court in case State of UP V/S M.K. Anthony, AIR 1985 SC 48 has laid down the principle for appreciating the evidence of a witness as under:
" While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
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" Their Lordships further observed:
" Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations of infirmities in the manner of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross examination is an unequal dual between the rustic and refined lawyer."
137 Hon'ble Supreme Court in State of U.P Vs Anil Singh has observed as follows:
"It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also preside to see that a guilty man does not escape. One is as important as the other. But are public duties which the judge has to perform.
138 Hon'ble Supreme Court in Inder Singh Vs State ( Delhi Administration) AIR 1978 Supreme Court 1091 has held as follows: C C No.73/2001 75/86 76
"Credibility of testimony, oral circumstantial depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect, If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Why fake up? Because the Court asks for manufacture to make truth look true? No, we must be realistic".
139 In partB of the submission except to PW3 Sh Vinod Goswami, all have been discussed . PW3 in his deposition has very categorically fixed both the accused person with free mind. 140 It is argued that when the trap was failed both the C C No.73/2001 76/86 77 accused have been falsely implicated by the CBI in order to save complainant S K Sehgal from his prosecution U/s 182 IPC. Independent witness Vinod Goswami and R K Tripathi are public servants. Vinod Goswami, the then serving as senior observor in Meteorological department, Lodi Road and R K Tripathi, the then working as UDC in AO (Works )I, DDA, Vikas Sadan. Thus, both were unknown to each other. Both these witnesses have fully supported the case of prosecution. Nothing such has come out in their cross examination to show that they were under the pressure of CBI or have any enmity or motive to falsely depose against accused . They were directed by their senior officers to join the investigation of CBI in this case, hence they cannot be termed as witness of the choice of CBI. They were neither knowing the complainant nor the accused prior to this case. They have no affinity with the complainant and no enmity with the accused. In these circumstances, no motive can be imputed to them to depose falsely against both the accused.
141 CBI is the Prime Investigating Agency of this country. S K Sehgal , complainant in this case is a contractor , who is facing difficulty even in getting the labour clearance certificate , how can he be in the position to influence the CBI. In any manner he is not C C No.73/2001 77/86 78 such a personality so as to influence a prime investigating agency like CBI. There is no reason to believe that CBI would falsely implicate both the accused at the instance of complainant. 142 TLO Inspector A K Malik is also a public servant unknown to accused and complainant, there is no reason why he will depose falsely against accused. He was not alone in the trap team. There were many other CBI officer in the trap team who were also public servants. All the CBI officers were unknown to complainant. There is no reason why the TLO and other trap team members who were also public servants will falsely implicate both the accused in this case who are also public servants. No enmity/ ill will has been alleged against the TLO even by both the accused , therefore he was having no motive to falsely implicate both the accused in this case. In these circumstances the argument that both the accused were falsely implicated, does not appeal even to common sense. 143 Ld. Defence Counsel for A2 relying upon Hari dev Sharma Vs. State, AIR 1976 SC 1489 argued that prosecution case was one integrated story which the trial court had accepted. If the High Court did not find it possible to accept a vital part of the story then it is difficult to see how the other part which did not stay by itself could be accepted.
C C No.73/2001 78/86 79 144 I have carefully gone through this authority. Para No.3 of which is the most important. In this case Hon'ble High Court has held that statement of complainant cannot be disbelieved with regard to payment of Rs.20/ (as part of bribe) in advance but relied upon the complainant with regard to accepting of Rs.70/ as bribe from the complainant. In these circumstances Hon'ble Supreme Court, accepting the appeal of convict, has made the above observations. But in our case, as discussed in the foregoing paragraphs of this judgment it is well established that complainant S K Sehgal is fully reliable witness therefore, ratio of law laid down in this case is not applicable to the facts and circumstances of our case. 145 Ld. Defence Counsel for A2 relying upon Babu Vs. State of Kerala, 2003 (3) LRC 320 (SC), Hiten P Dalalk Vs. Bratindranath Banerjee (2001) 6 SCC 16, Narender Singh Vs. State of MP AIR 2004 SC 3249, Rajesh Ranjan Yadav Vs. CBI AIR 2007 SC 451 and Krishna Janardhan Bhat Vs. Dattatraya G Hegde, AIR 2008 SC 1325 argued that in a criminal trial onus of proof lies on prosecution and it never shifts. Accused is presumed to be innocent till prosecution proves its case against him beyond reasonable doubts. There is no dispute with the above prepositions of law laid down in these authorities, as discussed above, prosecution has proved its case against both the accused.
