Delhi District Court
Cbi vs . 1 Rafat Jamal, on 30 January, 2012
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 40/2011
RC AC2/ 2006 A0006
u/s 120-B IPC r/w Sec 7 and 13 (1) (d) r/w 13(2) PC Act
CBI Vs. 1 Rafat Jamal,
Son of Mohammed Jamal,
Resident of 26, Vaishali Apartment,
New Campus, IIT Delhi.
Permanent address:
4/748, Friends Colony, Dodhpur,
Aligarh, UP-202001.
2 Pradeep Verma,
Son of K.N. Verma,
Resident of A-2, Solar House,
IIT Hauz Khas, New Delhi.
Date of Institution : 28.09.2006
Date of framing of charge : 08.01.2008
Date on which case was received on
Transfer by this Court : 03.11.2011
Date of conclusion of arguments : 20.01.2012
Date of Judgment : 30.01.2012
JUDGMENT
1 Both the accused have been sent up to face trial for commission of offences under Sections 120-B IPC r/w Sec 7 and 13 (1) (d) r/w 13(2) PC Act of Prevention of Corruption Act, 1988 and substantive offences thereof by CBI.
BRIEF FACTS OF THE CASE 2 Complainant Ashok Yadav (PW4) was proprietor of M/s A.K. Electronics and used to undertake jobs related to painting, electrical works etc. He got work-orders for his said firm from IIT, New Delhi. These were as CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 1 of 38 under:
(i) Contract related to painting of fans awarded in September 2005 for Rs. 22,000/-
(ii) Contract related to painting of lifts awarded in February, 2006 for Rs. 28,000/-.
(iii) Contract related to painting of emergency panel awarded in March, 2006 for Rs.
7,500/-.
3 Accused Rafat Jamal, Assistant Engineer was looking after the work of Executive Engineer (Electrical) in IIT, New Delhi and accused Pardeep Verma was Junior Engineer and according to complainant, they both had demanded 10 per cent of the total work-contract amount as bribe. All the three work had been completed and complainant had already received payment with respect to said first two contracts. According to complainant, he was being pressurized by both the accused to pay 10 per cent amount otherwise he would not get any further contract from IIT, New Delhi in future. As per the last demand dated 18.03.2006, accused Pradeep Verma had asked for Rs. 3,500/-. 10 per cent was demanded out of last payment of Rs. 28,000/- and 10 per cent demand was for the balance amount of Rs. 7500/- for third work-contract payment for which was yet to be released.
4 Complainant, however, contacted CBI for taking appropriate action against both the accused persons. Secret verification was carried out and case was registered on 22.03.2006.
5 On 22.03.2006 complainant gave complaint in writing against both the accused regarding alleged demand of bribe. Independent witnesses were arranged. Complainant was introduced to such independent witnesses, namely, Sh. Narender Kumar (since deceased) and Sh. Suresh Chand (PW15) and they ascertained the genuineness of the allegations levelled by complainant and in their presence, complainant was asked to contact CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 2 of 38 accused and accordingly complainant contacted accused Pradeep Verma and conversation, which he had with accused Pradeep Verma in the office of CBI on 22.03.2006, was recorded. As per the conversation, there was demand of bribe by accused Pradeep Verma. Pre-trap formalities were concluded and scientific method of laying of trap and chemical reaction between phenolphthalein powder and sodium carbonate was explained to the witnesses. Complainant also produced an amount of Rs. 3,500/- which he had brought for handing over to the accused. Numbers and denomination of such GC notes were recorded in pre-trap memo and notes were treated with phenolphthalein powder and were put in an envelope which was also treated with phenolphthalein powder. Raiding party was once again briefed and PW Sh. Narender Kumar was asked to accompany the complainant as shadow witness and raiding team left CBI office for IIT, Hauz Khas. Complainant was also requested to signal the acceptance of bribe by putting his right hand over head. Independent witness Sh. Suresh Chand was also asked to be a member of trap team. Complainant was also provided with digital phone recorder. It was the same one in which earlier telephonic conversation between him and accused Pradeep Verma had been recorded in CBI office. Complainant was also provided with eavesdropping mobile phone instrument for simultaneous recording of the conversation. Team reached at IIT, New Delhi at about 4.00 PM.
6 Complainant and shadow witness met accused Pradeep Verma in his office where complainant introduced shadow witness as his landlord. Complainant informed Pradeep Verma that he had come for handing over amount. However, accused Pradeep Verma told him that it would not be proper for him to accompany him to the office of accused Rafat Jamal and asked him to go there directly. Complainant asked him as to what amount was to be handed over. Accused Pardeep Verma then told him that it was not the first instance and such question was not required to be asked. Thereafter, complainant and shadow witness went to the office of accused Rafat Jamal.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 3 of 38He was reportedly busy in some meeting. After some time, complainant met accused Rafat Jamal. According to complainant, there was conversation between them and during conversation, accused Rafat Jamal demanded bribe money by giving indication with his fingers and upon such indication, he handed over that envelope to accused Rafat Jamal. Accused Rafat Jamal took the envelope from complainant and opened the same and counted the money and then kept the envelope in the left pocket of his wearing pants. Thereafter, complainant along with shadow witness came out of the room of Rafat Jamal and gave pre-designed signal to the trap team. Rafat Jamal was then surrounded by the members of trap team. He tried to flee away but was overpowered. Bribe money was also recovered from left side pocket of wearing pants of accused Rafat Jamal and denomination and number mentioned on such notes were tallied with the numbers mentioned in pre-trap memo. Hand wash of both hands and wash of inner portion of left side pocket of pants of accused Rafat Jamal were taken separately in colorless sodium carbonate solution which turned pink thereby confirming the acceptance of bribe by accused Rafat Jamal. Such bottles were sealed at the spot. Further investigation was carried out. Accused Pradeep Verma was also brought from his office to the office of accused Rafat Jamal and they both were put under arrest. Digital recorder, used for recording of conversation, was handed over to witness Sh. Suresh Chand and was brought to the CBI office where contents of the same were downloaded on computer and then transferred to CD. Such CD was also sealed.
7 Hand-wash and pocket-wash were sent to CFSL and report of CFSL confirmed the presence of phenolphthalein therein. During investigation, sample voice of both accused and complainant were also taken and tapes containing sample voice along with questioned CD were also sent to CFSL. Sanction for initiation of prosecution of both the accused was also obtained and it is in these circumstances that charge-sheet was filed on 28.09.2006.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 4 of 388 Cognizance was taken by the Court on 12.10.2006 and both accused were ordered to be summoned.
