Delhi District Court
5. V. Kanan vs . State, 2009 Ccr 98 (Sc). on 31 January, 2014
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IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE,
(PC ACT)-02, (CBI),TIS HAZARI COURTS, DELHI.
RC No.17(A)/2005
CBI / ACB / NEW DELHI
CC No.03/06
ID No.02401R0120382006
CBI
VS
1. JAI BHAGWAN GUPTA,
S/O SH. RAM SARUP,
R/O B-38, VINOBA KUNJ,
SECTOR - 9, ROHINI,
DELHI-110085.
2. AJAY KUMAR DIXIT,
S/O SH. K.N. DIXIT,
R/O 1st FLOOR,
OLD RAJENDER NAGAR,
NEW DELHI - 110060.
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DATE OF INSTITUTION : 17.02.2006.
DATE OF ARGUMENTS : 23.01.2014.
DATE OF JUDGMENT : 31.01.2014.
JUDGMENT
1. Vide this judgment, I will dispose off the CBI criminal case referred to herein above filed by the CBI on 17.02.2006.
2. Briefly stated, relevant facts for the disposal of the case are that this case was registered on 04.04.2005 on the written complaint of Sh. Ashok Kumar Hooda S/o Sh. M.C. Hooda, Govt. / MCD Contractor, R/o C-II, 3rd Floor, New Multan Nagar, Delhi - 110056, wherein it has been alleged that Sh. Jai Bhagwan Gupta, JE, MCD, Division No. 29, K.B. Zone, Delhi demanded illegal gratification of Rs. 22/23,000 for himself as well as for accused A.K. Dixit, XEN, from the complainant, to get the test check done by accused A.K. Dixit, XEN in respect of the work of improvement of CC Road in 2 of 75 3 Anand Parbat already completed by him.
3. It has been further alleged that Sh. A.K. Dixit, XEN also directed the complainant to give his share of bribe to accused Jai Bhagwan, JE. The complainant also produced two audio cassettes in which the conversation between him and accused Jai Bhagwan as well as between him and accused A.K. Dixit were recorded separately wherein the demand of illegal gratification was made by these two officers of MCD from complainant.
4. Consequent upon registration of the case, a trap team comprising of Inspector R. C. Garvan, TLO, Inspector Om Prakash, Inspector Alok Kumar, Inspector N.K. Sangwan, Sub-Inspector Premnath, the independent witnesses namely S/Sh. Ashok Kumar Gupta, Sr. T.A. and Sh. Ramadhar Mahto, LDC, both from circle 13 (1), Income Tax Office, Room No. 426, C.R. Building, IP Estate, New Delhi and complainant Sh. Ashok Kumar was constituted. The Pre-trap proceedings were carried out in the presence of all members of the trap team.
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5. Investigation disclosed that during the pre-trap proceedings, the complainant produced a sum of Rs.10,000/- consisting of 20 GC Notes of Rs.500/- denomination each. The numbers of the said GC notes were recorded in the Handing Over Memo and the said GC notes produced by the complainant were treated with phenolphthalein powder. A practical demonstration was given to explain the significance of the reaction that takes place between phenolphthalein powder applied on the GC notes and the colourless solution of sodium carbonate. The contents of the two audio cassettes produced by the complainant were transferred on another set of audio cassettes for the purpose of investigation and thereafter the aforesaid audio cassettes produced by the complainant were duly sealed. Personal search of the complainant Sh. Ashok Kumar was conducted to ensure that he did not keep anything incriminating on his person. The tainted amount of Rs.10,000/- treated with phenolphthalein powder was kept in the left side back pant pocket of the 4 of 75 5 complainant by the independent witness Sh. Ramadhar Mahto and the complainant was directed to hand over the bribe amount of Rs.10,000/- to the accused only on his specific demand and not otherwise. All the members including both the independent witnesses washed their hands with soap and clean water. Independent witness Sh. Ashok Kumar Gupta was asked to act as the shadow witness and remain with the complainant to overhear the conversation which may take place between the accused person and the complainant and watch the transactions, if possible. He was further directed to give signal by scratching his head with both of his hands after the bribe transaction was completed. The other witness Sh. Ramadhar Mahto was directed to remain with the trap party. The complainant accordingly contacted accused Jai Bhagwan, JE on his mobile phone no. 9350686328 through his mobile phone no. 9811100742. The conversation between the two was tape recorded. The complainant informed Sh. Jai Bhagwan that he had arranged the money to which he 5 of 75 6 (accused Jai Bhagwan) told him that he will be available in his Division in about half an hour. The Digital Voice Recorder containing the aforesaid conversation was handed over to the complainant with the direction to switch on the same before making contact with the accused. The details of the pre - trap proceedings were recorded in the Handing Over Memo.
6. Investigation has further disclosed that after completion of pre-trap proceedings, all trap team members including the aforesaid two witnesses left CBI office and reached near the O/o Executive Engineer, Division-29, MCD, Near Sindhi Park, Old Rajender Nagar, New Delhi-60 at about 04.40 PM on 04.04.2005. The complainant alongwith the shadow witness Sh. Ashok Kumar Gupta were directed to contact the accused in his office and accordingly they entered the office of accused Jai Bhagwan Gupta, JE. The office chamber of the other accused A.K. Dixit was opposite the chamber of accused Jai Bhagwan, JE. The remaining team members alongwith other independent witness Sh. Ramadhar 6 of 75 7 Mahto took suitable positions. At about 05.00 PM, the shadow witness came out of the office chamber of accused Jai Bhagwan, JE and gave the pre-fixed signal. On the same, Inspector Sh. R.C. Garvan alongwith trap team members including the independent witnesses immediately rushed towards the office chamber of accused Jai Bhagwan, JE. The complainant was found standing outside the office room of accused A.K. Dixit, EE, who informed that Sh. Jai Bhagwan Gupta, JE had gone to the room of accused A.K. Dixit, EE. While the trap team members alongwith witnesses were entering the chamber of accused A.K. Dixit, one person was seen coming out of the said office chamber. The shadow witness as well as the complainant identified the said person as Jai Bhagwan, JE.
7. Investigation has also revealed that after disclosing their identity, CBI team members challenged accused Jai Bhagwan, JE to have demanded and accepted bribe from the complainant. At this he suddenly took out currency notes from 7 of 75 8 his left side pant pocket with his left hand and threw them on the floor just outside the office chamber of accused A.K. Dixit. Thereafter, Sh. Jai Bhagwan Gupta, JE was caught from his hands and detained.
8. Investigation has further established that as directed, the independent witness Sh. Ramadhar Mahto picked up the said currency notes from the floor and then both the independent witnesses compared the numbers of said recovered GC Notes, with the numbers earlier recorded in the Handing Over Memo prepared in the CBI office. Both the witnesses confirmed that identity numbers of GC Notes tallied with numbers indicated in the Handing Over Memo. The complainant and shadow witness namely Sh. Ashok Kumar Gupta confirmed that accused Jai Bhagwan had demanded and accepted illegal gratification of Rs. 10,000/- from the complainant using both hands, which he had kept in his left side pant pocket. Accused Jai Bhagwan also admitted that he had demanded and accepted the bribe amount on 8 of 75 9 behalf of accused A.K. Dixit as per his directions.
9. Investigation has disclosed that immediately thereafter, the hand wash of both hands and left side pant pocket of accused Jai Bhagwan was done separately by dipping his hands / pant in fresh colourless solution of sodium carbonate and the reaction was positive. Subsequent report of CFSL on the sealed solution of hand wash and pant wash also confirmed that the tainted money had been handled by accused Jai Bhagwan.
10. Investigation has disclosed that digital voice recorder which had been given to the complainant was taken back from him at the spot and the conversation recorded therein was heard in the presence of independent witnesses which confirmed the version of the shadow witness and complainant that accused Jai Bhagwan had demanded and accepted illegal gratification of Rs.10,000/- from the complainant. The said recorded conversation was transferred to another audio cassette and this cassette was duly sealed in the presence of 9 of 75 10 independent witnesses. A Recovery Memo containing the details of the post trap proceedings was prepared to this effect.
