Delhi District Court
Cbi vs Sunil Gupta on 17 December, 2012
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IN THE COURT OF MS. RAVINDER KAUR,
SPECIAL JUDGE ( PC ACT)03, CBI,
SAKET COURTS, NEW DELHI
C C No. 33/12
CBI Versus Sunil Gupta
S/o Late Sh G P Gupta.
R/o DU31, Pitampura, Delhi88.
R C No. DAI2008A0017/CBI/ACB/N.D.
U/S. 7, 13(2) r/w Sec. 13(1)(d) of P C Act, 1988.
Date of Institution : 27.06.2008
Received by transfer on : 15.03.2012
Date of Decision : 17.12.2012
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JUDGMENT
1. The accused Sunil Gupta has faced trial U/s 7, 13(2) r/w Sec. 13(1)
(d) of P C Act, 1988.
2. The prosecution case is that accused was posted in Land Sales Branch of DDA Vikas Sadan New Delhi as UDC at the relevant time and was dealing with the matter of mutation of Industrial Plot No. D3/43/3 Rewari Line Industrial Area, PhaseII Mayapuri in the name of complainant Sh Jagmohan Singh from the name of his father Late Sh Satnam Singh The complainant lodged complaint Ex. PW 5/A dt.
7.4.08 with the CBI alleging therein that on 2.4.08 he had met the accused in the office of Land Sales Branch, Industrial DDA in respect mutation of the plot in his name when he demanded Rs. 50,000/ as bribe for processing of the file and mutation in his name, otherwise there will be no movement of the file and plot would not be mutated in his name. It was further alleged in the complaint that accused had asked the complainant to visit his office at Vikas Sadan on 7.4.08 alongwith Rs.
50,000/. He mentioned in the complaint that he was not willing to pay any bribe to the accused and sought necessary legal action against him.
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3. The complaint Ex. PW 5/A was marked by the then SP, ACB Delhi to PW 7 Insp. Rajesh Chahal who verified the complaint in the office of DDA Vikas Sadan by joining the complainant and independent witness Sh C B Mishra on 7.4.08 and confirmed the demand of bribe by the accused, on the basis of conversation between the complainant and the accused recorded and stored in audio cassette Mark Q1. On the basis of verification of the complaint, case RC/DAI2008A0017 was registered and investigation was marked to Insp. CBI/ACB Sh Prem Nath.
3.i) During investigation trap team was formed by Insp. Prem Nath, the TLO consisting of Insp. Rajesh Chahal, Insp. Karan Arya, Insp. R C Sharma, SI Nikhil Malhotra, SI Vibha Kumari and subordinate staff besides independent witnesses namely Sh C B Mishra and Sh J S Rana, both from NCCF. The pre trap formalities were completed in the office of CBI on 8.4.08. The complainant had produced the tainted amount of Rs. 17,000/ in for the form of 17 GC notes of Rs.
1000/ denomination which were treated with phenolphthalein powder.
Handing Over Memo Ex. PW 1/J was prepared containing the details of the pre trap formalities. The independent witness Sh C B Mishra was C C No. 33/12 CBI Vs. Sunil Gupta Page no. 3 4 deputed as shadow witness alongwith the complainant and they were directed to give signal of completion of bribe transaction by rubbing their face with both hands. After pre trap proceedings the trap team alongwith the independent witnesses and complainant left the office of CBI at 02:30pm and reached the office of DDA Vikas Sadan at 04:00pm. As per the charge sheet, the complainant alongwith the shadow witness met the accused who said "Fadao Kitne Hain" and accepted the bribe of Rs. 17,000/ from the complainant with his right hand and kept the same in his right side pant pocket. Further that the conversation between the complainant and the accused at the time of bribe transaction was recorded and stored in audio cassette Mark Q2 and the voice of the accused in the said conversation was lateron identified by the complainant. That the opinion of the expert with regard to the voice contained in cassettes Q1 and Q2 to be of the accused, was positive. It is further mentioned in the charge sheet that after the shadow witness gave pre affixed signal regarding completion of the bribe transaction, Insp. Prem Nath challenged the accused for having demanded and accepted bribe of Rs. 17,000/ from the complainant and that the accused turned pale and started pleading for an excuse for his misdeed. The accused was caught hold by his left and C C No. 33/12 CBI Vs. Sunil Gupta Page no. 4 5 right wrist by Insp. Prem Nath and Insp. Rajesh Chahal.
3.ii) The tainted bribe amount was recovered from the right side pant pocket of the accused by independent witness Sh J S Rana on the direction of TLO. During the post trap proceedings, the right hand wash and right side pant pocket wash of the accused was taken in sodium carbonate solution separately which gave pink colour and lateron CFSL also gave positive opinion regarding presence of phenolphthalein in both the washes.
3.iii) It is further alleged in the chargesheet that the bribe amount of Rs. 3,000/ accepted by the accused from complainant on 7.4.08 was also recovered from the possession of the accused. The entire post trap proceedings were recorded in the Recovery Memo. The accused was arrested vide Personal Search cum Arrest Memo.
3.iv) During investigation, the sanction Ex. PW 4/A U/s 19 P C Act was obtained for prosecution of the accused U/s 7,13(2) r/w 13(1)(d) P C Act,1988. After completion of the investigation, the charge sheet was filed to the Court.
4. On the basis of material on record, charge U/s. 7, 13(2) r/w Sec.
13(1)(d) of PC Act,1988 was framed against the accused, to which he C C No. 33/12 CBI Vs. Sunil Gupta Page no. 5 6 pleaded not guilty and claimed trial.
