Delhi District Court
Cbi vs Vinay Kumar on 18 November, 2024
IN THE COURT OF SH. SANJEEV AGGARWAL
SPECIAL JUDGE : (CBI)-10 : (PC ACT)
ROUSE AVENUE DISTRICT COURT, NEW DELHI
CNR No. DLCT11-000346-2021
CBI Case No. 45/2021
RC NO. DAI-2021-A-0002
PS : CBI/ACB/New Delhi
U/S : 7 of PC Act, 1988 (as amended in 2018)
Central Bureau of Investigation (CBI)
Vs.
Vinay Kumar
S/o. Sh. Ram Sevak
R/o. Flat No. 1706, Tower-I, Galaxy North Avenue-2
Gaur City-II, Noida Extension, Uttar Pradesh
Permanent Add. 5/250, UIT, near Alampur Bhiwadi,
Distt- Alwar, Rajasthan
Date of institution : 29.09.2021
Judgment reserved : 26.10.2024
Judgment delivered : 18.11.2024
JUDGMENT
1. Brief facts as set out in the chargesheet are as under:-
16.1 The background of the case is that on 24.10.2018, Sh. Shyson Thomas, Managing Director, M/S Air Pegasus reported the corrupt CNR No. DLCT11-000346-2021 Page 1 of 103 CBI Vs. Vinay Kumar behavior of Sh. Vinay Kumar, Assistant Section Officer to Smt. Usha Padhee, Joint Secretary, Ministry of Civil Aviation (MoCA) over telephone who asked Sh. Shyson Thomas to connect her on her office landline number before making call to Sh.
Vinay Kumar as she wanted to hear the likely conversation between Shyson Thomas and Vinay Kumar, ASO. As suggested by Joint Secretary, he made a call to Sh. Vinay Kumar and simultaneously connected the Joint Secretary Madam on her landline number through conference call. The said conversation between Shyson Thomas and Vinay Kumar, ASO was heard and recorded by Smt. Usha Padhee, Joint Secretary in her personal mobile phone. In the said call, Vinay Kumar demanded the remaining bribe amount of Rs. 30,000/- from Sh. Shyson Thomas. After that conversation Shyson Thomas lodged a complaint against the said Sh.
Vinay Kumar, ASO, through e-mail dated 25.10.2018 on the official e-mail of Smt. Usha Padhee, Joint Secretary, MOCA. Thereafter, a formal complaint dated 31.12.2018 against Vinay Kumar, ASO, DT Section, MOCA was received in CBI from Ministry of Civil Aviation under the CNR No. DLCT11-000346-2021 Page 2 of 103 CBI Vs. Vinay Kumar signature of Sh. Amit Ghoshal, Under Secretary. PE-03(A)/2020-DLI was registered in CBI, ACB, Delhi on the said complaint and on the basis of findings of PE and the complaint, the instant case was registered on 06.01.2021 against Vinay Kumar, ASO, DT Section, MOCA.
Allegations in brief as made in FIR :-
16.2 It is alleged in the complaint/FIR that ministry of Civil Aviation has received a complaint dated 25.10.2018 sent by Mr. Shyson Thomas, MD of Air Pegasus. through e-mail in connection with corrupt practices involving Sh. Vinay Kumar, ASO of DT Section of the Ministry. It is alleged in the e-mail that Sh. Vinay Kumar, ASO is asking money to clear his files for obtaining NOC for his company.
The complainant has also mentioned that he has put Smt. Usha Padhee, JS, MOCA on the conference call on 24.10.2018 while talking to Sh. Vinay Kumar. The conversation between complainant and Sh. Vinay Kumar has also been recorded.
Result of Investigation:-
16.3 Investigation revealed that the mobile phone (Apple I-phone 6S) belonging to Smt. Usha Padhee, Joint Secretary, Ministry of Civil Aviation has been CNR No. DLCT11-000346-2021 Page 3 of 103 CBI Vs. Vinay Kumar taken into possession by CBI in sealed condition during preliminary enquiry in which the alleged conversation between the accused Sh. Vinay Kumar, ASO and the complainant Sh. Shyson Thomas was recorded by Smt. Usha Padhee. The said. Mobile phone of Smt. Usha Padhee was de-sealed during investigation and got operated with the help of Sh. Ajay Pal Singh, SSA, CFSL, New Delhi on 01.02.2021 and data was extracted from the said mobile phone on 01.02.2021 through al memorandum dated 01.02.2021 and the data was obtained in separate Pen-Drive and the said mobile phone was again sealed.
16.4 Investigation also revealed that the extracted data of the mobile phone of Smt. Usha Padhee was analysed and relevant recordings were heard.
Further on 22.02.2021, Smt. Usha Padhee, JS, MoCA joined the investigation of this case and investigation copy of alleged recording dated 24.10.2018 (File Name- 20181024- 160056, Title- Safdarjung Flying Club 2) was played and heard by Smt. Usha Padhee. After hearing the conversation, she identified the voice of Sh. Vinay Kumar. ASO as well as the voice of Sh. Shyson Thomas in the CNR No. DLCT11-000346-2021 Page 4 of 103 CBI Vs. Vinay Kumar recorded conversation. The transcription of the conversation was also prepared in the presence of Smt. Usha Padhee and a voice identification-cum- transcription memo dated 22.02.2021 was also prepared to this effect. The excerpts of the conversation that took place between the complainant Sh. Shyson Thomas and the accused Vinay kumar, ASO is re-produced as under wherein "A" & "B" denotes the complainant Sh. Shyson Thomas and the accused Vinay Kumar, ASO respectively-
A So let me discuss.... You know with my other directors also there. They are also saying that you know because I have been doing something you know... mine is a very transparent business and you know we are being in trouble because of that loss suffered by the company and...
B Hmmm... Hmmm... A You know... all that thing is this... so now B Sir I need to A Yeah tell me... B Sir I know one thing... you have committed this and I am just
asking what you have committed to me only... thik hai A How much more you require now? How much more...
B You... you have left with 30....
A 30 more
B Thirty is pending... 30 pending hai
CNR No. DLCT11-000346-2021 Page 5 of 103
CBI Vs. Vinay Kumar
A This is in addition to that 75.. so it will be one lakh five
thousand then
B Yeah
A Can you reduce something
B No sir
Further
B Sir... Sir listen... Sir listen to me
A Yeah
B You can do one thing
A Yeah
B Give me twenty.. later on when you have.. you can give me
later on..
baki... remaining... then
16.5 Investigation revealed that Sh. Shyson Thomas informed Smt. Usha Padhee, JS, MOCA about the demand of bribe by Sh. Vinay Kumar, Assistant Section Officer telephonically on which she asked him to connect her on a conference call if he speaks to Sh. Vinay Kumar, ASO over the phone. On 24.10.2018, Sh. Shyson Thomas called her on her office landline number 24617692 and informed her that he is going to talk to Sh. Vinay Kumar, ASO and will connect her in the same call through conference call. She immediately decided to record the likely conversation in her I-Phone 6S which she CNR No. DLCT11-000346-2021 Page 6 of 103 CBI Vs. Vinay Kumar was using at that time. Sh. Shyson Thomas then called her on her fixed line number and connected her on conference call. After she was joined on the call, She put her fixed line device on loudspeaker mode and recorded the conversation between Shyson Thomas and Sh. Vinay Kumar in her l- phone 6S. in the said call Sh. Vinay Kumar made a demand of bribe of Rs. 30,000/- from Sh. Shyson Thomas.
16.6 Investigation also revealed that Smt. Usha Padhee, JS, MoCA had some E- Mail conversation with Sh. Shyson Thomas on 25.10.2018 on her official E-Mail ID i.e. [email protected] regarding the corruption of Sh. Vinay Kumar, ASO. She, with the approval of Secretary, MOCA, forwarded the said E-Mail conversations to Ms. Rubina Ali, JS (Admin), MoCA for taking further necessary action in this regard.
16.7 Investigation also revealed that Ms. Rubina Ali, JS (Admin) MoCA was also looking after the work of Vigilance in Ministry of Civil Aviation at that time and the said complaint/e-mail of Sh. Shyson Thomas was dealt in the vigilance section of MoCA and thereafter a formal complaint dated CNR No. DLCT11-000346-2021 Page 7 of 103 CBI Vs. Vinay Kumar 31.12.2018 was sent to CBI for taking action against Sh. Vinay Kumar, the then ASO, DT section, MoCA.
16.8 Investigation also revealed that Sh. Shyson Thomas, Managing Director of M/s Air Pegasus came to know that one Mr. Vinay Kumar, Assistant Section Officer (ASO) was dealing/handling the file of Air Pegasus and during his visit to Ministry in the month of April-May 2018, he met Sh. Vinay Kumar, ASO outside his office in the Rajiv Gandhi Bhawan premises where the said Vinay Kumar demanded the bribe of Rs. 50,000/- from him for processing his file and after some negotiation Sh. Shyson Thomas gave him Rs. 25,000/- in cash as a bribe amount.
16.9 Investigation revealed that when Sh. Shyson Thomas again contacted telephonically Sh. Vinay Kumar to know the status of his application for initial NOC, the said Vinay Kumar again demanded bribe of Rs. 1 Lakh for clearing his file and started harassing and pressurizing him over phone to pay the bribe amount for issuance of NOC.
16.10 Investigation revealed that accused Sh. Vinay Kumar also provided two bank account numbers CNR No. DLCT11-000346-2021 Page 8 of 103 CBI Vs. Vinay Kumar through SMS to Sh. Shyson Thomas of which one was in the name of Sh. Sudhanshu Kumar having A/c No. 50100149896924 (IFSC- HDFC0000728) and another was in the name of Sh. Hemant Gupta having A/c No. 01661130001672 (IFSC-HDFC 0004392).
16.11 Investigation revealed that Sh. Shyson Thomas directed his Finance Manager namely Sh. Chandrashekaran to deposit some amount in the bank account provided by Sh. Vinay Kumar. On the direction of Sh. Shyson Thomas, Sh.
Chandrashekaran had deposited cash of Rs. 25,000/- twice on 18.08.2018 and on 04.09.2018 in the bank account of Sh. Sudhanshu Kumar having A/c No. 50100149896924.
16.12 Investigation revealed that after the initial NOC to M/s Air Pegasus was issued by the Ministry on 27.09.2018, accused Sh. Vinay Kumar again started demanding the remaining bribe amount of Rs, 50,000/- from the complainant over phone. On 24.10.2018, Sh. Shyson Thomas decided to report the corrupt behavior of Sh. Vinay Kumar, ASO to his senior officers in MoCA and accordingly he reported the corrupt behavior of Sh. Vinay Kumar to CNR No. DLCT11-000346-2021 Page 9 of 103 CBI Vs. Vinay Kumar the Joint Secretary Smt. Usha Padhee over telephone. As suggested by Joint Secretary, he made a call to Sh. Vinay Kumar and simultaneously connected the Joint Secretary Madam on her landline number through conference call. 16.13 Investigation revealed that A/c No. 50100149896924 is Corporate Saving Salary Account standing in the name of Sh. Sudhanshu Kumar which was opened on 24.03.2016. The account statement pertaining to A/c No. 50100149896924 belonging to Sh. Sudhanshu Kumar revealed that there are two credit entries of Rs 25,000/- each on 18.08.2018 and 04.09.2018 respectively by way of cash deposit from MG Road, Bengaluru Branch of HDFC Bank. Further there is a debit transaction of Rs. 17,950/- on 18.08.2018 in the A/c No. 01661130001672 by way of Third Party Transfer (TPT) through Net Banking. The said A/c is also maintained with HDFC Bank standing in the name of Sh. Hemant Gupta.
16.14 Investigation revealed that Sh. Sudhanshu Kumar is the cousin of accused Sh. Vinay Kumar, he used to share a room in sector 35 Noida with his cousin Vinay Kumar which was taken on rent by his CNR No. DLCT11-000346-2021 Page 10 of 103 CBI Vs. Vinay Kumar cousin Sh. Vinay Kumar. His bank account details were also in the knowledge of his cousin Sh. Vinay Kumar as they both used to share the same room and all of his documents including passbook were lying in the same room. He has also denied his acquaintance with Sh. Shyson Thomas.
16.15 Investigation revealed that Sh. S. Chandrashekaran was employed by Sh. Shyson Thomas the Managing Director of Air Pegasus. He joined Air Pegasus in the month of April, 2018 as Finance Manager and left the job in March, 2019 and he was looking after the accounts and finance related work of Air Pegasus, He denied his knowledge to the fact that any application for NOC was pending in the Ministry of Civil Aviation, and also denied his acquaintance with accused Sh. Vinay Kumar and his cousin Sh. Sudhanshu Kumar. However he identified his signatures and handwritings on both the deposit slips through which the cash of Rs. 25,000/- on 18.08.18 & 04.09.18 in the account of Sh. Sudhanshu Kumar on the direction of Sh. Shyson Thomas.