11. Investigation has also revealed that accused Jai Bhagwan Gupta was working for Division - 29 w.e.f. October
- November 1997 and was posted in Ward No. C-133 since July 2002. The complainant was executing the work under his jurisdiction. The complainant Sh. Ashok Hooda, Prop. Of M/s MH Construction Co. was awarded the work of improvement of the service road on New Rohtak Road from Gali no.3 to Gali no.4 Industrial Area, Anand Parbat, vide work order no. 185 dated 07.12.04. The work was completed by the complainant and details of the measurement of the completed work was recorded by accused Jai Bhagwan in MB No. 1972. A completion report and test check statement was prepared in this regard under signatures of Sh. A.K. Sinha, AE and J.B. Gupta, JE but it was not signed by A.K. Dixit, EE as test check was pending with him.
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12. The investigation further disclosed that on 28.03.2005 in MB no. 1972 at page no. 94 - 97, Sh. Jai Bhagwan, JE had recorded the measurement of works in A/c of M/s Kuldeep Singh and at page 98-100 he had recorded the measurement of works in A/c of M/s MH Constructions. Both these works were test checked by Sh. A.K. Sinha, AE and thereafter both were put up to Sh. A.K. Dixit on 30.03.2005, after necessary processing by Accounts Clerk, but the test check in respect of works of M/s MH Constructions was not done by him. This MB no. 1972 was recovered from the office room of accused A.K. Dixit when it was sent to him for passing / signing the bill in respect of M/s Kuldeep Singh, whose work's test check had already been cleared by Sh. A.K. Dixit.
13. During investigation, both the accused persons namely Jai Bhagwan and AK Dixit voluntarily gave their specimen voices for comparison with questioned voice in the two audio cassettes presented by the complainant. These 11 of 75 12 were sent for expert opinion to CFSL. It has been opined by CFSL vide its report no. CFSL-2005/P-0226 dated 16.09.2005 that the recorded conversation contains the voice of accused persons.
14. Investigation further disclosed that when accused Jai Bhagwan went inside the office room of accused A.K. Dixit, no witness was present. No evidence has come on record as to what transpired between Sh. Jai Bhagwan and Sh. A.K. Dixit subsequent to the transaction of acceptance of bribe by Sh. Jai Bhagwan. Accused A.K. Dixit denied at the spot that he had directed accused Jai Bhagwan to demand bribe on his behalf. However, the cassette which was presented by the complainant disclosed the demand of bribe made by accused A.K. Dixit. This cassette was recorded by the complainant on his own and it could not be established that these cassettes were free of tampering. Thus except for statement of the complainant and conversation recorded by the complainant in an audio cassette, no otherwise evidence has emerged in 12 of 75 13 respect of accused A.K. Dixit sufficient evidence is not available to make out a criminal case against accused A.K. Dixit, EE. As such his name is mentioned in column no. 12 of this report. However, RDA proceedings for major penalty have been recommended against accused A.K. Dixit for the gross misconduct on his part.
15. The aforesaid facts and circumstances establish that the accused Jai Bhagwan, JE, MCD Division-XXIX, KB Zone, Delhi has demanded and accepted a bribe of Rs.10,000/- from the complainant Sh. Ashok Hooda as illegal gratification to ensure passing of his pending bills for payment and thereby abused his official position as public servant. Accused Jai Bhagwan, Junior Engineer, MCD Division - XXIX, KB Zone, Delhi has thus committed offences punishable U/s 7 & 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988.
16. The sanction for prosecution of accused Jai Bhagwan, JE, MCD Division-XXIX, KB Zone, Delhi has been accorded by the Competent Authority U/s 19 of Prevention of 13 of 75 14 Corruption Act, 1988 and pursuant thereto, the charge sheet was filed in the Court on 17.02.2006.
17. On appearance of the accused Jai Bhagwan Gupta, copies of the charge sheet and documents were supplied to him and the case was fixed for arguments on the point of charge.
18. After hearing the arguments on charge, Ld. Predecessor of this Court, vide order dated 06.06.2006 passed a detailed order giving directions to the CBI for conducting further investigation in this matter and to submit a report.
19. In compliance of the order dated 06.06.2006 of the Ld. Predecessor of this Court, the CBI has filed the Supplementary Charge Sheet U/s 173 (8) Cr. P. C. in the Court on 26.03.2009. During the course of further investigation, both the cassettes were sent to CFSL, Chandigarh to examine whether the recording on both the audio cassettes marked Ex. 1 and Ex. 2 are free from 14 of 75 15 alteration or otherwise. CFSL vide its Report No. CFSL/1213/06/PHY-85/06/486 dated 16.03.2007, it has been clarified that the characteristics of waveform of start-stop activities in the recording are of similar nature in audio cassette marked Ex.2 i.e. Q-2. The above discussion has clearly established that accused A.K. Dixit and co-accused Jai Bhagwan Gupta entered into a criminal conspiracy to extort illegal gratification from the complainant and cause wrongful pecuniary gain to themselves and in pursuance to the said criminal conspiracy, accused A.K. Dixit, Executive Engineer directed the complainant to hand over the bribe of his share to the co-accused Jai Bhagwan, JE, MCD and in pursuance to the said conspiracy co-accused Jai Bhagwan Gupta demanded illegal gratification from the complainant for himself and for accused A.K. Dixit and accepted bribe of Rs.10,000/- from the complainant.
20. The above facts disclosed commission of offences punishable U/s 120 B, 109 IPC and section 7 & 13 (1) (d) r/w 15 of 75 16 13 (2) of the Prevention of Corruption Act, 1988.
21. The sanction for prosecution of accused A. K. Dixit, Executive Engineer, MCD, Division-XXIX, KB Zone, Delhi has been accorded by the Competent Authority U/s 19 of Prevention of Corruption Act, 1988 and pursuant thereto, the supplementary charge sheet against accused A.K. Dixit was filed in the Court on 26.03.2009.
22. On appearance of the accused A.K. Dixit, copies of the charge sheet and documents were supplied to him and the case was fixed for arguments on the point of charge.
23. After hearing the arguments, vide order dated 03.12.2011 charges were framed against accused Jai Bhagwan Gupta and accused A.K. Dixit under Section 120B IPC r/w section 7 and 13 (2) read with Section 13 (1) (d) of the PC Act. Substantive charges under Section 7 and 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 was also framed against accused Jai Bhagwan Gupta. Substantive Charges under Section 7 and 13(2) read with 16 of 75 17 Section 13 (1) (d) of Prevention of Corruption Act, 1988 was also framed against accused A. K. Dixit. Accused Jai Bhagwan and accused A.K. Dixit pleaded not guilty and claimed trial, hence this trial.
24. In support of its case, the CBI examined the following 16 witnesses in all :-
PW-1:- Sh. Rajesh Kumar Jain, UDC, Office of the Executive Engineer, Maintenance-II, Karol Bagh Zone, MCD, New Delhi has deposed that accused A.K. Dixit was working as Executive Engineer in his division since 2002. He has identified his signatures on the Seizure Memo Ex. PW-1/A vide which the tender file bearing no. 31/15 and work order no.185 dated 07.12.2004 was seized from him by the CBI. He has proved the Notice Inviting Tender bearing no.31 dated 03.10.2003 Ex. PW-1/A-1 and the Comparative Statement of the contractors Ex. PW-1/C. He has identified the signature of accused no.2 A.K. Dixit and accused no.1 Jai Bhagwan Gupta on the table of justification of rates prepared by 17 of 75 18 Executive Engineer (Planning) Ex. PW-1/D and on the scrutiny proforma for said negotiations Ex.
PW-1/E. He has identified the signatures of accused A.K. Dixit, XEN on the negotiation proforma Ex. PW-1/F, on the forwarding letter of Executive Engineer, on the approval note Ex. PW-1/H, on the work order Ex. PW-1/J, the map of the work site Ex. PW-1/K. He has further deposed that vide Seizure Memo Ex. PW-1/A he has also provided the account file bearing no. 185/EE-XXIX/TC/KBZ/04-05 dated 07.12.2004 (D-6) Ex. PW-1/L to the CBI. He has also identified the signature of accused no.1 Jai Bhagwan Gupta on the Measurement Book bearing No. 1972 (D-7) Ex. PW-1/M. He has also identified the signatures of accused no.2 A.K. Dixit on the agreement between Municipal Corporation and M.H. Construction Co., signed on 07.12.2004, bearing no. 185 (D-6), Ex. PW-1/N. PW-2:- Sh. Ashok Kumar Hooda, S/o Sh. M.C. Hooda, is the complainant of the present case.