5. The prosecution in support of its case has examined 11 witnesses in all.
5.i)PW 1 Sh. C B Mishra is an independent witness who was joined in the verification proceedings on 07.04.08 and thereafter he was deputed as shadow witness alongwith the complainant on 8.4.08 during the trap laying proceedings. He proved the documents ie the Verification Memo as Ex. PW 1/A, the Recovery Memo Ex. PW 1/B, Transcription Memo of Spot Verification dt. 8.4.08 Ex. PW 1/C and the Transcription Memo dt. 8.4.08 Ex. PW 1/D, the Rough Siteplan Ex PW 1/E, Voice Identification cum Transcription Memo dt. 8.4.08 Ex. PW 1/F, the Arrestcum Personal Search Memo Ex. PW 1/G, Specimen Voice Recording Memo Ex. PW 1/H and Handing Over Memo Ex. PW 1/J. During the course of his testimony, he identified the exhibit bottles sealed with the seal of CFSL as Ex.P2 and Ex. P3 respectively, their cloth wrappers as Ex. P4 and Ex. P5 respectively and the envelope in which these wrappers were contained as Ex. P6. He further compared the numbers of 17 GC notes of Rs. 1,000/ denomination Ex. P10 to Ex.
P26 produced in unsealed condition with the numbers mentioned in C C No. 33/12 CBI Vs. Sunil Gupta Page no. 6 7 the Handing Over Memo Ex. PW1/J. He also compared the numbers of 6 GC notes of Rs. 500/ ie Ex P27 to Ex.P32 with the numbers mentioned in the Recovery Memo Ex. PW 1/D.
5.ii) During the course of his testimony, PW 1 identified his signature on the envelope Mark Q-1 Ex. P-26 and on the contents of the envelope ie cloth wrapper Ex. P-33, inlay card Ex. P-34 and cassette Ex. P-35, on the envelope Mark S-1 Ex. P-44 and its contents ie cloth wrapper, inlay card and cassette ie Ex. P-41 to Ex. P-43. He also identified the pant of the accused as Ex. P-45.
5.iii) PW 1 was declared hostile by the prosecution on material particulars and was cross examined.
5.iv) PW 2 Jagdish Rana is an independent witness who had joined the trap proceedings and as per the prosecution he is a witness to recovery of bribe money from the possession of the accused. As per his testimony, a sum of Rs. 23,120/- was recovered from the right side pant pocket of the accused. He identified his signature on various documents prepared during the pre trap proceedings and post trap proceedings including note- sheet (D-9) Ex. PW 2/A and file (D-10) Ex. PW 2/B. During his testimony, 17 GC notes of Rs. 1,000/- denomination Ex. P-10 to Ex.P-26 as well as 6 G C notes of Rs. 500/- denomination Ex. P-27 to Ex.P-32 were shown to the witness and he stated that he was unable to say anything about the same. This witness was also C C No. 33/12 CBI Vs. Sunil Gupta Page no. 7 8 declared hostile by the prosecution on material particulars and was cross examined by Ld. PP.
5.v) PW 3 Dr. N M Hashmi had conducted chemical examination on the exhibit bottles Mark RHW Ex.P-2 and RSPPW Ex.P-3 and vide his report Ex. PW 3/A opined that both the exhibits gave positive test for presence of phenolphthalein.
5.vi) PW 4 Ms. Promila Bhargava, the then Commissioner DDA Delhi had accorded sanction U/s 19 of PC Act, 1988 Ex. PW 4/A to prosecute the accused U/s 7 r/w Sec. 13(2) r/w Sec.13(1)(d) of PC Act, 1988.
5.vii) PW 5 is complainant Jagmohan Singh. However, he did not support the case of the prosecution and was declared hostile. He was cross examined at length by Ld. PP but nothing material could be extracted.
5.viii) PW 6 Dr. Rajender Singh, the then Director CFSL, had examined the contents of cassette Mark Q-1 Ex. P-35 and Mark Q-2 Ex. P-39 containing the questioned voice of the accused and compared the same with the specimen voice of the accused contained in cassette Mark S-1 Ex. P-43. He proved his report Ex. PW 6/A to the effect that by use of auditory voice spectrographic technique, he found that the questioned voice of the accused in cassette Mark Q-1 and Q-2 Ex. P-35 and Ex. P-39 tallied with his specimen voice, in respect of their linguistic, phonetic and other general spectrographic parameters.
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5.ix) PW 7 is DSP Rajesh Chahal who had carried out the
verification of the complaint Ex.PW 5/A and was member of the trap team. He deposed on the lines of the case of the prosecution.
5.x) PW 8 is Insp. Prem Nath is TLO of the case who too deposed on the lines of the case of the prosecution.
5.xi) PW9 is Sh Budh Ram, the then Dy Director in Industrial Branch DDA at Vikas Sadan who testified with regard to the posting of the accused as UDC in his branch in the year 2008. He also testified that D-9 ie the document pertaining to mutation of plot No D-3/43/3, Rewari Line, Industrial Area, Phase-II, Ex. PW 2/A was dealt by accused Sunil Gupta. That PUC dt. 4.4.08, part of D-9 at page Nos. 23 & 24 Ex. PW 9/A in reference to letter dt. 03.04.08 ( P-167/c) was prepared by the accused himself and was bearing his signature at point A. He also deposed that (D-10) Ex. PW 2/A was the request of the complainant for transfer/mutation of Industrial Plot No 43/3, Block No D-3, in Rewari Line, Industrial Area, Phase II New Delhi, in his name from the name of Sh Satnam Singh.
5.xii) PW 10 DSP Karan Arya was the Investigating Officer who had obtained sanction Ex PW 4/A for the prosecution of the accused, collected the exhibits from the CFSL and had recorded the statements of the witnesses in this case.
5.xiii) PW 11 is Sh. Zile Singh who was working as Assistant
Director in Land Sales Industrial Branch DDA in 2007-08 and
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deposed more or less on the lines of testimony of PW 9. He testified that on 4.4.08 the accused had put up the file of mutation before him and then he ( PW 11) had sent the same to Dy Director vide order dt. 8.4.08 on Ex. PW 9/A itself.