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Ld. Defence Counsel relied upon Amarpali (Rajpal) Vs. State 2010 VII AD (Delhi) 696 in the written submissions on the point with regard to rights of accused Under Article 21 of Constitution of India in a criminal trial. There is no dispute with the preposition of law laid down in this authority also. But every case has to be dealt with according to the facts and circumstances of its own. Evidence is to be appreciated according to the facts and circumstances of that particular case and ratio of law laid down in an authority is to be applied according to the facts and circumstances of individual case.
Ld. Defence Counsel placed reliance on following authorities with regard to presumption of law u/s 20 of PC Act, 1988 and u/s 4 of P C Act, 1947:
M C Moitra Vs. State AIR 1951 Cal.524 (DB), State Vs. Meenaketan Patnaik AIR 1952 Orissa 267 (DB), Dhanvantrai Balwantrai Desai Vs. State of Maharashtra 1962 (1) SCR 485, Suraj Mal Vs. State (Delhi Admn.) AIR 1979 SC 1408, Kashi Ram & Ors. Vs. State of MP 2002 (1) SC 71, Dayabhai Chaganbhai Thakkar Vs. State of Guj. AIR 1964 Sc 1563, Vijayee Singh Vs. State of UP 1990 (3) SCC 190: AIR 1990 SC 1459, Vikramjit Singh @ Vickey Vs. State of Punjab 2007 (1) Crimes 181; (SC), Gopal Reddy Vs. State of AP, (1979) 1 SCC 355, Sharad Birdhi Chand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, Tota Singh & Ors. Vs. C C No.73/2001 80/86 81 State of Punjab AIR 1987 SC 1083, Divakar Neelkanth Hegde & Ors. Vs.State of Karnataka JT 1996 (7) SC 63, State of Orissa Vs. babaji Charan Mohanty & Ors. (2003) 10 SCC 57, Hem Raj & Ors. Vs. State of Haryana (2005) 10 SCC 614, State of Maharashtra Vs. Dyneshwar Luxman Wankhede 2009 (VI) SLT 439, A Subair Vs. State of Kerala, 2009 VII AD SC 117, V Kannan Vs. State 2009 IX AD (SC) 293, C M Girish Babu Vs. CBI 2009 (3) SCC 779, Harbans Singh Vs. State of Punjab 2010 (2) CC Cases (HC) 287, Major Singh Vs. Vs. State of Punjab 2010 (4) CC Cases (HC)203; Malkiat Singh Vs. State of Punjab 2010 (4) CC Cases (HC) 184, Banarsi Dass Vs. State of Haryana 2010 IV AD (SC) 305, Ramesh Kumar Gulati Vs. State of NCT of Delhi, 2010 (4) LRC 73 (Delhi), Roshan Lal Saini & Anr. Vs. CBI, 2010 (4) LRC 138 (Delhi).
It is undisputed that presumption U/s 20 of P C Act is a rebuttal presumption as discussed above but in this case accused could not rebutted the presumption U/s 20 of P C Act.
146 In the case of State of W.B. Vs Orilal Jaswal it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice, according to law . C C No.73/2001 81/86 82 147 Hon'ble Supreme Court in Krishna Mochi & Ors vs State of Bihar (2002) 6 Supreme Court Cases 81 has held as follows:
"The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent time the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim " Let hundred guilty persons be acquitted, but not a single innocent be convicted " is, in practice, changing the world over and Courts have been compelled to accept that " society suffers by wrong convictions and is equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time."
148 Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:
"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence If crime is to be punished in a glosseme way niceities must yield to realistic appraisal."
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149 Prevention of Corruption Act is a social legislation enacted with the object to curb illegal activities of public servants, in these circumstances according to the law of interpretation of Statute, its provision should be interpreted so as to achieve its object. Our Hon'ble Supreme Court in Ram Singh Vs. State of MP (2000) 5 Supreme Court Cases88 has held as follows:
"Prevention of Corruption Act, 1988 - Nature and interpretation of Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused - interpretation of Statutes Particular statutes or provisions - Penal statute - Social Legislation - Interpretation of".
