Delhi District Court
Cbi vs Swet Manir on 28 April, 2014
CBI vs Swet Manir
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 58/13; RC No. 14(A)/2013/CBI/ ACB/ New Delhi
Under Section 7 and 13 (2) r/w 13 (1) (d)
of The Prevention of Corruption Act, 1988
Unique ID No.: 02403R0087362013
Central Bureau of Investigation
vs
Swet Mani S/o Sh Ram Yatna Patel
R/o H. No. B22, Dr Gidwani Road, Adarsh Nagar, Delhi110033
Permanent Address: Village Jahangirpur Sham, PO & PS Desari,
District Vaishali, Bihar
Date of FIR : 11/05/2013
Date of filing of Chargesheet : 10/07/2013
Arguments concluded on : 05/04/2014
Date of Judgment : 28/04/2014
Appearances
For prosecution : Sh Naveen Giri, Ld. Public Prosecutor for CBI.
For accused : Sh Ajit K. Singh and Sh Sarthak Guru, Ld. Counsels for
accused.
JUDGMENT
FACTUAL MATRIX OF PROSECUTION CASE RC No. 14(A)/2013/CBI/ACB/New Delhi was registered by RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 1/103 CBI vs Swet Manir CBI on 11/05/2013 on the basis of written complaint dated 11/05/2013 from Sh. Anil Batra, complainant (herein after referred as PW12). It was alleged therein that PW12 was the owner of M/s V A Water Cooling Plant at House No. 11, Kewal Park, Azadpur, Delhi at Ground Floor and had licence from MCD for 22 water trollies which PW12 provided to the persons on commission basis; water cooling plant of PW12 was also given permission for boring by Central Ground Water Authority in 1999. It is further alleged in the complaint that about two weeks ago Sh Navlendra Kumar Singh, SDM, Model Town and his PA Swet Mani (herein after referred as accused) along with the team had come in above said Water Plant of PW12 and inspected the boring, took photograph of boring in mobile phone; SDM told that he will seal the boring upon which PW12 stated he was having permission certificate of boring from Central Ground Water Authority; thereafter SDM with his team proceeded ahead but accused came back and from certificate of boring aforesaid noted down the name of firm of PW12 asking PW12 to meet him in his office. It is further alleged in the said complaint that two days later to aforesaid visit of the SDM and his team, the SDM sent a notice to him. On the next day of receipt of the notice, PW12 visited SDM's office with original certificate of Central Water Ground Authority and its photocopy along with the reply of the said notice u/s 5/15 Environment Protection Act 1986 and produced them before the SDM upon which the SDM told that they will get investigation of the matter done. Also is alleged in the complaint that on the next day of such visit of PW12 in the RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 2/103 CBI vs Swet Manir office of SDM, accused asked PW12 to meet him in new office of SDM at Azadpur where PW12 reached at 7 pm; accused showed PW12 the orders of sealing of borewell of PW12 and said that if he (PW12) wanted to save his borewell from sealing, PW12 had to make arrangement of Rupees Two Lacs which are to be given to SDM, Model Town and Rupees Ten/Twenty Thousand would be taken separately by the accused; besides that PW12 had talk on phone also. Also is alleged in the complaint by PW12 that 34 days previously accused had called him at his residence which is at Gidwani Road, Adarsh Nagar where PW12 requested accused that he had permission but did not have money to give. On the request made by PW12, allegedly finally accused agreed to accept Rupees One Lac Sixty Thousand about which accused told that Rupees One Lac Fifty Thousand was for the SDM and Rupees Ten Thousand will be the share of accused; accused told PW12 to make arrangements of money sooner upon which PW12 asked for time of Saturday. Since PW12 did not want to pay the said bribe, PW12 made the present complaint to SP, CBI, ACB Delhi for legal action against accused and the SDM.
2. Allegedly, in order to verify the allegations, a DVR was arranged. After ensuring its blankness, the introductory voice of the witness was recorded in the said DVR. PW12 was asked to contact the PA of SDM, Model Town accused on his mobile No. 9868497061 from mobile number 9810033480 of PW12 at about 12.40 pm on 11/05/2013 RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 3/103 CBI vs Swet Manir by keeping the mobile on speaker mode. This conversation was heard by all present and was simultaneously recorded in the DVR. In the said conversation accused directed PW12 to come to his house at about 6 PM that day. PW12 asked house number of accused but the call got disconnected. After some time a call was again made on the mobile of accused as mentioned above by keeping it on speaker mode. In the said conversation, heard by all present, allegedly accused demanded Rupees One Lac Sixty Thousand from PW12 and directed him to come to residence of accused before 6 PM with agreed money. Allegedly, thereafter the recording in the DVR was heard and it confirmed the demand made earlier by accused. Thereafter, a rough transcription of conversation between PW12 and accused was prepared. Recorded conversation was transferred in CD and the CD was sealed. Aforesaid FIR was then registered against accused u/s 7 of PC Act, 1988.
3. Thereafter, PW12 produced 100 GC notes of Rs. 500/ denomination totaling Rs. 50,000/. Numbers of the GC notes were noted down. Demonstration was given to the trap team members to explain the purpose and significance of use of Phenolpthalein powder and its chemical reaction with sodium carbonate and water. GC notes of Rs. 50,000/ produced by PW12 were treated with Phenolpthalein powder. Independent witness PW13 Sh Narendra Kaushik was asked to touch the tainted GC notes with his right hand fingers who after touching them washed them in the freshly prepared colourless solution of sodium RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 4/103 CBI vs Swet Manir carbonate and water in a glass tumbler. The colourless solution turned pink and was thrown away after explaining the significance of reaction. The remaining Phenolpthalein powder was returned to the Malkhana. Personal search of PW12 was conducted and he was not allowed to keep any incriminating article except mobile phone. Tainted bribe amount of Rs. 50,000/ was then put in the right side pocket of trouser of PW12 by PW13 after ensuring that nothing else incriminating was left in the said pocket. PW12 was directed to not to touch the said tainted bribe amount and to hand over the same to accused on his specific demand/gesture. Digital Voice Recorder (DVR) was then arranged. Introductory voice of witnesses were recorded in DVR. After explaining the operation of DVR same was handed over to PW12 under direction to switch on the same after reaching at the spot to record the conversation between him and accused. All team members washed their hands. PW12 and shadow witness Dinesh Kaushik (PW5) were directed to give signal by rubbing their face by their both hands, after the transaction was over. PW12 was also informed that if accused comes along with him and takes money in the car, then he (PW12) will give indication by switching on the parking light. PW13 was directed to remain with the trap party. PW5 and PW12 were also directed to give calls from their mobile phones to the mobile phone of PW14 TLO Inspector Anil Bisht after transaction of bribe was over, in case they were not able to see the trap team members.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 5/103 CBI vs Swet Manir