16.16 Investigation revealed that accused Vinay Kumar was posted as Assistant in the DT Section of CNR No. DLCT11-000346-2021 Page 11 of 103 CBI Vs. Vinay Kumar Ministry of Civil Aviation since 30.07.2015. The matter related to Air Pegasus was being dealt by accused Vinay Kumar since 2017 and the application of Shyson Thomas for initial NOC was received in the DT Section on 14.08.18 through e- mail and the same was processed by accused Vinay Kumar, the then ASO, DT Section. He has also made some queries vide e-mail dated 20.08.18 which were responded by Sh. Shyson Thomas vide e-mail dated 04.09.18 and finally on 06.09.18, the application of Sh. Shyson Thomas for initial NOC was forwarded by accused Vinay Kumar to Sh. Bhupesh Pillai, the then Section Officer, DT Section. Thus, the application of Sh. Shyson Thomas was kept pending with accused Vinay Kumar from 14.08.18 to 06.09.18 and during the that period 02 transactions of Rs. 25,000/- each on 18.08.18 and 04.09.18 respectively were credited/deposited in the account of Sh. Sudhanshu Kumar, the cousin of accused Vinay Kumar. 16.17 Investigation revealed that vide letter dated 19.03.2021, the mobile phone of Smt. Usha Padhee containing the questioned voice of accused Vinay Kumar and Sh. Shyson Thomas have been sent to CNR No. DLCT11-000346-2021 Page 12 of 103 CBI Vs. Vinay Kumar CFSL, CBI, New Delhi for comparison with the specimen voice of accused Vinay Kumar and complainant Shyson Thomas contained in the memory card marked as "S-1 in RC-02(A)/2021-
DLI" and "S-2 in RC-02(A)/2021-DLI"
respectively. The report of CFSL is awaited, Same will be filed before the Court as and when received. 16.18 Investigation revealed that of mobile numbers of accused Sh. Vinay Kumar and Sh. Shyson Thomas i.e. 7891437083 & 9343789857 are registered in the name of accused Sh. Vinay Kumar and Sh. Shyson Thomas respectively. It is also revealed during investigation that landline number 011-24617692 is being used in the office of Joint Secretary Smt. Usha Padhee at Rajiv Gandhi Bhawan, New Delhi.
16.19 The sanction for prosecution in respect of accused Vinay Kumar, Assistant Section Officer, DT Section, MoCA and presently working in Directorate General of Civil Aviation (DGCA) accorded by Hon'ble Minister of Civil Aviation and conveyed through Ms. Anjali Mathur, Under Secretary, Ministry of Civil Aviation, New Delhi has been obtained. Same is enclosed herewith in CNR No. DLCT11-000346-2021 Page 13 of 103 CBI Vs. Vinay Kumar original and marked as D-25 in the list of Documents.
16.20 It is therefore, prayed that the accused Vinay Kumar, Assistant Section Officer, DT Section, MoCA and presently working in Directorate General of Civil Aviation (DGCA), New Delhi may be summoned and tried for the commission of offence u/s 7 of Prevention of Corruption Act, 1988 (as amended in 2018).
2. Vide order dated 29.09.2021, charge sheet was filed in the Court and vide order dated 29.10.2021, cognizance of the offence(s) mentioned in the charge sheet was taken. After supply of the copies and documents to the accused u/S. 207 CrPC, separate charge(s) were framed against the accused vide order dated 09.05.2023 / 11.05.2023, for demand of Rs. 50,000/- from Sh. Shyson Thomas, Managing Director, M/s. Air Pegasus Pvt. Ltd., punishable u/S. 7 of Prevention of Corruption Act, 1988 i.e. prior to amendment of PC Act, as also another charge for the demand of Rs. 50,000/- from Sh. Shyson Thomas, Managing Director, M/s. Air Pegasus Pvt. Ltd., punishable u/S. 13(2) r/w. Section 13(1)(d) of Prevention of Corruption Act, 1988 i.e. prior to amendment of PC Act. A separate charge was also framed against the accused u/S. 7 of the Prevention of Corruption Act, 1988 (as CNR No. DLCT11-000346-2021 Page 14 of 103 CBI Vs. Vinay Kumar amended in 2018) for demand of Rs. 1 Lakh from Sh. Shyson Thomas, Managing Director, M/s. Air Pegasus Pvt. Ltd. in August and September 2018, to which accused pleaded not guilty and claimed trial.
3. Thereafter, prosecution has examined 21 witnesses in support of its case, the description of which is given as under :
PW-1 is Sh. Yogesh Kumar Butta, who in the year 2018 was working as personal assistant to Ms. Usha Padhee, then Joint Secretary, Ministry of Civil Aviation. He also deposed that landline telephone no 24617692 was installed in the office of Ms. Padhee. He also deposed that the said telephone instrument so installed had the facility of caller ID and speaker phone.
PW-2 is Sh. Amit Ghosal, who was working as Under Secretary in the Ministry of Civil Aviation in the year 2018. He also deposed that though he was posted in Finance Division, but when the Under Secretary of the vigilance department was on leave, he used to look after the work of vigilance section as link officer. He received one file from vigilance section proposing that the complaint received from Ms. Usha Padhee, Joint Secretary, VD Section be CNR No. DLCT11-000346-2021 Page 15 of 103 CBI Vs. Vinay Kumar forwarded to CBI. The draft letter was in the file, accordingly he signed the letter and the relevant e-mails contained in the document D-2, which are Ex. PW2/A (colly).
PW-3 is Ms. Anjali Mathur, who has proved the sanction for prosecution against the accused dated 03.09.2021 on behalf of the Hon'ble President of India Ex. PW3/A. PW-4 is Sh. Umesh Kumar Bharadwaj, who has proved the posting details of accused Vinay Kumar and also explained the procedure regarding any company which intends to obtain air operators permit for which it needs to apply for initial NOC to MOCA as per the guidelines prescribed by DGCA.
He has also proved the various file notings relating to M/s. Air Pegasus Pvt. Ltd. in the present case. He has also deposed that vide voice identification memo dated 08.04.2021, he identified the voice of accused Vinay Kumar which is Ex. P-10/PW4.
PW-5 is Sh. Pramod Kumar Singh, who during the period 2019 to 2022 was posted as Branch Operation Manager HDFC Bank, Sector-50 Noida UP. He provided the statement of accounts no.
50100149896924 of Sudhanshu Kumar for the CNR No. DLCT11-000346-2021 Page 16 of 103 CBI Vs. Vinay Kumar period 01.04.2018 to 25.10.2018 and statement of account no. 01661130001672 of Sh. Hemant Gupta for the period 01.04.2018 to 25.10.2018 along with certificate u/S. 65B of the Evidence Act.
He has also deposed that as per the statement of account of Sudhanshu Kumar there is credit entry for a sum of Rs. 25,000/- at point A to A dated 18.08.2018 and a credit entry for the same amount dated 04.09.2018 at point B to B and this amount was deposited in the account of Sudhanshu Kumar in cash at HDFC Bank, MG Road, Bangalore and there is a debit entry of Rs. 17,950/- dated 18.08.2018 from point C to C to the corresponding credit entry in the account of Sh. Hemant Gupta by way of net banking third party transfer.
The relevant statement of account and certificate u/S. 65B Evidence Act and the relevant documents have been proved by him as Ex. P-2/PW5 to P-8/PW5, which includes the deposit slip(s) of Rs. 25,000/- each dated 18.08.2018 and 04.09.2018.
PW-6 is Sh. R. N. Upadhyay, Under Secretary, who was working as Section Officer in the Ministry of Civil Aviation during the year 2018. He has deposed CNR No. DLCT11-000346-2021 Page 17 of 103 CBI Vs. Vinay Kumar that he knew Vinay Kumar, who was working as Assistant Section Officer in the Ministry of Civil Aviation in the year 2018 and he had received the e-mail from Ms. Rubina Ali enclosed with clip of voice recording in respect of accused Vinay Kumar. The said complaint was processed and was forwarded to vigilance section. He has also proved the posting details of Vinay Kumar, Assistant Section officer as Ex. P-1/PW6 (colly.) PW-7 is Sh. Harish Kumar, UDC, working in MCD Keshav Puram Zone in the year 2021 and he had deposed that IO of this case Inspector Dharminder along with one Sh. Ajay extracted the data from the mobile phone, which was in sealed condition and opened of silver and black colour without SIM, I Phone make and from which the data was extracted and was transferred to the computer and thereafter transferred to the pen drive, which was kept by Inspector Dharminder. The mobile phone was switched off and was again resealed.
PW-8 is Sh. S. Chandrasekhran, who was an employee of Sh. Shyson Thomas, working in M/s. Air Pegasus Pvt. Ltd. and who on his instructions, he had deposited Rs. 25,000/- in the account of Sh.
CNR No. DLCT11-000346-2021 Page 18 of 103CBI Vs. Vinay Kumar Sudhanshu Kumar vide deposit slip(s) dated 18.08.2028 and 04.09.2018 which he had stated are in his hand writing.
PW-9 is Sh. Ajay Chaudhary, who was working as Sr. Scientific Assistant in Computer Forensic Division CFSL, New Delhi as Laboratory Assistant and he was called by Inspector Dharminder, the IO of this case regarding data extraction from the mobile phone in the presence of independence witness PW7 Sh. Harish Kumar. He has deposed that a sealed parcel was opened in his presence and in the presence of independent witness and I-phone without Sim was found therein, which was connected with the system and the data of the mobile phone was extracted with the help of UFED mobile forensic software. Thereafter the extracted data was transferred into blank pen drive and the mobile was sealed again and the memorandum in this regard is Ex. PW-1/PW7.
PW-10 is Sh. Sanjay Kumar Yadav, who in February 2020 visited the office of the CBI, where he was introduced to SI Manish of CBI, who told him that a mobile phone of Senior IAS Officer had to be seized and he had to be a witness to the same. Later on he CNR No. DLCT11-000346-2021 Page 19 of 103 CBI Vs. Vinay Kumar was taken to the room of Smt. Usha Padhee in the Ministry of Civil Aviation, where Smt. Usha Padhee handed over her I-phone to SI Manish without SIM and before doing so she had played the audio file over her mobile phone and they had heard the conversation and SI Manish stated that this was the conversation required in this case. The said phone was seized.
PW-11 is Sh. Dharmender Kumar, who was working as Section Officer in the DT Section, Ministry of Civil Aviation. He along with Sh. Umesh Bharadwaj went to the CBI office and handed over the file of M/s. Air Pegasus to ACB, CBI.
PW-12 is SI Manish of CBI, who had done the preliminary enquiry (PE), registered on 07.02.2020, which was entrusted to him and on 14.02.2020 along with witness Sh. Sanjay Yadav PW10, visited the office of Ms. Usha Padhee, where Smt. Padhee informed that Sh. Shyson Thomas had called her on 24.10.2018 on a fixed line number and asked her to be on the conference call where she will speak to Vinay Kumar. Ms. Padhee also informed that she will join the conference call and put her fixed line on speaker phone, thereafter she recorded the alleged CNR No. DLCT11-000346-2021 Page 20 of 103 CBI Vs. Vinay Kumar conversation between Sh. Shyson Thomas and Vinay Kumar on her Apple I-Phone 6S. Ms. Padhee produced that phone, it was found that a recording in the name of "Safdarjung Flying Club 2" was there along with four other recordings.
Ms. Padhee informed that this recording contains the alleged conversation in order to secure the sanctity and authenticity of this recording. It was decided to seize the mobile phone. Ms. Padhee also informed that she had also made a soft copy of the alleged call recording in her official desk top. The copy of the same was also provided by Ms. Padhee for inquiry purposes to SI Manish, which he took in pen drive.
PW-13 is Sh. R. S. Murthy, the then Chief Office Superintendent, South Western Railway. He has proved that in his presence sample voice of Sh. Shyson Thomas was taken in his presence and Sh. Shyson Thomas also identified the voice of Vinay Kumar vide voice identification memo Ex. PW13/C, along with the transcription thereof.
PW-14 is Sh. Deep Kumar, working as Junior Assistant, Food and Civil Supplies department, Govt. of NCT of Delhi, who went to CBI office on CNR No. DLCT11-000346-2021 Page 21 of 103 CBI Vs. Vinay Kumar 02.03.2021, where IO Inspector Dharmender Singh was present, where accused Vinay Kumar was also present and in his presence, the specimen voice of Vinay Kumar was given by him voluntarily, which was recorded in the DVR.
PW15 is Sh. Hemant Gupta, the friend of accused, in whose account an amount of Rs. 17,950/- was transferred from the account of Sh. Sudhanshu Kumar, cousin of accused Vinay Kumar.
PW16 is Sudhanshu Kumar, the cousin of accused Vinay Kumar, who was working as Staff Nurse in KGMU, Lucknow and in whose bank account bearing no. 50100149896924, there were two credit entries of Rs. 25,000/- dated 18.08.2018 and 04.09.2018 deposited in cash by Sh.
Chandrashekaran on the directions of Sh. Shyson Thomas.
PW17 is Ms. Usha Padhee, Joint Secretary, Ministry of Civil Aviation, in whose supervision and subordinate, the accused Vinay Kumar was working as Assistant Section Officer and who had recorded the conversation dated 24.10.2018 between the accused Vinay Kumar and Sh. Shyson Thomas on her I-phone Apple S6 and she had a speaker facility CNR No. DLCT11-000346-2021 Page 22 of 103 CBI Vs. Vinay Kumar in her chamber and she recorded the conversation between the accused and Sh. Shyson Thomas on her mobile phone while putting her landline on speaker mode, which contained the demand of Rs. 30,000/- by the accused, which was negotiated to Rs. 20,000/- and she also got to know from the said recording that Rs. 75,000/- had already been paid by Sh. Shyson Thomas to the accused.
She also deposed that on 25.10.2018, there were three e-mails in which Mr. Thomas had written to her and she also responded and she sent the e-mail with all the details to Joint Secretary Ms. Rubina Ali, In-charge of Administration which was sent on 31.10.2018. This email also had the recording of voice mail in the name of "Safdarjung Flying Club 2". She also deposed that on 14.02.2020 the mobile phone belonging to her which contained the said recording was handed over to SI Manish, which was sealed and the voice mail which was recorded in the mobile phone was copied to his official laptop for purpose of attaching the voice mail to the email sent to the Joint Secretary, Administration as a complaint. The voice memo was also heard by her and she CNR No. DLCT11-000346-2021 Page 23 of 103 CBI Vs. Vinay Kumar authenticated the same as Safdarjung Flying Club 2.
That on 22.02.2021 another officer of CBI visited her office and took the verification of voice of Sh. Thomas and ASO Vinay Kumar as was in the investigation voice memo. She also identified their voices and thereafter signed the memorandum. The transcript of the conversation was also typed in her presence, which she matched with the voice memo. She also gave the requisite print outs of the email sent by her.