CHARGES FRAMED AGAINST ACCUSED 9 Order on charge was passed on 07.01.2008 whereby it was directed that charge be framed against both the accused under Sections 120-B IPC r/w Sec 7 and 13 (1) (d) r/w 13(2) PC Act of Prevention of Corruption Act and substantive offences under Prevention of Corruption Act were also directed to be framed against both the accused.
10 Charges were framed on 08.01.2008 to which both the accused pleaded not guilty and claimed trial.
WITNESSES FOR PROSECUTION 11 Prosecution was directed to adduce evidence and has examined twenty witnesses viz PW1 Prof. V.S. Ramamurthy, PW2 Dr. A.L. Vyas, PW3 Surinder Prasad, PW4 Ashok Kumar Yadav, PW5 P.V.K. Raja, PW6 Arvind Shekhar, PW7 Satpal Singh, PW8 Dr. K.S. Rao, PW9 Pradeep Kumar Gautam, PW10 Prem Singh Rawat, PW11 Kuldeep Kumar Jain, PW12 Ghan Shyam, PW13 Vinu T. Abraham, PW14 Capt. B.N. Yadav, PW15 Suresh Chand, PW16 A.D. Tiwari, PW17 V.B. Ramteke, PW18 Deepak Kumar Tanwar, PW19 Insp. Arun Rawat and PW20 DSP A.B. Chaudhary.
12 Complainant Ashok Kumar Yadav has been examined as PW4. It will be important to mention here that he has not supported the case of prosecution and, therefore, he was cross-examined by the prosecution with the permission of the Court.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 5 of 3813 Shadow witness Sh. Narender Kumar, unfortunately, died before he could depose before the Court.
14 PW5 P.V.K. Raja and PW12 Ghan Shyam are independent witnesses who remained in CBI office.
15 PW1 Prof. V.S. Ramamurthy has proved sanction for prosecution for accused Rafat Jamal and PW3 Surinder Prasad has deposed regarding according sanction for prosecution for accused Pradeep Verma.
16 PW6 Arvind Shekhar, PW9 Pradeep Kumar Gautam and PW10 Vinu T. Abraham are the witnesses in whose presence, voice sample of both the accused were taken in Tihar on 18.04.2006.
17 It will not be out of place to mention here that during investigation, CBI suspected involvement of two more public servants, namely, Mohan Upreti and Gurbaksh Singh but nothing concrete could come against them, therefore, they were neither arrested nor charge-sheeted. However, their voice specimen were taken during investigation and such fact has been confirmed by PW7 Satpal Singh and PW20 A.B. Chaudhary.
18 PW2 Dr. A.L. Vyas, PW8 Dr. K.S. Rao and PW10 Prem Singh Rawat are from IIT, New Delhi and they have been examined for the purpose of proving the files related to three contracts in question and the signatures of accused persons on such files.
19 PW14 Capt. B.N. Yadav was posted as Security Officer at IIT, Hauz Khas, New Delhi on 22.03.2006 and he was called at the spot after the acceptance of bribe money and hand wash and pants pocket wash was done in his presence.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 6 of 3820 PW15 Suresh Chand is independent witness. He had also accompanied the CBI team to the spot but he has also not fully supported the case of prosecution.
21 PW17 V.B. Ramteke is from CFSL and has proved the report regarding hand wash and pants pocket wash. PW18 Deepak Kumar Tanwar is also from CFSL and he has proved his report regarding voice sample.
22 PW19 Insp. Arun Rawat is initial IO and PW20 DSP A.B. Chaudhary is second IO.
23 Both the accused, in their statements recorded under Section 313 Cr.P.C., pleaded innocence and claimed that they never demanded any bribe from complainant and they had been falsely implicated. However, they did not wish to lead evidence in defence.
CONTENTIONS ON BEHALF OF ACCUSED RAFAT JAMAL 24 Sh. JR Piryani, learned defence counsel for accused Rafat Jamal has assailed the case of prosecution. He has drawn my attention towards various portions of the testimony of complainant as well as of independent witness Suresh Chand and has also taken me through the transcript of the conversation in question and on the strength of the same it has been argued that prosecution has not been able to prove its case in any manner whatsoever against accused Rafat Jamal.
25 It has been argued by Sh. Piryani that that day accused Rafat Jamal was, in fact, busy in a meeting and when he came out from such meeting, one person wished him whom he did not recognize at all and during the conversation it was learnt that said person was Ashok Yadav. Sh. Piryani also admits that there was some conversation between the CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 7 of 38 complainant and Ashok Yadav that day but all of a sudden, after such conversation, complainant Ashok Yadav tried to hand over one envelope to accused Rafat Jamal but accused Rafat Jamal immediately resisted and pushed that envelope and did not accept the envelope at all. His contentions can be summarized as under:
(i) Prosecution is liable to fall flat because complainant PW 4 Ashok Yadav has not supported the case of prosecution at all.
(ii) Shadow witness has died and has not been examined and therefore, there is no corroboration from neutral corner.
(iii) PW 15 Suresh Chand, who had also gone to the spot along with raiding party, has also not supported the case of prosecution.
(iv) There is nothing to infer that accused Rafat Jamal had made any demand at any point of time.
(v) There is nothing to show that accused Rafat Jamal had accepted any money much less bribe money.
(vi) There is nothing to show that any bribe money was ever recovered from the person of accused Rafat Jamal.
(vii) There no material to show that there was any conspiracy between him and his co accused Pradeep Verma. On the contrary, it has come on record that complainant had never ever met Rafat Jamal earlier or had talked to him earlier much less that he had demanded any money from him earlier.
(ix) Trap proceedings are not reliable at all.
(x) No independent witness from nearby locality was joined and rather independent witnesses were called from distance of 25 kilometers merely in order to CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 8 of 38 falsely implicate accused Rafat Jamal as independent witness Suresh was from Centaur Hotel where one Lokender Yadav was working as Sr. Manager, (Vigilance) and such Lokender Yadav is real brother of PW14 Sh. B.N.Yadav, Security Officer of IIT and B. N. Yadav was already harboring a grudge against Rafat Jamal.
(xi) Conversation contained in CDs is not reliable at all and on the other hand it stands established that there were gaps and that therefore, these were tampered.
(xii) Complainant has himself admitted that one line contained in last alleged conversation between him and accused Rafat Jamal containing piece of conversation as "Lifafa Jeb Main Hai" was not the part of the conversation at the spot but he was rather made to say so in the CBI office subsequently.
(xiii) There is no explanation as to why Sh. Tanmay Behra under whose supervision CDs were prepared has not been examined.
(xiv) Complaint is in the hand of son of complainant who has not been examined by the prosecution.