6. After completion of evidence of the prosecution the statement of the accused was recorded U/s 313 Cr PC, whereby he admitted that he was posted as UDC in Industrial Branch DDA at Vikas Sadan in April 2008. He has also not denied that the application Ex. PW 2/B dt. 21.12.98 was moved by the complainant for mutation of plot No. D-3/43/3 Rewari Line Industrial Area, Phase- II Mayapuri in his name from the name of Sh. Satnam Singh, in a death case. He has denied the entire incriminating evidence appearing on record against him and claims to have been falsely implicated in the case and stated that as per the record, noting sheet with page No. 21/N(Reverse side of Ex. PW 2/A bearing noting page No. 22/N) was prepared on 4.6.01 by the officers who were dealing with this file in the year 2001. That he joined this branch of DDA in Oct 2005 and he received this file in De. 2005 as detailed in Ex. PW 2/A. He further stated that content of Ex PW 2/A itself reflects that he had made specific noting to the effect that this file is unattended since 2001 and that he had also mentioned in Ex. PW 2/A (pages 22/N and 23/N) that Page Under Consideration ( PUC) dt.13.7.07 ( which is marked PW 5/DX ), is received on behalf of Sh Jagmohan with five documents detailed in Ex. PW 2/A. That his note dt. 18.7.07 ( starting from C C No. 33/12 CBI Vs. Sunil Gupta Page no. 10 11 page No. 22/N and ending at page No. 23/N) also contained details that on 21.2.98 at page 97/C, Unit had also furnished seven documents, detailed therein. That he had also prepared brief facts of the present case which starts from page 22/N and ends at page 23/N. That in page 23/N he had proposed that before processing the case for mutation, they may request the Unit to furnish four other documents detailed therein and requested that deficiency letter is added for signature after the DD/Industrial had seen it. This noting at page 23/N also reflects that PW 9 Sh Budh Ram had made his recommendation on the proposal of accused and PW 11 Zile Singh had thereafter issued deficiency letter as per record. After the deficiency letter has been issued by Sh Zile Singh as per ordinary business practice of DDA, file was received by the accused for keeping on record. This was done on 25.7.07. Letter of deficiency dt. 25.07.07 issued by Zile Singh on the Note dt. 18.7.07 of the accused is not on record.
6.i)Accused has further stated that as per the court record, on 03.04.08, Sh Jagmohan deposited a letter vide Diary No. 2377 with respect to the deficiency letter, referred above. The said letter was marked to the accused on 04.04.08 by PW11 Zile Singh ( Endorsement is available on (D-12) Ex. PW 5/C at portion Y below the receipt of DDA reflecting diary number and date).
6.ii) Accused has further stated that after this letter was marked to him on 4.4.08, he prepared a fresh Note on 4.4.08 ie Ex PW 9/A C C No. 33/12 CBI Vs. Sunil Gupta Page no. 11 12 bearing his signature at point A acknowledging that as per rule, the deficiency has been met by the Unit vide his PUC letter dt. 3. 4.08 (vide which the deficiency pointed out in office letter dt. 25.7.07 at page No. 159/C had been complied). Vide the said noting, he had proposed that consideration of all documents are in order and the case is submitted before the Competent Authority to seek his kind approval for mutation. With the said proposal, he had also prepared and annexed five copies of mutation letter, the first copy of which contains endorsement in his hand- "DFA" the said copy is Mark PW 8/PX. As evident from partial record of DDA pertaining to the plot of the complainant, he had prepared five copies of Mutation Letter. First copy is a draft for approval ie if his superiors want to make any correction in the mutation letter prepared by him, they will make in copy Mark DFA. The second copy itself reflects that he had indicated it by ticking on the name of the complainant that this copy if approved would be sent to the complainant. The third copy itself reflects that he had ticked it for sending it to Chief Commissioner of Income Tax, Delhi-9, the fourth copy of this letter had been ticked by him as copy to be sent to Sr. Accounts Officer, (IL)DDA. The fifth and the last copy bears his signature and had been marked as O/C reflecting that this would be office copy. These five copies are available from page No. 168 to 171 and the last is unnumbered.
6.iii) The accused has also stated that the note Ex PW 9/A is self explanatory. He put up the said Note on 4.4.08 before Sh. Zile C C No. 33/12 CBI Vs. Sunil Gupta Page no. 12 13 Singh, through whom the file was to be processed /routed further. As per Ex. PW 9/A, after receiving his Note and the file on 4.4.08, PW 11 Sh Zile Singh made appropriate note with date: 8.4.08. That the accused had sent this file to Sh Zile Singh PW 11 on 4.4.08 and thereafter it remained with him, so far as he knew.
6.iv) The accused has further stated that D-9, D-10, D-11, D-12 & D-13 is not the complete DDA file of the respective plot and that the record reflects that he had completed all the required work by 4.4.08 ie the day when the work was assigned to him and he had placed the file to his superior PW 11 Sh Zile Singh on the same day.
6.v) The accused had not led any evidence in his defence.
7. I have heard arguments addressed by Sh. Umesh Chandra Saxena, Ld. Senior PP for CBI and Sh. H K Sharma, the counsel for the accused.
8. Ld. PP has conceded that there is no direct evidence of demand and acceptance of bribe by the accused from the complainant, as PW 5 the complainant has not supported the case of the prosecution and that PW 1 Sh C B Mishra has also not deposed about the demand and acceptance of bribe by the accused in his presence. He conceded that the other witnesses ie PW 2 J S Rana, independent witness, PW 7 DSP Rajesh Chahal and PW 8 Insp. Prem Nath, the TLO were also neither witness to the demand nor to the acceptance of bribe by the accused from the C C No. 33/12 CBI Vs. Sunil Gupta Page no. 13 14 complainant. However, he has relied upon the circumstantial evidence to this effect that as per testimony of PW 1 Sh C B Mishra during verification proceedings on 7.4.08 the complainant returned to him after meeting the accused and told him that money and time was fixed and also he had given Rs. 3,000/- to the accused and the balance would be paid on the next day. Similarly that even PW 7 DSP Rajesh Chahal testified that complainant had narrated to him that he had met the accused in his office where he reiterated his demand of Rs. 50, 000/- as illegal gratification and splited the same in two installments of Rs. 20,000/- and Rs. 30,000/- and that he had given Rs. 3,000/- to the accused in 6 GC notes of Rs. 500/- denomination. Ld. PP has further relied upon the statement of this witness to the effect that the conversation which took place between the complainant and accused during verification proceedings was recorded in the DVR and was transferred to cassette Q-1 Ex. P-35 and that as per the report Ex. PW 6/A of PW 6 Dr Rajender Singh, the questioned voice of the accused in the said cassette tallied with his specimen voice contained in cassette Mark S-1. Ld. PP has further relied upon the Spot Trap Conversation between the complainant and accused recorded in cassette Q-2 Ex. P-39 in terms of report Ex.