4. Allegedly, trap team reached at about 1650 hours approximately on 11/05/2013 near the house of accused at B22, First Floor, Dr. Gidwani Road, Adarsh Nagar, New Delhi in CBI vehicles and in the car of PW12 bearing no. DL8CAB1517. The vehicles were parked near the residence of accused. After directions were given to PW12 and PW5 for giving signal, PW12 was directed to introduce PW5 as his uncle. PW12 was also directed to call accused from his mobile number to ascertain the availability at his residence at about 5 pm. Call was not picked up by accused. Once again a call was made which was not answered. Later after 56 minutes, the team took the suitable position in the vicinity of the house and PW12 was directed to call again accused. On receiving the said call, accused called PW12 to his residence and the call was recorded in DVR. DVR was given to PW12 by keeping it on "ON" mode, which he kept in his left side shirt pocket. PW5 remained seated in the car and PW12 entered the house of the accused at first floor. Talks between accused and PW12 were recorded in the DVR. Allegedly, in the house of accused, the accused had demanded money from PW12 through gestures upon which PW12 informed accused that he had kept the money in the car. After 1015 minutes PW12 with accused wearing Bermuda (Make Jockey) and round neck vest came out of residence of accused and proceeded towards the car bearing no. DL8CAB1517 of PW12. Accused sat on the front left seat of the car and PW12 sat on the driving seat. PW5 was already sitting on the right rear seat of the car. After being seated in the car, accused inquired about PW5 seated on the RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 6/103 CBI vs Swet Manir rear seat upon which PW12 informed that PW5 was his distant relative and going to Rohini. By gesture accused demanded money from PW12. PW12 took out the tainted money from his right side of trouser and discreetly kept the same near the gear cabinet having place to keep the water bottle; later the tainted money was handed over to accused on his demand which accused accepted by his right hand and kept the tainted amount between both the legs under his Bermuda and asked how much money PW12 has given; PW12 informed that it was Rs. 50,000/. Accused further inquired about the balance amount of Rs. 1 lac 10 thousand upon which PW12 assured that same will be handed over to him by Monday/Tuesday. PW12 gave a signal by blinking the parking light of the car, which was seen by trap team members. On receiving signal, CBI members of trap team with PW13 proceeded towards the car of PW12 and surrounded the car. PW12 opened the door of the car and came out of the car and informed Inspector Pramod Kumar and PW14 about accused and that accused had accepted the tainted bribe amount from him. PW14 and Inspector Pramod Kumar caught hold of the left and right hand of the accused and introduced themselves and reason for holding his hand. The accused was challanged, on which accused got perplexed and kept mum. The DVR was taken back from PW12 and was switched off. PW13 was directed to recover the tainted amount which was kept in between both the legs of accused under his wearing Bermuda, which PW13 accordingly so recovered. Accused made forceful protest, tried to free himself. Neighbours and bystanders gathered at the RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 7/103 CBI vs Swet Manir spot. For the safety of the team and accused, accused was taken to his residence at first floor, where there were four more persons namely Sh. Prabhu Nath, Sh. Sahjad, Sh. Suraj Ramji and Sh. Amit Kumar and from amongst them Amit Kumar (brotherinlaw of accused) was allowed to remain present while other persons were allowed to leave. Hand washes of accused and wash of "Aasan" portion of Bermuda of accused were taken and preserved in separate phials (bottles) and sealed which were given mark RHW (Right Hand Wash), LHW (Left Hand Wash) and BW (Bermuda Wash). PW13 was directed to tally the numbers of the recovered GC notes with the handing over memo dated 11/05/2013 with the help of PW5 and numbers of the GC notes recovered tallied with the numbers of the GC notes detailed in the Handing Over Memo. Accused was arrested, house of accused was searched.
5. 12/05/2013 being Sunday, accused was produced before the Duty Magistrate at Rohini Courts and two days Police Custody Remand was obtained. On 14/05/2013 accused was sent to judicial custody.
6. The bottles containing the exhibits, the washes were forwarded to the Director, CFSL, CBI for expert opinion. As per the report (D24) dated 30/05/2013 of the forensic expert, result of examination of RHW, LHW and BW of accused gave positive tests for the presence of Phenolphthalein.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 8/103 CBI vs Swet Manir
7. Sanction under Section 19 of The Prevention of Corruption Act, 1988 for prosecution of accused for offences under Section 7 and 13 (2) read with Section 13 (1)(d) of The Prevention of Corruption Act, 1988 was accorded on 01/07/2013 by PW1 Ms. Kiran Dabral, Additional CommissionerII, South Delhi Municipal Corporation being the competent authority to remove accused from service. Such sanction had been placed on record.
8. On completion of investigation, chargesheet was filed on 10/07/2013. Cognizance of the offences was taken on 10/07/2013. Copies were supplied to the accused and requirements of Section 207 of Cr. PC were complied with.
CHARGE
9. Charge for offences under Sections (1) 7 of Prevention of Corruption Act 1988 and (2) 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act, 1988 was framed on 24/07/2013 in terms of Order dated 24/07/2013 against accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
10. To connect arraigned accused with the offences charged, prosecution has examined in all 16 witnesses namely Mrs Kiran Dabral RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 9/103 CBI vs Swet Manir (PW1), Sanctioning Authority; Sh Navlendra Kumar Singh (PW2), the then SDM; Sh Rakesh Soni (PW3), JTO in MTNL; Sh Chander Shekhar (PW4), Nodal Officer of Bharti Airtel Limited; Sh Dinesh Kumar Kaushik (PW5), shadow/independent witness; Smt Manju Khatri (PW6), Assistant Director in Education Department; Sh V.B Ramteke (PW7), Senior Scientific Officer GradeI (Chemistry) in CFSL CBI, New Delhi; Sh Shahzad (PW8), PSO to PW2; Sub Inspector Raman Kumar Shukla (PW9), Verifying Officer of CBI; Sh Vinod Kumar Dhatrawal (PW10), Tehsildar Model Town; Sh P.K Deb (PW11), independent witness in verification proceedings; Sh Anil Batra (PW12), complainant; Sh Narendra Kaushik (PW13), independent witness; Inspector Anil Bisht (PW14), Trap Laying Officer (TLO); Inspector Shitanshu Sharma (PW15), Investigating Officer (IO) and Dr Rajender Singh (PW16), Director CFSL CBI, New Delhi.
STATEMENT OF ACCUSED
11. Thereafter accused was examined under Section 313 Cr. P.C. All incriminating material in evidence was put to the accused. Accused pleaded innocence and false implication.