150 Even without looking into the gravity of tape recorded conversation and evidence of other witnesses like MM Ansari and A K Malik, in view of above discussion element of demand of illegal gratification in furtherance of criminal conspiracy on the part of A1 and A2, acceptance of the same by A2 and recovery of the tainted amount from the conscious possession of A2 is establish beyond reasonable doubt on the basis of the evidence of PW2, PW3 and PW9 C C No.73/2001 83/86 84 151 In case U/S 13 (1) (d) of P C Act 1988 prosecution has to prove that :
i) That accused should be a public servant.
ii) That he should used some corrupt or illegal means or otherwise abused his position as a public servant,
iii) That the accused should have thereby obtained a valuable thing or pecuniary advantage.
iv) Such benefit for himself or for any other person.
152 A five Judges Bench of Hon'ble Supreme Court in Dhaneshwar Narain Saxena Vs The Delhi Administration 1962(1) Crl L J 203 ( Vol.64 C.N. 76) has held as follows:
Misconduct by public servant need not be in connection with his own official duty.
" It is not necessary that the public servant in question, while misconducting himself, should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconduct himself in the discharge of his duty. "Duty" and "misconduct" go ill together. If a person has misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it. It is not necessary to constitute the offence under cl (d) of the section that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say C C No.73/2001 84/86 85 that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S. S(10) (d) . It is also erroneous to hold that the essence of an offence under S. 5(2) , read with S. 5(1) (d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage."
153 In view of above discussion it is well proved from the evidence produced by the prosecution that accused S S Bindra the then working as Dy. Labour Welfare Commissioner, CPWDII, Y Shape Building, IP Estate, New Delhi and Rakesh Kumar Chaurasia the then working as steno to S S Bindra, Dy. Labour Welfare Commissioner, as public servants, in furtherance of their criminal conspiracy had demanded and accepted Rs. 2500/ as illegal gratification on the pretext of issuing LCC to complainant S K Sehgal and A 2 in furtherance of criminal conspiracy accepted tainted GC notes of Rs.2500/ which were also recovered from his conscious possession, thus both the accused have abused their official position as public servant in discharge of their public duty. In these circumstances this court is of opinion that prosecution has proved its case beyond reasonable doubts against both the accused, C C No.73/2001 85/86 86 hence both the accused are convicted for the offences punishable U/s 120 B IPC r/w 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988. 154 Both the accused are also convicted for committing substantive offence punishable U/s 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988.
announced in open court on ( V. K. Maheshwari) this 28th January, 2011 SPECIAL JUDGE: DE C C No.73/2001 86/86 87 IN THE COURT OF V .K .MAHESHWARI SPECIAL JUDGE: (P C Act)03 CBI) DELHI Corruption Case No. 73/2001 CBI Vs 1 S S Bindra Dy. Labour Welfare Commissioner, CPWDII, Y Shape building IP Etate, New Delhi 2 Sh. Rakesh kumar Chaurasia, steno to S S Bindra, Dy. Labour Welfare Commissioner. R. C No. 19(A)/01/CBI/ACB/ New Delhi. Under Section U/s 120B r/w 7 of PC Act & Section 13 (2) r/w 13 (1) (d) of PC Act ORDER ON SENTENCE: Vide my separate judgment dated 28.1.2011 both the
accused are convicted for the offences punishable U/s 120 B IPC r/w 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988 and for committing substantive offence punishable U/s 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988.
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Arguments on sentence heard. It is argued on behalf of convict S S Bindra that he is of 70 years of age . He is not a previous convict. He is suffering from hypertension, diabetes and spondlysis, medical certificate attached . He is facing agony of this trial for about 10 years and regularly attending the Court . He has never tried to delay the proceedings. He has been deprived of all his retrial benefits.