PW 6/A.
8.i)Ld. PP has further submitted that both PW 7 DSP Rajesh
Chahal and PW 8 Insp. Prem Nath have categorically testified
regarding recovery of bribe amount from the right side pant
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pocket of the accused and this fact is corroborated by the report of PW 20 N H Hashmi that both the exhibits, ie Right Hand Wash of the accused as well as Right Side Pant Pocket Wash of the accused contained in bottles Ex. P-2 and Ex. P-3 respectively tested positive for the presence of phenolphthalein and thus it was for the accused to explain as to how he got in contact with the phenolphthalein powder. Ld. PP has relied upon the judgments in the case of Hazari Lal Vs State, Cr.LJ 1980 SC Page 564 and Gian Singh Vs State of Punjab, 1974 Cr.LJ page 789 that if the evidence of police officials is found to be trustworthy no corroboration is required. It is submitted that in the present case there is no reason to disbelieve the testimony of PW 7 DSP Rajesh Chahal, the verification officer and member of trap team as well as PW 8 Insp. Prem Nath, the TLO.
8.ii) It is submitted that the prosecution has also proved the motive of the accused to demand bribe, as PW 11 Zile Singh, Assistant Director in Land Sales Industrial Branch DDA and PW 9 Budh Ram, the then Dy Director in Industrial Branch DDA at Vikas Sadan had categorically testified the accused had been dealing with the file of the complainant for mutation of plot No D-3/43/3 Rewari Line Industrial Area, Phase-II Mayapuri in his name from the name of Sh Satnam Singh, his father in a death case. It is submitted that presumption U/s 20 P C Act is required to be drawn against the accused.
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9. On the other hand, Ld. Defence counsel has submitted that the prosecution has miserably failed to prove its case against the accused, as the complainant has testified that he is illiterate and cannot read English or Hindi. As per his testimony, complaint Ex PW 5/A was written by some other person who is neither cited nor examined as a prosecution witness. Further, as per the testimony of PW 5 there was no demand or acceptance of bribe by the accused from the complainant. That during pre trap verification, as per the testimony of PW 5 the complainant, he had conversation with one Ashok Gupta and not with the accused. It is submitted that in such circumstances it is voice of Ashok Gupta which must have been recorded in the DVR. That the DVR has not been relied upon and instead secondary evidence in the form of cassette Q-1 Ex. P-35 is relied upon which is not audible in court and on court's directions, CFSL failed to retrieve the data contained therein. It is submitted that as PW 1 Sh C B Mishra and PW 7 DSP Rajesh Chahal had not heard or seen the accused having any conversation, qua the demand of money with the complainant, as such there is no evidence for alleged pre trap demand of money by the accused from the complainant. It is further submitted that there is no witness/ evidence on record reflecting demand on the part of the accused on 8.4.08 ie the date of trap.
9.i)The defence counsel has further pointed out that there are material contradictions in the testimony of both PW 7 DSP Rajesh C C No. 33/12 CBI Vs. Sunil Gupta Page no. 16 17 Chahal and PW 8 Insp. Prem Nath which demolish the case of the prosecution. That in view of the admission of PW 8 about the custody of the accused, presence of all the witnesses whose signatures are available on documents of the present case with brass seal etc on 8.4.08 in the office of CBI coupled with non- deposit of exhibits in CBI malkhana on 8.4.08 proves that exhibits and documents are fabricated. That non existence of mandatory entries, particularly, entry relating to summoning and redeposit of phenolphthalein powder also creates doubt in the contents of entire Handing Over Memo and Recovery Memo. That purposely the documents were prepared in English, so that witnesses who were not conversant with the English language would not understand the same. That the transcription Ex PW 1/C of the cassette Mark Q-1 Ex. P-35 and transcription Ex. PW 1/D of the cassette Mark Q-2 Ex PW 39 are also tampered documents as well as the DVR or the cassette if any used by them for preparing the respective documents was also tampered with in view of the testimony of PW 7 DSP Rajesh Chahal and PW 8 Insp. Prem Nath, as the contents of the transcriptions are not in accordance with their testimony. It is submitted that even the recovery of the bribe amount from the possession of the accused has not been proved by cogent and reliable evidence, as neither the complainant nor both the independent witnesses have testified that the amount of Rs. 17,000/- in the form of 17 GC notes of Rs. 1,000/- denomination were recovered from the possession of the C C No. 33/12 CBI Vs. Sunil Gupta Page no. 17 18 accused. It is submitted that the accused had in his purse Rs. 23,120/- and this amount was recovered during his personal search. That PW-2 J.S. Rana stated that Rs.23,120/- only were recovered from the accused. That the evidence of presence of phenolphthalein in the contents of exhibits ie Ex. P-2 RHW and ExP-3 RSPPW by itself does not prove the guilt of the accused and no presumption can be drawn against him U/s 20 of the PC Act.