18 of 75 19 He has proved the Complaint dated 04.04.05 Ex. PW-2/A, FIR Ex. PW-2/B, Handing Over Memo Ex. PW-2/C, Recovery Memo Ex. PW-2/D, Transcription of telephonic talk and spot trap conversation between the complainant and accused no. 1 Jai Bhagwan Gupta Ex. PW-2/E, Voice Identification cum Transcription Memo Ex. PW-2/F (colly.), Tendered Proforma Ex. PW-2/G and Sample Forms Ex. PW-2/H (colly.). He has also identified the signatures of accused Jai Bhagwan Gupta on page no. 21 and 22, Ex.PW-2/J (colly.) of the file Ex. PW1/L. He has also proved the Labour Proforma Ex. PW-2/K (colly.), Page no.3 Ex.PW-2/L of Cement Record Copy, Sample Proforma Ex. PW-2/M at page no. 13 of the file Ex. PW-1/L, Completion Certificate Ex. PW-2/N and Bill Form Ex. PW-2/P. He has also identified the signatures of accused Ajay Kumar Dixit on the Joining Report Ex. PW-2/Q and on the Office Order dated 11.07.2002 bearing no. 262/EE(XXIX)/1032 Ex. PW-2/R (objected to). He has also identified the signatures of accused Jai Bhagwan Gupta and 19 of 75 20 Sh. Sinha, AE on page 98 to 99 Ex. PW-2/S (colly.) of the Measurement Book no. 1972. He has also proved the Rough Site Plan Ex. PW-2/T, Rough handwritten transcription (D-12) Ex. PW-2/U. PW-3:- Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Service Ltd., C-45, Okhla Phase-II, New Delhi has identified the signatures of Sh. Gulshan Arora, the then Nodal Officer of Vodafone Mobile Service Ltd., (Earlier known as Hutchison Essar Mobile Phone Services) on the receipt Memo dated 14.12.2005, on the letter dated 14.12.2005 Ex. PW-3/B, on the certified computer generated copy of the call details in respect of the Mobile No. 9811100742 for the period from 01.04.2005 to 15.04.2005 Ex. PW-3/C. He has also identified the Certificate U/s 65-B (4) (c) of the Evidence Act alongwith the computer generated copy of the Certificate Ex. PW-3/D. He has also identified the computer generated CDR Ex. PW-3/E, Customer Application Form (CAF) in respect of Mobile No. 20 of 75 21 9811100742 in the name of complainant Ashok Kumar Hooda, Ex. PW-3/F. PW-4:- Sh. Rahul Sholapurkar S/o Late Sh. G.R. Sholapurkar, the then Executive Officer with Reliance Infocom has identified his signature on the letter dated 13.09.2005 Ex. PW-4/1 vide which he has sent the certified copy of customer application form Ex. PW-4/2 with respect to mobile no.9350686328 (earlier no. 9350142551) and informed the detail of the customer alongwith his residential address i.e. J.B. Gupta, R/o D-38, Sector-9, Vinobha Kunj, Rohini, Delhi. He has also identified his signatures on the certified copies of letter dated 27.10.2004 and 03.12.2004 from MCD, Engineering Department Ex. PW-4/3 and Ex. PW-4/4. (objected to.). He has also identified his signature on the letter dated 03.10.2005 Ex. PW-4/5, vide which he had sent the call details Ex. PW-4/6 pertaining to Reliance Mobile Phone no. 9350686328 for the period from 01.04.2005 to 04.04.2005 to the CBI.
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PW-5:- Sh. Ashok Kumar, Former
Commissioner, MCD was the Sanctioning
Authority. He has identified his signatures on Sanction Order Ex. PW-5/A for prosecution of accused Jai Bhagwan Gupta.
PW-6:- Dr. Rajinder Singh, Principal Scientific Officer and HOD Physics, CFSL, New Delhi, has identified his signatures on report Ex. PW-6/A. PW-7:- Sh. K.S. Mehra, the then Commissioner, MCD was the Sanctioning Authority. He has identified his signatures on Sanction Order Ex. PW-7/A for prosecution of accused A.K. Dixit. PW-8:- Sh. Ashok Kumar Gupta, Income Tax Officer, CIT-8, New Delhi is the independent witness of the present case. He has identified his signatures on the yellow coloured envelopes Ex. PW-8/A, Ex. PW-8/B, Ex. PW-8/E, Ex. PW-8/F and Ex. PW-8/K as well as on brown coloured envelopes Ex. PW-8/C, Ex. PW-8/G and Ex. PW-8/J. He has also identified his signatures on 22 of 75 23 the cloth pullandas Ex. PW-8/D and Ex. PW-8/H. He has also identified his signatures on the bottles Ex. P-22, Ex. P-21 and Ex. P-23. He has also identified his signatures on the inlay cards Ex. P-24 and Ex. P-25. He has also identified his signatures on the Handing Over Memo Ex. PW-2/C and on the Recovery Memo Ex. PW-2/D, on the rough site plan Ex. PW-2/T and on the Transcription of telephonic and spot trap conversation between complainant Ashok Kumar and accused Jai Bhagwan Gupta Ex. PW-2/U. PW-9:- Sh. Ramadhar Mahto S/o Sh. Ram Nath Mahto, the then LDC, Income Tax Department, Circle - 13 (1), C.R. Building, New Delhi is the independent witness of the present case. He has been cross-examined by the Ld. PP on some material points as he was resiling from his statement recorded U/s 161 Cr. P.C. He has identified his signatures on the Handing Over Memo Ex. PW-2/C, on the Recovery Memo Ex. PW-2/D and on Ex. P-21, P-22 and P-23. He has identified his signatures on the envelope Ex.
23 of 75 24 PW-9/A on the cloth wrapper Ex. PW-9/B (objected to), on the cloth wrapper Ex. PW-9/C (objected to) and on the cloth wrapper Ex. PW-9/D (objected to). He has also identified his signatures on the cloth wrapper Ex. P-24 and on the cassette Ex. P-25. He has also identified his signatures on the rough site plan Ex. PW-2/T and on the transcription of telephonic conversation and spot trap conversation between complainant Ashok Kumar and accused Jai Bhagwan Ex. PW-2/U. He has also identified his signatures on the Specimen Voice Recording Memo of accused Jai Bhagwan Gupta Ex. PW-9/G, on the voice identification cum Transcription Memo Ex. PW-2/F (colly.), on the Arrest cum Personal Search Memo of accused Jai Bhagwan Gupta Ex. PW-9/H, on the Arrest cum Personal Search Memo of accused A.K. Dixit Ex. PW-9/J. PW-10:- Sh. Ajay Kumar @ A.K. Sinha, Assistant Engineer, East Delhi Municipal Corporation, C-12, Yamuna Vihar, Delhi has deposed that he was working as Assistant 24 of 75 25 Engineer in MCD Division No. XXIX, Karol Bagh Delhi w.e.f. Year 2004 to 2005. He has identified the signature of accused A.K. Dixit, EE on the letter Ex. PW-10/A. He has also identified the response received from the firm M/s Ved Pal Bhatia Ex. PW-10/B, response received from the firm M/s Malhotra Constructions Co. Ex. PW-10/C, response received from the firm M/s M.H. Constructions Co. Ex. PW-10/D. He has also identified the signature of accused A.K. Dixit on the agreement Ex. PW-10/E made between MCD and M/s M.H. Constructions Co. He has also identified his signatures and the signature of accused Jai Bhagwan Gupta, JE on the test report Ex. PW-10/F and on the Test Check Statement Ex. PW-10/G. He has also identified his signature on the Bills Summary Worksheet Ex. PW-10/H. PW-11:- Dr. C. P. Singh, Assistant Director (Physics), FSL, Rohini, Delhi has proved his examination report dated 16.03.2007 Ex. PW-11/A. He has also identified the signature of 25 of 75 26 Dr. R.S. Verma on the letter Ex. PW-11/B. He has also identified his signature as well as signature of Director, FSL on the letter dated 26.09.2008 Ex. PW-11/C. PW-12:- Sh. P. Nath S/o Sh. Maheshwar Nath, retired SSO-II, (Senior Scientific Officer, Grade-II, Chemistry) cum Assistant Chemical Examiner to the Government of India, CFSL, New Delhi has identified the CFSL report Ex. PW-12/A. PW-13:- Sh. Vinod Kumar Pandey, Inspector, Licensing Branch, Delhi Police, Defence Colony, New Delhi has conducted the part investigation in the present case and recorded the statement of the complainant Ashok Kumar Hooda on 21.08.2008.