The mobile recording was played in the court from the original mobile phone and was identified by the witness to be containing the voice of Sh. Shyson Thomas and that of accused Vinay Kumar.
PW18 is Sh. Rajeev Vashisth, the Nodal Officer, Bharti Airtel, who had provided the CDR of the mobile phone no. 7891437083 purportedly of accused Vinay Kumar of the relevant period without certificate u/S. 65B of the Evidence Act, which is Ex. PW18/A (colly). The main reason for not providing the said certificate, which he stated was that the CDR filed in the present case, that the data retrieved from the archive tapes can be incomplete.
CNR No. DLCT11-000346-2021 Page 24 of 103CBI Vs. Vinay Kumar PW-19 is Sh. Amitosh Kumar, the Assistant Director and Scientist C (Physics), CFSL DFSS, Kamrup Assam, who at the relevant time was working as CFSL expert with CFSL New Delhi. He had examined the mobile phone of Ms. Usha Padhee with the admitted as well as questioned voice of accused Vinay Kumar and specimen voice of Vinay Kumar and that of Sh. Shyson Thomas. He has deposed that after comparing the questioned voice marked as Q-1(1) (B) with the specimen voice marked as S-1(1)(B) and identifying and opined that the questioned voice marked as Q-1(1) (B) and specimen voice marked as S-1(1)(B) is similar and is of the same person namely Vinay Kumar on the basis of auditory and spectrographic analysis. Similarly, the questioned voice marked as Q-1(1)(A) and the specimen voice marked as S-2 (1)(A) are similar and of the same person namely Sh. Shyson Thomas on the basis of auditory and spectrographic analysis. The questioned voice and specimen voice containing Q-1, S-1 and S-2 were also examined for tampering/ Editing. He has also proved his expert report Ex. PW19/C. PW20 is Sh. Shyson Thomas, who was the MD of CNR No. DLCT11-000346-2021 Page 25 of 103 CBI Vs. Vinay Kumar M/s. Air Pegasus Pvt. Ltd., which was the regional airline, headquartered at Bangalore. The first NOC was applied in the year 2013 and they got air operation permit from DGCA on 31.08.2015 which was valid for five years, but air operations were cancelled in July, 2016 due to operational losses.
During the year 2017 they applied for reinstating air operation permit and they were advised to re-apply for NOC afresh. The NOC was under process, which was dealt with Air Transport Division headed by Under Secretary, reporting to Joint Secretary and Secretary, Civil Aviation. He also proved the certificate copy of the application dated 17.03.2017 part of D-13(3) Ex. P-2/PW4. He also deposed that one Vinay Kumar was dealing with the file of Air Pegasus and he met him in DT office when his NOC was under process and for the same, he used to visit DT Section and was also in touch with Ms. Usha Padhee, JS and Secretary Mr. Chobey.
He also deposed that the accused Vinay was asking for one paper or another and was not getting his work completed, so he lodged a complaint. Vinay demanded money for NOC. He CNR No. DLCT11-000346-2021 Page 26 of 103 CBI Vs. Vinay Kumar was asking for 2-3 Lakh. He told this fact to Ms. Usha Padhee, who told him that whenever accused demanded money, he should connect her on phone to record the conversation. Ms. Usha Padhee called him on phone to connect to Vinay and told that she will be a silent listener to the conversation between him and Vinay,which she recorded.
He gave firstly Rs. 25,000/- to Vinay before NOC was issued in cash, two weeks before issuance of NOC and he made total payment of Rs. 1,25,000/- in total, Rs. 50,000/- each was deposited into the account of Vinay by his staff named Chandra.
Thereafter, he was declared hostile and was cross-examined by Ld. Sr. PP for BCI and in his said cross-examination he stated that infact Rs. 25,000/- each was deposited in the account of Sudhanshu Kumar, totalling to Rs. 50,000/- and he also deposed that he sent email to Ms. Usha Padhee on 25.10.2018 at 8:11;11 PM and another mail sent to Ms. Usha Padhee on 25.10.2018 at 6:13 PM, part of D-1. The aforesaid mails were sent by him complaining regarding the demand of money by Vinay Kumar and he also identified the print outs of CNR No. DLCT11-000346-2021 Page 27 of 103 CBI Vs. Vinay Kumar the said email on document D-2 Ex. PW2/A. He also deposed that when he reported the corrupt behaviour of Vinay Kumar, who was demanding Rs. 50,000 from him when the initial NOC was issued and on 24.10.2018 he reported the said corrupt behaviour to Ms. Usha Padhee, who asked him to connect her on her office landline before making a call to Vinay Kumar as she wanted to hear the likely conversation between him and Vinay Kumar.
Thereafter, he made a call to Vinay Kumar and simultaneously connected the Joint Secretary on landline number through conference call and on the said call, Vinay Kumar demanded the remaining bribe of Rs. 30,000/-. The said mobile recording was played in the court from the original mobile phone and was identified by the witness to be containing the voice of him and that of accused Vinay Kumar.
PW21 is the IO Inspector Dharmender Kumar, who was the IO of this case, who has deposed regarding the investigations, as was carried out by him during the course of the present case and after completion of investigations, he had filed the charge sheet in CNR No. DLCT11-000346-2021 Page 28 of 103 CBI Vs. Vinay Kumar the Court.
4. After examination of above witnesses, the prosecution evidence was closed vide separate statement of Ld. Sr. PP for CBI recorded on 07.09.2024.
5. As a consequence, the matter was listed for recording the statement of accused U/s 313 CrPC, in which the entire incriminating evidence appearing against the accused during trial was put to the accused, to which the accused submitted as under :
I have already stated so in the replies to the previous questions. I have been falsely implicated in this case. Shyson Thomas deposed so to settle his grudge against me as I had raised / flagged valid deficiencies in the documents filed alongwith the application seeking grant of initial NOC. Shyson Thomas deposed so as he was under the impression that the time taken in the process of the approval of NOC was deliberately extended by me. Further, Smt. Usha Padhee narrated incorrect facts to settle her scores and grudges and to punish me as I had raised valid deficiencies in the documents furnished alongwith the application seeking grant of NOC by M/s Air Pegasus Pvt. Ltd. to whom Smt. Usha Padhee extended favour. This is false case.CNR No. DLCT11-000346-2021 Page 29 of 103
CBI Vs. Vinay Kumar However, he did not prefer to examine any witness in his defence.
6. I have heard Sh. V. K. Ojha, Ld. Sr. PP for CBI, Sh. Sanjay Khanna, Ld. Counsel for the accused and perused the record. I have also gone through the written submissions filed by Ld. Counsel for the accused.
7. Ld. counsel for the accused has relied upon following judgment(s) in support of his contentions :
a) Neeraj Dutta Vs. State (Govt. of NCT of Delhi) Criminal Appeal No. 1669 of 2009;
b) C. K. Damodaran Nair Vs. Government of India (1997) 9 SCC 477;
c) B. Jayaraj VS. State of A.P. (2014) 13 SCC 55;
d) C. M. Sharma Vs. State of AP (2010) 15 SCC 1;
e) C.M. Girish Babu Vs. CBI (2009) 3 SCC 779;
f) P. Satyanarayana Murthy VS. The Dist. Inspector of Police and Anr. (2015) 10 SCC 152;
g) State of Kerala Vs. C.P. Rao (2011) 6 SCC 450;
h) Sujit Biswas Vs. State of Assam (2013) 12 SCC 406;
i) Sanjaya Dikshit Vs. CBI Criminal Revision No. 529/2024 (Allahabad High Court);
j) State of Himachal Pradesh Vs. Nishant Sareen Criminal Appeal No. 2239/2010 (SC);
k) State of Karnataka through CBI VS. C. Nagarajaswamy Appeal (Crl.) 1279/2002 (SC);
l) Romesh Lal Jain Vs. Naginder Singh Rana Appeal (Crl.) 691 (SC);
m) Dr. Subramanian Swamy Vs. Dr. Manmohan Singh Civil CNR No. DLCT11-000346-2021 Page 30 of 103 CBI Vs. Vinay Kumar Appeal No. 1193/2012 (SC);
n) Vineet Narain & Ors. Vs. UOI & Anr. 1998 (1) SCC 226;
o) Guidelines of Central Vigilance Commission, Circular No. 07/03/12;
p) Ajay Gupta Vs. State THR CBI CRL.A. 469/2023 (Delhi High Court);
q) Harpal Singh @ Chhota Vs. State of Punjab AIR 2016 SC 5389;
r) People's Union for Civil Liberties (PUCL) VS. UOI AIR 1997 SC 568;
s) Aasha Vs. Durgesh CRMP No. 2112 of 2002 (Chhattisgarh High Court).
8. On the other hand, Ld. Sr. PP for CBI has relied upon the following judgments in support of his contentions :
a) State of Bihar Vs. Bassavan Singh-1958 CRI.L.J. 976 SC;
b) C.M. Sharma Vs. State of Andhara Pradesh, (2013) 2 SCC (Cri) 89: Law Finder Doc Id 230121;
c) S. Pratap Singh Vs. State of Punjab AIR 1964 SC 72.
9. I have gone through the rival contentions.
10. Section 7 of the PC Act (as amended in 2018) reads as under :
Any public servant who,--(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such CNR No. DLCT11-000346-2021 Page 31 of 103 CBI Vs. Vinay Kumar duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
From the reading of new Section 7 (as amended in 2018) as a whole, it is not merely accepting or obtaining or attempt thereof to obtain undue advantage from any person, but same has to have nexus with the improper or dishonest performance or forbearance from performing such a duty.
Mere obtaining of some advantage without any intention to improperly perform public duty or forbearance to do so or by abusing his position as a public servant will not attract provisions of Section 7 of New Act. For this, following illustration may be given :
CNR No. DLCT11-000346-2021 Page 32 of 103CBI Vs. Vinay Kumar Suppose a high ranking Minister 'M' purchases a very costly Rolex watch on credit from a high street store. The store owner 'S' generally does not sells such costly watches on credit basis, but thinking of his high influential position i.e. 'M' he sells the highly priced watch on credit to 'M' without 'M' promising any official act or forbearance or abuse of position in return. If 'M' does not later on pays for the watch, then same will not attract penal provisions of Section 7 of PC Act, 2018.
11. The prosecution must not only establish a financial or other undue advantage has been offered, promised or given, it must then also show that there is sufficient connection / co-relation between the undue advantage so obtained and intention to perform any public duty improperly or forbearance / abstinence from performance of said duty or abuse or position as a public servant.
12. Though explanation I and illustration therewith of the new Section 7 may look incongruous to this afore interpretation, however, on closer look / scrutiny, it is apparent that explanation I to Section 7 and illustration thereto is merely an corollary to explanation II or the main substantive provision of Section 7 of PC Act 2018, as if a public servant 'S' asks a person 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this Section.
CNR No. DLCT11-000346-2021 Page 33 of 103CBI Vs. Vinay Kumar In this illustration, demand of illegal gratification or undue advantage by public servant, irrespective of fact, whether performance of public duty was proper or not, i.e. for routine processing of ration card application by demanding sort of facilitation fee can only be said to be obtained by the public servant, by abusing his position as a public servant, otherwise why would 'P' give facilitation money to 'S' which would fall under explanation II to Section 7 of PC Act 2018.
In this illustration also obtaining of undue advantage has nexus with the abuse of his position as a public servant by 'S'.
13. In this context, another illustration can be given. Suppose a trader 'T' gives a substantial sum of money as a loan to very high ranking public servant 'S' on 2 percentage points less than the market lending rate / banking rate thinking that he may utilize the relations so made in view of said transactions in getting his work done in future. However, the public servant 'S' has no such consideration or indulgence in his mind entering at the time of such a transaction, who enters into said transaction professionally in a business like manner nor he has linked the same with performance of his public duty improperly or forbearance from the same or has thoughts of abusing his position as a public servant. Then it cannot be said 'S' obtained any undue advantage from 'T' by abuse of his position as public servant.
CNR No. DLCT11-000346-2021 Page 34 of 10314. Further, there was overlapping in the old Section 7 of PC Act, 1988 as well as Section 13(1)(d) of the said Act and it appears that the Legislature has chosen to resolve the issue by deleting half of Section 13(1)(d), this has been done through explanation II to Section 7 which carries large chunks of the old Section 13(1)(d) PC Act. Therefore, there are no substantive changes in Section 7 of PC Act, 2018 vis-a-vis older Section 7 of PC Act, 1988 with regard to basic ingredients of demand of bribe, acceptance of bribe or recovery thereof, consequently the following judgments of the Hon'ble Supreme Court and Hon'ble High Courts would be guiding beacons for deciding a case under this Act as well.
15. The law with regard to Section 7 of the PC Act 1988 has been laid down in the relevant para(s) of the following judgments of the Hon'ble Supreme Court :
i) B. Jayaraj vs. State of AP, 2014, Cr. L J 2433
7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P.[1] and C.M. Girish Babu Vs. C.B.I.[2] CNR No. DLCT11-000346-2021 Page 35 of 103 CBI Vs. Vinay Kumar
8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint.
9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)
(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand.
As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.
ii) SeJappa vs. State, AIR 2016, SC 2045
10. In order to constitute an offence under Section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55, wherein this Court held as under :
'7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this CNR No. DLCT11-000346-2021 Page 36 of 103 CBI Vs. Vinay Kumar Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P.(2010) 15 SCC 1 and C.M. Girish Babu v. CBI(2009)3.SCC.779.' The same view was reiterated in P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152.