9.ii) Regarding motive of the accused, the defence counsel has submitted that no doubt the accused had dealt with the file of the complainant for mutation of plot No. D-3/43/3 Rewari Line Industrial Area, Phase-II Mayapuri in his name but the file was sent to PW 11 Sh. Zile Singh, Assistant Director in Land Sales Industrial Branch DDA on 04-04-08 and thereafter he never dealt with the same and he was not left with to do anything in this file, so there was no question of demand and acceptance of bribe by the accused.
10.After hearing the submissions of both the parties, I have gone through the material on record carefully.
11.Admittedly the accused was public servant in terms of definition of public servant as per section 2 (c ) PC Act 1988.
11.i)Section 7 of the PC Act provides as under :
"Public Servant taking gratification other than legal C C No. 33/12 CBI Vs. Sunil Gupta Page no. 18 19 remuneration in respect of an official act - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government of any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
In view of the various judgments of the Hob'ble Apex court, the following requirements have to be satisfied to attract Sec. 7 P C Act, 1988:-
1. the accused at the time of the offence was, or expected to be a public servant;
2. that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification;
3. that such gratification was not a legal remuneration due to him;
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and,
4. that he accepted the gratification in question as a motive or reward, for:
(a) doing or forbearing to do an official act, or
(b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or
(c)rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant.
The prosecution is required to prove the above ingredients by way of acceptable and clinching evidence.
In State of Maharasthra Vs. Dnyaneshwar Laxman Rao Wankhede VI (2009) SLT 439, the apex court while discussing the ingredients of offence u/s 7 of PC Act inter alia held as under :
"Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would C C No. 33/12 CBI Vs. Sunil Gupta Page no. 20 21 differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
It is held by the Hon'ble Apex Court in the case of Banrasi Dass Vs State of Haryana, (2010) 4 Supreme Court Cases 452 :
"It is settled cannon of criminal Jurisprudence that the conviction of accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond the reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that record so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence.'' In Surajmal Vs. State (Delhi Administration) (1979) 4 SCC 725, it was held that :
"mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to C C No. 33/12 CBI Vs. Sunil Gupta Page no. 21 22 convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."
To constitute an offence U/s 7 of P C Act, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused for doing a favour to the complainant in discharge of his official duties. Demand and acceptance of bribe is sine qua non to the conviction of the accused. Presumption U/s 20 of P C Act can only be drawn against accused, when prosecution proves by clinching evidence that accused demanded and accepted bribe from the complainant, in discharge of his official duties.
11.ii)In the light of above principles we may examine the evidence on record with specific emphasis to the demand and acceptance of illegal gratification by the accused for processing the file of complainant for mutation. As observed by the Hon'ble Apex Court in the case of Suraj Mal, Supra., an accused can be convicted even in the absence of examination of the complainant, if it is proved otherwise that he has committed an offence. However, where prosecution is required to prove the fact of demand and acceptance of the money, then demand can only be proved by the person to whom it is made or by the person in whose presence it C C No. 33/12 CBI Vs. Sunil Gupta Page no. 22 23 is made. In the present case, the material witnesses regarding demand and acceptance of illegal gratification/ bribe by the accused would have been the complainant PW 5 Jagmohan Singh and the shadow witness PW 1 Sh C B Mishra. However, the prosecution received the first death blow when the PW 5 the complainant did not support the case of the prosecution. It is only the complainant who could prove in terms of his complaint Ex. PW 5/A that on 2.4.08 he met the accused in his office who demanded Rs. 50,000/- bribe from him for processing his file pertaining to mutation and told him to visit his office alongwith Rs. 50,000/- on 7.4.08 and that thereafter on 7.4.08 during verification of the complaint, he again visited the office of accused and met him who again demanded and agreed to accept Rs. 50,000/- in the matter of processing and getting the mutation of plot done in his favour and that the demand was made by gesture and consequently he handed over Rs. 3,000/- in the form of 6 GC notes of Rs. 500/- denomination, that the accused told him to come to his office on the next day at about 3pm to hand over the remaining amount of Rs. 17,000/- as first installment, that the said conversation between the accused and the complainant was recorded in DVR which contained the introductory voice of PW 1 Sh C B Mishra and the conversation so recorded in the DVR was transferred to an audio cassette ie Mark Q-1 Ex. P-35, that on next day ie 8.4.08 the accused accepted part of bribe amount ie Rs. 17,000/-. However, the complainant has not supported the C C No. 33/12 CBI Vs. Sunil Gupta Page no. 23 24 case of prosecution on any of these counts.
11.iii) During his examination in chief complainant deposed about his moving an application in the office of DDA for mutation of plot No.D-3/43/3 Rewari Line Industrial Area, Phase-II Mayapuri in his name after the death of his father in l990. He stated that he could not follow this application after few years as he was not well. He again visited the office of DDA in the year 2008 where he met the concerned clerk Sunil Gupta i.e. the accused and requested him to get his work done. The accused kept on assuring him that it would be done but practically nothing was done by him. He further testified that one another DDA official namely Ashok Gupta used to sit in front of accused Sunil Gupta and one day he came out and met him outside the office of DDA and told him that the work could be done only if a sum of Rs.50,000/- is paid. PW 5 further testified that when he asked accused Sunil Gupta about the demand of money, he told him that he was not demanding money and he ( the complainant) should ask Ashok Gupta about the same as it is he who had asked for money from him.