(xv) Sanction is improper as FSL Result was not sent to sanctioning authority before according of sanction. (xvi) Recovery memo is a fabricated document. (xvii) Nothing incriminating or disproportionate to his income from known source was found from the house search and locker.CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 9 of 38
CONTENTIONS OF ACCUSED PRADEEP VERMA 26 Sh. P.N. Verma has assailed the prosecution case on the following grounds:
(i) Complainant Ashok Kumar Yadav has turned hostile and has not supported the case of prosecution.
(ii) Even otherwise, his statement is merely to be treated as that of accomplice and, therefore, it is always suspicious and there is no corroboration to his testimony as the shadow witness has already expired and other independent witness has not supported the case of prosecution.
(iii) Tape recording conversations are secondary evidence and prosecution has failed to rule out the possibility of tampering with the same and, therefore, these are not admissible in evidence.
(iv) There is nothing to infer conspiracy.
(v) During investigation, CBI could not have taken the
voice sample of accused even with the permission of the Court and moreover, Court, before granting permission, did not afford any opportunity to accused and allowed the application without hearing accused/defence.
(vi) There is nothing on record which may show that there was any demand from the side of accused Pradeep Verma or for that matter acceptance. Rather to the contrary, complainant has very categorically deposed that there was never any demand or acceptance.
(vii) There is no conversation which may show that there was any demand of Rs. 3500/-.
(viii) Even first conversation reveals that it was complainant who was instigating accused Pradeep Verma CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 10 of 38 and accused Pradeep Verma had never made any demand of money.
(ix) Nothing incriminating was recovered from the house search of accused Pradeep Verma.
(x) Section 7 of Prevention of Corruption Act is not applicable as even otherwise there was no reason or motive for accused Pradeep Verma, who being JE, had no power to give any contract. Payment regarding first two contracts had already been released to the complainant and if there was any ulterior motive on the part of accused, he would have ensured that even such payment had been released after the payment of commission and not before.
(xi) As far as third work is concerned, it was awarded much later i.e. on 13.03.2006 and, therefore, complaint with respect to such contract was apparently premature and moreover accused Pradeep Verma had no role whatsoever to play with respect to grant of third work.
(xii) CDs are tampered and, therefore, conversation is liable to be discarded.
(xiii) There is no previous record of accused Pradeep Verma and he has been falsely implicated.
(xiv) Call details were not collected from the concerned service provider.
(xv) Accused has no concern with respect to preparation of bills etc. which are dealt with and prepared by Account Branch.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 11 of 38CONTENTIONS OF CBI 27 Sh. Jagbir Singh, learned Public Prosecutor for CBI has, on the other hand, contended that prosecution has been able to prove its case to the hilt. He has argued that though complainant has turned hostile yet his testimony cannot be discarded or effaced out completely. It has also been argued that he has, to a very large extent, supported the case of prosecution and has also admitted the conversation when the same was played when he entered into witness box. He has also argued that there is no material on record which may show that there was any tampering with the CDs or that there was any chance of fudging the CDs. It has also been argued that there was no illegality or impediment in calling independent witnesses even from far off locality. It has also been argued that testimony of CBI officials clearly indicates involvement of both the accused and even from the partially supporting testimony of complainant, it stands established that accused Pradeep Verma had demanded money for self as well as for accused Rafat Jamal. He has also contended that envelope had been recovered from the pocket of Rafat Jamal which establishes acceptance.
28 He has also argued that as far as Section 7 of Prevention of Corruption Act is concerned, mere demand is sufficient. He has also argued that Court was empowered to grant permission to take voice sample and such tape recorded conversation is admissible in evidence and also clinches the issue in favour of prosecution.
EVALUATION OF EVIDENCE 29 It would be, however, pertinent to mention that accused Rafat Jamal does not dispute that he had met complainant that day. It will not be out of place of extract Q. 25 as put to him in statement CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 12 of 38 recorded under Section 313 Cr.P.C. Such question reads as under:
Q. Further that when complainant took out the envelope and starting giving the same to you accused Rafat Jamal, you accused Rafat Jamal pushed the envelope with your both hands and you did not want and then such envelope fell down from the hands of complainant and then CBI personnel rushed to the spot near the lift. What do you have to say?
30 Rafat Jamal admitted aforesaid fact.
31 I have already noticed above that complainant has not supported the case of prosecution and to add insult to the injury, one more accompanying pubic witness i.e. PW15 Suresh Chand has also turned hostile. As already notice above, shadow witness Sh. Narender Kumar Sharma died before his deposition could be recorded.
32 Let me now straightaway come to the testimony of complainant PW4 Ashok Yadav.
33 There does not seem to be any dispute that he was running firm under the name & style of M/s A.K. Electronics and had been given the said three work contracts in IIT. It is also not in dispute that both the accused were posted in IIT. In his examination-in-chief which was recorded in the Court on 23.04.2009. PW4 Ashok Yadav claimed that Mr. Jamal had office in IIT but he never met him. He also claimed that he did not have to go to the office of Mr. Jamal when Mr. Jamal was there. He has then straightaway jumped to date of incident and deposed that on 22.03.2006, he had given a document to CBI and then SP,CBI CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 13 of 38 asked him(complainant) to bring some person of his own and then he went back to home and brought his son and then CBI made his such son write something and then that person (witness is indicating towards SP, CBI) asked him to sign such document written by his son. Such complaint has been proved as Ex. PW4/A but fact remains that according to complainant, such contents were got dictated by CBI. So much so, he also claimed that these contents were never read out to him by anyone.
34 PW4 Ashok Yadav further claimed that SP, CBI then asked him to talk to Pradeep Verma on his mobile and when he talked to Pradeep on mobile, Pradeep Verma asked him to bring money. His further deposition claimed that demand was for 10 per cent. He further deposed that accused Rafat Jamal had never asked for money earlier but as far as Pradeep Verma is concerned, he had asked money even earlier also. He also deposed that Pradeep Verma asked him to bring money in envelope. He also deposed that conversation between him and Pradeep Verma which had taken place in the CBI office was recorded. It would now be pertinent to extract such conversation:
Complainant "Hello Sir, Ashok Bol Raha Hoon".
Pradeep Verma Ha Bolo.
Complainant Who Sir Paise Nikalwa Liye the, to pata batadete.
Pradeep Verma Hoon, Le Liye.
Complainant Han, Le Liye.
Pradeep Verma Le aa phir.
Complainant Kitne baje.
Pradeep Verma Teen baje aa jaieyo.
Complainant Aap ke office mein, ki Jamal sahab ki. Hain to kitna le kar
aaon.