PW-14:- Sh. Ram Chander Garvan, DSP, CBI, Special Crime - III, Delhi is the Trap Laying Officer of the present case. He has identified the signatures of Sh. Alok Ranjan, SP, CBI/ACB on the complaint Ex. PW-2/A and FIR Ex. PW-2/B. 26 of 75 27 He has also deposed that cassettes Q-1 Ex. P-3, Q-2 Ex. P-4, Inlay Cards of the cassettes Ex. P-3, Ex. P-4 and cloth wrappers Ex. PW-8/D, Ex. PW-8/H, Ex. P-22, Ex. PW-9/C, Ex. P-21, Ex. PW-9/D, Ex. P-23, Ex. PW-9/B were got signed by both the witnesses. He has also identified his signatures on the Handing Over Memo Ex. PW-2/C, on the rough site plan Ex. PW-2/T, on the Arrest cum Personal Search Memo of accused Jai Bhagwan Gupta Ex. PW-9/H, on the Arrest cum Personal Search Memo of accused Jai Bhagwan Gupta Ex. PW-9/J, on the Recovery Memo Ex. PW-2/D, on the Transcription of Telephonic and Spot Trap Conversation between complainant Ashok Kumar and accused Jai Bhagwan Gupta Ex. PW-2/U, on the Specimen Voice Recording Memo Ex. PW-9/G, on the Specimen Voice Recording Memo Ex. PW-9/F. He has further deposed that the office search of accused A.K. Dixit was conducted by him during which the relevant Measurement Book containing the details of relevant work of complainant Ashok Kumar Hooda was found and seized. He has also 27 of 75 28 identified the cassettes marked S-1 Ex. PW-14/X and S-2 Ex. PW-14/Y and the signatures of independent witnesses Sh. Ashok Kumar Gupta and Sh. Ramadhar Mahto on the said cassettes Ex. PW-14/X and Ex. PW-14/Y, on their inlay cards as well as on the cloth pullandas Ex. PW-14/X-1 and Ex. PW-14/Y-1. He has also identified the signatures of Sh. Alok Ranjan, the then SP, CBI/ACB, New Delhi on the letters Ex. PW-14/A-1 and Ex. PW-14/A-2 as well as on the FIR Ex. PW-2/B. PW-15:- Sh. Rajesh Chahal, DSP, CBI, ACB, New Delhi has deposed that further investigation of this case with regard to the role of accused no. 2 A.K. Dixit, the then Executive Engineer, MCD was transferred to him by the then SP Sh. Sumit Sharan on the repatriation of Inspector V.K. Pandey. He has filed the Supplementary Charge Sheet in this case alongwith the sanction of prosecution Ex. PW-7/A of accused A.K. Dixit. He has also identified the signatures of Sh. S.K. Palsania, the then SP, CBI/ACB, New Delhi on 28 of 75 29 Ex.PW-15/A, letter Ex. PW-15/B. He has identified the signatures of IO/Inspector Brajesh Kumar on the Receipt Memo Ex. PW-15/C. He has identified the bills Ex. PW-15/C-1 and Ex. PW-15/C-2.
PW-16:- Inspector Brajesh Kumar, CBI, ACB, Lucknow, U.P. is the Investigating Officer of the present case.
25. After conclusion of the prosecution evidence, statement of the accused Jai Bhagwan Gupta and accused A.K. Dixit under Section 313 Cr. P.C were recorded.
26. Accused Jai Bhagwan Gupta has denied his involvement in commission of offence and has stated that he has been falsely implicated in this case by the complainant. He has further stated that the complainant Ashok Kumar Hooda had been carrying out the projects of the MCD but lately the complainant was not awarded contract by the MCD. Hence, the complainant was enemical to him as he has not helped him (the complainant) to get the project of MCD. He 29 of 75 30 has further stated that on the date in question, the complainant never came into his office room as there is no JE Room in the MCD Office, Rajender Nagar and the complainant met him in the compound and the CBI Officials had pounced upon him at the instance of the complainant. He has further stated that on the day of trap, the complainant tried to shove something into his pocket forcefully with a clinched fist in the melee and he had to protest and push the hands of the complainant away before they could be thrust into the pocket of his pant. He has further stated that he has never demanded or accepted any amount from the complainant who has deposed out of vengeance.
27. Accused A.K. Dixit has also denied his involvement in commission of offence and has stated that he has also been falsely implicated in this case by the complainant Ashok Kumar Hooda because he has issued Show Cause Notice against him (complainant Ashok Kumar Hooda) for initiating disciplinary action. He has further stated that he raised legal objections regarding the manner of execution and completion 30 of 75 31 of work in compliance of work order which were not according to the CPWD Manual.
28. Accused Jai Bhagwan Gupta and accused A.K. Dixit have not led defence evidence. Therefore, the case was fixed for final arguments.
29. I have heard final arguments of Sh. J. S. Wadia, Learned PP for CBI and Sh. Sunil Ahuja and Sh. J. K. Sharma, Advocates, Ld. Counsel for accused no. 1 Jai Bhagwan Gupta and Sh. Mohd. Nasir and Sh.Mohd. Saleem, Advocates, Ld. Counsel for accused No. 2 A.K. Dixit and perused the record.
30. Ld. PP for the CBI has argued that the prosecution has proved its case that accused Jai Bhagwan Gupta, JE and accused A. K. Dixit, EE being public servants while posted at MCD, Division No. XXIX, Karol Bagh Zone, Delhi entered into a criminal conspiracy during the period from 02.04.2005 to 04.04.2005 and demanded illegal gratification of Rs.22/23,000 from Ashok Kumar Hooda, Proprietor of M/s. M. H. 31 of 75 32 Construction company for test checking and for passing the pending bill for payment in respect of completed work awarded for improvement of CC Road on New Rohtak Road from Gali No. 3 to Gali No. 4 in Anand Parbat, Delhi and in pursuance of said conspiracy, accused Jai Bhagwan Gupta accepted Rs.10,000/- from the complainant for himself and on behalf of accused A. K. Dixit. It has been further argued that Prosecution has proved its case beyond reasonable doubts against both the accused persons, hence they may be convicted. Ld. PP has placed reliance on the following citations :-
1. STATE OF MAHARASHTRA V. NARSINGRAO GANGARAM PIMPLE, 1984 CRI.L.J (SC) 4.
2. KISHAN CHAND MANGAL V. STATE OF RAJASTHAN, 1983 CRI. L. J. 1 (SC) (1).
3. STATE OF UP V. M. K. ANTHONY, AIR 1985 SUPREME COURT 48 (1).
4. RUP SINGH V. THE STATE OF PUNJAB, AIR 1991 SUPREME COURT 1125.
32 of 75 33
5. V. KANAN VS. STATE, 2009 CCR 98 (SC).
31. It has been argued by Sh. Sunil Ahuja and Sh. J. K. Sharma, Advocates, Ld. Counsel for the accused no.1 Jai Bhagwan Gupta that he has been falsely implicated in the present case. Ld. Defence counsel has further argued that the complainant Ashok Kumar Hooda had been carrying out the projects of the MCD but lately the complainant was not awarded contract by the MCD. Hence, the complainant was enemical to him as he has not helped him (the complainant) to get the project of MCD. He has further argued that the Prosecution has failed to bring any iota of evidence to show the criminal conspiracy between the accused persons. Ld. Defence Counsel has also argued that there is no demand of bribe by accused no.1 from the complainant and there is no case of acceptance of bribe money by accused no.1 either for himself or on behalf of accused no.2. It has been further argued by the Ld. Defence Counsel that no recovery has been effected from the accused no.1 Jai Bhagwan Gupta. He has 33 of 75 34 placed reliance on the following citations :-