11.iv) PW 5 further testified that he went to the office of CBI and filed an application that one DDA official namely Ashok Gupta was asking money from him regarding his work. That he further wrote in the application that when his file was pending with Sunil Gupta then why Ashok Gupta demanding money from him. He stated that he was taken to the Higher Official of the CBI who advised him to write an application naming the official who had to C C No. 33/12 CBI Vs. Sunil Gupta Page no. 24 25 do his work in DDA office. He stated that the application was written by his friend Surjit Singh and after submission of his application, the said CBI official called junior official who heard him in detail. Thereafter he was provided with a voice recording device planted on his body and was asked to get the conversation recorded with the DDA officials. That two more persons were deputed by the CBI officials, though he could not tell their names. He testified that in the office of DDA he went to the third floor where accused was having his office. He talked to Ashok Gupta who was demanding money from him and requested him to reduce the amount but he refused. He further stated that at that time accused Sunil Gupta was sitting on his seat and when he talked to him, he told the complainant as to why he was coming to the office of DDA time and again and that the documents would reach his home in due course. He stated that he did not inform Sunil Gupta that Ashok Gupta was demanding money for doing his work. He stated that the DVR was in recording position when he was talking to Ashok Gupta and Sunil Gupta in DDA office. Thereafter Ashok Gupta came out of his office on the third floor and asked the complainant as to whether he had brought money. He told him that he was carrying only Rs. 3,000/- and he paid the same to him on his demand. He further deposed about the pre trap proceedings carried out in the office of CBI on 8.4.08 and about the trap proceedings, but he again testified that on that day he had visited the office of accused Sunil Gupta on the third floor C C No. 33/12 CBI Vs. Sunil Gupta Page no. 25 26 where neither Sunil Gupta nor Ashok Gupta were present. He waited for them outside their office. Ashok Gupta came after 45 minutes and the complainant went inside his office and handed over Rs. 17,000/- to him. He stated that accused Sunil Gupta was also climbing down the stairs from the upper floor to the third floor. That after handing over the tainted GC notes to Ashok Gupta, he gave prefixed signal and CBI officials immediately reached there and caught hold of accused Sunil Gupta who was standing there. In the meantime, Ashok Gupta vanished somewhere. PW 5 testified that the conversation which took place between him and Ashok Gupta was recorded in DVR. He also testified that accused had asked the CBI officials as to why he was caught and to this he was told that he had accepted bribe but accused protested that he had not taken any money from the complainant. He testified that at that time the DVR was with him and conversation was being recorded in the same. Regarding the proceedings carried out thereafter, he stated that he alongwith the entire CBI team and the accused went to CBI office where he signed on certain papers. That he was called to CBI office on 3 /4 occasions and was made to sign on certain papers. He denied that in the CBI office the recorded conversation was ever played in his presence. He stated that he cannot read or write English or Hindi.
11.v) The complainant was declared hostile by the prosecution and was cross examined at length by Ld. PP. However, he claimed that he is illiterate and had not given any C C No. 33/12 CBI Vs. Sunil Gupta Page no. 26 27 statement before the CBI. In the cross examination by Ld. PP he admitted that he had gone to the office of CBI to complain against accused Sunil Gupta since he was harassing him, though he had not demanded bribe from him. He reiterated that it is Ashok Gupta who had demanded bribe and told that without giving money his work would not be done. He also denied that he had given Rs. 3,000/- on 7.4.08 or Rs.17,000/- on 8.4.08 to the accused in his office. He also denied that any such amount was recovered from possession of accused on 8.4.08. As such, the testimony of PW 5 the complainant is of no help to the prosecution.
12.So far the other independent witness PW 1 Sh C B Mishra is concerned, who was deputed as shadow witness. He too has not testified that the accused had demanded Rs. 50,000/- as bribe from the complainant in his presence on 7.4.08 or he over heard any such conversation between the two nor he testified that accused accepted bribe of Rs. 3,000/- from the complainant on that day. It is the argument of Ld. PP that PW 1 Sh C B Mishra testified in his examination in chief that the complainant had told him that amount of and time was fixed and that he had given Rs. 3,000/- to Sunil Gupta and balance would be paid on the next day. However, there is no substance in the said argument as this part of the testimony of PW 1 could be used only for the purposes of corroboration of the testimony of the complainant, if he had supported the prosecution case. However, as observed above, the C C No. 33/12 CBI Vs. Sunil Gupta Page no. 27 28 complainant himself had denied that there was any demand of bribe by the accused or that he had given Rs. 3000/- to him and balance amount was to be paid on the next day. It is observed that the complainant in his entire testimony has nowhere stated that it is PW 1 who had accompanied him to the office of the accused on 7.4.08 nor he testified that he had given any information to PW 1 as to what transpired in the office of the accused on that day nor during cross examination by Ld. PP the complainant was suggested that PW 1 had accompanied him to the office of the accused on 7.4.08 or that on return from the office of accused, he had informed PW 1 that the amount of money and time was fixed and that he had given Rs. 3,000/- to accused Sunil Gupta and balance amount was to be paid on the next day. As such, the testimony of PW 1 is of no help to the prosecution and cannot be used for any purpose. Moreover, his said testimony is nothing but hearsay evidence which is inadmissible. PW 1 has testified that when such conversation took place between him and the complainant, at that time the recording instrument which was fixed on the inner cloth of Jagmohan ie the complainant was taken out and heard in his presence by the CBI, though he testified that the conversation was not cleared to him. The perusal of the transcription Ex.
PW1/C does not speak of any conversation between the
complainant and PW 1. If the complainant had given any
information to PW 1 then it ought have been recorded in the
C C No. 33/12 CBI Vs. Sunil Gupta Page no. 28
29
cassette Q-1 Ex. P-35 and its transcription Ex. PW 1/C. It is the
case of the prosecution that the DVR was taken back by PW 7
from the complainant on 7.4.08 after the complainant and PW 1 went outside the office of DDA and met him and then the DVR was put in switch of mode. This shows that either no such conversation took place between the complainant and PW 1 or there was tampering in the recording in the DVR while transferring the same to cassette Q1 Ex.P-35. My this view is further strengthened in view of the testimony of PW 7 DSP Rajesh Chahal who testified that after return to the office of CBI on 7.4.08, the introductory voice of witness C B Mishra was again recorded in the DVR and the recorded conversation was then heard and transferred to audio cassette Mark Q1, however, in the transcription Ex PW 1/C the introductory voice is only on the top of the transcription and there is no introductory voice in the bottom of the transcription, so the possibility of the tampering of such record cannot be ruled out. Moreover, the transcription Ex PW 1/C by itself is no evidence, as it could be relied only if it was compared with the recorded version in the DVR or even in the cassette Mark Q1 Ex. P-35, though it is secondary evidence, but the cassette Mark Q1 Ex.P-35 and the other cassette Mark Q-2 Ex.P-39 and even the cassette containing the alleged specimen voice of the accused were found not audible when played in the court. Thus, in the absence of the recorded conversation being played in the court it cannot be said that whatever is mentioned in C C No. 33/12 CBI Vs. Sunil Gupta Page no. 29 30 the transcription Ex. PW 1/C or even Ex. PW 1/D was correct as per the recording. Besides, in the absence of the recorded conversation being played in the court it cannot be said that the voice contained therein as well as in the cassette S-1 Ex. P43 was of the accused and also that whatever report has been submitted by PW 6 Dr. Rajender Singh was on the examination and comparison of the contents of cassettes Mark Q1 Ex.P-35 and Q-2 Ex.P-39 with the cassette Mark S-1 Ex.P-43.