Pradeep Verma Le aa wahin baat karenge, phone par baat mat kar.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 14 of 38
Complainant Isliye to mobile se baat kar raha hoon, aap ke pass
mobile par thoda wo ho jayega. Landline thode hi hai. Pradeep Verma Nahin phone par baat nahin hote, le aaiye tu apne hisaab se.
Complainant Ek to aapka kaam tha.
Pradeep Verma Haan.
Complainant To aap bata dete.
Pradeep Verma Jain vain ke jo bhi hain. Saare hisaab kitaab banakar le
aa.
Complainant Achcha. Nahin ek 28,0000/- ka painting kiya thana.
Pradeep Verma Haan, 28000/-.
Complainant Haan ek wo hai or ek 7000 ka tha.
Pradeep Verma Jain ka bhi to tha.
Complainant Haan, wahi 7000 ka.
Pradeep Verma Do aur bhi to the.
Complainant Nahin wo to hum apne aap denge.
Pradeep Verma Thik hai uska hisab kitab bana kar le lena, lifafe mein daal
kar le aana.
Complainant Achcha to sir aap bata dete, thoda hint de dete, thoda
bahut kitna hai, kaya le kar aayen.
Pradeep Verma Hisab se le aa apne.
Complainant Hain.
Pradeep Verma Sahab dono post mein hain.
Complainant Don post to hain his sahab.
Pradeep Verma Lump-sum le aa apne hisab se.
Complainant Tab bhi bata dete na sir, hain jee.
Pradeep Verma Main kaya bata dun yaar, tu apne hisab se dekh le, thik
hai.
Complainant Thik hai.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 15 of 38
35 Such conversation, contained in CD Ex. PW5/D1, was
played before the witness during trial and he identified his voice and voice of accused Pradeep Verma as well. Ashok Yadav then made reference towards the pre-trap proceedings and also deposed that he had himself arranged the money which was seven notes of denomination of Rs. 500/- each and powder was applied on those currency notes as well as on the envelope which he had brought.
36 He further deposed that then they had gone to the office of IIT and there he went to meet accused Pradeep Verma and at that time he was accompanied by PW15 Suresh Chand. Following conversation took place between accused Pradeep Verma and complainant in the office of accused Pradeep Verma. It is contained in CD Ex. PW5/D4 and witness identified his voice as well as voice of accused Pradeep Verma.
Complainant: Hain, Verma Ji Kahan hain, Verma Ji, baith te hain sir. Pradeep Verma Haan-haan, Aa Jao, koi nahi hai. Kaun Hai. Complainant Makan malik hai, ghar chhodne aaya tha, makan mein rahate hain, kiraye par rahate hain. Apna sarkari makan mila hua hai.
Pradeep Verma Pahale to Kotla main rahate the.
Complainant Kotla to teen saal ho gaye, aapko pata nahi.
Rawat Ji ka makan usse thoda aage jakar, DDA flats ke andar.
Wahin paise-waise dene the.
Pradeep Verma ............................... Ek minute. Complainant ..............................
Pradeep Verma Tu hi chala ja Sahab ke paas, mera jana thik nahi hai. Complainant Aap do minute ke liye chale, bole sahab Ashok aaya hai, maan li hai, galati ho gayi.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 16 of 38Pradeep Verma Bol dunga main, bol dunga main, main bol dunga. Bol dunga main, apne- aap jakar mil lo, thik nahi lagta hai, thik hai.
Complainant Jana hota to main akelay hi chala jata pahale. Pradeep Verma Arey tum pahale gae nahi ho kaya.
Complainant Pahale ab thoda sa wo ho gaya na isliye to. Pradeep Verma Kuchch nahi hota, sab chalata hai aapas mein. Complainant Ek baar phone se poochch lo sahab se.
Pradeep Verma Mera jana thik nahi hai, tu apne-aap chala ja.
Complainant Kitna de doon, hit de dete. Pradeep Verma ye mere se poochch hi mat. Apne aap tu.............. Pahali
baar thode hi ho raha hai yah. Pahali baar thode ho raha hai.
Complainant Nahin wo ho hai.
Pradeep Verma Thik hai.
Complainant Telephone se poochch lete na, sahab ki Ashok aa raha
hai.
Pradeep Verma Kagzat ki jarurat nahi hain. Mera jana thik nahi hai.
Achcha nahi lagta. Thik hai na. Thik hai. Chalen.
Complainant Haan, chalte hai. 37 Thus Pradeep Verma refused to accompany Ashok to the
office of accused Rafat Jamal and then Ashok with shadow witness went to the office of Rafat Jamal. CBI officials took position downstairs near lift on the ground floor whereas office of Rafat Jamal was at the first floor. Accused Rafat Jamal was not there in the office and was in a meeting and he came downstairs later on. It will be important to mention that Personal Assistant of Rafat Jamal had seen one envelope in the upper pocket of shirt of complainant and asked him about the same to which complainant replied that he had nothing to give. According to PW4 CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 17 of 38 Ashok Yadav, after a long time, accused Rafat Jamal was found passing near the lift and he said Namaste to Rafat Jamal to which Rafat Jamal replied that he had not recognized him and then PW4 Ashok Yadav told him that he had done the work of fans etc. and started to take out the envelope to give that to him and when he was giving the envelope to accused Rafat Jamal, Rafat with his both hands pushed the envelope saying that he did not want that. Thereafter, somebody was coming down from upstairs and then envelope fell down from the hands of PW4 Ashok Yadav. CBI officials came at the spot from all sides and someone pushed him and thereafter he did not know where that envelope had gone. According to him, thereafter CBI officials asked him to accompany them as well as both the accused to CBI office and then he was asked to leave at 10.00 PM and thereafter he was called three days thereafter and was made to sign on 8-10 papers. This is what he has to say in his examination-in-chief.
38 One thing is very much perceptible from his testimony. He has not said anything against accused Rafat Jamal. In his examination- in-chief, he has very categorically claimed that he had not even met Rafat Jamal and Rafat Jamal had not demanded any money from him even earlier. Despite exhaustive grilling by prosecution, Ashok Yadav did not utter even a single word incriminating or indicting Rafat Jamal. Ashok Yadav was cross-examined by defence and even in such cross- examination, he claimed that he had not met Rafat Jamal on any earlier occasion. He also claimed that when he had gone to the office of Pradeep Verma, Pradeep Verma refused to accompany him to the office of Rafat Jamal. He also claimed that he had not told anyone in the office of Rafat Jamal that he had been sent by accused Pradeep Verma to give CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 18 of 38 money to accused Rafat Jamal. In his further cross-examination, he has also deposed that no one had asked him to bring Rs. 3500/- in an envelope. Sh. J.R. Priani has also cross-examined the complainant and in his cross-examination dated 10.12.2009, Ashok Yadav categorically claimed that it was correct that none of the official of IIT including accused Rafat Jamal had ever asked for any bribe from him.