12. Accused stated that he remained PA of PW2 in his tenure from 12/12/2012 till date of incident i.e. 11/05/2013; he used to carry out the duties/functions as were assigned to him by SDM Model Town PW2; in the same regard, files were also stored in a Almirah in the adjacent RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 10/103 CBI vs Swet Manir room in the room where he (accused) sat. Accused further stated that on 20/04/2013, owner of VA Water Cooling Plant along with other owners to whom notice dated 16/04/2013 had been issued had come to Court of SDM Model Town; in the regular course of day, when SDM Model Town inquired as to which matters were listed and asked him to call them; he (accused) was sitting nearby SDM Model Town; he asked Orderly to make call of matters listed at which aforementioned owners came with the representation along with the photocopy of registration certificate of wells purportedly issued by Central Ground Water Authority which was taken on record and then the owners were told that authenticity of the certificates submitted by them has to be verified from the issuing authority and they were asked to leave the Court; subsequently on 03/05/2013, he (accused) was called by SDM Model Town and he (SDM Model Town) told him (accused) that sealing orders of borewell of aforementioned water cooling plants were to be prepared as the certificates appeared to be forged / unauthentic. Accused stated that dispatch register Ex. PW 2/D at page no. 229230 at S.No. 1579 did not pertain to whether sealing order had been executed or not and only denoted that sealing order had been dispatched to concerned; there was no diary maintained as to execution of any order; on 03/05/2013 the sealing orders were prepared at about 04.00 pm04.30 pm, after that he (accused) had taken a leave of absence and gone to his native village from 04/05/2013 and came back to office on 07/05/2013 due to which the sealing orders could not be executed within routine time of 34 days;
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 11/103 CBI vs Swet Manir around 08th or 09th of May 2013, he was asked by SDM Model Town to execute the sealing of borewells of aforementioned water cooling plants. Accused further stated that once an illegal / unauthorized borewell had been sealed by SDM, the power of desealing vests solely with concerned Deputy Commissioner. Accused stated that the seal of SDM remained in the table drawer; however, it was absolutely incorrect that any seal was recovered from him at any time whatsoever; it was only after coming to Court that he had come to know that CBI had allegedly recovered a seal of SDM from him; no such seal had been recovered from his person or his house at any time during the search of his premised on 11/05/2013 or later. Accused stated that on 22/04/2013 two borewells had been sealed; one of the borewell sealed on 22/04/2013 was belonging to Mr. Anil Batra in the name of M/s Fruity Water Cooling Plant and other was of M/s Gaurav Water Cooling Plant; in regard to five sealing orders, inspection was carried out on 12/04/2013, notices were issued on 16/04/2013 and representation was received on 20/04/2013; he was informed by SDM on 03/05/2013 that certificates of five plants were unauthentic and sealing orders were issued; as he was out of town for couple of days there was delay in sealing those five water plants, which were to be executed in the routine 34 days after he had rejoined office on 07/05/2013. Accused stated that on 12/04/2013 about 7 water cooling plants were inspected all in Kewal Park Area, out of which five owners, including Anil Batra said that they have due permission for borewells; on 16/04/2013 notices were issued to five owners and they were asked to RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 12/103 CBI vs Swet Manir bring the certificates along with the representation and appear before SDM Court on 20/04/2013; the remaining two water cooling plants which were inspected on 12/04/2013 were sealed on 22/04/2013; on 20/04/2013 although SDM Model Town was not very sure about genuineness of the certificate nothing was told to the owners of the water cooling plants and they were asked to leave after taking on record their certificates and representation. Accused stated that on 10/05/2013 two sealing orders pertaining to borewells of Water Cooling Plant were dispatched in the register; after that SDM Model Town, himself and other officials along with Tehsildar sealed two plants one in Jahangirpuri and another in Azadpur Commercial Complex; the five water cooling plants including that of Anil Batra were also to be sealed on 10/05/2013, however, due to paucity of time and as the two plants could be sealed only by evening; SDM Model Town said to him and Tehsildar Model Town that remaining water cooling plants would be sealed on the next working day, that was the coming Monday. Accused stated that the sealing as a preventive measure was done by SDM Model Town, however, the power of desealing and prosecution of the offender of the orders was done by Deputy Commissioner. Accused stated that on 10/05/2013, after sealing of two plants were carried out the third copy / office copy was taken by him in file of SDM office after which he and Shehzad came back to office of SDM Model Town and he kept all the files including the other file of five water cooling plants which could not be sealed due to paucity of time in his office. Accused stated that on RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 13/103 CBI vs Swet Manir 20/04/2013, owner of VA Water Cooling Plant i.e. Anil Batra along with other owners to whom notice dated 16/04/2013 had been issued had come to Court of SDM Model Town; in the regular course of day, when SDM Model Town inquired as to which matters were listed and asked him to call them; he (accused) was sitting nearby SDM Model Town; he (accused) asked Orderly to make call of matters listed at which owners came with the representation along with the photocopy of registration certificate of wells purportedly issued by Central Ground Water Authority which was taken on record and then the owners were told that authenticity of the certificates submitted by them had to be verified from the issuing authority and they were asked to leave the Court. Accused stated that on 11/05/2013 he was in his home with his friends and brotherinlaw and they were having a party with little bit of drinks; at that point he received a call from a certain number, which he picked up on which he found that the caller was Anil Batra; Anil Batra wanted to speak to him regarding his water cooling plant, which had been sealed by the office of SDM Model Town on 22/04/2013 i.e. M/s Fruity Water Cooling Plant; he (accused) told him that he did not speak about official matters on phone and asked him to come to office of SDM Model Town and make whatever representation he wants to make; thereafter call was cut and on the second call of Anil Batra received by him, at this point Anil Batra said that he is friend of his (accused) landlord Mr. Bhutani and that he (Anil Batra) knows where he (accused) live and that he (Anil Batra) wanted some advice from him (accused); voice of Anil Batra over RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 14/103 CBI vs Swet Manir the phone was also of poor quality and barely audible due to which he (accused) said he can come over as he was known to his landlord and accused wanted to show basic courtesy in apprising him of the proper procedure for desealing, whose power vests with the Deputy Commissioner and no power of the same is there with the office of SDM Model Town. Accused stated that Anil Batra had made a call to his phone which initially he did not know as it flashed as on unknown number and later when he picked the call, Anil Batra identified himself and said that he (Anil Batra) was standing right beneath his house and in lieu of showing basic courtesy, he asked Anil Batra to come upto his house. Accused stated that he did not knew of the proceedings carried out by CBI outside his house; as far as call made by Anil Batra to his phone the facts deposed by Anil Batra were incorrect. Accused stated that he had never taken any money / bribe whatsoever in connection with his official duty nor he had demanded anything from the complainant Anil Batra or from any other person for that matter. Accused stated that as there was a little noise from the T.V and his friends and he(accused) were having a party, Anil Batra requested him (accused) to come down with him (Anil Batra), so that he (Anil Batra) can speak to him (accused) in a little bit of silence and privacy; he (accused) was hesitant to go down with Anil Batra, however, he (Anil Batra) being friend of his landlord, cajoled him (accused) to go downstairs by holding his (accused) hand and he (accused) did the same. Accused stated that he came downstairs with the complainant only because he (Anil Batra) was friend of his RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 15/103 CBI vs Swet Manir landlord; he (accused) never sat in his (Anil Batra) car nor did he (accused) demand any money from him (Anil Batra); Anil Batra took him (accused) towards his (Anil Batra) car by saying that his (Anil Batra) aged uncle is sitting in the car and he (Anil Batra) wanted him (accused) to meet him; the moment we got near the car, 56 persons, who he did not know to be CBI officials at that time, apprehended him and started beating and threatening him saying that they had arrested him because he (accused) had demanded and taken money from Sh. Anil Batra; he (accused) protested vehemently, however, two CBI officials held him by his hands and as much as he resisted they forcefully restrained him; he (accused) told them that he being