1. PANALAL DAMODAR RATHI V. STATE OF MAHARASHTRA, AIR 1979 SUPREME COURT 1191.
2. PUNJABRAO V. STATE OF MAHARASHTRA, AIR 2002 SUPREME COURT 486 .
3. M.K. HARSHAN, V. STATE OF KERALA, AIR 1995 SUPREME COURT 2178.
4. PALCHUR SANKARAREDDI & ORS. V. PALCUR MAHALAKSHMAMA & ORS.
1922 PRIVY COUNCIL, 315.
5. NEMAI ADAK AND OTHERS V. THE STATE, AIR 1965 CALCUTTA 89.
6. STATE OF UP. V. JAGDISH SINGH MALHOTRA, (2001) 10 SUPREME COURT CASES 215.
7. JAVED MASOOD AND ANR. V. STATE OF RAJASTHAN, 2010 CRI. L. J. 2020.
8. OM PARKASH V. STATE 1998 (4) CRIMES 227.
9. NIRANJAN SINGH V. CBI, 2013 (3) JCC 1870.
10. BABU LAL BAJPAI V. STATE OF UP, AIR 1994 SUPREME COURT 1538.
34 of 75 35
11. KANBI NANJI VIRJI AND OTHERS V. STATE OF GUJARAT, AIR 1970 SUPREME COURT 219.
32. It has been argued by Sh. Mohd. Nasir and Sh. Mohd. Saleem, Advocates, Ld. Counsel for accused no. 2 A. K. Dixit that accused no.2 has been falsely implicated in the present case because accused no.2 has issued Show Cause Notice against complainant Ashok Kumar Hooda for initiating disciplinary action. Ld. Defence counsel has further argued that accused no. 2 had raised legal objections regarding the manner of execution and completion of work in compliance of work order which were not according to the CPWD Manual. He has further argued that the Prosecution has failed to bring any iota of evidence to show the criminal conspiracy between the accused persons. Ld. Defence Counsel has also argued that there is no direct demand of bribe by accused no.2 from the complainant and there is no case of acceptance of bribe money by accused no.1 on his behalf. He placed reliance on 35 of 75 36 the following citation :-
1. G. S. MATHARAOO V. CBI, 2012 AD (CRI.) (DHC) 564.
PUBLIC SERVANT & SANCTION
33. The first point for consideration is as to whether the proper sanction for prosecution was accorded before initiation of prosecution against the accused persons or not as required under Section 19 (1) of Prevention of Corruption Act, 1988, which is mandatory and reads as under:-
"19. Previous Sanction necessary for Prosecution:-
(1) No Court shall take cognizance of an offence punishable under Section 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -
(a) in the case of a person who is employed in connection with the affairs of the union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that 36 of 75 37 Government;
(c) in the case of any other person, of the authority competent to remove him from his Office."
34. The undisputed position is that both the accused persons i.e. accused no. 1 Jai Bhagwan Gupta was working as Junior Engineer and accused no. 2 A. K. Dixit was working as Executive Engineer and were posted at MCD, Division No. XXIX, Karol Bagh Zone, Delhi and both the accused persons did not dispute this fact in their statement recorded under Section 313 Cr. P. C. Therefore, it stands proved that both the accused persons were public servants within the meaning of Section 19 of the PC Act, 1988.
SANCTION FOR PROSECUTION AGAINST ACCUSED NO.1 JAI BHAGWAN GUPTA.
35. The evidence on record shows that the Sanction Order was accorded for launching Prosecution under Prevention of Corruption Act against accused no.1 Jai Bhagwan Gupta by PW-5 Sh. Ashok Kumar, Former 37 of 75 38 Commissioner, MCD (retired), Delhi, who deposed that he joined MCD in November 2005 or 2006 as Commissioner, MCD. He has further deposed that his nature of duty involved Municipal Administration of Delhi. He has further deposed that he gave the dictation of the Sanction Order Ex. PW-5/A and gone through the same before signing it. He has also deposed that the Sanction Order was given by him on the basis of records made available to him by the CBI. He has identified his signatures on Sanction Oder Ex. PW-5/A.
36. On the other hand, Ld. Defence counsel has argued that the Sanction order is illegal and invalid. It has been further argued by the Ld. Defence Counsel that the Sanction Order has been passed by the Sanctioning Authority in a mechanical manner and without application of mind.
37. I have gone through the Sanction Order Ex. PW-5/A. From the bare reading of Ex. PW-5/A, it is clear that PW-5 Sh. Ashok Kumar after carefully examining the material placed before him i.e complaint, FIR, Statements of witnesses and 38 of 75 39 documents collected during the investigation in respect of the said allegations and circumstances of the case, consider that accused Jai Bhagwan Gupta, be prosecuted in the court of law for the said offences. Therefore, consideration by the Competent Authority of all these records implies application of mind. In my view the order fulfills the requisites of a valid sanction. It cannot be said that sanction is granted without application of mind by the authority.
38. Accused Jai Bhagwan Gupta has failed to extract anything in his favour in the cross examination of PW-5.
39. In view of the above discussion, this point is decided in favour of the CBI and against the accused no. 1 Jai Bhagwan Gupta and it is held that the prosecution obtained valid sanction order Ex. PW-5/A for prosecution from the competent authority for trial of the accused no.1 Jai Bhagwan Gupta.
SANCTION FOR PROSECUTION AGAINST ACCUSED NO.2 A. K. DIXIT.
39 of 75 40
40. The evidence on record shows that the Sanction Order was accorded for launching Prosecution under Prevention of Corruption Act against accused no.2 A. K. Dixit by PW-7 Sh. K. S. Mehra, who deposed that he was posted as Commissioner, Municipal Corporation of Delhi w.e.f. 20.02.2008 to 02.05.2012. He has further deposed that he was competent to remove accused no. 2 A. K. Dixit, Executive Engineer, MCD, Division No. XXIX, K. B. Zone, New Delhi. PW-7 after seeing the Sanction Order for prosecution of the accused A. K. Dixit, has deposed that he had granted Sanction for prosecution of accused no.2 A. K. Dixit under Section 19 (1) (c) of PC Act, 1988 and Under Section 197 of Cr. P. C. He has further deposed that before granting sanction, he had received investigation report consisting of FIR, Complaint, Statements of Witnesses etc and he has carefully analysed the said report and statements and documents and then he arrived at conclusion that the accused no. 2 A. K. Dixit should be prosecuted, accordingly, he had 40 of 75 41 granted the sanction for prosecution. He has identified his signatures on Sanction Oder Ex. PW-7/A.
41. On the other hand, Ld. Defence counsel has argued that the Sanction order is illegal and invalid and the Commissioner of MCD was not Competent Authority to remove Executive Engineers since he is class 'A' employee. It has been further argued by the Ld. Defence Counsel that the corporation is Competent Authority to grant sanction under Section 19 of the PC Act. Ld. Defence counsel has placed reliance on the Judgment titled as G. S. Matharaoo Vs. CBI, 2012 I AD (CRI.) (DHC) 564.
42. I have gone through the Sanction Order Ex. PW-7/A. From the bare reading of Ex. PW-7/A, it is clear that the same has been passed by PW-7 Sh. K. S. Mehra, the then Commissioner, MCD. It is well settled that the issue of competency of the Sanctioning Authority goes to the root of the matter and applying the above said principle of law, it follows that the Sanction for prosecution of accused no. 2 A. 41 of 75 42 K. Dixit under Section 19 of PC Act, 1988 could only be accorded by the Municipal Corporation of Delhi and the Commissioner, MCD was incompetent to accord the sanction. The Sanction Order is not proper and the same is therefore invalid.
43. In view of the above discussion, this point is decided in favour of accused no.2 A. K. Dixit and against the CBI and it is held that the prosecution has not obtained valid sanction for prosecution for trial of accused no. 2 A. K. Dixit. CONSPIRACY, GRATIFICATION & CRIMINAL MISCONDUCT
44. Before adverting to the discussion of this case, it would be useful to have a look upon the relevant provisions of law. Charges against both the accused persons i.e. accused no.1 Jai Bhagwan Gupta and accused no.2 A. K. Dixit were framed for the trial of offences punishable under Section 120B IPC r/w section 7 and 13 (2) read with Section 13 (1) (d) of the PC Act. Substantive charges under Section 7 and 13 (2) read 42 of 75 43 with Section 13 (1) (d) of Prevention of Corruption Act, 1988 was also framed against accused Jai Bhagwan Gupta. Substantive Charges under Section 7 and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 was also framed against accused A. K. Dixit, which are reproduced as under:-
Section 120-A defines "Criminal Conspiracy", which reads as under:-
"120-A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done -
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
43 of 75 44
45. As per definition of criminal conspiracy U/s 120-A of Indian Penal Code when two or more persons agree to do, or cause to be done, (a) an illegal act; or (b) an act, which is not illegal by illegal means, such agreement is designated a criminal conspiracy. The essence of offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration. The gist of offence of conspiracy is an agreement to break the law. In considering the question of criminal conspiracy, it is not always possible to give affirmative evidence about the date of formation of conspiracy, about the persons who took part in the formation of conspiracy, about the object which the conspirators set before themselves as the object of 44 of 75 45 conspiracy and about the manner in which the object of conspiracy was to be carried out. All this necessarily a matter of inference. The essence of criminal conspiracy is an agreement to do an illegal act. Such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. It is not necessary that there should be express proof of the agreement, far from the acts and conduct of the parties, the agreement can be inferred.