39 It will be important to mention that complainant was carrying eavesdropping instrument as well as digital recorder with him and as per prosecution following conversation had taken place between Ashok Yadav and accused Rafat Jamal. Such version is as under:
Rafat Jamal: Tum khare ho yahan par, main pahachana nahi tumhe kaun khara hai. Mujhe laga shakal milti-julti hai, kaya haal-chal hai.
Ashok: Thik hai. Rafat Aur kaam dhanda chal raha hai. Ashok: Kaam kahan chal raha hai sir. Rafat Kayun painting ka to kaam chal hi raha hai. Ashok Haan ji, painting ka to khatam ho gaya. Rafat Aur bata. Ashok Sir chhota mota kaam mil haye to. Rafat Chhote mote kaam ke liye tumhe mana thode hi kiya hai,
tum se kaha hai registration karava lo bager registration ke jo hai 10000 se niche wale ka kar sakte ho.
Ashok Haan ji wahi.
Rafat Koi qualification wagerah bhi to nahi hai, licence hai
tumhare paas.
Ashok Licence hai.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 19 of 38
Rafat Electrical licence hai.
Ashok Nahin.
Rafat Electrical licence to banwa lok kam se kam. Usme to koi
dikkat nahi hai, khali licence banwa lo, registration to baad mein hoti rahegi.
Ashok Haan ji. Rafat Chhote-mote kaam tumhe dene main koi harj nahin hai,
lekin licence banwa lo, licence to ban jata hai, licence mein koi dikkat nahin hai.
Ashok Licence mein to 50000 ruppe lagte hain.
Rafat 50000/- ruppe late hain.
Phone ki ghanti.
Rafat Hello, boliye, nahin abhi to........ boliye ek minute ruko
abhi.
Rafat Purane cases ho gaye saare.
Ashok Nahin, abhi nahin.
Rafat Purane cases ka kya hua.
Ashok Teeno cases ka, teeno milakar.
Rafat Raja wale case ka.
Rafat Kam se kam 7-8 cases hain tumhare, yahan jama hai.
Thik se kaam karo. Licence ka kaya kahte hain, dusre ka naam se mat do. Apne naam se karo, kuchh to document le aao kam se kam.
Ashok:
Rafat: Kahan hai painting ka hamare saamne jo hai, painting ka kaam karate ho.
Ashok:
Rafat: Hain, bagair documents ke.
Ashok:
Rafat: Ismein kya kahte hain, A.K. Electronic specialized firm
hai.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 20 of 38
Ashok: Haan ji.
Rafat: Chalo dekhenge, chhota mota kaam de denge,
specialized firm mein de sakte hain, lekin aap wo licence banwao. Raja Electronics ke kitne kaam hai, batana kaun-kaun se kiten kaam kiye hain tumne.
.................Some voices which are inaudible................
Ashok Lifafa jeb mein hai. 40 Interestingly, when such conversation was played during trial
on 27.11.2009, complainant nowhere claimed that such conversation was containing voice of Rafat Jamal as well. He never deposed that he had identified the voice of Rafat. At that time he was being cross-examined by none other than the prosecution but despite that no clarity was sought from him with respect to this material aspect. On the other hand, with respect to last line i.e. Lifafa jeb mein hai. Ashok Yadav has come up with a very curious reply. According to him, this particular line was never uttered by him at the spot and rather when Ashok Yadav was called in CBI office next day, he was made to say "Lifafa jeb mein hai". Thus even if such conversation is assumed to be correct, it does not, in the first place, show any sort of demand from Rafat Jamal or any sort of acceptance by Rafat Jamal. Deposition made by Ashok Yadav also indicates that when he attempted to hand over that envelope to Rafat Jamal, Rafat Jamal immediately pushed such envelope. Secondly, sealing of cassette consisting such conversation pales into insignificance as according to Ashok, he was made to say that last line next day in CBI office. Thus tempering of conversation piece does not stand ruled out.
41 Learned PP has argued that CBI officials reached at the spot in no time and envelope was recovered from the person of Rafat Jamal CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 21 of 38 and report of hand-wash and pants-wash also clearly indicates that he had accepted the envelope and had even put the same in his pocket of pants. However, traces of powder can reach the hands of Rafat Jamal as testimony of complainant itself indicates that Rafat Jamal had pushed the envelope with his hands. And, if such hand is put in pocket, then, in turn, there can be traces of phenolphthalein powder in the inner lining of pocket.
42 As already noticed above, complainant has very categorically claimed before the Court that sentence "lifafa jeb mein hai"
was not part of the spot conversation and was rather recorded next day in the CBI office. Such fact, by itself, makes the entire allegedly recorded spot conversation between complainant & Rafat Jamal shady and shaky.
43 I have seen the testimony of PW15 Suresh Chand as well. He is the one who had also gone with the CBI team. He has also not supported the case of prosecution and deposed that when they had reached IIT, officer was not available there and sometime thereafter CBI officials had caught some person by both his hands. According to him, that person claimed that money was lying in his pocket and Mr. Narender Sharma (independent witness) took out the money from such pocket of that person and then hand-wash etc. were taken. This witness was declared hostile by the prosecution and was cross-examined in detail by the prosecution. Despite that, as regards Rafat Jamal, this witness did not support the case of prosecution at all and claimed that it was incorrect to suggest that Rafat Jamal was challenged for having accepted the bribe and he pushed the team members and tried to run away. It is also important to mention that as far as alleged recovery of CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 22 of 38 bribe money from the pocket of Rafat Jamal is concerned, as per the case of prosecution, such amount had been allegedly recovered from such pocket by PW15 Suresh Chand but Suresh Chand has denied this fact and has rather claimed that such money was taken out from such pocket by shadow witness Narender Sharma. As per PW14 Capt. B.N. Yadav, envelope containing bribe money was taken out from the pocket of accused Rafat Jamal by one CBI official whereas if complainant is to be believed, it never reached anyone's pocket and rather it had fallen down.