He has placed reliance on Ram Lal Dogra Vs State (CBI) 2001 (3) C.C. Cases HC 70 , wherein Hon'ble High Court has observed as follows:
" Prevention of Corruption Act, 1988, Section 7, 13(1)
(d) , 13 (2) (d) - Reduction in sentence Money passed from left hand to right hand of accused when it was counted and placed by him to his pocket Accused being a public servant went to the office of the complainant and received money from the complainant Appellant 64 years old, retired from services, spent 10 days in jail and lost all retrial benefits and is in frail health suffering from heart problem required constant medical attention Held : Not an act of thrusting money but a voluntary act of receiving money Act sufficient to bring home guilt of accused Sentence reduced to the period already undergone Sentence modified Conviction upheld Appeal partly allowed.
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Reliance is also placed on State of Andhra Pradesh Vs R Jeevaratnam 2004 (2) JCC 1161, wherein Hon'ble Supreme Court has held as follows:
" Prevention of Corruption Act, 1988 Secs 7, 13(1) )d) r/w 13(2) - Conviction and sentence by trial Court Acquittal by High Court on appeal Challenged - PW1's deposition proved demand and acceptance of money by respondent - Supported by deposition of PW 2 - The respondent was caught redhanded with the marked money in briefcase carried by him Presumption under Sec. 20 (1) arises Judgment of the High Court set aside Appeal allowed.
It is argued on behalf of convict Rakesh Kumar Chaurasia, that he is not a previous convict. He is facing agony of this trial since 2001. He is having two children . His wife has recently been expired, there is none to look after them. He is the sole bread earner of his family. He has clean antecedents. He is having no other case against him except the present one.
It is argued by Ld Senior PP for CBI that no leniency be shown to convicts in awarding the sentence as it will be undesirable and will also be against public interest. He has argued that convicts are involved in a serious corruption case inspite of C C No.73/2001 89/86 90 being a public servants. Accused S S Bindra the then working as Dy. Labour Welfare Commissioner, CPWDII, Y Shape Building, IP Estate, New Delhi and Rakesh Kumar Chaurasia the then working as steno to S S Bindra, Dy. Labour Welfare Commissioner, in furtherance of their criminal conspiracy had demanded and accepted Rs. 2500/ as illegal gratification on the pretext of issuing LCC to complainant S K Sehgal . They should be awarded severe punishment and heavy fine may also be imposed on them. It is further submitted by Ld Senior PP that in criminal appeal No. 299 of 1997, titled State Rajasthan Vs Dhool Singh, Hon'ble Supreme Court, on December 18th , 2003 has held that the Courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is no absolute or whimsical. It is controlled by law and to some extent by judicial discretion applicable to the facts of the case. Therefore, there is need for the Courts to apply its mind, while imposing sentence , as to why it should be less then maximum sentence prescribed under law.
Corruption is a scourge that not only severally affects progress and development in the society but also poses a grave C C No.73/2001 90/86 91 challenge to governance itself. The United Nations Global Reports on Crime and Justice quotes public opinion surveys in a number of countries, to point out that citizenry in those countries ranks corruption as one among the five most important problems facing their society. More importantly, the public in such countries seriously questions the ability of the Criminal Justice Administration to provide any bulwark against corruption. The consequence of such perceptions is a growing public cynicism and distrust in almost all the Government institutions, which is a matter of serious concern. Unfortunately, India ranks prominently high in the list of countries plagued by corruption. Anti Corruption measures in India are perceived by the people to be weak and ineffective. More than corruption itself , it is the widespread public perception that corruption is not or would not be punished, that is detrimental to the society.
After considering the facts and circumstances of the case and all the arguments raised before me, both the Convicts are sentenced to undergo One years RI along with a fine of Rs5000/ each (Rs. Five Thousand) I D Three months S I U/s 120 B IPC r/w 7 & U/s 13 (2) r/w 13 (1 (d) of P C Act, 1988 and to undergo Three Years R I alongwith and a fine of Rs. 10,000/ each (Rs. Ten Thousand) I D Three months S I U/S 7 of P C Act 1988 and to C C No.73/2001 91/86 92 undergo Three years RI along with a fine of Rs. 10,000/ (Ten Thousand) each I D three months S I U/S 13 (2) R/w Section 13(1)
(d) of P C Act 1988. All the sentences will run concurrently.
Benefit of Section 428 Cr P C be also given to both the accused.
A copy of judgment and this order on sentence be given to convicts free of cost. File be consigned to RR.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI)
TODAY ON 31st Jan. 2011 SPECIAL JUDGE: DELHI
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