46. On the point of criminal conspiracy, it has been held by the Hon'ble Supreme Court in Shiv Narayan Laxmi Narayan Joshi Vs State of Maharashtra, AIR 1980 SC 439, that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from inference drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design.
47. The agreement to conspire may be inferred from circumstances, which raised a presumption of a concerted 45 of 75 46 plan to carry out an unlawful design. A conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence.
48. In Kehar Singh and Others Vs State, AIR 1988 SC 1883, it is observed:
"Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on the evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon the circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must require whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. It is however, essential that the offence of conspiracy required 46 of 75 47 some kind of physical manifestation or agreement the express agreement however need not be proved. Nor mutual meetings of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
"7. Public Servant taking gratification other then legal remuneration in respect of an official act. -
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification, whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government Company 47 of 75 48 referred to in Clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less then 6 months but which may extend to 5 years and shall also be liable to fine."
"13. Criminal Misconduct by a Public Servant.
(1) A Public servant is said to commit the offence of criminal misconduct;
(a) to (c) ..........
(d) if he, -
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or ***** 48 of 75 49 (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less then one year but which may extend to 7 years and shall also be liable to fine."
49. On bare reading of the above provisions, it is clear that in order to bring home the charge under Section 120-B of IPC, the prosecution is required to prove that both the accused persons in criminal conspiracy have demanded or accepted the bribe money from the complainant. A conspiracy need not be established by proof which actually brings the party together, but may be shown like any other fact, by circumstantial evidence.
50. It is also clear that in order to bring home the charge under Section 7 of the PC Act, the Prosecution is required to prove that the accused persons accepted or obtained or attempted to obtain illegal gratification from any person and in
49 of 75 50 order to establish the guilt of the accused under Section 13(2) read with Section 13 (1) (d) of the PC Act, 1988 also, the Prosecution is required to establish that the accused by corrupt or illegal means or by using his official position, obtained advantage or a valuable thing for himself or for any other person. Thus, it is obvious that two essential components to be proved for bringing home the charge under Section 7 & Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988, are the demand and acceptance of the bribe.
51. Now the crucial question to be determined is whether or not the Prosecution has been able to establish either the demand or acceptance of illegal gratification by the accused persons. The material witnesses to prove demand and acceptance are PW-2 Complainant Ashok Kumar Hooda and PW-8 Shadow witness Ashok Kumar Gupta.
52. The complainant Ashok Kumar Hooda appearing before the court has been examined as PW-2, who has deposed that he was a contractor undertaking work in the 50 of 75 51 Municipal Corporation of Delhi during the period 1997 to 2005 and he was the Proprietor of M/s. M. H. Construction Company. He has further deposed that his firm used to take government contracts and civil works of MCD and his firm undertook a contract of construction of the gali in Anand Parbat, Karol Bagh Zone, Delhi. He has further deposed that he came to know that there was a work tender of the construction from the notice board of the MCD, Karol Bagh Zone, Delhi. He filled the rates and his tender was accepted. Thereafter, an Agreement Ex. PW-1/N was signed between Sh. A. K. Dixit, who was the Executive Engineer, Karol Bagh Zone and himself.
53. PW-2 has also deposed that the work contract was to be completed in the period of 3-4 months and after the completion of the said contract, he met Jai Bhagwan Gupta, Junior Engineer for preparing the bill for his work contract. Accused Jai Bhagwan Gupta told him (PW-2) that he shall prepare the bill but for that he demanded Rs.22,000-23,000.
51 of 75 52 On this, PW-2 the complainant told him that he shall pay the demanded amount once the bills are passed and cheque is delivered to him but Jai Bhagwan Gupta told him that first of all he has to pay the demanded amount as he has to pay the amount to A. K. Dixit, EE, who never passed the bill without payment of demanded amount. He requested accused persons 2-3 times but they refused.
54. PW-2 Ashok Kumar Hooda, the complainant has further deposed that thereafter he went to CBI office and met with one CBI Official Mr. Garvan and told him about the accused persons and the demand which was raised by them. Mr. Garvan asked him to write a complaint. He wrote down the complaint dated 04.04.2005 Ex. PW-2/A in his own handwriting addressing to SP, CBI, Anti Corruption Branch, Delhi.
55. PW-2 has further deposed that thereafter, CBI officials gave him a recording instrument and asked him to record conversation as to who is asking him the money and 52 of 75 53 for what. After that, he went to meet accused Jai Bhagwan Gupta, JE, alongwith that recording instrument. He met accused Jai Bhagwan Gupta and inquired about his bill, who then demanded Rs.22,000-23,000 from him.
56. PW-2 has deposed that he inquired from Jai Bhagwan Gupta that how the said demanded amount is arrived at. On this, accused Jai Bhagwan Gupta told him that it is to be distributed between Mr. Sinha, AE and accused A. K. Dixit, EE. Thereafter, he went to Mr. Sinha, AE and inquired from him regarding the demand for passing the bill for payment of contract, which he had performed, who denied that he does not want any money.
57. PW-2 has also deposed before the court that thereafter, he went to the office of accused A. K. Dixit, EE and inquired from him that accused Jai Bhagwan is demanding the money on his behalf. On this, accused A. K. Dixit, EE asked him that pay money to accused Jai Bhagwan Gupta, JE on his behalf also.
53 of 75 54
58. PW-2 Ashok Kumar Hooda has further deposed that on the same day i.e. on 04.04.2005, at around 3.30 PM, he alongwith the raiding team left the CBI office in the Government Vehicle and at around 4.30-4.45 PM, they reached at Sindhi Park, Near Rajender Nagar Office of accused A. K. Dixit, EE. He alongwith Ashok Kumar Gupta went in the office of A. K. Dixit, EE, where they met with accused Jai Bhagwan Gupta, JE and he again asked to accused Jai Bhagwan Gupta for his bill, who told him that he can talk about bill only after receiving the money. He told him that he could arrange only Rs.10,000/-. On which he said that what can he do in Rs.10,000/-. He further told him that he shall arrange the remaining amount within 2-3 days. On that, he told him that he has to pay the whole amount today itself. PW-2 again told him that he had a draft which he could encash within 2-3 days, then he shall be able to pay the remaining amount. Thereafter, he told that why he is in such a hurry to get the bill passed. Thereafter, he told him that he 54 of 75 55 is going to talk with accused A. K. Dixit, EE. Then he demanded Rs.10,000/-, which he handed over to accused Jai Bhagwan Gupta before going to the office of accused A. K. Dixit, EE. Accused Jai Bhagwan Gupta kept the said amount in his pant pocket and went to the office of accused A. K. Dixit, EE.
59. PW-8 Ashok Kumar Gupta, the Shadow Witness has deposed before the court that on 04.04.2005, he received a direction from his Controlling Officer that he had to attend the CBI Office at CGO Complex, Lodhi Road, New Delhi. He alongwith Sh. Ramadhar Mahto, the then LDC, Income Tax Office, who had also received directions from the Senior Officer, reached at the CBI office at about 11.00-11.30 AM and reported at the Reception counter of CBI Office from where they were taken to Duty Officer of ACB CBI Office. The Duty Officer took them to Sh. Garvan, the then Inspector, CBI/ACB, New Delhi.
60. PW-8 has further deposed that on the same day i.e. 55 of 75 56 on 04.04.2005, at about 4.30 PM, they reached the office of accused. He remained with the complainant Ashok Kumar in his personal car and the other team member of CBI were in other vehicle. The vehicle in which he was travelling was parked outside the office of the accused but the other vehicle in which the other trap team members were sitting was parked at some distance. At about 4.45 PM, he alongwith the complainant Ashok Kumar went to the office of accused Jai Bhagwan who was present in the office. After wishing formal 'Namaste' to accused Jai Bhagwan, complainant enquired from accused Jai Bhagwan as to what happened to his work. On which, accused Jai Bhagwan told him that "your bill has been prepared". The complainant told him that he had brought "DASSEE" indicating Rs.10,000/-. Thereupon accused Jai Bhagwan told the complainant that " ISSE KYA HOGA". Upon this the complainant told him that " ABHI MERE PAS ITNE HI HAIN. ABHI DRAFT AYEGA JISKO ENCASH KARKE HI DE SAKTA HU". Thereafter, complainant Ashok Kumar Hooda 56 of 75 57 handed over the bribe amount of Rs. 10,000/- to accused Jai Bhagwan after taking it out from his left side back pocket of his pant. Accused Jai Bhagwan Gupta had accepted the same with his right hand and the bribe amount was shuffled by accused Jai Bhagwan to his left hand and thereafter accused Jai Bhagwan kept the bribe amount in his left side front pocket of his pant. Thereafter, accused Jai Bhagwan went to the office of accused A.K. Dixit, Executive Engineer.