13. So far PW 2 Sh J S Rana is concerned he is neither a witness to the demand or acceptance of bribe, as he remained alongwith the CBI team on 8.4.08 and did not accompany the complainant to the office of the accused. The prosecution is relying upon his testimony that he is a witness to the recovery of bribe amount from the possession of the accused. However, again I am of the opinion that this witness is no of help to the prosecution, as he has not testified at all the amount of recovery effected from the possession of accused was Rs. 17,000/- in the form of 17 GC notes of Rs.1000/- denomination. As per the case of the prosecution, the bribe amount of Rs.17,000/- was recovered from the right side pant pocket of the accused and Rs. 23,120/- were recovered from his purse during his personal search. PW 2 has only deposed about one recovery ie Rs. 23,120/- from the possession of the accused. During his cross examination by Ld. PP, he categorically denied that he had stated before the CBI that he had collected the bribe amount of Rs. 17,000/- from the right side C C No. 33/12 CBI Vs. Sunil Gupta Page no. 30 31 pocket of the accused. He voluntarily stated that he had recovered Rs. 23,120/- from the possession of the accused. He denied that the numbers of the recovered currency notes were tallied with the numbers already recorded in the office of CBI. Surprisingly he was not even confronted with his previous statement made before the CBI to this effect. Similarly, PW 1 Sh C B Mishra testified that after the apprehension the accused was taken upstairs to the room of Director or someone else of same designation, the money was taken out from the pocket of accused but he too did not testified that the said money was either Rs. 17,000/- or Rs. 23,120/- . As per his testimony, the recovered currency notes were sealed but when the same were produced in the court, they were in unsealed condition. During his cross examination by Ld. PP, no question was put to him as to how much money was recovered from the possession of the accused and what was the denomination, particularly, when it is the case of the prosecution that Rs.17000/- were recovered from the right side pant pocket of the accused and Rs.23120/- were recovered from his purse during his personal search. Thus even this witness is of no help to the prosecution. The prosecution is now left only with the testimony of PW 7 DSP Rajesh Chahal and PW 8 Insp. Prem Nath/ the TLO that the bribe amount of Rs. 17,000/- was recovered from the possession of the accused. However, PW-2 J.S. Rana who as per the prosecution had recovered the bribe amount has given different version. As such, the prosecution has not led any cogent evidence on record even C C No. 33/12 CBI Vs. Sunil Gupta Page no. 31 32 with regard to recovery of bribe money from the possession of the accused. Particularly, in view of the fact that PW 1 testified that the money recovered from the possession of accused was sealed, whereas when the alleged bribe amount was produced in the court, it was in unsealed condition. Even assuming that the testimony of PW-7 and PW-8 with regard to recovery of Rs.17000/- from the possession of the accused is correct, it is not sufficient to prove that it is the bribe money and he had demanded and accepted the same voluntarily.
14. The defence counsel has also pointed out certain glaring contradictions in the testimony of PW-7 and PW-8 which creates doubt about their being truthful witnesses. The defence counsel has drawn my attention that as per the testimony of PW-7 on 08-04-08 the complainant and the shadow witness were seen entering in room no. 113A situated on the first floor, whereas he along with Inspector Prem Nath had taken position in the visitors area near the entry gate of the said floor. After sometime the complainant and shadow witness came out of the said room in the gallery and started waiting on the chairs installed there outside room no. 113A. After considerable wait one person limping was seen entering in the said room who was followed by the complainant, whereas the shadow witness was seen standing on the gate of the said room where from he could see them. Whereas on the other hand as per the testimony of PW-8 that the person who was limping was joined by the complainant and shadow C C No. 33/12 CBI Vs. Sunil Gupta Page no. 32 33 witness and after about 10 minutes the shadow witness came out and gave pre fixed signal by rubbing his face with both hands. The said statement of PW-8 leads to the inference that bribe transaction if any, had already taken place inside the room. But as per further testimony of PW-8 in his examination in chief it appears that he is a witness to the transaction of bribe as he stated that the complainant and the person who was limping came out of Room no. 113A and came near the staircase on the turning point, the complainant took out money from his shirt and handed over the same to that person who kept the same in the right side pant pocket. Whereas, on the other hand as per the testimony of PW-7, PW-1 C.B. Mishra had not entered room no. 113A along with the complainant and the person who was limping nor he testified that PW-1 C.B. Mishra had given any prefix signal after coming out of room no. 113A and thereafter the transaction of bribe took place as deposed by PW-8 to the contrary he testified that after sometime the person who was limping was seen coming out of the room along with the complainant and were going to the exit side of the said gallery, followed by independent witness C.B. Mishra and they took right turn in the gallery towards staircase and that after sometime the shadow witness came back to the gallery and gave prefix signal. During his cross-examination he has admitted that the exit side of the gallery was not visible from the place where they were present in the visitors gallery and as such there was no occasion for them to have witnessed the transaction of bribe C C No. 33/12 CBI Vs. Sunil Gupta Page no. 33 34 between the complainant and the accused. In view of such glaring contradiction rather improvement in the testimony of PW-7 and PW-8 no reliance can be placed on their uncorroborated testimony. Though I fully agree with the judgment cited by Ld. PP in the case of Hazari Lal Vs State, Crl. J 1980 SC, 564 and Gian Singh VS State of Punjab, Crl.J, 1974, Page 789 that if the evidence of the police officials is found