11. It is the case of the prosecution that on 09.12.1997, the appellant demanded a sum of Rs.5,000/- as illegal gratification from PW-1 to discharge the official act of forwarding PW-1's application for pension and for release of retiral benefits. PW-1-Ramakrishnappa has deposed that on 09.12.1997, the appellant demanded a sum of Rs.5,000/- as illegal gratification for sending 'No Objection Certificate' to the office of Accountant General at Bangalore for processing the appellant's pension papers. On the contrary, the appellant has taken the plea of alibi. The appellant contended that on 09.12.1997, when he is alleged to have demanded illegal gratification in his office at Chitradurga, he was actually on official tour in Bangalore from 07.12.1997 to 10.12.1997 for attending a seminar and that after attending the seminar, on 10.12.1997, he along with PW-7 took delivery of a van alloted to Chitradurga PHE, Sub-Division.
iii) Mukhtiar Singh (Since deceased) Through his LR vs. State of Punjab.
14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala4, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State CNR No. DLCT11-000346-2021 Page 37 of 103 CBI Vs. Vinay Kumar of Kerala vs. C.P. Rao5 that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
4 (2009) 6 SCC 587 5 (2011) 6 SCC 450
15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P.6 underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)
(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these 6 (2014) 13 SCC 55 two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of CNR No. DLCT11-000346-2021 Page 38 of 103 CBI Vs. Vinay Kumar the Act would not entail his conviction thereunder."
(emphasis supplied).
16. Admittedly the accused is a public servant, therefore, sanction to prosecute him would be required u/s.19 of the PC Act, as at the relevant time the accused was working as Asst. Section Officer (ASO) in the Ministry of Civil Aviation, Govt. of India, and the same has been proved vide documents P-1/PW6 (colly).
As per the testimony of PW3 Ms. Anjali Mathur, which reads as under :
In September, 2021, I was posted as Under Secretary, Vigilance & Coordination Section, Rajiv Gandhi Bhawan, Ministry of Civil Aviation, Government of India, New Delhi.
We have received a letter from CBI alongwith CBI report and relevant documents with a request to give approval for prosecution of Vinay Kumar. The Competent Authority to remove an official at the post of Assistant Section Officer in Ministry of Civil Aviation, Government of India, is the President of India and delegated powers are with Hon'ble Minister of Civil Aviation.
We have received the aforesaid letter and CBI report seeking sanction for prosecution of Vinay Kumar and on my direction, a self contained note was prepared CNR No. DLCT11-000346-2021 Page 39 of 103 CBI Vs. Vinay Kumar by my subordinates. Then the file was then moved through proper channel for approval to give sanction for prosecution. I had sent the file to the Director, Vigilance and he further sent the file to Joint Secretary and Chief Vigilance Officer, Ministry of Civil Aviation. The Joint Secretary and CVO sent the file to Secretary, Ministry of Civil Aviation. The Secretary, Ministry of Civil Aviation sent the file to Minister, Ministry of Civil Aviation. The Minister after examining the notes facts of the case, documents provided by the CBI and after due application of mind gave approval for sanction for prosecution of Vinay Kumar. The Minister, Ministry of Civil Aviation has also authorized me to convey the sanction to CBI. I got the draft order approved from JS and CVO and thereafter issued the sanction order.
(At this stage attention of the witness is drawn to sanction order dated 03.09.2021 in D-25).
The sanction order dated 03.09.2021 bear my signature at Point A on both the pages alongwith my seal at Point B. This sanction order dated 03.09.2021 was issued by me in the name and by the order of the President of India. The sanction order dated 03.09.2021 is Ex. PW3/A. This sanction order was sent to the CBI.CNR No. DLCT11-000346-2021 Page 40 of 103
CBI Vs. Vinay Kumar
17. In the cross-examination, the said witness has stated that along with the CBI report and letter from CBI, there was statement of 5-6 witnesses and they had received the request from CBI for grant of sanction in physical form. As deposed in her examination in chief on her directions, a self contained note was prepared by her subordinates for the perusal of Minister of Civil Aviation, who after examining the notes, facts of the case, documents provided by the CBI and due application of mind, gave approval for sanction of prosecution of accused Vinay Kumar. She also deposed that she got the draft order approved from JS and CVO.
18. The IO PW21 Inspector Dharmender Kumar has also deposed in his examination in chief that he sent the letter under the signatures of the then SP to the competent authority requesting for grant of sanction accompanied with CBI report including all the statements of the witnesses and the documents collected during the investigations.
19. This shows that the entire relevant material was placed before the sanctioning authority, which accorded its sanction after due application of entire relevant material. It also appears from the sanction letter Ex. PW3/A that the voice recording between the accused and Shyson Thomas also seems to have been sent for the perusal of competent authority for grant of sanction.
CNR No. DLCT11-000346-2021 Page 41 of 10320. The Ld. Counsel for the accused has relied upon various judgment(s) cited as State of Himachal Pradesh Vs. Nishant Sareen, State of Karnataka through CBI Vs. C. Nagarajaswamy, Ramesh Lal Jain Vs. Naginder Singh Rana, Dr. Subramanian Swamy Vs. Dr. Manmohan Singh, Vineet Narain & Ors. Vs. UOI and Anr., Sanjaya Dikshit Vs. CBI (supra) in support of his contentions that if the complainant or the accused can demonstrate that the order granting or refusing sanction is suffering from non application of mind, the same can be called in question before a competent court of law and the exercise of power u/S. 19 of PC Act is not an empty formality, as the sanctioning authority is supposedly to apply its mind to the entire material and evidence placed before it and on examination thereof reach conclusion fairly, objectively and consistent with public interest as to whether or not in the facts and circumstances, the sanction be accorded to prosecute the public servant.
21. On the other hand, Ld. Sr. PP for CBI has relied upon the Constitution Bench judgment of the Hon'ble Supreme Court during the course of his arguments titled as Ram Sagar Pandit Vs. The State of Bihar, 1964 Crl. L. J. 65 Supreme Court , in which it was held in para 11 as under :
11. Section 6 of the Act also does not require the sanction to be given in a particular form. The principle expressed by the Privy CNR No. DLCT11-000346-2021 Page 42 of 103 CBI Vs. Vinay Kumar Council, namely that the sanction should be given in respect of the facts constituting the offence charged equally applies to the sanction under S. 6 of the Act. In the present case all the facts constituting the offence of misconduct with which the appellant was charged were placed before the Government. The second principle, namely, that the facts should be referred to on the face of the sanction and if they do not so appear, the prosecution must prove them by extraneous evidence, is certainly sound having regard to the purpose of the requirements of a sanction.
In the present case though the sanction ex facie does not disclose the facts, the documents which are exhibited in the case give all the necessary relevant facts constituting the offence of criminal misconduct. This Court in Biswabhusan Naik v. State of Orissa, AIR 1954 SC 359 rejected a contention similar to that now raised before us. There the sanction given under S. 6 of the Act referred only to Sub-S. (2) of S. 5 of the Act and it did not specify which of the four offences mentioned in S. 5(1) was meant. This Court adverting to a similar contention observed. "It was evident from the evidence that the facts placed before the Government could only relate to offences under S. 161 of the Indian Penal Code and cl. (a) of S. 5(1) of the Prevention of Corruption Act. They could not relate to cl. (b) or (c). When the sanction was confined to S. 5(2) it could not, in the circumstances of the case, have related to anything but cl. (a) of Sub-S. (1) of S. 5. Therefore the omission to mention cl. (a) in the sanction did not invalidate it'.
22. Relying upon the above judgment, he has argued that all the relevant material was placed before the sanctioning authority and the sanction order Ex. PW3/A and the statements of PW3 and IO PW21 clearly show that all the relevant facts necessary to satisfy the mind of the sanctioning authority were placed before it and the sanctioning authority was duly supplied with all the relevant facts constituting the offence in question with which the accused was charged and the sanctioning authority had accorded the sanction after due application of mind qua the facts constituting CNR No. DLCT11-000346-2021 Page 43 of 103 CBI Vs. Vinay Kumar the offence, therefore, the sanction has been accorded in a proper and valid manner.
23. I have gone through the rival contentions on this aspect. The ratio of law laid down in the above judgment Ram Sagar Pandit Vs. The State of Bihar (supra) is squarely applicable to the facts of the present case, as in the present case also all the facts constituting the offence for which the accused was prosecuted u/S. 7 of the PC Act (as amended in the year 2018), qua which the sanction was sought from the sanctioning authority were placed before the sanctioning authority and all the facts constituting the offence(s) were duly disclosed to the sanctioning authority before it accorded the sanction qua the accused, as PW3 also stated in her cross-examination that along with the CBI report and letter from CBI, there were statements of about 5-6 witnesses and the IO PW21 also deposed in his examination in chief that he sent letter under signatures of the then SP to the competent authority, requesting to grant sanction for prosecution accompanied with CBI report including all the statements of the witnesses and documents collected during investigation.
24. PW3 further stated that they had received a request from CBI for grant of sanction in physical form. Therefore, it appears that the entire necessary material or facts constituting the offence CNR No. DLCT11-000346-2021 Page 44 of 103 CBI Vs. Vinay Kumar against the accused was duly placed before the sanctioning authority, who accorded the sanction after going through the contents of the same and since Section 19 of PC Act does not require the sanction to be given in a particular form, therefore, the sum and substance of the allegations against the accused and the prosecution case as a whole was put before the sanctioning authority which accorded the sanction after due application of mind.
Further PW3 was competent to convey the sanction on the behalf of Hon'ble President of India, as vide The Authentication (Orders & Other Instruments) Rules 1958 framed in exercise of the Powers Conferred by Clause (2) of Article 77 of The Constitution and in super session of Home Ministry's notification no. SR0167 dated the 19th June 1950, the Hon'ble President is pleased to make the following rules namely :
Orders and Other Instruments made and executed in the name of the President may be authenticated (a) by the signatures of Secretary, Additional Secretary, Joint Secretary, Deputy Secretary, Under Secretary or Assistant Secretary to the Government of India.
Since the order for sanction for prosecution qua the accused u/S. 19 of the PC Act, 1988 has been authenticated by the Under Secretary Ms. Anjali Mathur, under the above CNR No. DLCT11-000346-2021 Page 45 of 103 CBI Vs. Vinay Kumar Authentication Orders and Rules, the same has been validly conveyed as per law.
25. Therefore, the contrary arguments of Ld. Counsel for the accused that the entire material was not put before the sanctioning authority and the sanction had been accorded without due application of mind has no merits in view of the law laid down by the Hon'ble Supreme Court in the above constitutional bench judgment. Therefore, the sanction had been accorded in proper and valid manner after due application of mind, as all the material documents were considered by the sanctioning authority before according the sanction.
26. Now adverting to the most crucial aspect of this case, whether the recording done by PW17 Ms. Usha Padhee with regard to the telephonic conversation between accused and PW20 Sh. Shyson Thomas on 24.10.2018 was a genuine, authentic and legally admissible piece of evidence, as the entire case of the prosecution hinges upon the said telephonic conversation. In this regard, testimony of PW17 Ms. Usha Padhee dated 21.03.2024 is relevant, which is reproduced as under :
I was working as Joint Secretary in the Ministry of Civil Aviation since July, 2015. I left the Ministry as Additional Secretary in October, CNR No. DLCT11-000346-2021 Page 46 of 103 CBI Vs. Vinay Kumar 2022. During my tenure I was Incharge of Domestic Transport Section. This Section deals with various Aviation related matters of private airlines. This Section also deals with the pre-requisite document i.e. No Objection Certificate for issuing of Air Operation Permit.
Accused Vinay Kumar who was ASO was Incharge of the matters related to AOP in DT Section. These files are normally dealt through E- office. Because of the E-office processes, we are able to track the file efficiently. In most of the cases I used to use my digital signature though it was not mandatory.
As far as Mr. shyson Thomas is concerned, I know him in my official capacity. He was leading M/s Air Peagus, an Airline Company. I used to regularly interact with our major stake holders i.e. Airlines on regular basis. In one such occasion, Mr. Thomas complained about accused Vinay Kumar, ASO who was demanding bribe. I being the responsible civil servant assured Mr. Thomas to inform me if any such practices are followed in the Ministry, specially in my Section.
On 24.10.2018, I received a phone call on CNR No. DLCT11-000346-2021 Page 47 of 103 CBI Vs. Vinay Kumar my landline from Mr. Thomas who complained about the harassment by ASO Vinay Kumar and requested me to be part of his conversation with ASO. Initially, I thought whether I should be part of it but being the responsible and accountable supervisory officer, I decided to be part of this conversation and agreed to the proposal of Mr. Thomas to include me in the telephonic conversation. So Mr. Thomas called me in my landline in my office chamber which isa fixed device and included me in the telephonic conference. At that time I also wanted to be diligent and take this matter to logical conclusion if it is true. Accordingly, I decided to record the conversation in my mobile S-6 Apple which I was using at that point of time.
The landline which was in my Chamber had speaker facility and I allowed the speaker to be on and recorded from my mobile phone. During the conversation I clearly recognized the voice of ASO Vinay Kumar as I used to regularly talked to them over my intercom. I also recognized the voice of Sh. Thomas. I had regular interaction with Airlines including M/s Air Pegasus Head Mr. Thomas on CNR No. DLCT11-000346-2021 Page 48 of 103 CBI Vs. Vinay Kumar phone as well as personally I have heard him.
During this conversation, I understood that there had been a demand of Rs. 30,000/- by the ASO which was negotiated for Rs.20,000/-.I also first time got to know that Rs.75,000/- was paid to the ASO earlier. It was quite shocking and I felt anguished. With this information I immediately met the then Secretary, Civil Aviation Sh. Rajiv Nayan Chobey. He agreed about the seriousness of the matter and we both decided to make this case as a exemplary step for taking action against the corrupt employees. I persuaded Mr. Thomas for helping us in trapping the ASO by catching him red handed. However, understandably Sh. Thomas was hesitant for being the part of criminal proceedings against the ASO. Being the victim he had paid already some bribe because of which I think he was not coming forward which he communicated in writing too.