falsely implicated by Anil Batra and reasoned with them, however, to no avail; at this point his neighbours and people known to him started gathering there as they thought that he was being abducted / looted by some possible miscreants, however, they could not do anything as there were about 1215 CBI officials, who had gathered there along with Anil Batra and his (Anil Batra) brothers, whose water cooling plants were also incidentally sealed by office of SDM Model Town; two CBI officials held him by his feet and carried him into his house. Accused stated that he had never seen any money or amount of Rs. 50,000/ of Anil Batra when he came down and neither did he sit in his (Anil Batra) car. Accused stated that his hand washes were not taken by CBI officials and he was asked by CBI officials to change his Bermuda and vest and was asked to wear proper shirt and pant / trousers; CBI officials took away his Bermuda and Vest and he was again RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 16/103 CBI vs Swet Manir restrained in a corner of his house with two CBI officials holding his hands and restraining him. Accused stated that CBI officials were frenetically searching his house; however, he had not seen any search list; he was not shown any copy of complaint against him, search warrants, FIR despite his demand. Accused stated that sum of Rs. 12,57,000/ was with him in his house when CBI officials were raiding his house and subsequently recovered the same amount; the said amount was given to him by his father and was belonging to him (accused) and he (accused) had brought it from his (accused) home town on two previous trips; he (accused) had the money for the purpose of marriage purchases, expenditures for the impending marriage of his younger brother, which was to be performed on 02/06/2013. Accused stated that he was taken to Safdarjung Hospital but he was not got medically examined there; accompanying CBI officials received call on their mobile phone and it was conveyed to them since he (accused) was under
influence of liquor he (accused) be not examined medically that night and he (accused) should be got medically examined on the subsequent day; on subsequent day, he (accused) was medically examined at Safdarjung Hospital, when he was taken there from CBI office before one or one and a half hours of his production in the Court. Accused stated that CBI officials coerced him and told him that if he gives his specimen voice, they will let him go from the case and any incrimination. Accused also stated that the CBI officials continuously threatened him and slapped him and asked him to take the name of SDM Model Town RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 17/103 CBI vs Swet Manir and implicate him in the case of demand of bribe from Anil Batra. Accused stated that complainant had falsely implicated him in this case in collusion with CBI officials as he (Anil Batra) had a grudge against him; witnesses had deposed falsely against him on the asking of CBI officials. Accused further stated that in the month of March 2013 the borewell of Water Cooling Plant of one of the brother of Anil Batra was sealed by the office of SDM Model Town at Jahangirpuri area; also on 22/04/2013 the borewell of Anil Batra in the name of firm M/s Fruity Water Cooling Plant was sealed by the office of the SDM Model Town; on 10/05/2013 one other borewell of Water Cooling Plant existing at Commercial Complex, Azadpur, Delhi which was of another brother of Anil Batra was sealed by the office of the SDM Model Town; during inspection carried out by office of SDM Model Town and later proceedings where Anil Batra and his brothers were asked to submit their certificates / permission for borewell, it was suspected that their permissions were not genuine / fake; this complaint was malafide and made with an intention to falsely implicate him as well as SDM Model Town so that further water borewells of the complainant and his brothers, known persons would not be sealed; after this false CBI case had been lodged against him while all the sealing orders issued on 03/05/2013, along with the concerned files had been taken by CBI from office of SDM Model Town and till date the complainant and his brothers / known persons were carrying out unauthorized extraction of ground water from the borewells existing in their Water Cooling Plants; while he (accused) RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 18/103 CBI vs Swet Manir was apprehended by CBI officials outside his house on 11/05/2013 Anil Batra and his (Anil Batra) brothers were present there and hurled abuses on him (accused) and said that "Maine Isey Phasa Diya hai ab karta reh sealing".
DEFENCE EVIDENCE
13. Accused entered into his defence and examined Sh. Mahendra Prasad Kushwaha (DW1), previous Tehsildar Model Town; Sh. Prabhu Nath (DW2), acquaintance of accused who was present in the residence of accused in the evening of occurrence; Sh. Sanjay Kumar (DW3), shopkeeper mechanic having shop at ground floor of residence of accused and Sh Rajender Prashad (DW4), previous SDM Model Town as defence witnesses.
ARGUMENTS
14. I have heard the arguments of Sh Naveen Giri, Ld. Public Prosecutor for CBI; Sh Ajit K. Singh, Ld. Counsel for accused; accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
15. Ld. PP for CBI had argued that by the documentary evidence, recordings of the call conversations, transcripts of such call conversations and the deposition of prosecution witnesses, the prosecution has been able to prove that accused being public servant had RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 19/103 CBI vs Swet Manir agreed to take Rs 1,60,000/ as negotiated amount of the demanded illegal gratification of Rs 2 lacs from PW12 to save his borewell from sealing; pursuant thereto on the fateful evening of 11/05/2013 in the car of complainant at near residence of accused accordingly accused obtained Rs 50,000/ as part of agreed illegal gratification from PW12; accordingly, the presumption embodied in Section 20 of The Prevention of Corruption Act, 1988 is liable to be invoked and since the accused has not rebutted the presumption aforesaid either from prosecution evidence or from defence evidence, so it is proved beyond reasonable doubt accordingly that accused had committed the offences punishable under Sections 7 and 13 (2) read with 13 (1)(d) of Prevention of Corruption Act 1988. Ld. PP for CBI has prayed for conviction of the accused accordingly relying upon the following precedents:
(1) Chaturdas Bhagwandas Patel vs State of Gujarat, AIR 1976 SC 1497; (2) Shiv Raj Singh vs Delhi Administration, AIR 1968 SC 1419; (3) Dhanvantrai Balwantrai Desai vs State of Maharashtra, AIR 1964 SC 575; (4) State of Tamil Nadu vs A. Vaidyanatha Iyer, AIR 1958 SC 61(1).
16. Ld. Counsel for accused argued that testimonies of material prosecution witnesses embody material contractions, severe infirmities and inherent improbabilities which go to the root of the matter to check and shake the basic version and core of the prosecution case. It was also argued that the appreciation of evidence clearly revealed that whole trap process was fake, no laid procedure was followed, tape recorded conversation is inadmissible as corroborative piece of evidence for lack RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 20/103 CBI vs Swet Manir of authenticity, genuineness and is tampered, manipulated while the digital voice recorder, the primary device in which allegedly conversations inter se accused and PW12 were recorded has been withheld, not produced and the memory card of the digital voice recorder supposed to contain the alleged conversations inter se accused and PW12, was found not containing such conversations by own forensic expert of CFSL of CBI and the audio files in such memory cards were found devoid of any such data of such recorded conversations, though allegedly said memory card was sealed at the residence of accused pursuant to all such recordings of alleged conversations inter se accused and PW12 as well as the specimen voice of accused. Also was argued that sanction for prosecution against accused is bad in law and in cross examination sanctioning authority could not even say for what purpose bribe was allegedly obtained by accused, so the sanction was accorded without due application of mind. Also was argued that complainant had falsely implicated the accused in this case in collusion with CBI officials as complainant had a grudge against accused while witnesses had deposed falsely against accused on the asking of CBI officials. It was also argued that after inspections carried out by office of SDM Model Town and later proceedings for sealing of borewells of complainant and his brothers were done; malafide complaint was filed by complainant with an intention to falsely implicate accused as well as SDM Model Town so that further water borewells of the complainant and his brothers, known persons would not be sealed. It was also argued that neither the RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 21/103 CBI vs Swet Manir accused nor the SDM Model Town had any role or power to stop either sealing process of borewells or deseal the sealed borewells while there was an Advisory Committee under Chairmanship of Deputy Commissioner of the District to grant permission for ground water extraction or modify/alter any orders of sealing of borewells. It was also argued that the appreciation of evidence clearly reveals of false implication of accused by fabrication of recorded conversations, telling of different tales by examined prosecution witnesses in respect of (1) verification proceedings; (2) pretrap proceedings; (3) trap proceedings, which makes such witnesses unworthy of credence and cannot