44 Undoubtedly, as per officials i.e. PW19 Insp. Arun Rawat and PW20 DSP A.B. Chaudhary, envelope had been recovered from the pocket of accused Rafat Jamal but fact remains that entire case is shrouded with mystery with respect to most important aspect of the case i.e. whether there was any demand from the side of Rafat Jamal either for self or in terms of any conspiracy and whether he had accepted any bribe money. PW4 Ashok Yadav has categorically deposed that Rafat Jamal had never accepted any money and rather when he attempted to give him the envelope, such envelope was pushed by Rafat Jamal which fell down. Testimony of Suresh Chand also does not take us anywhere. Though there is no impediment in believing the version of official witnesses yet fact remains that court cannot shut its eyes completely to the testimony of public witnesses. As a rule, corroboration from neutral corner is considered to be of prime importance. It's not a case where there was no public witness. It's a case where rather public witnesses are not supporting prosecution. Testimony of one set of witnesses cannot be given undue preference over the other set. Testimony of official witnesses has to be read in harmony with the testimony of public witnesses.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 23 of 38Moreover, when complainant himself alleges that one particular line forming part of the played conversation was added subsequently, such conversation in toto has to be considered distrustful and discarded. Complainant himself admitted that he had never met Rafat Jamal and this fact rather stands substantiated as according to complainant, when he met Rafat Jamal on the date of incident, Rafat Jamal did not recognize him and rather asked him as to who he was.
45 PW14 Capt. B.N. Yadav is Security Officer of IIT, New Delhi and he was called immediately after money was allegedly accepted by Rafat Jamal and hand-wash proceedings were conducted in his presence but in his cross-examination, he has deposed that he had signed recovery memo Ex. PW4/B after the date of incident. There is one very interesting point which has come across in this regard and has escaped notice of everybody. Recovery Memo Ex PW 4/B contains signatures of many persons as witnesses. Photocopy of such Memo was given to defence after summoning and copy thereof was shown to PW 19 Arun Rawat in his cross and has been proved as Ex PW 19/DB. His confrontation was limited to the point that signatures of Arun Rawat were not there on such Memo which otherwise should have been there if it was correct photocopy of original. He admitted such fact. I can imagine that prosecution can always allege that such photocopy might have been tempered further by accused at his end in order to take some undue advantage. But, things do not stop here. I have seen all the signatures of all the persons appearing on such memo Ex PW 19/DB and I have no hesitation in holding that it seems very much possible that CBI mightt have prepared more than one original Memos. Ex PW19/DB is not copy of original lying on record as is apparent to naked eyes by evaluating the CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 24 of 38 distance and positioning of signatures inter se. This means that one more original Memo had been prepared. Nobody knows why? Nobody knows where is such another original Memo? It is also important to mention here that complainant himself has deposed that he had signed on several papers subsequently when he was called in CBI office. So Recovery Memo becomes a document whose authenticity in having been prepared at the spot is under needle of suspicion.
46 Now let me see whether prosecution has been able to prove its case against accused Pradeep Verma or not.
47 At the very outset, Sh. Verma has taken an objection that report of FSL with respect to voice sample cannot be looked into as it was not appropriate and legal for CBI to have obtained voice sample during investigation without seeking consent of the accused.
48 It has also been claimed that even the Court did not have any power to grant any permission for taking any specimen voice sample.
49 In the case of RAKESH BISHT V. CENTRAL BUREAU OF INVESTIGATION 2007 CRI.L.J. 1530 DELHI, it has been held that accused cannot be compelled to give his voice sample during investigation and if matter is before court then court can direct to give voice sample only for identity purpose and not for the purpose of any inculpatory statement. It has been observed as under:-
"The accused, at the stage of investigation, cannot be compelled to give his voice sample just as he cannot be compelled to undergo a test identification CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 25 of 38 parade. It is for him to give or not to give his voice sample in the course of investigation and the Court cannot, during investigation, direct the accused to give his voice sample."
50 Here, accused was not even formally asked whether he was ready to give voice sample. No notice of application was issued to him. It is also not amply clear whether accused had given voice sample voluntarily or not.
51 As already noticed above, there is no evidence before the Court which may even remotely suggest that bribe money was ever accepted by any of the accused. Learned Prosecutor has drawn my attention towards first conversation which the complainant had with accused Pradeep Verma which was recorded in CBI office and on the strength of same, it has been argued that such conversation clearly reveals that there was demand by accused Pradeep Verma. He has argued that even if it is assumed for a moment that CBI was not empowered to take specimen voice sample during investigation or that accused had been compelled in this regard, complainant himself has made a specific deposition before the Court regarding demand and when such conversation was played before him, he identified his voice as well as voice of accused Pradeep Verma. He has thus argued that even if FSL report is excluded from the scope of discussion, deposition of complainant clearly indicates that there was demand by accused Pradeep Verma and the recorded conversation was immediately sealed and, therefore, such piece of conversation clinches the issue in favour of the prosecution.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 26 of 3852 Tape recorded conversation is admissible provided that the conversation is relevant to the matters in issue, that there is identification of the voice and that the accuracy of the conversation is proved by eliminating the possibility of any tempering. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under S. 8. It is res gestae. The conversation is therefore a relevant fact and is admissible under S. 7. Like any document, the tape record itself is primary and direct evidence admissible of what has been said and picked up by the receiver. In S. PRATAP SINGH V. STATE OF PUNJAB, AIR 1964 SC 72, Apex Court considered the issue and clearly propounded that tape recorded talks are admissible in evidence.
53 As regards the identification of such recorded voice, proper identification of such voice is a sine qua non for the use of such tape recording, therefore, the time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. It is also required to be established that such conversation was appropriately recorded and secured and sealed immediately leaving no chance of tempering. It is known fact that tape recorded conversation can be erased with ease by subsequent recording and insertion could be superimposed. Voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Every possibility of tempering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. Ultimately, if in a particular case, there is a well grounded suspicion not even say proof, that the tape recording has been tampered with that would be a good ground for the court to discount wholly its evidentiary value.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 27 of 3854 Therefore, now it is to be seen whether such recorded conversation was properly recorded, kept, preserved and sealed. In other words, it is to be seen whether prosecution has been able to prove that there was no chance of tampering with the same.