On 25.10.2018, at least there are 3 emails in which Mr. Thomas wrote to me and I responded. Also, as Mr. Thomas was not coming on board, I sent an email with all the details to the Joint Secretary Ms. Rubina Ali who was Incharge of CNR No. DLCT11-000346-2021 Page 49 of 103 CBI Vs. Vinay Kumar Administration at that point of time. This email I sent on 31.10.2018 owing to various travelling which I had to do for attending before the Parliamentary Committees in Banglaru and Gauhati. This email also had the copy of the recording of voice mail which is in the file Safdarjung Flying Club-2. As I understand based on this complaint Admin Section had handed over the case to Vigilance.
After my complaint, there have been few technical procedures for which I had been part off.
On 14.02.2020, a CBI officer Sh. Manish Kumar had visited my office and had heard the voice memo on my mobile. As required in the case, I voluntarily handed over my mobile to the Officer. Before handing over, I removed the access control and switched off the mobile which was without SIM and handed over. This was put in an envelope in presence of me and it was sealed. I had also put my signature on the sealed envelope. I thought for authenticity and sanctity of the evidence I had to do this.
Again on 22.02.2021, an officer from CBI visited my office and took the verification of CNR No. DLCT11-000346-2021 Page 50 of 103 CBI Vs. Vinay Kumar voice of Sh. Thomas and ASO Vinay Kumar as in the investigation voice memo. I identified the voice of ASO Vinay Kumar as well as Mr. Thomas and accordingly I had signed the memorandum. The transcript of the conversation was also typed in my presence and I matched it with the voice memo and signed the certificate U/S 65B in support of giving the print out of emails as required in the case. I authenticated the emails sent by me through my official email ID usha.padhee@ nic.in which is the mail I personally use for my official correspondences.
The voice mail which I had recorded in my mobile phone was copied to my official computer in my office chamber for the purpose of attaching the voice mail to the email sent to the Joint Secretary, Administration as a complaint. This voice memo was also heard by me and I authenticated it as the same as Safdarjing Flying Club-2.
Further in the same testimonial deposition, she deposed as under :
The iphone is connected with the
charger).
CNR No. DLCT11-000346-2021 Page 51 of 103
CBI Vs. Vinay Kumar
(Now, the app 'voice memos' is opened
in the mobile phone S-6 Apple make belonging to this witness. It contains 5 folders i.e 'Safdarjung Flying Club 4, 'Safdarjung Flying Club 3, 'Safdarjung Flying Club 2, 'Safdarjung Flying Club and new recording. The Folder 'Safdarjung Flying Club 2' dated 24.10.2018 is played and the conversation is heard by the witness).
One of the voices in the said conversation is of Vinay Kumar. The sentence - ' I am good Sir, how are you?" and also "its urgent its urgent because I have to give to my........my man"
besides other sentences. I also recognize the other voice i.e. of Mr. Shyson Thomas and the sentence "Yeah, I can hear you now. I was bit busy. I was travelling" besides other sentences. This is the same conversation which was recorded by me on 24.10.2018 in my mobile phone. On 22.02.2021, I had also heard the said conversation in the investigation copy of the IO which was the same which I myself recorded on my above mobile phone. The same was authenticated and verified by me.
whereby she identified the voices of accused Vinay CNR No. DLCT11-000346-2021 Page 52 of 103 CBI Vs. Vinay Kumar Kumar and Shyson Thomas, as per the recording done by her on 24.10.2018 in her mobile phone make I-Phone.
27. The testimony of this witness in this regard is corroborated by the testimony of PW20 Sh. Shyson Thomas, who has deposed as under with respect to the above aspect :
XXXXX by Sh. V.K.Ojha, Ld. Sr. PP for CBI It is wrong to suggest that CBI officer had inquired and recorded my statement U/S 161 CrPC.
At this stage attention of witness is drawn to statement U/S 161 CrPC dated 05.03.2021 and the witness is directed to go through the same and is asked whether he had given such statement to which he now states that he indeed had given the said statement recorded U/S 161 CrPC, which is Ex. PW20/A. Q. I put to you that you had stated before CBI officer Sh. Dharmender Kumar Singh that "on demanding Rs. 1 Lakh for issue of NOC Sh. Vinay Kumar provided two bank accounts in the name of Sudhanshu Kumar, account no. 50100149896924 and 01661130001672 in the name of Hemant Gupta and you got deposited Rs.25,000/0 each in the aforesaid accounts, total Rs.
50,000/-" which is recorded in your statement from Portion A to A. What have you to say?
CNR No. DLCT11-000346-2021 Page 53 of 103CBI Vs. Vinay Kumar A. Yes, it is true.
Q. I put to you that you stated before IO that you had stated in Portion B to B that " after few days, when initial NOC was issued, the said Sh. Vinay Kumar again started demanding the remainign brobe amount of Rs. 50,000/- to me over phone and then on 24.10.2018, I devided to report the corrupt behaviour of Sh. Vinay Kumar to his senuor officers and I reported the cuorrupt behaviour of Sh. Vinay Kumar to the Joint Secretary Smt. Usha Padhee over telephone. The Joint Secretary madam asked me to connect her on her office landline no. before making call to Vinay Kumar as she wanted to hear the likely conversation between me and Vvinay Kumar as suggested by Joint Secretary madam I made a call to Sh. Vinay Kumar and simultaneously connected Joint Secretary madam on her landline number through conference call. In the said call Vinay Kumar demanded the remaining bribe amount of Rs.30,000/- . The conversatin was also heard by Joint Secretary madam. I further state that after conversation the Joint Secretary madam also asked me to give a complaint against the said Vinay Kumar, ASO and to come forward for laying a trap on Vinay Kumar and to catch him red handed while accepting the bribe amount but I CNR No. DLCT11-000346-2021 Page 54 of 103 CBI Vs. Vinay Kumar was not inclined to get him trap as I did not want to spoil his carrer as he is very young. I informed the Joint Secretary madam about the cirrupt behaviour of Vinay Kumar so that departmental/ministry may take appropriate action against him and thats why I made a complaint through email dated 25.10.2018 to the Joint Secretary Smt. Usha Padhee only and not to the investigating agency or police". What have you to say? A. It is correct.
Q. I put to you that an audio recording file no. 20181024 160155 was played and you had identified your voice and voice of accused Vinay Kumar and voice identification memo was prepared to this effect which is reflected in your statement from Portion C to C. What have you to say?
A. It is correct.
(At this stage Ct. Mahavir Singh, MHCM produced a yellow envelope, Ex.P-1/PW9 sealed with court seal. Same is opened and it contains brown envelope in open condition, Ex.P-2/PW7 which further contained brown envelope, Ex.P-3/PW7 which contains original mobile phone make Apple of PW Ms. Usha Padhee. Same is opened and in which voice memo folder is found and same was opened in which voice CNR No. DLCT11-000346-2021 Page 55 of 103 CBI Vs. Vinay Kumar memos files which contained 5 files namely Safdurjung Flying Club 4, Safdurjung Flying Club 3, Safdurjung Flying Club 2, Safdurjung Flying Club and new recording. The Safdurjung Flying Club 2 is played) .
The sentence "People are telling that........ You know already we have paid you Rs.75,000/- ........." is spoken in my voice.
The word "Ok" is in my voice.
Q. Please tell to the court between whom aforesaid conversation had taken place?
A. This conversation is between me and Sh. Vinay Kumar. I expressed my inability to pay.
Q. Who spoke "How much more you require now.. how much more" in whose voice it is spoken, Please identify?
A. It is in my voice.
Q. Who spoke in the conversation as "you have left with 30". Please identify?
A. Sh. Vinay Singh had spoken.
Q. Who had spoken as "this is in addition to that 75 so it will 1,05,000/- then". Please identify? A. It is in my voice.
Q. Who had spoken as " Ya". Please identify?
CNR No. DLCT11-000346-2021 Page 56 of 103CBI Vs. Vinay Kumar A. Thereafter Vinay spoken as Ya.
Q. Who had spoken "can you reduce something"? A. I had spoken.
Q. Who replied "no sir"?
A. This is voice of Vinay.
Q. Who had spoekn as " give me 20. later on when you have... yu can give me later on....baki.... Remaining......"?
A. It is in voice of Vinay Kumar.
28. The testimonies of PW17 Ms. Usha Padhee and that of PW20 Sh. Shyson Thomas converges with regard to the fact that accused Vinay Kumar was harassing Mr. Thomas, who was the managing director of M/s. Air Pegasus Pvt. Ltd., whose file with regard to initial NOC for issuing of air operation permit was pending with DT Section of the Ministry of Civil Aviation, where the accused Vinay Kumar was working as ASO and he was dealing with the said file and Sh. Shyson Thomas had been complaining to Ms. Usha Padhee, Joint Secretary in the same Section regarding the factum of demand of bribe and on 24.10.2018 she received a phone call on her landline from Mr. Thomas, making a complaint regarding the harassment meted out to him by Mr. Vinay Kumar and he requested her to be the part of the conversation with the said ASO, to which she agreed and she asked Mr. Shyson Thomas CNR No. DLCT11-000346-2021 Page 57 of 103 CBI Vs. Vinay Kumar to include her in the telephonic conversation, so Mr. Thomas called her on her landline installed in her office chamber, which was a fixed device and included her in telephonic conversation and in order to take the matter at logical end, she recorded the said conversation in her mobile S-6 Apple which she was using at that point of time.
29. The said landline was having speaker facility and she recorded the conversation using the speaker facility on her mobile phone. She during the conversation recognized the voice of Mr. Thomas and that of accused Vinay Kumar, as she was having regular interaction with Mr. Thomas with regard to matters pertaining to his airline M/s. Air Pegasus and she understood that Mr. Vinay Kumar had made a demand of Rs. 30,000/- which was negotiated to Rs. 20,000/- and she also came to know for the first time that Rs. 75,000/- had already been paid to Vinay Kumar by Sh. Shyson Thomas.
30. The said mobile phone containing the said voice memo / file in the name of "Safdarjung Flying Club-2" was recorded in her mobile phone and she also made a copy of the same and based on the same, she made a compliant to Administration Section and handed over the case to Vigilance Branch. One CBI officer PW12 Sh. Manish Kumar visited her office on 14.02.2020 along with an CNR No. DLCT11-000346-2021 Page 58 of 103 CBI Vs. Vinay Kumar independent witness PW10 Sh. Sanjay Kumar Yadav and the mobile phone used by her was seized by PW12 Sh. Manish Kumar, which contained the recording Safdarjung Flying Cub-2, as Sh. Manish Kumar was entrusted with the preliminary enquiry of the matter bearing no. PE-3/2020.
PW17 also informed him that she had also made soft copy of the alleged call recording in her official desk top, the copy of the same was also provided by her to PW12 Manish Kumar for inquiry purposes. They took the copy in a pen drive. Thereafter, the investigation of this case was taken up by PW21 Inspector Dharmender Kumar. He with the help of PW9 Ajay Chaudhary, who was forensic assistant of CFSL and PW7 Sh. Harish Kumar, independent witness extracted the data from the mobile phone belonging to Ms. Usha Padhee, which was an I phone after connecting the same with the system and with the help UFED mobile forensic software. The extracted data was transferred into a blank pen drive and the mobile was again de-sealed and the memorandum of the extraction of data is Ex. P-1/PW7.
31. It has been contended by Ld. Counsel for the accused that there is no available scientific evidence with regard to the fact that any call was made by PW20 Sh. Shyson Thomas to accused Vinay Kumar on 24.10.2018, as claimed by him, as Sh. Rajiv Vashisht, the Nodal Officer from Bharti Airtel in his deposition CNR No. DLCT11-000346-2021 Page 59 of 103 CBI Vs. Vinay Kumar recorded on 29.04.2024 has deposed that he had provided the CDR of the mobile phone no. 7891437083 (purportedly belonging to accused Vinay Kumar) and vide letter Ex. PW18/A (Colly), however, he stated that he had not provided certificate u/S. 65-B of Evidence Act with regard to the above CDR, as the data which was retrieved from the archive can be incomplete and the data in the present case was older than one year. Therefore, Ld. Counsel for the accused has argued that there is no evidence on the record that any such call as claimed by PW17 Ms. Usha Padhee and PW20 Sh. Shyson Thomas, dated 24.10.2018 was ever made.
32. Though the said argument of the Ld. Counsel for the accused appears to be attractive one, however, in the present case the CAF of the mobile phone of accused Vinay Kumar has been proved by the IO as Ex. PW21/D (Colly), having the mobile no. 7891437083 and the CAF of PW20 Sh. Shyson Thomas has been proved as Ex. PW21/E (Colly) having no. 9343789857 and as per the uncertified CDR of the mobile phone of accused Vinay Kumar 7891437083, without certificate u/S. 65-B Evidence Act, it shows that a call dated 24.10.2018 was made by Sh. Shyson Thomas on the mobile phone of accused Vinay Kumar at 16:01:51 hours with the call lasting for 192 seconds.
Though the said CDR is not admissible in evidence for lack of certificate u/S. 65 B Evidence Act, but it does lend some CNR No. DLCT11-000346-2021 Page 60 of 103 CBI Vs. Vinay Kumar sort of assurance to the case of the prosecution that such a call was made by Sh. Shyson Thomas on the mobile phone of the accused Vinay Kumar, as claimed by the prosecution and it also leads credence to the fact that a long conversation took place between them. In any case, the oral testimonies of PW17 and PW20 that such a call was made by Sh. Shyson Thomas to accused Vinay Kumar cannot be brushed aside, as the same is also corroborated by the recording done by PW17 Ms. Usha Padhee on her mobile phone and the same also corroborates that such a conversation indeed took place between PW20 Sh. Shyson Thomas and accused Vinay Kumar.
33. With regard to the argument of Ld. Counsel that the prosecution has failed to prove that the fixed phone no. 24617692 landline installed in the office of PW17 Ms. Usha Padhee was having speaker facility has not been proved, even this fact that such a landline was installed has not been proved.