be made basis of conviction of accused. It was also argued that complainant has changed his versions on more than one occasion in the course of his testimony regarding alleged demand of bribe by the accused, making himself unreliable. It was also argued that prosecution witnesses admitted carrying of phenolpthalein powder in the trap kit from CBI office to the place of occurrence and residence of accused making it probable for use of such phenolpthalein powder for turning solutions purportedly of hand washes and bermuda wash in pink colour while neither any record was maintained nor shown of issuance, use or deposit back of phenolpthalein powder in/from Malkhana. It was also argued that regarding procurement of compact disk used for transfer of alleged recorded conversations from memory card of DVR during trap proceedings, the material witnesses i.e., complainant and the trap team members have come out with material contradictory versions, which RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 22/103 CBI vs Swet Manir casts doubt over presented version of prosecution. Also was argued that regarding alleged handing over of bribe sum by PW12 to accused or alleged obtainment of such bribe sum by accused from PW12, the testimonies of material witnesses are at variance and in material contradiction with each other, adding length to doubt casted over presented version of prosecution and infact supplementing defence version of false implication of accused, in the fact of the matter without there being any kind of demand for bribe by accused. It was also argued that the material witnesses even testified in contradiction with each other in respect of the alleged place of recovery of the bribe sum pursuant to apprehension of the accused which also adds length to doubt casted over prosecution case. It was also argued that as per settled law, existence of all doubts in the case of prosecution should go in favour of the accused. Ld. Counsel for accused has relied upon the followings precedents, praying for acquittal of accused since the prosecution has failed to prove its case against him beyond reasonable doubt: (1) V. Venkata Subbarao vs State, Appeal (Crl.) 970 of 2000 decided on 12/12/2006 by Hon'ble Mr. Justice S.B Sinha of Apex Court; (2) Pyare Lal vs State, MANU/DE/0965/2008;
(3) T.M. Shanmughavelu and N. Dhandapani vs State, MANU/TN/2107/2011;
(4) C.M. Girish Babu vs CBI, MANU/SC/0274/2009;
(5) State of Maharashtra vs Dnyaneshwar Laxman Rao Wankhede,
MANU/SC/1339/2009;
(6) Suraj Mal vs State (Delhi Administration), MANU/SC/0268/1979;
(7) Prem Raj Meena vs CBI, MANU/DE/0664/2011;
(8) Nilesh Dinkar Paradkar vs State of Maharashtra, MANU/SC/0293/2011;
(9) Vishal Chand Jain @ V.C. Jain vs CBI, MANU/DE/3542/2010;'
(10) Subhash Chand Chauhan vs CBI, MANU/DE/0060/2005;
(11) Ram Singh and Ors. vs Ram Singh, MANU/SC/0176/1985;
(12) Mahabir Prasad Verma vs Dr Surinder Kaur, AIR 1982 SC 1043;
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 23/103
CBI vs Swet Manir
(13) C.B Nagaraj vs State by Lokayuktha Police, Criminal Appeal No. 12 of 2012
decided on 09/07/13 by Hon'ble High Court of Karnataka; (14) Khyamasagar Baina vs State, MANU/OR/0303/2003.
17. Neither certified copy of the judgment of case of C.B. Nagaraj (supra) was filed nor any citation of the same in any Journal was furnished by the defence counsel and merely a photocopy/unattested copy of said judgment has been filed at pages 143 to 155 with index of list of judgments by defence counsel, which accordingly cannot be looked into for want of authentication and non furnishing of better particulars of the citation of the same in any Journal.
RELEVANT LAW
18. The essential ingredients of Section 7 of Prevention of Corruption Act 1988 are that (i) the accused was a public servant; (ii) accused accepted or obtained the gratification for himself or for any other person; (iii) the said gratification was a motive or reward (a) for doing or forbearing to do any official act or (b) for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person. It was also so held in the case of Khyamasagar Baina (supra).
19. The essential ingredients of Section 13 (1) (d) of Prevention of Corruption Act 1988 are (i) the accused was a public servant; (ii) RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 24/103 CBI vs Swet Manir accused used corrupt or illegal means or otherwise abused his position as such public servant and (iii) accused obtained valuable thing(s) or pecuniary advantage for himself or for any other person.
20. In the cases of Chaturdas Bhagwandas Patel (supra) and Shiv Raj Singh (supra), it was held that it is not necessary for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour but if accused had used his official position to extract illegal gratification, the requirement of law for offence under Section 161 of IPC is satisfied.
21. In the cases of Dhanvantrai Balwantrai Desai (supra) and A. Vaidyanatha Iyer (supra), it was held that when it is shown that accused had received a certain sum of money which was not a legal remuneration, then the condition prescribed by Section 4 (1) of The Prevention of Corruption Act 1947 is satisfied and the mandatory presumption therein must be raised.
22. In the case of V. Venkata Subbarao (supra), it was inter alia held that in the absence of proof of demand of bribe, the question of raising the presumption under Section 20 of The Prevention of Corruption Act 1988 would not arise and such presumption can only be raised if demand of bribe is proved. Also was held that, even in such a case, the burden on an accused does not have to meet the same standard RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 25/103 CBI vs Swet Manir of proof, as is required to be made by the prosecution.
23. In the case of Pyare Lal (supra), it was held that the facts in the matter pointed to every possibility of tainted currency notes having been kept by complainant in diary when accused had gone out from room to fetch water for complainant as was requested by him, which made prosecution version doubtful and false implication of accused could not be ruled out.
24. In the case of T.M. Shanmughavelu (supra), it was held that since entire trap proceedings were bristled with suspicious circumstances, in the absence of proof of demand of bribe and on existence of doubts and improbabilities in prosecution version as to trap proceedings, accused was entitled to acquittal for offences charged under The Prevention of Corruption Act 1988.
25. In the case of C.M. Girish Babu (supra), it was held that mere recovery of tainted money by itself is not enough, in absence of evidence to prove payment of bribe or to show that accused voluntarily accepted the money knowing it to be bribe.
26. In the case of Dnyaneshwar Laxman Rao Wankhede (supra), it was held that demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of The Prevention of RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 26/103 CBI vs Swet Manir Corruption Act 1988. 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 record in their entirety.
27. In the case of Suraj Mal (supra), it was held that 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. Mere recovery by itself cannot proved the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. It was also so held in Khyamasagar Baina (supra).
28. In the case of Prem Raj Meena (supra), it was held that tainted money was put in the briefcase by complainant of his own and not at the instance of accused, so it could not be said that accused was in conscious possession of tainted money recovered from briefcase. It was also held that said recovery of tainted money cannot be taken as a proof for acceptance of tainted money by the accused.
29. In the case of Vishal Chand Jain @ V.C Jain (supra), it was held that the accused lacked motive for demanding and accepting RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 27/103 CBI vs Swet Manir bribe. The star witness of prosecution viz. the complainant, who was alone witness to actual transaction did not support the case of prosecution either on initial demand or on demand and acceptance of bribe at the time of trap. Besides that audio recording of alleged conversation between complainant and accused was also being suspect. Elicited facts entitled the accused acquittal since he was able to explain the hand washes and pocket wash turning pink.
30. In the case of Subhash Chand Chauhan (supra), it was held that each of three material prosecution witnesses gave different version of the incident, place where money was handed was also different, contradictions were material and cast a serious doubt on the case of prosecution. It was also observed that in respect of the manner the bribe was offered and received as also the place where offer and receipt took place, serious doubts arose entitling accused benefit of doubt since version of prosecution witnesses did not inspire any confidence. It was also impressed upon that in a criminal trial, evidence of eye witnesses requires a careful assessment and evaluation for credibility. The evidence must be tested for its inherent consistency or inherent inconsistency in reference to the account as stated by one witness on being cross checked with the account as stated by the other witness. Finally, probative value of the evidence has to be put into scales for a cumulative evaluation. The evidence must point only towards the guilt and should exclude innocence of accused.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 28/103 CBI vs Swet Manir
31. The core question that needs to be seen is as to whether there is sufficient admissible legal evidence on record for the prosecution to prove its case beyond reasonable doubt against arraigned accused for the offences charged.