trustworthy no corroboration is required. However, these judgments are not applicable in the present case as the testimony of both these officials is not found trustworthy for the reason there are material contradictions in their deposition and for the reason that there appears to be tampering in the record as discussed above in the cassettes mark Q1 Ex.P35 and Q2 Ex.P39. At the same time the first application moved by PW-5 before the CBI wherein he alleged that one DDA official namely Ashok Gupta was taking money from him regarding his work and also showed concern that though the file was pending with accused Sunil Gupta then why Ashok Gupta was demanding money from him has been withheld by the prosecution. Similarly, the complainant in his testimony has deposed that he cannot read or write Hindi or English language and in his chief examination he testified that he was advised by the higher official of CBI to write application naming the official who had to do his work in DDA office and thus this application was written by his friend Surjit Singh who had accompanied him to the CBI office but neither Surjit Singh has neither been cited nor examined by the prosecution and no reason C C No. 33/12 CBI Vs. Sunil Gupta Page no. 34 35 has been assigned by the prosecution as to why this witness was withheld. It is observed that during cross examination by Ld. PP no suggestion was given that he had not moved any application before the CBI naming Ashok Gupta as the official of DDA demanding bribe from him nor he was suggested that complaint Ex.PW5/A was not prepared by Surjit Singh or that Surjit Singh had not taken him to the office of CBI. In the absence of such cross examination of PW-5 his testimony to that effect is deemed to be admitted by the prosecution. The complainant has throughout in his testimony remained consistent that demand was made by Ashok Gupta and payment of bribe was also made to him. In such circumstances mere recovery of bribe money from the accused is not sufficient to prove that he demanded and accepted bribe that too voluntarily.
15. In Banarsi Dass Vs. State, 2010 CrLJ 2419 and Gopal Krishan Vs. State, 18 (1980) DLT 11, it was held that mere recovery of bribe money from the accused was not sufficient to prove offence and that no presumption of guilt should be raised under the Act in the absence of proof of demand and acceptance of money by the accused as a motive or reward.
16. Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the C C No. 33/12 CBI Vs. Sunil Gupta Page no. 35 36 prosecution against the accused, in absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
17. It is further observed that charge against the accused was framed to the effect that on 02-04-08 the complainant had met him in his office and spoke to him about the mutation of the plot and he demanded Rs.50,000/- as bribe for processing his mutation file and getting the mutation done. However, there is no evidence on record to this effect. The complainant PW-5 is silent in this regard and even Ld. PP did not question him to this effect during cross examination. At the same time there is no evidence that Rs. 3000/- were given by PW-5 the complainant to the accused on 07-04-08 in the form of 6 GC notes of Rs.500/- denomination i.e. Ex.P27 to Ex.P32. Complainant has denied that he gave any such bribe amount to the accused. Besides, it is surprising that without any mark of identification the complainant would identify these GC notes as the one given by him to accused on 07-04-08 as claimed by the prosecution. At the same time, there is no evidence that accused had any control over the mutation file of the complainant on 07-04-08, to ask for bribe to pursue the file. As per record he has already done what was required of him on 04-04-08 and the file was sent to PW-11 Zile Singh, working as Assistant Director in Land Sales Industrial Branch, DDA who admitted this fact in his testimony. So accused had even no motive to demand bribe. Even as per the complainant's evidence the possibility of false C C No. 33/12 CBI Vs. Sunil Gupta Page no. 36 37 implication of the accused cannot be ruled out as he deposed that he kept on visiting the DDA office time and again and had met the accused regarding his work but nothing was done by him which shows he was irritated with the accused. Complainant also admitted that he named the accused at the instance of higher official of CBI as he was dealing with his file. In such circumstances, the prosecution has failed to prove its case against the accused.
18. Ld. Public Prosecutor has heavily relied upon the judgment of Hon'ble Delhi High Court in case of Bhupender Singh Sikka Vs CBI in Crl Appeal 124/2001 decided on 25.3.2011, where the accused was convicted despite the fact that the complainant and the shadow witness had turned hostile. However, though I fully agree with the aforesaid judgment but the same is not applicable to the facts and circumstances of the present case, as in that case the initial demand of bribe by the accused and the motive had been proved by direct evidence from the overwhelming testimony of PW 1 ie the complainant who lateron turned hostile.
19. Ld. PP has also relied upon the proven fact that the colourless solution of sodium carbonate changed its colour upon the accused dipping his fingers. The accused has denied this fact in his statement u/s 313 Cr.PC. Even assuming that the accused had come in contact with the tainted GC notes it would not lead to irresistible conclusion that this money was demanded and accepted by the accused as bribe.
C C No. 33/12 CBI Vs. Sunil Gupta Page no. 37 38
20. CBI has miserably failed prove it's case against the accused. The quality of evidence produced by the CBI is weak in nature and not sufficient to invoke statutory presumption u/s 20 of PC Act.
21. In view of the above discussion, the prosecution has miserably failed to bring home the guilt of the accused Sunil Gupta, hence he is acquitted of the charges U/s. 7, 13(2) r/w Sec. 13(1) (d) of P C Act, 1988.
22. In terms of Section 437(A) Cr. PC, accused Sunil Gupta is directed to furnish bail bond in the sum of Rs.50,000/- with one surety in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.
File be consigned to the Record Room.
Announced in the open Ravinder Kaur court on 17.12.2012 Special Judge ( PC Act) CBI-03,Saket Courts, New Delhi C C No. 33/12 CBI Vs. Sunil Gupta Page no. 38