34. The said contention is without any substance, as PW1 Sh. Yogesh Kumar Dutta, who was working as Personal Assistant to Ms. Usha Padhee in the year 2018 has categorically deposed that a landline bearing the above number was installed in the office of Ms. Usha Padhee, Joint Secretary and the telephone instrument installed inside the office of Joint Secretary had the facility of CNR No. DLCT11-000346-2021 Page 61 of 103 CBI Vs. Vinay Kumar caller ID as well as speaker phone and in his cross-examination he has deposed that Ms. Usha Padhee had instructed them that on 24.10.2018, that one confidential call would come and she would pick the call directly and they should not pick up that call directly and they should not pick the phone for that call.
This clearly corroborates the version of PW17 Ms. Usha Padhee that the call was received on her landline from PW20 Sh. Shyson Thomas, who kept her on conference while talking to accused Vinay Kumar and she had recorded the conversation on her mobile phone by using speaker facility on her fixed landline phone.
35. The Ld. Counsel for the accused has vehemently contended that even otherwise the said recording of the phone is not admissible in evidence as the same amounts to tapping of the phone and infringes upon the right to privacy of the accused and in support of his contention, he has relied upon a judgment AIR 1997 SC 568 (supra), in which it has been held as under :
...But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "right to privacy". Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one" home of CNR No. DLCT11-000346-2021 Page 62 of 103 CBI Vs. Vinay Kumar office. Telephone tapping would, thus infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.
36. However, Ld. PP for the CBI has relied upon the Constitutional Bench judgment of the Hon'ble Supreme Court cited as Pratap Singh Vs. State of Punjab (supra) , in which it has been held as under :
... The learned Judges of the High Court without saying in so many terms that these were inadmissible in evidence, this being the contention raised by the respondent State, have practically put them out of consideration for the reason that tape recordings were capable of being tampered with. With respect, we cannot agree. There are few documents and possible no piece of evidence which could not be tampered with, but that would certainly not be a ground on which Courts could reject evidence as inadmissible or refuse to consider it. It was not contended before us the tape recordings were inadmissible. In the ultimate analysis the factor mentioned would have a bearing only on the weight to be attached to the evidence and not on its admissibility. Doubtless, if in any particular case there is a well grounds suspicion not even say proof, that a tape recoding has been tampered with that would be a good ground for the Court to discount wholly its evidentiary value....
37. In my respectful view, the judgment relied upon by the Ld. Counsel for the accused AIR 1997 SC 568 (supra) is not applicable to the peculiar facts of the present case, as what has been done by PW17 Ms. Usha Padhee was not phone tapping, but recording done by her during the course of her official business to expose corruption in her office, therefore, the tapping judgment in CNR No. DLCT11-000346-2021 Page 63 of 103 CBI Vs. Vinay Kumar my respectful view is not applicable to the peculiar facts of this case, rather the Constitutional bench judgment of Pratap Singh (supra) would be applicable, as the present recording done in the mobile phone is akin to recording done on magnetic tape in the case of tape recording.
The only difference is that in the mobile phone, it is done on some application, which may also be using some similar inbuilt device. If the tape recording conversation of the talks is done without knowledge is admissible in evidence in view of the said Constitutional bench judgment of the Hon'ble Supreme Court, then there is no reason why the same should not be admissible in the case of recording done on the mobile phone.
38. Now it is altogether different matter what weight has to be attached to the said piece of evidence during evaluation of evidence, but the same is clearly admissible, even otherwise, the said conversation was played in the Court from the original device i.e. the mobile phone of PW17 Ms. Usha Padhee and the same was heard line to line by PW20 Sh. Shyson Thomas and he identified every bit of the conversation, which took place between him and accused Vinay Kumar and Ms. Usha Padhee had also heard the conversation, which was played in the Court and she identified the voices of the accused and Sh. Shyson Thomas and the said conversation was not very long one, therefore, it would have not CNR No. DLCT11-000346-2021 Page 64 of 103 CBI Vs. Vinay Kumar been difficult for either of them i.e. PW17 and PW20 to remember what actually was said in the said conversation that took place between the accused and PW20 Sh. Shyson Thomas.
39. Further there is independent corroboration to the voice of accused Vinay Kumar through PW4 Sh. Umesh Kumar Bhradwaj, who was working as Under Secretary in the DT Section, Ministry of Civil Aviation, who has also identified the voice of accused Vinay Kumar vide voice identification memo dated 08.04.2021 Ex. P-10/PW4.
40. Further Ld. Counsel for the accused has argued that in the e-mail dated 31.10.2018, the name of attachment is "Safdarjung Flying Club 2(4).m4a", whereas in D-5 dated 22.02.2021 and D-9 dated 05.03.2021, after extraction of the data, for the first time, the audio name of the investigating copy appeared as "20181024-160056, Title-Safdarjung Flying Club 2".
It is further stated that in D-11, the CFSL forwarding letter dated 19.03.2021, the audio name for which the FSL opinion was sought appeared as "20181024 160155.m4a". That the name of the audio file whose examination report sought was different from the investigation copy which had been put to the witnesses throughout the investigation.
It is further stated that it is not the case that investigating CNR No. DLCT11-000346-2021 Page 65 of 103 CBI Vs. Vinay Kumar copy was sent to CFSL to match with the specimen voices. Further, the name of the alleged recording in mobile phone is "Safdarjung Flying Club 2". Prosecution failed to establish how the file namely "Safdarjung Flying Club2" could be changed to "20181024 160155" on transfer.
It is further stated that in D-15 dated 08.04.2021, again the name of the audio file appeared as "20181024-160056, Title- Safdarjung Flying Club 2". Notably the PW4 on being cross examined had specifically voluntarily stated that the audio name mentioned in D-15 being "20181024-160056, Title-Safdarjung Flying Club 2" is correct name.
41. However, the same does not impinge upon the authenticity of the above recorded conversation dated 24.10.2018, as said complaint was forwarded to the CBI vide Ex. PW2/A during the course of official business, some minor discrepancies / changes may have taken place due to the non expert handling of the said voice memo / file from Ms. Usha Padhee to Joint Secretary Administration Ms. Rubina Ali and thereafter forwarding of the said complaint by Sh. Amit Ghosal PW2 to the CBI, who started preliminary enquiry.
42. The said minor discrepancies in the voice memo / voice file does not impact the overall genuineness / authenticity of the CNR No. DLCT11-000346-2021 Page 66 of 103 CBI Vs. Vinay Kumar said recorded conversation, as the original mobile phone in which the said recording had been done was seized by PW12 SI Manish Kumar during the preliminary enquiry and the recording contained therein was played in the Court in the presence of witness PW17 Ms. Usha Padhee and PW20 Sh. Shyson Thomas, both of them duly identified the said conversation, which took place between the accused and Sh. Shyson Thomas on 24.10.2018 played from the said mobile phone, which was the primary piece of evidence in which the recording was done.
43. Therefore, the slight changes in the properties of the voice memo / voice file during the process of forwarding the complaint from PW17 Ms. Usha Padhee to Joint Secretary Administration Ms. Rubina Ali and thereafter by PW2 Amit Ghosal to CBI does not impact the overall authenticity and the genuineness of the recorded conversation dated 24.10.2018. Nothing has come out in the cross-examination of PW19 Amitosh Kumar, the voice identification expert that the said voice memo(s) / recordings sent to him showed any signs of any tempering or alteration, which also shows and support the prosecution case regarding the authenticity of the recording done by PW17. Therefore, there is no doubt that said conversation was the genuine, authentic piece of evidence.
CNR No. DLCT11-000346-2021 Page 67 of 10344. Ld. Counsel for the accused has further argued that the opinion given by the voice expert in his report Ex. PW19/C, which is as under :
Hence, the voices marked exhibit Q-1(1)(B) is the probable voice of the person (Sh. Vinay Kumar) whose specimen voice is marked exhibited S-1(1)(B)....
AND Hence, the voices marked exhibit Q-1(1)(A) is the probable voice of the person (Sh. Shyson Thomas) whose specimen voice is marked exhibit S-2(1)(A)....
This report given by the voice expert that the questioned voice samples contained in Q-1(1)(B) and Q-1(1)(A) was the probable voice of the accused and Shyson Thomas, after comparing the same with the specimen voices of them, which does not carry any weight, as he has not described the probative value of the said report given by him, simply saying that it was the probable voice of the accused is not sufficient in view of the law laid down in the judgment of Ajay Gupta Vs. State through CBI (supra) , wherein it has been held as under:
159. Furthermore, the FSL result dated 31.09.1997 only states that the questioned voice samples marked Q1, Q2 which were then matched with S1, the voice samples of the appellant were "probably" of the same speaker. Apparently, the accused can-
not be held guilty on the basis of probabilities in a criminal trial.
CNR No. DLCT11-000346-2021 Page 68 of 10345. In view of the ratio of law laid down in the above judgment, which is squarely applicable to the facts of the present case, since PW19 in his report has opined that the questioned voices contained in Q-1(1)(B) and Q-1(1)(A) are the probable voice of accused Vinay Kumar and Shyson Thomas, after comparing the same with their specimen voices, without specifying what was the index of probabil- ity, he was mentioning in his report, whether it was 10% probable or 90% probable, this has not been made clear. Therefore, his report simply saying probable does not carry much weight, in view of the afore judgment. Therefore, same cannot be used for the purpose of corroboration to the voice(s) identified by testimonial depositions of PW17 and PW20 of accused Vinay Kumar and Shyson Thomas.
46. However, even bereft of such corroboration by the voice expert, the positive identification of voice(s) of the accused contained in Q-1(1)(B) and Q-1(1)(A) by the above witnesses, who had close interaction with the accused having heard him from close quarters while conversing with him during the course of conversations and during the carrying out of their official business lends credible assurance that the voice(s) contained in Q-1(1)(B) and Q-1(1)(A) as identified by PW17, PW20 and PW4 was that of accused Vinay Kumar and Shyson Thomas and there cannot be any doubt in this regard, as this first hand piece of evidence of above witnesses clearly lends assurance that the voice contained in Q-1(1)(B) and Q-1(1)(A) CNR No. DLCT11-000346-2021 Page 69 of 103 CBI Vs. Vinay Kumar as identified by the above witnesses was that of accused Vinay Kumar and Shyson Thomas and there was no chance of error or doubt about the same.
Therefore, the said argument does not improve or help the case of the accused in any way so as to dilute the probative force of the prosecution evidence as a whole on voice identification of the accused Vinay Kumar and that of voice of Shyson Thomas.
47. Regarding the acceptance of Rs. 25,000/- by the accused from PW20 Sh. Shyson Thomas in the month of April-May 2018 and thereafter acceptance of Rs. 25,000/- each in cash from same person on 18.08.2018 and 04.09.2018, the testimonies of the following witnesses are relevant.
First of all the evidence with regard to acceptance / deposit of Rs. 25,000/- each in cash on behalf of PW Sh. Shyson Thomas dated 18.08.2018 and 04.09.2018 is being taken up. In this regard the testimony of PW5 Pramod Kumar Singh is relevant, who was working as the Branch Operation Manager at HDFC Bank, Sector-50, Noida U.P. He has proved the statement of account for the period 01.04.2018 to 25.10.2018 along with certificate u/S. 65-B Evidence Act, which is Ex. P-3/PW5 of Sudhanshu Kumar with regard to the account no. 50100149896924. The said statement of account of Sudhanshu Kumar for the said period is Ex. P-2/PW5.
CNR No. DLCT11-000346-2021 Page 70 of 103CBI Vs. Vinay Kumar He has also deposed that in the statement of account of Sudhanshu Kumar, there is a credit entry at portion A to A for a sum of Rs. 25,000/- dated 18.08.2018. This amount was deposited in this account in cash at HDFC Bank, MG Road, Bangalore. There is also another credit entry at portion B to B for a sum of Rs. 25,000/- dated 04.09.2018. This amount was also deposited from the same place in cash and there is a debit entry at point C to C in the said account of Rs. 17,950/- also dated 18.08.2018, which was credited into the account of Sh. Hemant Gupta by way of "Net Banking 3rd Party Transfer".
He has also proved the statement of account no. 01661130001672 of Sh. Hemant Gupta for the period 01.04.2018 to 25.10.2018 along with certificate u/S. 65-B Evidence Act. The said statement of account is Ex. P-4/PW5 and the certificate u/S. 65B Evidence Act is Ex. P-5/PW5.
He has also deposed that the cash deposit slip dated 18.08.2018 in relation to deposit of Rs. 25,000/- in the account no. 50100149896924 in the name of Sh. Sudhanshu Kumar, which was received from HDFC Bank, M.G. Road, Bangalore is Ex. P-7/PW5 and another cash deposit slip dated 04.09.2018 in relation to deposit of Rs. 25,000/- in the same account which was also received from the same place is Ex. P-8/PW5. In both the slips, the name of the depositor is mentioned as S. Chandrasekhran and his mobile no. is 9916136795.
CNR No. DLCT11-000346-2021 Page 71 of 10348. PW8 S. Chandrasekhran has also come in the witness box and he has deposed that he was working in M/s. Air Pegasus for one year from April 2018 to March, 2018 and he was looking after administration and accounts and Mr. Shyson Thomas was the Managing Director of M/s. Air Pegasus Pvt. Ltd. During his evidence, his attention was drawn to the deposit slips Ex. P-7/PW5 dated 18.08.2018 and another deposit slip Ex. P-8/PW5 dated 04.09.2018, which he stated was in his handwriting and Sh. Shyson Thomas had directed him to deposit a sum of Rs. 25,000/- on the said dates i.e. on 18.08.2018 and 04.09.2018 and at portion X to X at the back side of the deposit slip dated 18.08.2018 Ex. P-7/PW5, he had written "personal re-payment", which he had written on the instruction of Sh. Shyson Thomas and it bears his signatures at point B and similarly at portion X to X of the back side of deposit slip dated 04.09.2018 Ex. P-8/PW5, he had written "personal loan" at the instructions of Shyson Thomas.