APPRECIATION OF EVIDENCE
32. PW6 proved on record the attested true copies of Service Book and Personal File of accused as Ex PW6/B (colly) (part of D16) which were seized by IO PW15 vide Production cum Receipt Memo Ex PW6/A (D16) dated 10/06/2013. In terms of Ex PW6/B (colly), accused was appointed as LDC in MCD vide office order dated 08/09/2003 which is at page number 6/C of Ex PW6/B (colly) and accused gave his acceptance to offer of appointment on 12/03/2013. Accused, working in MCD was directed to report to Chief Electoral Officer, Government of NCT, Old St. Stephen College Building, Kashmiri Gate in connection with Summary Revision of Rolls, in terms of office order dated 02/12/2005 which was at page number 27/C of Ex PW6/B (colly). PW2 deposed that when he joined as SDM Model Town on 12/12/2012, then accused was working in said office as PA to SDM Model Town and accused continued to work so in his tenure from 12/12/2012 till 11/05/2013 i.e., the date of occurrence in this matter.
33. PW2 deposed that when he had gone on 12/04/2013 in RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 29/103 CBI vs Swet Manir evening time for inspection of premises of VA Water Cooling Plant at 11 Kewal Park, Mohan Market, New Azadpur, Delhi; accused as his PA, his PSO Anil, Shukleshwar PSO of Delhi Police had accompanied him there and at said premises one or two persons present were not doing anything; water cooling extraction plants were running there and there was one borewell in the said premises which was in running condition.
34. PW2 testified that on inspection at premises of PW12, he (PW 2) had found there two borewells out of which one was closed and one was running and he (PW2) had called PW12 at the spot and asked him (PW12) the relevant documents and at the time of the inspection of the premises, PW12 could show documents of one borewell, while he (PW12) could not show documents of other borewell; he (PW2) told to PW12 to bring the documents of the borewell to him (PW2) and hearing in that regard would take place on 20/04/2013 and on 20/04/2013 itself, he (PW 2) was not very much clear about the genuineness of certificate of borewell of PW12. PW2 stated that on 20/04/2013, he accepted the relevant documents whatever Water Cooling Plants owner produced before him (PW2) and PW2 kept them for consideration.
35. PW2 deposed that he had dealt with file Ex PW13/D (colly) (D22) titled "Commercial Water Cooling Plant at Kewal Park Area". PW2 stated that on his dictation in note sheet page 1, Ex PW2/A in said file was written by accused, the said note sheet of date 16/04/2013 was RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 30/103 CBI vs Swet Manir regarding directions for issuance of notices to the parties detailed therein including of VA Water Cooling Plant of PW12, as at their premises illegal borewells were existing. As per PW2 before issuance of the notices for illegal borewells, inspections were done by SDM or Tehsildar.
36. PW2 deposed that file Ex PW13/D (colly) (D22) contained five Orders with two original copies each all dated 03/05/2013 i.e., Ex. PW2/B1 to Ex. PW2/B15 which contained his signatures in original. Amongst them Ex PW2/B1, Ex PW2/B2 and Ex PW2/B3 were the orders regarding sealing of borewell in the commercial unit namely M/s VA Water Cooling Plant viz. the unit of PW12. PW2 stated that he had delivered the certified copies of the orders relating to sealing of borewells vide production cum receipt memo, all collectively Ex PW2/E (colly) (D14) on 03/06/2013 to IO PW15. Register Ex PW2/D (D23) was given by PW2 to PW14 vide production cum seizure memo Ex. PW 2/F (D14A) on 13/05/2013.
37. PW2 deposed that representation of M/s VA Water cooling Plant addressed to PW2, dated 20/04/2013 with enclosed documents, collectively Ex. PW 2/C (colly) which was in file D22, was received in his office along with the photocopy of registration certificate of wells purportedly issued by Central Ground Water Authority and photocopy of notice dated 16/04/2013 issued by him (PW2). PW2 stated that he had RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 31/103 CBI vs Swet Manir considered the aforesaid representation and after comparing the five photocopies of registration certificate of well purportedly issued by Central Ground Water Authority, PW2 observed that the signatures of the signatory to such five certificates were identical and there was no difference of even 0.01mm and there was no seal impression there and there was no mention that the water could be extracted for commercial purposes, so PW2 was of the opinion that the said five certificates were not genuine and holders of such certificates were not having any authority/permission to extract water for commercial purposes; such five certificates were received on 20/04/2013 in their office. PW2 formed aforesaid opinion on 03/05/2013 after perusing the record, when he (PW
2) passed the order.
38. PW2 deposed that Dispatch Register Ex. PW2/D (D23) was maintained in his office; in routine sealing order was required to be executed within 34 days; in the said Dispatch Register, there was no entry about execution of the sealing order in respect of premises of VA Water Cooling Plant since in the said register there was no mention about the execution of sealing order but there was only mention of dispatch of the orders. PW2 stated that in Ex. PW2/D at page no. 229230 at serial number 1579 there was entry of dispatch of order of sealing in respect of premises of VA Water Cooling Plant.
39. PW2 deposed that there was an Advisory Committee under RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 32/103 CBI vs Swet Manir the Chairmanship of Deputy Commissioner of the concerned district to which application was filed by party concerned and said committee granted permission for ground water extraction as per applicable rules and power to seal borewell in the concerned Sub Division vests with the SDM.
40. PW2 deposed that since he did not knew the reason why the sealing order of borewell of VA Water Cooling Plant was not executed and he inquired about it from accused and accused told PW2 on 08/05/2013 that he (accused) will get the said sealing order executed within a day or two. PW2 further stated that no sealing order in respect of the five premises detailed in Ex. PW2/A was executed; other two sealing orders of other two premises in Kewal Park were sent to the office of Tehsildar by PW2 and these sealing orders were executed by Tehsildar in April 2013 by sealing order of PW2 after visit of PW2 to the premises. As per PW2, on 10/05/2013 two orders of sealing were executed by Tehsildar Model Town but the order of sealing of borewell of PW12 was not executed; he (PW2) had directed accused to dispatch the order which were to be executed through Tehsildar Model Town with the support of local police.
41. PW10 stated that on 10/05/2013 PW2 came to his office at Azadpur; accused and Sehzad came there later on, on being called; PW2 directed PW10 to go with accused and Sehzad to nearby Aakash Cinema, RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 33/103 CBI vs Swet Manir Azadpur Commercial Complex and seal one borewell of water cooling plant and PW2 had to go in a meeting elsewhere; they went and accordingly sealed borewell of a water cooling plant, whose owner was Mr. Batra i.e., PW12.
42. PW8 deposed that his work profile interalia included to remain with PW2 and/or to do other work whatever was asked from him by PW2; in September 2012, Sh. R.P. Gupta, the then SDM Model Town appointed PW8 in the Diary/Dispatch section to receive the dak and as well to dispatch the dak by post or by hand after making the entry in the dispatch register.