55 When such conversation had taken place in the CBI office, as per PW19 Insp. Arun Rawat, it was recorded by Sh. Tanmay Behra, DSP in another room in the presence of Sh. Narender Kumar Sharma and Sh. P.V.K. Raja. Curiously enough, Sh. Tanmay Behra, under whose supervision this entire exercise of recording of telephonic conversation was carried out, has not graced the witness box. Shadow witness Narender Kumar Sharma has already left for his heavenly abode. This leaves us with the testimony of complainant himself and of Sh. P.V.K. Raja. I have seen the testimony of PW5 P.V.K. Raja. He has deposed that Sh. Tanmay Behra had asked complainant Ashok Yadav to make call to Pradeep Verma on his mobile and whatever Ashok spoke was being recorded in the voice recorder and such recorder was played to them and then it was transferred on computer and then to CD and then such CD was played to them in order to ensure that it contained only what they had heard and then such CD was sealed and the document was prepared at the time of sealing of CD. Such document has been proved by him as Ex. PW5/A. Ex. PW5/A is Digital Recorder Observation Memorandum-II and as per such memorandum also, contents of digital recorder were downloaded into the computer and then same were burnt to a compact disc. Thereafter such CD was sealed in the presence of witnesses. Impression of seal used has also been put on such memorandum. However, it is not clear as to who kept such seal after use. The person who is holding seal should never simultaneously CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 28 of 38 possess sealed case property. If such person is allowed to retain the seal as well as sealed property then such person can always tamper with the case property. Prosecution has failed to throw necessary light on this crucial aspect.
56 As already noticed above, Sh. Tanmay Behra has not entered into witness box. He was the one who had burnt CDs. PW5 P.V.K. Raja has nowhere deposed as to who kept the seal after use. In his cross-examination, he has deposed that Sh. Tanmay Behra himself had sealed the CD but he, unfortunately, does not remember whether such seal was kept by Sh. Tanmay Behra after use or whether it was given to anyone else. Surprisingly, in his cross-examination dated 15.04.2010. PW5 Raja also claimed that cassettes were played two- three days after the incident also and he does not remember whether these cassettes were already sealed when they were played. Prosecution did not seek requisite clarity from the witness with respect to aforesaid fact.
57 Thus, sanctity of sealing seems completely lost.
58 Even PW19 Insp. Arun Rawat has not been able to throw desired light on this issue. Rightly so, because if prosecution case is to believed, such recording exercise was being done in another room under the supervision of Sh. Tanmay Behra. IO himself was in another room and was not with Sh. Tanmay Behra at that time. As far as complainant Ashok Yadav himself is concerned, he pleaded his ignorance about such CDs. In his cross-examination dated 10.12.2009, he has categorically deposed that CDs were not prepared in his presence and CDs, which CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 29 of 38 had been played in the Court during trial, were heard by him for the first time in the Court and these were never played or run by CBI officials earlier. He claimed such fact even in his examination-in-chief dated 23.04.2009.
59 It is interesting to note that as far as eavesdropping instrument is concerned, even as per admitted case of prosecution, it developed some snag and stopped working. PW5 P.V.K. Raja, who was present in the CBI office throughout and who was to hear the conversation once eavesdropping instrument was made active, deposed that they had heard voice on such instrument for some time then it stopped. Such conversation was up to the moment when complainant was going to meet accused Pradeep Verma and then again eavesdropping instrument had been connected and dialled and then it started operating and there was conversation for 10/15/20 minutes. However, such fact is not in consonance with CBI case. According to CBI, there was never second activation and once, it went out of order, it could not be made active. But PW5 P.V.K. Raja has something else to say.
60 P.V.K.Raja admitted in his cross-examination that mini- cassette of eavesdropping instruments stopped working after some time. PW20 DSP A.B. Chaudhary, who is final IO of the case, has also admitted in his deposition that it was correct that according to investigation, eavesdropping instrument went out of order after some time and no expert opinion was obtained to ascertain as to what defect had developed or whether there was no fault at all. It has been suggested to concerned witness that there was never any snag in the CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 30 of 38 eavesdropping instrument and such conversation has been deliberately held back by the prosecution as it was not supporting the prosecution version.
61 It will be important to mention that alleged conversation between accused Rafat Jamal and Ashok was very vital in order to confirm the acceptance. In such conversation, in the end, some voices are inaudible and who knows, prosecution wants to indicate that at that moment itself there was some technical snag in the instrument and, therefore, it stopped working. But defence wants to stress that there was deliberate tempering and further conversation was erased in order to give boost to the case of CBI as there was never ever any acceptance.
62 PW12 Ghan Shyam is also important witness. He was posted in Centaur Hotel and he was also called in CBI office as an independent witness and he was explained about trap proceedings and eavesdropping phone was handed over to complainant in his presence and he was also told how such instrument could be activated. When eavesdropping instrument was activated, conversation between complainant and the other persons on the other end were audible to them in CBI office and simultaneously such conversation was also recorded. Eavesdropping Recorder Observation Memorandum has been proved as Ex. PW5/B which is also signed by Sh. Ghan Shyam. However, to the utter dismay of prosecution, PW12 Ghan Shyam has not supported the case of prosecution. In his examination-in-chief, he simply claimed that he was called by CBI and there he met Insp. Vipin Kumar and at about 3.00 PM he was called in the office of Inspector and thereafter they all had gone to the house of one engineer who was not in CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 31 of 38 his house. CBI officials knocked at the door of the house upon which wife of engineer had opened the door and then such house was searched. He also deposed that in the evening he came to know that said engineer was Rafat Jamal. Since this witness was found resiling from his previous statement, he was cross-examined by the prosecution with the permission of the Court and even during such cross-examination conducted by prosecution, witness failed to support the prosecution case fully. Rather according to him, complainant had left CBI office before he himself i.e. PW12 Ghan Shyam had reached CBI office. So much so, he volunteered that when he reached CBI office, recording was already going on.
63 PW15 Suresh Chand is also an important witness. He was also posted in Centaur Hotel. In his examination-in-chief, he merely claimed that when he along his colleagues reached CBI office on 22.03.2006, they were explained that they were to go to IIT office and CBI officials told them that somebody had demanded money and they were to go to trap him. He further deposed that when they had gone there, that officer was not available there and sometime after, CBI officials and they had caught some person by both his hands and they enquired from the said person about the money he had received and then such person told that money was lying in his pocket and then independent witness Narender Sharma took out the money from his pocket and numbers of notes were tallied. He has then deposed regarding taking of hand-wash and he also identified accused Rafat Jamal as the person who had been caught that day. Since, witness was also found resiling from his previous statement, he was also duly cross- examined by the prosecution and then wisdom dawned upon him from CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 32 of 38 somewhere and he, merely and merrily, kept on answering all the questions in affirmative as put to him by learned Prosecutor. Fact remains that in his initial deposition, he failed to mention any fact related to complainant or pre-trap proceedings or recording of conversation between complainant and accused Pradeep Verma and, therefore, his testimony does not inspire much confidence.
64 Section 7 of Prevention of Corruption Act reads as under:
Public servant taking gratification other than legal remuneration in respect of any official act.
-Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
65 Basic difference between Section 7 & 13 (1) (d) of PC Act is that whereas Section 7 bars demand, Section 13 (1) (d) bars acceptance. In order to prove Section 7, acceptance may be with or without demand but as far as Section 13 (1) (d) of PC Act is concerned, such acceptance has to be preceded by demand.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 33 of 3866 Offence under Section 13 (1) (d) of PC Act would stand completed when it is shown that illegal gratification has been accepted by the accused. It has not been so established in the present case, therefore, offence under section 13 (1) (d) of PC Act does not stand proved.
67 However, as far as Section 7 of PC Act is concerned, Legislature has used word 'agrees to accept' or 'attempts to obtain' as well. Learned PP has contended that deposition of complainant at least reflects that there was demand of money and, therefore, as far as Section 7 of PC Act is concerned, even if there is no acceptance, accused are liable to be held guilty as they had agreed to accept the bribe. He has placed his reliance upon MUBARAKALI VS. STATE 1958 CR.L.J. 764 MP..
68 In the backdrop of said contention, I have once again carefully scrutinized the testimony of complainant and of the view that keeping in mind his hostile testimony, even it does not stand firmly established that there was any attempt or agreement of such a nature so as to invite applicability of Section of 7 of PC Act.
69 Firstly, complainant has not supported the case of prosecution. He has disowned his report Ex. PW4/A. He has claimed that he did not know as to what was written in such complaint and rather CBI had got the same dictated of their own and he was not even shown the same. Secondly, as per admitted case of prosecution, complainant had already received payment with respect to first two work contracts and balance payment was only Rs. 7500/-. However, when complainant CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 34 of 38 entered into witness box, in reply to the Court query, he came up with a different answer and claimed that he had to receive Rs. 35000/- from IIT. This is not in consonance with the case of prosecution as according to the case of prosecution, complainant was to get the balance payment of Rs. 7500/- only.
70 Thirdly, he does not know as to what was to be done with digital recorder or eavesdropping instrument. Fourthly, according to him, he never made any statement to CBI. Fifthly, if at all accused Pradeep Verma was demanding any money then when Ashok Yadav met him in his office, he would have, readily and gladly, accepted the envelope but instead of accepting the same, he rather allegedly advised complainant to go to the office of Rafat Jamal. This indicates that Pradeep was not interested in any money. It is important because as per prosecution, he was the one who had made the demand. It is not the case of prosecution that complainant had ever talked to Rafat Jamal. There is no such recorded conversation either. Even as per the complainant, he had never earlier met Rafat Jamal and he also claimed that Rafat Jamal had never demanded any money from him. According to complainant, he had never seen accused persons together. He also deposed that he had never claimed before CBI in his complaint or in statement that he was paying any money to accused Pradeep Verma on earlier occasions. Interestingly, as per case set up by the prosecution, money was being demanded by both the accused and even as per alleged first conversation, money had been demanded by accused Pradeep Verma for self and for Rafat Jamal. However, in his cross-examination dated 10.12.2009, complainant has claimed that when Pradeep Verma refused to accept the money and asked him to go to the office of Rafat Jamal, he CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 35 of 38 had asked Pradeep Verma as to why he was asking him to give money to Rafat Jamal when Rafat Jamal had not asked him to pay. In his cross- examination dated 10.12.2009, complainant reiterated that it was correct that none of the officials of IIT had ever asked him for any bribe. Sixthly, third work-contract was of Rs. 7500/- and was awarded in March, 2006. As per allegations made in the complaint dated 22.03.2006, complainant had been given such award in the month of March, 2006 only. Relevant file related to third work contract has been duly proved by the prosecution and as per admitted case of prosecution, third work pertaining to painting of emergency panel was awarded to M/s A.K. Electronics. Such file i.e. D-32 has been proved as Ex. PW2/5. A bare perusal of the same would show that award had been given to M/s A.K. Electronics on 13.03.2006. As per contents of complainant dated 22.03.2006, complainant has claimed that he was being pressurized by both the accused for last 15-20 days to pay 10 per cent amount as bribe which means that such demand was being made between 02.03.2006 and 07.03.2006. This is not possible because third contract was awarded later on i.e. on 13.03.2006.
71 Moreover, as already notice above, P.V.K.Raja has deposed that cassettes were played three four days after the incident and even as per complainant, one line in conversation which he had with Rafat Jamal was added subsequently in CBI office. Finally, it is also important to note that complainant had made call to accused Pradeep from CBI office on his mobile to mobile of said accused. No necessity was felt to place on record call details of such mobiles at least in order to substantiate that such call had, in fact, emanated at such alleged time.
CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 36 of 3872 Aforesaid fact coupled with the fact that nobody knows who retained the seal after use, it would be unsafe to rely upon first conversation as well as testimony of complainant to infer demand simplicitor. Here, I would hasten to add that conversation on which prosecution intends to rely upon rather hints out that demand had not come from the accused in the first place. He was rather tempted and instigated in this regard 73 Moreover, prosecution cannot change its stance midway or at final lag. Its case was of demand as well as of acceptance. It was never a case of mere agreement to obtain any pecuniary advantage. In BANARSI DASS VS. STATE OF HARYANA AIR 2010 SC 1589, it has been observed that firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. It was also held that mere demand by itself was not sufficient to establish the offence.
74 In view of my foregoing discussion, I am of the view that deposition of complainant is not of such impeccable nature so as to conclusively hold that accused had even agreed to accept the bribe. Undoubtedly, testimony of Ashok Yadav reveals that conduct of accused Pradeep Verma was not above board. Surprisingly, one suggestion put to him by accused Pradeep Verma rather indicates that complainant was earlier also paying accused Pradeep Verma. Fact, however, remains that in any criminal matter, prosecution is duty bound to prove its case to the hilt and beyond shadow of doubt. Prosecution is required to travel the distance from 'may be true' to 'must be true' which in the present case, the prosecution has failed to cover. No one can be convicted CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 37 of 38 merely on the basis of preponderance of probabilities. Conduct of accused Pradeep Verma is ostensibly deplorable and can be labelled as misconduct but misconduct has to be distinguished from criminal misconduct.
75 I, therefore, grant benefit of doubt to both the accused and acquit them of all the charges levelled against them.
76 Bonds are cancelled. Respective sureties are discharged.
77 Both the accused are simultaneously directed to submit Bonds u/s 437A Cr.P.C.
78 File be consigned to Record Room. Ahlmad is directed to page and book-mark the file as per the latest circular so as to enable digitization of the entire record.
79 File be consigned to record Room.
Announced in the open Court on this 30th day of January, 2012.
(MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 40/2011 CBI Vs. Rafat Jamal etc. Page 38 of 38