61. On the other hand, Ld. Counsel for the accused persons argued that PW-2 Ashok Kumar Hooda has given a different version while deposing before the Court.
62. Ld. Defence Counsel have drawn the attention of the Court on the complaint Ex. PW-2/A wherein it has mentioned that on 02.04.2005, he met accused Jai Bhagwan Gupta and requested him for preparation of the bill and the payment, on which, he (accused Jai Bhagwan Gupta) said that the bill has already been prepared by him, but it is yet to be test checked / passed by accused A. K. Dixit, EE and he will sign 57 of 75 58 only when he (complainant) will pay Rs.22,000-23,000 to him and out of this money the share of AE / EE are also to be given. The said conversation was recorded by him (complainant) in an audio cassette on the same day.
63. Ld. Defence Counsel have further stated that in the complaint Ex. PW-2/A, it has also been mentioned that on 04.04.2005, the complainant again went to Karol Bagh Division-XXIX, MCD and met with accused A. K. Dixit and told him that accused Jai Bhagwan Gupta is demanding money for test check by him (accused A. K. Dixit) in respect of his (complainant) completed work and he asked accused A. K. Dixit that such money is to be given to him (accused A. K. Dixit) or accused Jai Bhagwan Gupta. On this, accused A. K. Dixit said that he pay the money to accused Jai Bhagwan Gupta. This conversation was also recorded by him in a separate audio cassette.
64. Ld. Defence Counsel have also drawn the attention of the court on the submissions of PW-2 which are mentioned 58 of 75 59 in complaint Ex. PW-2/A regarding the fact that thereafter, he also contacted AE Sh. Sinha and asked about the demand made by accused Jai Bhagwan Gupta on his behalf (as share of AE), to which he denied and said that he had not asked for any money from accused Jai Bhagwan Gupta and he had also not directed him in this regard.
65. Whereas PW-2 Ashok Kumar Hooda during his deposition before the court has stated that on 04.04.2005, he went to CBI Office and lodged a complaint dated 04.04.2005 Ex. PW-2/A and thereafter CBI Officials gave him a recording instrument and asked him to record conversation as to who is asking him the money and for what. After that, he went to meet accused Jai Bhagwan Gupta alongwith that recording instrument and met accused Jai Bhagwan Gupta and inquired about his bill.
66. PW2 Ashok Kumar Hooda has categorically admitted during the cross examination that he had recorded the conversation on the directions of the CBI and he had 59 of 75 60 reached CBI Office after making the recording on 04.04.2005 at 2.00 PM -2.30 PM.
67. I have also gone through the complaint Ex. PW-2/A and testimony of PW-2 Ashok Kumar Hooda. After perusal of the same, it is clear that PW-2 while deposing before the Court has taken the somer-sault and deviated from the Prosecution Case as alleged in the complaint Ex. PW-2/A which is the foundation of this case. As per the complaint Ex. PW-2/A, the complainant Ashok Kumar Hooda has gone to the Karol Bagh Division-XXIX of MCD, on 02.04.2005 where he met with accused Jai Bhagwan Gupta and himself recorded the conversation between him and accused Jai Bhagwan Gupta. Thereafter, he again went to MCD office on 04.04.2005, where he met with accused A. K. Dixit and himself recorded the conversation separately between him and accused A. K. Dixit. PW-2 has further deposed that he produced the said two cassettes at the time of lodging of his complaint Ex. PW-2/A. On the other hand, while deposing 60 of 75 61 before the Court that he has deposed that on 04.04.2005, he went to CBI office and lodged a complaint dated 04.04.2005 Ex. PW-2/A. Thereafter, the CBI Officials gave him a recording instrument and asked him to record conversation as to who is asking him the money and for what. PW-2 is silent regarding his visit on 02.04.2005 and recording of the conversation between him and accused no.1 Jai Bhagwan Gupta.
68. From the above discussions, it is clear that complainant has completely deviated from his complaint and gave a different version while appearing before the Court which goes to the roots of the case.
69. Ld. PP has argued that the accused Jai Bhagwan Gupta has failed to explain the presence of Phenolphthalein powder on his hands and pant pocket.
70. On the other hand, Ld. Counsel for accused Jai Bhagwan Gupta has drawn the attention of the court on the cross examination of PW-2 which was recorded on 61 of 75 62 26.09.2012 and on the cross examination of PW-8 which was recorded on 07.05.2013.
71. PW-2 Ashok Kumar Hooda, during his cross examination, has deposed that some CBI officer had given the treated currency notes in his hand and he had put those currency notes in his pocket. He has further deposed that he had counted the same before putting the notes in the pocket. Similarly, PW-8 Ashok Kumar Gupta during his cross examination has deposed that the chemically treated currency notes of Rs.10,000/- were kept by the complainant in his left side back pocket of his pant.
72. In these circumstances, it can not be ruled out that the smeared GC notes had gone tainted with the Phenolphthalein Powder and also the hands and fingers of the complainant having gone tainted with Phenolphthalein Powder.
73. In respect of the presence of Phenolphthalein Powder in the hands of accused Jai Bhagwan Gupta, it has 62 of 75 63 been argued by Ld. Defence Counsel that PW-2 during his cross examination conducted on 26.09.2012 admitted that he (complainant) had shaken hands with accused Jai Bhagwan when he (complainant) entered his office. From the above, it is clear that at the time of shaking of hands, the hands and fingers of the accused Jai Bhagwan Gupta also got tainted with the Phenolphthalein Powder.
74. From the above, accused Jai Bhagwan Gupta has successfully explained the presence of Phenolphthalein Powder on his hands and pant pocket.
75. Ld. PP has argued that accused persons have demanded the bribe as a motive for preparing the bill / payment and much harassment has been caused to the complainant regarding passing of his bill.
76. On the other hand, Ld. Counsel for accused no.1 Jai Bhagwan Gupta has argued that there was no motive for demanding the bribe as no bill was pending with him as he had already prepared the bill on 28.03.2005 and the same 63 of 75 64 was put up to AE. Ld. Defence Counsel has drawn the attention of the court on the testimonies of PW-1 Rajesh Kumar Jain and PW-10 Sh. A. K. Sinha.
77. PW-1 Rajesh Kumar Jain after seeing the Measurement Book Ex. PW-1/M has deposed that at pages no. 98 to 100 the details of Measurement of work executed by M/s. M. H. Construction Company against the work order no. 185 dated 07.12.2004 are in the handwriting of accused Jai Bhagwan Gupta. He has further deposed that the Measurement was taken on 28.03.2005. Thereafter, the same has been forwarded to Sh. A. K. Sinha, the then Assistant Engineer, who after test check report has forwarded the same to the Accounts Section for checking.
78. PW-10 Sh. Ajay Kumar @ A. K. Sinha has deposed before the court that he was posted as Assistant Engineer in MCD Division-XXIX, Karol Bagh, Delhi from the year 2004 to 2005. He has identified his signatures on page no. 98 to 100 in the Measurement Book Ex. PW-1/M. He has further 64 of 75 65 deposed that vide his endorsement, he had sent the Measurement Book Ex. PW-1/M to Accounts Department for checking. He has also deposed that the said Measurement was then checked by bill clerk Sh. Rakesh Kumar and has marked the said file to Executive Engineer-XXIX on 30.03.2005.
79. Ld. Counsel for accused no. 2 A. K. Dixit has argued that there was no occasion for him to harass the complainant as the file was marked to him by the Accounts Section on 30.03.2005.
80. In view of the above, as regard to the accused no. 1 Jai Bhagwan Gupta, there was no occasion for him to harass the complainant as he (accused no. 1 ) had already prepared the bill on 28.03.2005 and sent to Sh. A. K. Sinha, the then Assistant Engineer, who after test check report has forwarded the same to the Accounts Section for checking. Account Section after checking the same, has marked the same to accused A. K. Dixit on 30.03.2005. As regards to the accused 65 of 75 66 no. 2 A. K. Dixit, there was no occasion for him to harass the complainant since 02.04.2005 was Saturday and 03.04.2005 was Sunday and the trap was laid on 04.04.2005.