43. PW8 further stated that on 03/05/2013, in the evening at about 04.00 pm accused came to PW8 and gave him three copies each of five sealing orders Ex PW2/B1 to Ex PW2/B15 in respect of water cooling plants situated in Kewal Park, Azadpur, Delhi110033 including of VA Water Cooling Plant, Wing Ice Water Cooling Plant and accused told PW8 to give their dispatch number by making entries in the register as these sealing orders were to be implemented by Tehsildar, PW8 as well as accused on next day by sealing the plants as per the directions of the SDM, PW2. PW8 stated that he made entries at serial number 1575 to 1584 Ex. PW 8/A (colly) at pages 139 to 142 in dispatch register D23 in respect of sealing orders Ex PW2/B1 to Ex PW2/B15, in his hand and after making the aforesaid entries PW8 handed over the sealing RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 34/103 CBI vs Swet Manir orders Ex PW2/B1 to Ex PW2/B15 to accused; thereafter few minutes later, accused made call to Tehsildar and informed him about the said sealing orders. PW8 also stated that on 07/05/2013 accused returned from his village and joined his work as Reader/PA to SDM PW2; on 10/05/2013 on the directions of the SDM PW2, PW8 along with accused and PW10 had gone for sealing of the water plants and in the process of sealing two water plants, one in Jahangir Puri in Kushal Cinema Building and the other in Commercial Complex, Azadpur, it was evening time, so other three water plants could not be sealed; so they all returned back to Tehsildar office at Azadpur. Aforesaid two water plants sealed were different from the five water plants regarding which PW8 made aforesaid entries in the dispatch register and PW8 did not participate in the sealing process of five said water plants regarding which PW8 made entries in the dispatch register.
44. PW10 deposed that on 22/04/13 accused came to his Azadpur office around 03.00 pm and told PW10 that PW2 had directed to seal two borewells, one of M/s Fruti Water Cooling Plant at Kewal Park, Azadpur and the other was located in Kewal Park, Azadpur nearby borewell of M/s Fruti Water Cooling Plant. PW10 stated that he along with accused and Civil Defence Volunteer Sh. Sehzad went to these two water cooling plants and sealed the borewells there that evening.
45. IO PW15 deposed that during the course of investigation RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 35/103 CBI vs Swet Manir vide production cum receipt memo Ex. PW3/A (D18), he had received the original Call Details Record (CDRs) Ex PW3/D, generated by PW3 from his office computer system, in respect of mobile phone number 9868497061 in the name of accused of period from 01/05/2013 to 28/05/2013 with letter ExPW3/B and certificate Ex PW3/C under Section 65B of Indian Evidence Act from Sh. R.S. Yadav, JTO of office of DGM (B&IT) of MTNL, Tis Hazari Extension.
46. PW4 deposed that he had generated from his office computer system Call Detail Records (CDRs) Ex PW4/D (D21) of mobile phone number 9810033480 of the period from 01/05/2013 to 31/05/2013 and delivered them with (1) certificate Ex PW4/E under Section 65B of Evidence Act; (2) attested copy of Airtel Prepaid Enrollment form Ex. PW 4/A (part of D20) in respect of aforesaid mobile number in the name of PW12; (3) attested copy of the application form for migration for post paid to prepaid Ex PW4/B (part of D20), applied by PW12 and (4) attested copy of driving licence Ex. PW 4/C of PW12; to the IO of CBI.
47. IO PW15 deposed that he had sent the report of his SP along with copies of all relevant documents and statements of witnesses recorded in investigation as well as transcript and CD containing copy of recorded conversations to the competent authority in South Delhi Municipal Corporation for obtaining of sanction as required u/s 19 of RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 36/103 CBI vs Swet Manir The Prevention of Corruption Act, 1988.
48. PW1 deposed that being competent to remove LDC in Municipal Corporation, she had accorded Sanction Order Ex PW1/A (D
25) dated 01/07/2013 under Section 19 of The Prevention of Corruption Act, 1988 for prosecution of accused, working as PA to SDM, Model Town (working in diverted capacity, parental cadre MCD), for offences punishable under Sections 7, 13 (2) read with 13 (1) (d) of The Prevention of Corruption Act, 1988, on being satisfied on perusal of file containing documents including statements of witnesses, transcription of telephone conversations, other details/material received from CBI through Vigilance Department.
49. It is admitted fact that as on 11/05/2013, accused was employed and working in the diverted capacity of PA to SDM Model Town as well as that parental cadre of accused was MCD.
50. Hon'ble Mr. Justice Deepak Mishra held in case of State of Maharashtra through C.B.I. v. Mahesh G. Jain, 2013 CRI L.J. 3092 as follows:
"13. From the aforesaid authorities the following principles can be culled out:
(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the sanctioning RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 37/103 CBI vs Swet Manir authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
(g) The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity".
51. In the course of her cross examination by Ld. Defence Counsel on 24/08/2013, PW1 inter alia stated that bribe of Rs 50,000/ was taken by accused for illegal boring done. On such version, the contention of defence had been that there was non application of mind by the sanctioning authority. An order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity. Ex PW1/A clearly embodies in the para 1 at outset that the demand of accused of Rs 1.6 lacs as illegal gratification from complainant was for avoiding sealing of his borewell. Much hype, accordingly cannot be created by mere stating of PW1 in her testimony RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 38/103 CBI vs Swet Manir that bribe of Rs 50,000/ was taken by accused for illegal boring done and having not said that it being part of the negotiated bribe sum for avoiding sealing of borewell of PW12 complainant. Sanction order is vivid and clear and embodies all requisites of the sanction, which have to stand test of being a valid sanction in terms of law laid in the case of Mahesh G. Jain (supra) and the adequacy of material placed before the sanctioning authority cannot be gone into by this Court as it does not sit in appeal over the sanction order. PW1 was authority competent to remove accused from his office. Sanction accorded vide Ex PW1/A was a valid sanction and accorded with due application of mind and cannot be held otherwise.
TAPE RECORDED CONVERSATIONS
52. In the case of Ram Singh (Supra) it was held that:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 39/103 CBI vs Swet Manir (5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."
53. In the case of Mahabir Prasad Verma (supra), it was held that tape recorded conversations can only be relied upon as corroborated evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon.
54. The conditions laid for admissibility of tape recorded statement in evidence in the cases of Ram Singh (supra) and Mahabir Prasad Verma (supra), found approval of the Supreme Court in the case Nilesh Dinkar Paradkar (supra).
55. Verifying Officer PW9 testified that he had arranged Digital Voice Recorder (DVR) from Malkhana of ACB CBI. PW9 did not say that blankness in DVR was ensured or for checking blankness in the DVR it was played. PW9 stated that conversation of call made by PW12 to accused in the course of verification proceeding was recorded in the DVR by putting mobile phone instrument of PW12 in loudspeaker mode, RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 40/103 CBI vs Swet Manir subsequent to which the recorded conversation was copied from DVR to one blank Compact Disk (CD) Ex PW11/B1 (Ex Q1), which CD was sealed with the seal of CBI with aid of cloth Ex PW11/B2. As per PW9, at that time memory card was in the DVR but was not sealed. Seal after use of sealing aforesaid CD Ex PW11/B1 (Q1) was given to independent witness i.e., PW11 who is the sole independent witness of alleged verification proceedings. Per contra, PW11 did not say of handing over of seal to him. Verifying Officer PW9 in his deposition did not say of preparation of investigation copy of CD Ex PW11/B1 (Ex Q
1) and entire tenor of testimony of PW9 when read as whole on this count has been preparation of only one CD i.e., Ex PW11/B1 (Ex Q1). Even in the course of cross examination of PW9 by Ld. PP for CBI, on part resiling of PW9, no question has been put to him regarding preparation of any investigation copy of CD. It is also the version of PW9 that aforesaid used DVR, CD in sealed condition and verification memo Ex PW9/B (D2) was handed over to TLO PW14. In the course of cross examination by Ld. PP for CBI, PW9 elicited that after preparation of copy of recorded conversations contained in Memory Card Ex MC of DVR to a CD in respect of verification proceedings, DVR with Ex MC was given to TLO PW14. In the course of cross examination by Ld. Defence Counsel, PW9 stated that he had prepared transcription of call conversation of verification proceedings. No transcript prepared by PW9 has been shown the light of the day nor proved. It is also the version of PW9 in the cross examination of Ld. RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 41/103 CBI vs Swet Manir Defence Counsel that he (PW9) had himself copied the recorded conversations from DVR to CD with aid of Laptop.