Nothing has come out in the cross-examination of PW5 and PW8, which could show that their testimonial deposition was not trustworthy, though, a contention was raised by Ld. Counsel for the accused that since no appointment letter of PW8 S. Chandrasekhran has been proved, therefore, it has not been proved that he was working for Shyson Thomas.
CNR No. DLCT11-000346-2021 Page 72 of 10349. The said argument is without any substance, as the said witness in his oral testimony, has categorically stated that he was working for Shyson Thomas in M/s. Air Pegasus Pvt. Ltd. In accounts section and he has also identified his signatures on the deposit slips Ex. P-7/PW5 and P-8/PW5. Therefore, it has been duly proved that he was working with M/s. Air Pegasus and he had deposited the said amount in the account of Sudhanshu Kumar.
50. The next relevant witness is PW16 Sudhanshu Kumar, who has deposed that he was working as Staff Nurse in KGMU, Lucknow. He was known to Vinay Kumar, who was his cousin working in Ministry / Mantralya. He also admitted that in the year 2021, he was having salary account with HDFC Bank, Noida. The attention of the witness was also drawn to Ex. P-2/PW5 (D-10), the statement of account no. 50100149896924. He admitted that the said account belonged to him. His attention was also drawn to the relevant entries at point A to A, B to B and C to C. However, he stated that he had no knowledge about the said entries. However, at the time of credit, he was under
impression that it was part of increase salary, however, later on he inquired from his colleagues and they told him that it was not salary increase, and therefore, he thought that the bank people may not withdraw the money, therefore, he withdrew the said amount CNR No. DLCT11-000346-2021 Page 73 of 103 CBI Vs. Vinay Kumar and he also knew Sh. Hemant, as he had helped him to get treatment at District Hospital, at Noida.
He also admitted in his cross-examination carried out by the Ld. Sr. PP that he was acquainted with Sh. Hemant Gupta through Vinay Kumar. He also admitted that he was sharing his room with Vinay Kumar in March 2018. Though, in his cross- examination, he stated that he never gave bank details of his account to Vinay Kumar and the said account with HDFC Bank was opened after they started residing together in a room at Noida and accused Vinay never spoke to him or inquired regarding the two entries of Rs. 25,000/- dated 18.08.2018 and 04.09.2018.
51. The next witness is PW15 Sh. Hemant Gupta, who has deposed that he had studied with Vinay Kumar in the same school and on the recommendation of Vinay Kumar, he knew Sh. Sudhanshu Kumar, who was working in some hospital, as he was having some issues with regard to spinal injury and stomach pain and he also came to know that Sudhanshu Kumar and Vinay Kumar are cousin. He stated about the entry of Rs. 17,950/- in his account from the account of Sudhanshu Kumar, stating that it was repayment of loan given to Sh. Sudhanshu Kumar by him.
52. PW20 Sh. Shyson Thomas during his examination in chief on being cross examined by Ld. Sr. PP for CBI and on being CNR No. DLCT11-000346-2021 Page 74 of 103 CBI Vs. Vinay Kumar asked has deposed that on being demanded Rs. 1 lakh for issuance of NOC, Vinay Kumar provided two bank accounts in the name of Sudhanshu Kumar and Sh. Hemant Gupta bearing nos. 50100149896924 and 01661130001672, in which he deposited Rs. 25,000/- each, to which he admitted the same as correct.
However, this part of the statement of PW20 Shyson Thomas that Rs. 25,000/- was also deposited in the bank account of Sh. Hemant Gupta is contrary to the overwhelming documentary evidence discussed above. However, the very fact that the said amount of Rs. 25,000/- was deposited into the account of cousin of accused Vinay Kumar twice on 18.08.2018 and 04.09.2018 by PW8 S. Chandrasekhran at the instructions of PW20 Shsyson Thomas shows that it was nothing, but the bribe money, though the purpose of the same was mentioned as "personal re-payment" and "personal loan", however, what else PW8 at the instructions of PW20 would have written in the said deposit slip(s), as he could not have written the purpose of deposit was bribe money, and it is a very co-incidental that PW16 Sudhanshu Kumar was none other than the dear cousin of accused Vinay Kumar, in whose account the money was deposited twice. Further why would PW20 asked PW8 to deposit Rs. 50,000/- into the account of the cousin of accused Vinay Kumar, if not at the request of accused, as otherwise, there was no reason why would he deposit such an amount into the account of unknown person, CNR No. DLCT11-000346-2021 Page 75 of 103 CBI Vs. Vinay Kumar residing in Uttar Pradesh.
53. The said acceptance of bribe money of Rs. 50,000/- is also corroborated by the transcription of the recorded conversation dated 24.10.2018 between the accused and PY20 Shyson Thomas which was recorded by PW17 Ms. Usha Padhee in her mobile phone with the file name "Safdarjung Flying Club-2", in the transcription recorded by Ms. Usha Padhee Ex. PW17/A and also proved by PW20 as Ex. PW13/C who stated that his signatures are appearing on the transcription at point C.
54. In the said transcription, the accused has made categorical admission regarding the receipt of Rs. 75,000/-, as the relevant conversation is reproduced as under :
A How much more you require now? How much more...
B You... you have left with 30....
A 30 more
B Thirty is pending... 30 pending hai
A This is in addition to that 75.. so it will be one lakh five
thousand then
B Yeah
A Can you reduce something
B No sir
The accused has clearly admitted that he had received CNR No. DLCT11-000346-2021 Page 76 of 103 CBI Vs. Vinay Kumar RS. 75,000/- from PW20 Sh. Shyson Thomas and only Rs. 30,000/- was pending, which will make it Rs. 1,05,000/-. As per the prosecution case, the said Rs. 75,000/- was paid i.e. Rs. 25,000/- in cash in April-May, 2018 and the remaining amount was accepted by the accused i.e. an amount of Rs. 25,000/- each was deposited in the account of his cousin Sudhanshu Kumar PW16 on 18.08.2018 and 04.09.2018.
55. Therefore, the said categorical admission made by the accused in the said authentic conversation, which has been proved as per law, clearly corroborates the version of the prosecution that Rs. 50,000/- was accepted by the accused as bribe money on 18.08.2018 and 04.09.2018. If that was not the bribe money, then why would PW20 deposit the said amount in the account of cousin of the accused with whom he had no connection, as he was doing his business at Chennai and therefore, it would have been impossible for him to have known the cousin of the accused, who was residing somewhere in Lakheempur, Kheri, UP and working in Lucknow and accused and PW16 Sudhanshu Kumar had also lived together at Noida.
56. This clearly leads to an inference that this was a bribe money deposited at the behest of accused by PW20 Shyson Thomas. No doubt, IO PW21 has admitted that there was no CNR No. DLCT11-000346-2021 Page 77 of 103 CBI Vs. Vinay Kumar evidence to show that PW20 Sh. Shyson Thomas was on regular conversation with Vinay Kumar. However, he stated that when he examined Shyson Thomas at Bengaluru, he had shown some text messages, showing account details in his mobile phone, however, he did not seize the mobile phone. It may be that the prosecution case may be lacking the said additional corroborative piece of evidence due to some faulty investigation, but that does not dilute the probative force of the prosecution case that Rs. 50,000/- were accepted by accused Vinay Kumar through his cousin Sh. Sudhanshu Kumar vide entries dated 18.08.2018 and 04.09.2018 and it was nothing else than the bribe money.
57. Regarding the payment / acceptance of Rs. 25,000/- in April-May, 2018, PW20 Sh. Shyson Thomas in his examination in chief stated on this aspect that he had paid Rs. 25,000/- to Vinay two weeks before the issuance of NOC. He has not specified the date, time and month of the said payment of Rs. 25,000/- and the IO PW21 in his cross-examination has admitted that except for statement of Sh. Shyson Thomas that he had met Vinay Kumar outside in his office in April-May, 2018, there is no evidence to show that accused was in regular conversation with Vinay Kumar.
58. In this case there is no CDR record between the mobile phone of accused and PW20 Sh. Shyson Thomas, as the mobile CNR No. DLCT11-000346-2021 Page 78 of 103 CBI Vs. Vinay Kumar phone data is preserved by the Service Provider for one year, whereafter it goes to archives. In the present case, due to the initiation of PE two years after the forwarding of the complaint to the CBI vide Ex. PW2/A, dated 31.12.2018, the said evidence could not be fetched, and therefore, the prosecution was handicapped by this fact, which could have shown that the accused was in touch with the PW20 during the month of April-May, 2018.
However, the very own categorical admission made by accused in the aforesaid transcription of the recording dated 24.10.2018, he has admitted to have received Rs. 75,000/- from PW20 Shyson Thomas, which would be in the component of Rs. 25,000/- plus Rs. 50,000/- proved by the above bank entries by deposit made in the bank account of the cousin of accused PW16 Sudhanshu Kumar, therefore, the very own admission made by the accused in the said conversation shows and proves that he had received Rs. 25,000/- in cash also from PW20 as per his version prior to receipt of Rs. 50,000/- vide entries dated 18.08.2018 and 04.09.2018.
59. Though the accused has relied upon the cross- examination of PW20 in support of his contention that M/s. Air Pegasus Pvt. Ltd. had applied for issuance of NOC with Ministry of Civil Aviation vide Email dated 14.08.2018 and the same was processed and emailed through them vide mail dated 01.10.2018 CNR No. DLCT11-000346-2021 Page 79 of 103 CBI Vs. Vinay Kumar and therefore, there is no delay in the same and therefore, there is no question of paying any bribe to the accused of acceptance thereof by him. The relevant cross-examination dated 06.08.2024 of PW20 Sh. Shyson Thomas is reproduced as under :
It is correct that M/s Air Pegasus Pvt. Ltd had applied for issuance of NOC with Ministry of Civil Aviation vide email dated 14.08.2018. The witness is shown the printout of the email from the records. The same is part of D-13(4) at page no. 1248/1381. The witness admits the same and the same is Ex. PW20/DX-7.
It is correct that vide email dated 20.08.2018, DT Section (MOCA) had year marked the deficiencies in the application filed by M/s Air Pegasus Pvt. Ltd seeking grant of NOC. The witness is shown the printout of the email dated 20.08.2018 which is part of D-16. The witness admits the same.
This email is already exhibited as Ex. D-1/PW4.
It is correct that vide email dated 04.09.2018, M/s Air Pegasus Pvt. Ltd had attached/enclosed the required documents to fulfill the deficiencies earmarked vide email dated 20.08.2018. The printout of the email dated 04.09.2018 is shown to the witness. The witness admits the same. The printout CNR No. DLCT11-000346-2021 Page 80 of 103 CBI Vs. Vinay Kumar of the email is already exhibited as Ex. D-3/PW4.
It is correct that the NOC was granted by MOCA to M/s Air Pegasus Pvt. Ltd and the same was emailed to me on 01.10.2018 and hard copy sent later on. The witness is shown certified copy of NOC placed at page no. 1296/1381 in D-13(4), Ex. P-2/PW4. The same is now Ex. PW20/DX-8.
60. Merely because the file was processed in the above manner does not lead to inference that the accused did not demand any bribe from PW20 Shyson Thomas, as PW20 has categorically deposed in his examination in chief that accused was asking one paper or another on one pretext or another and his work was not completed, so he lodged complaint. He was a CA by profession. He was well conversant what documents were required for NOC from his past experience. Accused demanded money for NOC whenever he met with him in Ministry and the accused was asking for Rs. 2-3 Lakhs. It is not that it is a bald assertion made by PW20. The same is also corroborated by the above transcription of the recording dated 24.10.2018 that the accused had been demanding Rs. 30,000/- more.
61. In fact in the said conversation the accused is saying if there is any good news for him, to which PW20 stated that they CNR No. DLCT11-000346-2021 Page 81 of 103 CBI Vs. Vinay Kumar have already paid Rs. 75,000/- to which the accused did not contradict him and said OK and also stated that Rs. 30,000/- more is pending. This clearly corroborates the version of PW20 regarding the bribe having been paid in the past in the component of Rs. 25,000/- and Rs. 50,000/- respectively.
62. Now since demand and acceptance of the bribe money is sine qua non for making out offence u/S. 7 of the PC Act, 1988 as well as u/S. 7 of the PC Act (as amended in 2018), therefore, the prosecution is under a duty to prove the demand of Rs. 50,000/- and Rs. 1 Lakh respectively to complete the ingredients of above Sections as the accused has been charged under old Section 7 as well as under new Section 7 of the PC Act.
63. In the present case, unfortunately, there is no evidence that the accused demanded Rs. 50,000/- and Rs. 1 Lakh respectively for which Rs. 25,000/- was paid in cash and thereafter amount of Rs. 50,000/- was deposited in the account of PW16 Sudhanshu Kumar. Though a logical inference can be drawn that the accused must have demanded Rs. 50,000/- and Rs. 1 Lakh respectively, that is how the money was deposited into the account of PW16, his cousin and which is also corroborated by his own admissions made in the recorded conversation dated 24.10.2018 as well as receipt of Rs. 25,000/- before that which is also CNR No. DLCT11-000346-2021 Page 82 of 103 CBI Vs. Vinay Kumar corroborated by the admissions made by him in the recorded conversation dated 24.10.2018.
64. However, it is settled law that the demand of bribe has to be specific and unambiguous, which must be proved by the prosecution. Therefore, merely on logical inference, the same cannot be said to have been proved. There should have been clear cut evidence regarding the demand of said amount or the prosecution should have proved by clear and cogent evidence that as to when and where the said demand of Rs. 50,000/-, for which Rs. 25,000 were paid and demand of Rs. 1 Lakh was made, for which Rs. 50,000/- were deposited in the account of PW16 Sudhanshu Kumar, as per the prosecution story, projected in the charge sheet.