81. From the above discussion, it is clear that there was no motive for demanding the bribe by the accused persons.
82. Ld. PP has argued that the transcription Ex. PW-2/F of the two cassettes Q-1 and Q-2 which were recorded by the complainant himself and the transcription of Spot conversation Ex. PW-2/U in cassette Q-3 which was recorded by the complainant on the directions of CBI clearly shows that accused persons have demanded bribe from the complainant.
83. On the other hand, Ld. Defence Counsel have argued that all the three cassettes Q-1, Q-2 and Q-3 which were recorded by the complainant, were tampered with and there were alteration and edition in the same.
84. Ld. Defence Counsel have drawn the attention of the court on the testimonies of PW-6 Dr. Rajender Singh, 66 of 75 67 Principal Scientific Officer, CFSL, New Delhi and PW-11 Dr. C. P. Singh, Assistant Director (Physics), FSL, Rohini, Delhi.
85. PW-6 Dr. Rajender Singh has admitted during his cross examination that he has not opined about tampering of audio cassettes marked Q-1 and Q-2 because there was no such facility with them in CFSL at that time. He has also admitted that without any proper facilities in the Laboratory, he cannot say whether the cassettes in question are tampered with or not. He has further admitted that whenever a sound of some stopping the digital recorder or change in background voice is observed then there is possibility of tampering or editing in the recording. Whenever, such thing is observed in the recording then there is possibility of erasing and adding the voice from other portion.
86. PW-11 Dr. C. P. Singh has deposed that he was posted as Junior Scientific Officer (Physics), CFSL, Directorate of Forensic Science, MHA, Govt. of India, Chandigarh w.e.f. April, 1999 to May, 2007. He has further 67 of 75 68 deposed that it is not possible to opine whether the recording is free from any tampering in the absence of tape recorder used for recording the audio.
87. Ld. Defence counsel has further argued that during the cross examination, PW-11 has deposed that the tape recorder in question was not handed over to him by the CBI at any point of time.
88. From the above discussion, the submissions of the Ld. Defence Counsel regarding the edition or alteration can not be ruled out.
89. Ld. Counsel for the accused persons argued that there are contradictions and improvements in the statements of the witnesses. They have drawn the attention of the court on the testimonies of PW-2 i.e. the complainant Ashok Kumar Hooda and PW-8 i.e. Shadow witness Ashok Kumar Gupta.
90. It has been submitted by the Ld. Defence Counsel that PW-2 Ashok Kumar Hooda has deposed before the court that they left CBI office in the Government Vehicle whereas 68 of 75 69 PW-8 Ashok Kumar Gupta has deposed that he alongwith the Complainant Ashok Kumar Hooda left the CBI office in the personal car of the complainant.
91. Ld. Defence Counsel have further argued that PW-2 has deposed before the court that no independent witness entered alongwith him in the room of accused Jai Bhagwan Gupta whereas PW-8 Ashok Kumar Gupta has deposed before the court that he alongwith the complainant Ashok Kumar went to the office of accused Jai Bhagwan Gupta.
92. Ld. Defence Counsel for accused no. 1 Jai Bhagwan Gupta has also argued that there are contradictions regarding the sealing of the pant. PW-8 Ashok Kumar Gupta during his cross examination has deposed that the pant of the accused Jai Bhagwan Gupta was sealed whereas the pant produced in the court was in unsealed condition.
93. Ld. Defence counsel for accused Jai Bhagwan Gupta has argued that PW-2 during his cross examination has deposed that the accused Jai Bhagwan Gupta had demanded 69 of 75 70 Rs.10,000/- and the same was recorded in the cassette Q-3 but he was confronted with his deposition before the court and the transcription Ex. PW-2/E (Ex. PW-2/U) where the said demand is not attributed to accused Jai Bhagwan Gupta and the same is not so recorded.
94. Ld. Defence Counsel have submitted that the presence of independent witnesses even prior to the coming of the complainant and registration of the FIR Ex. PW-2/B creates a doubt on the whole story of the Prosecution. Ld. Defence counsel have drawn the attention of the court on the testimonies of PW-14 Sh. Ram Chander Garvan, Trap Laying Officer, PW-8 Sh. Ashok Kumar Gupta, Shadow Witness and PW-9 Sh. Ramadhar Mahto, independent witness as well as PW-2 Ashok Kumar Hooda, the complainant.
95. PW-14 Trap Laying Officer Sh. Ram Chander Garvan has deposed before the court that on 04.04.2005 at around 12.30 PM, he was called by SP Sh. Alok Ranjan in his office Chamber and introduced to one Sh. Ashok Kumar, who 70 of 75 71 has given a written complaint against the accused persons (two officers of MCD, Division-XXIX, Karol Bagh, New Delhi). He was directed to ascertain the genuineness of the complaint Ex. PW-2/A and the FIR Ex. PW-2/B was registered at around 1.45 PM and the same was marked to him for laying a trap. After receipt of FIR, he constituted a trap team consisting of himself, Inspector Alok Kumar, Inspector Om Prakash, Inspector N. K. Sangwan and SI Prem Nath. In between two independent witnesses namely Ramadhar Mahto and Sh. Alok were also arranged.
96. PW-8 Ashok Kumar Gupta has deposed that on the directions of his Senior Officer, he alongwith Sh. Ramadhar Mahto, the then LDC, Income Tax Office, reached at the CBI office at about 11.00 - 11.30 AM and Duty Officer took them to Inspector Garvan, who introduced them to the raiding team of CBI including the complainant Ashok Kumar Hooda.
97. PW-9 Ramadhar Mahto, who accompanied PW-8 Ashok Kumar Gupta, has deposed before the court that on 71 of 75 72 04.04.2005, he was directed by his officer to visit CBI Office, Lodhi Road, New Delhi and accordingly, he visited the CBI Office at about 10.00 - 10.30 AM where he met Inspector R. C. Garvan. He has further deposed that 4-5 persons including the complainant Ashok Kumar Hooda were already sitting in the room of Inspector R. C. Garvan.
98. PW-2 the complainant has deposed during his cross examination which was recorded on 26.09.2012, that it was noon time, when the accused Jai Bhagwan Gupta had demanded Rs.22-23,000/- from him on 04.04.2005. It was sometimes between 11.00 AM to 1.00 PM. Thereafter, he had gone to office of accused Dixit after recording the conversation with accused Jai Bhagwan Gupta between 11.00 AM to 1.00 PM on 04.04.2005.
99. PW-2 has deposed before the Court on 09.07.2012 that after meeting with accused Jai Bhagwan Gupta, he met with accused A. K. Dixit on 04.04.2005 at about 12 noon.
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100. In view of the above discussion, it cannot be possible that at the same time, a person can be present at two places. On the one hand, as per the version of the complainant, he remained in MCD office from 11.00 AM to 1.00 PM on 04.04.2005 whereas according to PW-14 TLO, the complainant was in the office of SP, CBI, at 12.30 PM and as per the version of PW-8 and PW-9 they reached the CBI Office at 11.00-11.30 AM or 10.00-10.30 AM and met with the complainant. The testimonies of the PWs do not inspire any confidence. It is clear that the false and concocted story has been created by the complainant in connivance with CBI only to implicate the accused persons.
101. The somer-sault version of the complainant coupled with the contradictory and varying the deposition of the prosecution witnesses which can not be brushed aside lightly as minor discrepancies, the prosecution in my view has failed to conclusively established its case. It is no longer res-integra that if two views are possible, one in favour of the prosecution 73 of 75 74 and the other in favour of the accused persons, the latter should prevail.
102. My above detailed discussion and keeping in view the settled legal propositions, the defence set up by the accused persons by way of cross examination of the various Prosecution witnesses, if analysized on the touchstone of preponderance of probability of answer would be that the accused persons have been framed up. Therefore, the prosecution has failed to bring home the guilt against accused persons.
103. In view of the forgoing discussions, I am of the opinion that the Prosecution has not succeeded in proving the commission of the offences punishable under Section 120-B of IPC r/w section 7 and 13 (2) read with Section 13 (1) (d) of the PC Act. Prosecution has also not succeeded in proving the commission of the offences punishable Under Section 7 and 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act against both the accused persons.
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104. Hence, Accused no.1 Jai Bhagwan Gupta and accused no. 2 A. K. Dixit are acquitted from all the charges levelled against them.
ANNOUNCED IN THE OPEN COURT TODAY i.e. ON 31st JANUARY,2014.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI.
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