65. The said demand of bribe money of Rs. 50,000/- and Rs. 1 Lakh respectively could have been proved either by recording of accused done while making the said demand, as was done while recoding the conversation dated 24.10.2018 when the accused was demanding Rs. 30,000/-. Further no witness in whose presence the said demand was made has also been examined, who could prove this fact that the accused demanded Rs. 50,000/- and Rs. 1 Lakh on two different occasions, though, as discussed above, the prosecution has been able to prove regarding the receipt / CNR No. DLCT11-000346-2021 Page 83 of 103 CBI Vs. Vinay Kumar acceptance of Rs. 25,000/- and Rs. 50,000/- by the accused on different occasions as discussed above.
66. No doubt the very fact that the accused accepted Rs. 25,000/- and Rs. 50,000/- on different occasions from PW20 Sh. Shyson Thomas leads to strong suspicion that the accused must have demanded the said amount, otherwise, there was no occasion for payment / acceptance of the said amount(s).
67. However, it is settled law that the suspicion, however, strong cannot take the place of proof, which in the criminal trial is beyond reasonable doubt and as per the settled law on Section 7 of PC Act old as well as new, the allegation of demand of gratification and acceptance made by public servant has to be established beyond reasonable doubt, though this fact can be proved by oral or documentary including circumstantial evidence, as held in the judgment Neeraj Dutta Vs. State (Govt. of NCT of Delhi), Crl. Appeal No. 1669 of 2009 decided by the Hon'ble Supreme Court on 17.03.2023.
68. In the present case the prosecution seeks to rely upon circumstantial evidence to prove the demand of illegal gratification by the accused. However for that prosecution must establish each and every circumstance from which the prosecution wants the CNR No. DLCT11-000346-2021 Page 84 of 103 CBI Vs. Vinay Kumar Court to draw the conclusion of guilt and the fact so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused.
69. As discussed above though strong suspicion arises that the accused must have demanded the bribe, as there is clear cut evidence of acceptance of Rs. 25,000/- and Rs. 50,000/- respectively on two occasions, however, there is no evidence circumstantial, direct or otherwise that the accused demanded Rs. 50,000/- and Rs. 1 lakh respectively on two different occasions for which he accepted Rs. 25,000/- and Rs. 50,000/- respectively, as the prosecution has failed to prove as to when, where and how the said demand(s) were made.
70. Though PW20 Shyson Thomas has made general allegations that accused Vinay Kumar was asking for Rs. 2-3 Lakhs, when his file for NOC was pending in the DT Section of Ministry of Civil Aviation, however, in his examination in chief he has nowhere stated that as to the time, place and manner when the accused demanded Rs. 50,000/- and Rs. 1 Lakh, as there is no whisper regarding the same in his examination in chief or in his cross-examination carried out by the Ld. Sr. PP for CBI, after the prosecution sought permission to cross-examine the said witness and even in the said cross-examination carried out by the CNR No. DLCT11-000346-2021 Page 85 of 103 CBI Vs. Vinay Kumar prosecution, he did not utter a single word as to when the demand of Rs. 50,000/- and Rs. 1 Lakh were made by the accused.
71. In the present case, the prosecution has not lead any evidence on the aspect that the accused met Sh. Shyson Thomas in April-May, 2018, as it is common knowledge that for entering into any of the Ministry office in Delhi, a visitor pass is required. No copy of any such visitor pass has been seized by the IO to show that the accused met PW20 Sh. Shyson Thomas in April-May, 2018 or around 18.08.2018 or 04.09.2018. The IO PW21 has also admitted that there is no evidence to show that the accused was in regular conversation with PW20 Sh. Shyson Thomas, he further stated when he had examined Shyson Thomas in Bangalore, he had shown some text messages showing account details in his mobile phone, but he did not seize the mobile phone, the said account details were sent by accused Vinay Kumar, as stated by him.
72. The same is material omission on the part of the IO, as if the mobile phone of PW20 Sh. Shyson Thomas was carrying some text messages showing account details in his mobile phone, purportedly sent by the accused, then it was a telling piece of evidence to prove beyond shadow of doubt that there was demand of Rs. 1 Lakh for which an amount of Rs. 50,000/- was accepted CNR No. DLCT11-000346-2021 Page 86 of 103 CBI Vs. Vinay Kumar by the accused. In the absence of omission to seize the said material piece of evidence, the said demand of Rs. 1 Lakh stand not proved.
73. Same is the fate with regard to the demand of Rs. 50,000/- which is stated to have been made outside the office of the accused in April-May, 2018. In absence of proving this fact that the accused had met PW20 Sh. Shyson Thomas and demanded Rs. 50,000/-, as discussed above, no visitor pass or any document or testimony of any witness has been lead on the record to show that PW20 had visited the office, where the accused was working i.e. the Ministry of Civil Aviation in April-May, 2018 and therefore, the accused had opportunity to demand Rs. 50,000/- from him.
74. With regard to the offence u/S. 13(1)(d)(i) and (ii) of the PC Act, 1988 (prior to the amendment of 2018), the said Section reads as under :
13. Criminal misconduct by a public servant:
1. A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or CNR No. DLCT11-000346-2021 Page 87 of 103 CBI Vs. Vinay Kumar
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or
(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;
It has been held in the judgment cited as Mukhtiar Singh (Since Deceased) through his L.R. Vs. State of Punjab Crl. Appeal No. 1163 of 2017 (Arising Out of SLP (Criminal) No. 207 of 2016) D/d 14.07.2017 as under :
13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal CNR No. DLCT11-000346-2021 Page 88 of 103 CBI Vs. Vinay Kumar misconduct, -
.....
(2)..............."
14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala4, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao5 that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
4 (2009) 6 SCC 587 5 (2011) 6 SCC 450
15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P.6 underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre- requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 CNR No. DLCT11-000346-2021 Page 89 of 103 CBI Vs. Vinay Kumar and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these 6 (2014) 13 SCC 55 two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder."
(emphasis supplied)
75. Further, it has been held by the Hon'ble Supreme Court in recent Constitutional Bench judgment titled as Neeraj Dutta Vs. State (Government of NCT of Delhi) in Criminal Appeal No. 1669 of 2009 decided on 15.12.2022 as under :
68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
CNR No. DLCT11-000346-2021 Page 90 of 103(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)
(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, CNR No. DLCT11-000346-2021 Page 91 of 103 CBI Vs. Vinay Kumar the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.
69. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three judge Bench decisions of this Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or "primary evidence"
of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns "hostile" is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no CNR No. DLCT11-000346-2021 Page 92 of 103 CBI Vs. Vinay Kumar conflict between the judgments in the aforesaid three cases.
70. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:
In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.
71. We direct that individual cases may be considered before the appropriate Bench after seeking orders of the Hon'ble the Chief Justice of India.
76. As held in the said judgment the proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused / public servant u/S. 7 and 13(1)(d)(i) and (ii) of the PC Act, 1988. In view of the above discussion, since the prosecution has failed to prove the demand of Rs. 50,000/- purportedly made by the accused from PW20 in April-May, 2018, it follows as a corollary to the same that no offence u/S. 13(1)(d) of PC Act is also made out against the accused.
77. Regarding raising of the legal presumption u/S. 20 of the PC Act, 1988 (as amended in the year 2018), the Section 20 of The Prevention of Corruption Act, 1988 (as amended in the year 2018) is reproduced as under :
CNR No. DLCT11-000346-2021 Page 93 of 103CBI Vs. Vinay Kumar
20. [ Presumption where public servant accepts any undue advantage. [Substituted by Act No. 16 of 2018, dated 26.7.2018.]
- Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11.] [Inserted by Act No. 16 of 2018, dated 26.7.2018.] Section 20 of the PC Act, 1988 before amendment in the year 2018 is reproduced as under :
20. Presumption where public servant accepts gratification other than legal remuneration.--
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause
(b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive CNR No. DLCT11-000346-2021 Page 94 of 103 CBI Vs. Vinay Kumar or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
78. The relevant law with regard to Section 20 is being discussed hereunder :
It has been held by the Hon'ble Supreme Court in recent Constitutional Bench judgment titled as Neeraj Dutta Vs. State (Government of NCT of Delhi) in Criminal Appeal No. 1669 of 2009 decided on 15.12.2022 as under :
68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without CNR No. DLCT11-000346-2021 Page 95 of 103 CBI Vs. Vinay Kumar there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)
(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
CNR No. DLCT11-000346-2021 Page 96 of 103(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.
69. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three judge Bench decisions of this Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or "primary evidence"
of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns "hostile" is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases.
70. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:
In the absence of evidence of the complainant CNR No. DLCT11-000346-2021 Page 97 of 103 CBI Vs. Vinay Kumar (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.
71. We direct that individual cases may be considered before the appropriate Bench after seeking orders of the Hon'ble the Chief Justice of India.
79. Based on the law laid down by the Hon'ble Supreme Court in the above Constitutional Bench judgment, it has been held in the judgment Neeraj Dutta Vs. State (Govt. of NCT of Delhi of Delhi) 2023 LiveLaw (SC) 211, in the relevant paras as under :
11. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj1 and P. Satyanarayana Murthy2. There is another decision of a three Judges' bench in the case of N. Vijayakumar v. State of Tamil Nadu5, which follows the view taken in the cases of B. Jayaraj1 and P. Satyanarayana Murthy2. In paragraph 9 of the decision in the case of B. Jayaraj1, this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9, this Court held thus:
"9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only CNR No. DLCT11-000346-2021 Page 98 of 103 CBI Vs. Vinay Kumar on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
(emphasis added) The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.
12. In the case of N. Vijayakumar5, another bench of three Hon'ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held thus:
"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] CNR No. DLCT11-000346-2021 Page 99 of 103 CBI Vs. Vinay Kumar In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe.
Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court."
(emphasis added) Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.
13. Section 7, as existed prior to 26th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case, specifically refers to "any gratification". The substituted Section 7 does not use the word "gratification", but it uses a wider term "undue advantage". When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations of the demand and acceptance are proved..."
80. In view of the ratio of law laid down in the aforesaid judgment, it is crystal clear that presumption u/S. 20 of the PC Act can only be invoked when two basic facts required to be proved u/S. 7 of PC Act are proved. The said basic facts are demand and CNR No. DLCT11-000346-2021 Page 100 of 103 CBI Vs. Vinay Kumar acceptance of gratification. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary is proved, the Court will presume that the gratification was demanded and accepted as a motive or reward as contemplated by Sec. 7 of the PC Act. This presumption is rebuttable on preponderance of probabilities.
81. Since the basic ingredients of Sec. 7 before amendment of 2018 and post 2018 remain the same i.e. the prosecution has to prove demand, acceptance and recovery of the bribe money on the day of trap. Further as discussed above, the Section 20 prior to amendment of 2018 and post 2018 are almost pari materia with each other, therefore, the law with regard to the basic ingredients which leads to triggering of presumption u/S. 20 PC Act is the same as laid down in the aforesaid judgment of the Hon'ble Supreme Court.
82. Here in the case under discussion, the prosecution has failed to prove the demand of illegal gratification. Though the prosecution has been able to prove the other ingredient of acceptance of undue advantage or illegal gratification other than legal remuneration, in view of the foregoing discussion therefore the presumption u/S. 20 of the PC Act post amendment of 2018 is not triggered or does not come into play for the benefit of the CNR No. DLCT11-000346-2021 Page 101 of 103 CBI Vs. Vinay Kumar prosecution.
To Sum up
83. Since the yardstick which is to be achieved by the prosecution in criminal trial is probabilistic in nature i.e. the prosecution should prove its case against a accused beyond reasonable doubt i.e. the probabilities of the prosecution case or probative force of its case as a whole, or weigh thereof as a whole should be beyond any sort of reasonable doubt against the accused, which the prosecution has failed to achieve in the present case or it can be said that the defence has been able to pull down the probative force of the prosecution evidence as a whole below the said yardstick. Therefore, the said yardstick has not been achieved by the prosecution in the present case.
84. In view of the law laid down in the judgment(s) B. Jayaraj vs. State of AP, 2014, Cr. L J 2433, SeJappa vs. State, AIR 2016, SC 2045 and Mukhtiar Singh (Since deceased) Through his LR vs. State of Punjab (supra) and the Constitutional Bench judgment in Neeraj Dutta Vs. State (Govt. of NCT of Delhi) (supra), the basic ingredient of demand of bribe is sine qua non of Section 7 of the PC Act (as amended in the year 2018) and Section 7 of PC Act, 1988 (prior to amendment of 2018), which has not been proved vide the above discussion and taking into account the CNR No. DLCT11-000346-2021 Page 102 of 103 CBI Vs. Vinay Kumar overall evidence with regard to evidentiary facts, as discussed above, consequently the prosecution has failed to make out a case u/S. 7 of the PC Act, 1988 (prior to amendment of 2018) and also u/S. 7 of the PC Act, 1988 (as amended in 2018).
For the same reasons, no offence u/S. 13(2) r/w 13(1)(d) of the PC Act, 1988 is also made out against the accused.
85. As a resultant, the accused Vinay Kumar stands acquitted of the charge(s) u/S. 7 of the PC Act, 1988 and u/S. 7 of the PC Act, 1988 (as amended in 2018), as also u/S. 13(2) r/w 13(1)(d) of the PC Act, 1988.
The above accused is stated to have already furnished his bail bond(s) in compliance of Section 437-A CrPC, which shall remain valid for a period of six months from today, as per the provisions of Section 437-A CrPC.
File be consigned to record room.
Digitally signed bySANJEEV SANJEEV AGGARWAL AGGARWAL Date: 2024.11.18 20:58:20 +0530 Announced in the Open Court (Sanjeev Aggarwal) on this 18th day of Nov., 2024. Special Judge (PC Act) (CBI)-10 Rouse Avenue District Courts New Delhi/18.11.2024 CNR No. DLCT11-000346-2021 Page 103 of 103 CBI Vs. Vinay Kumar