56. The sole cited independent witness to verification proceedings PW11 testified that conversations between PW12 and accused in verification proceedings on call made by PW12 from his mobile phone to mobile phone of accused was recorded in mobile phone instrument of PW12. As per PW11, from memory card of mobile phone instrument of PW12, the said recorded call conversation was transferred in new blank CD and CD was displayed and confirmed after which PW11 signed CD. PW11 also stated that he had signed on voice identification cum transcript memo Ex PW11/A (D9) on 10/06/2013 when he heard recorded conversations in CD and identified voice of accused and PW12 and had seen transcript of conversations and then he had also signed CD at portion A. In the course of cross examination by Ld. PP for CBI, on part resiling of PW11, PW11 could not admit or deny whether call conversation was recorded in DVR and not in mobile phone of PW12. On display of CD Ex PW11/B1 (Ex Q1) PW11 identified his introductory voice in first audio file and also identified voices of PW12 and accused in second and third audio files, saying these were of verification proceedings. It is not to be lost sight of the fact that prior to verification proceeding PW11 was not conversant with the voice of accused, as for him there had not been any previous occasion either for a dialogue with accused or to hear voice of accused, recorded or otherwise.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 42/103 CBI vs Swet Manir In the course of cross examination by Ld. Defence Counsel PW11 could not say as to how the recorded conversations between PW12 and accused were transferred from memory card of phone instrument of complainant to the CD. PW11 elicited in cross examination of Defence Counsel that he saw memory card of phone of PW12 being put in laptop and data of memory card was transferred to CD by use of laptop but since PW11 was sitting at the back side of person doing such transfer process, PW11 actually did not see such process of transfer and even PW11 did not knew whether complete or incomplete data was transferred from memory card of phone instrument of PW12 to CD by use of laptop. Also PW11 stated that he was shown laptop, had seen its screen and by use of headphone, PW11 was made to hear the recorded conversations time and again. PW11 stated that he had no knowledge of transcript Ex PW5/F which was neither prepared in presence of PW11 nor was bearing signatures of PW11. Though PW11 stated that memory card of phone of PW12 was sealed in his presence but PW11 failed to elicit whether data of such memory card was erased or not.
57. Complainant PW12 testified that voice of PW11 was recorded in small DVR. As per PW12, at around 12 noon on 11/05/2013 when PW14, PW5 and PW13 were present, Inspector Pramod asked PW12 to make a call to accused and then PW14 had put DVR in switch "ON" mode in left shirt pocket of PW12 upon which PW12 made call from his mobile phone to accused on his mobile phone and twice PW12 RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 43/103 CBI vs Swet Manir had talk with accused. PW12 had also stated that before they left CBI office for raid one CD was prepared in CBI office which he had heard. On resiling of PW12, when PW12 was cross examined by Ld. PP for CBI, then on display of CD Ex PW11/B1 (Ex Q1) PW12 identified voice of PW11 in first audio file and his own voice and voice of accused in second and third audio files and the conversations depicted in transcript Ex PW5/A in running internal pages number 2 to 5. In the course of cross examination by Ld. Defence Counsel PW12 stated that when he (PW12) made call to mobile phone of accused, speaker was on "ON" mode and then the DVR was with PW9 and such DVR was attached to some instrument to transfer recorded conversation in the office of CBI. So PW12 has come up with all together contradictory version aforesaid since in his examination in chief he had stated contrary fact elicited above of PW14 having put DVR in "ON" mode in his shirt pocket when PW12 had made call from his mobile phone to accused on his mobile phone. PW12 also elicited that when recorded conversation was transferred in CBI office then he (PW12) and PW11 were at seat of PW14 and at distance of 250/300 square feet from place where recorded conversation was transferred in cubicle. Meaning thereby that it was not only improbable but virtually impossible for PW12 and PW11 to have seen process of transfer of recorded conversations from memory card to CD. PW12 also stated that he went alone for hearing recorded conversation which he was made to hear from computer. In the course of cross examination by Ld, Defence Counsel, PW12 stated that no CD was RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 44/103 CBI vs Swet Manir prepared in his presence in CBI office and PW12 had signed on transcript of conversation with accused on 11/05/13. No such transcript signed by PW12 on 11/05/2013 has been placed on record nor proved.
58. TLO PW14 testified in his examination in chief that DVR was arranged from office in which introductory voices of PW5 and PW13 were recorded; such DVR was meant to be handed over to PW12 at spot. Also was stated by PW14 that CD Ex PW11/B1 (Ex Q1) was seized vide Ex PW5/A (D4) i.e., Handing Over Memorandum. PW14 deposed that conversation of call made by PW12 from his mobile phone from below residence of accused to mobile phone of accused was recorded in DVR and then DVR was with Inspector Pramod Kumar. As per PW14, DVR was given to PW12 in "ON" mode which DVR was kept by PW12 in left upper side of his shirt pocket and then PW12 climbed the stairs to go to residence of accused. PW14 also stated in his examination in chief that before holding of the hands of accused while accused was sitting in car of PW12, the DVR was taken back from PW12 by PW9 and the DVR was switched OFF. As per PW14, at the residence of accused, with the aid of laptop, the recorded conversation in DVR was transferred in a CD Ex PW5/H2 (Ex Q2). PW14 elicited that they had 2 or 3 blank sealed CDs in trap kit and one such CD was used and on Ex PW5/H2 (Ex Q2), signatures of PW5 and PW13 were obtained and said CD was sealed with aid of cloth Ex PW5/H1.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 45/103 CBI vs Swet Manir
59. As per PW14, introductory voices of PW5 and PW13 were recorded and specimen voice of accused was recorded in DVR and then recorded voices were transferred in CD Ex PW5/J2 (Ex S1) which was sealed with the aid of cloth Ex PW5/J1. PW14 deposed that Ex MC i.e., Memory Card of DVR with cardboard cover was seized vide recovery memo Ex PW5/B (D5). PW14 had also stated that vide forwarding letter Ex PW14/B (D11), signed by his SP, exhibit CDs Q1, Q2 and S 1 were sent for expert opinion.
60. In the cross examination of Ld. Defence Counsel PW14 stated that the DVR was procured from Care Taker of ACB office but for that no application was prepared nor given. PW14 blowed hot and cold in the same breath, saying DVR was procured by PW9 from Care Taker of ACB office and used in verification proceeding and it was from PW9, PW14 had obtained DVR and at that time it was containing memory card Ex PW13/C (colly). On such receipt of the memory card Ex PW13/C (colly) (previously Ex MC), such memory card was loaded by PW14 in DVR and the DVR was played by PW14 and PW14 found it containing the conversations between PW12 and accused in respect of verification proceeding done by PW9 and at that time PW5 and PW13 were present. PW14 also elicited in the course of his cross examination that he was not knowing functioning of DVR so this aspect was being looked after by PW9. PW14 clarified in the course of his cross examination that he had not directed PW9 to take DVR back from PW12 at the spot but had RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 46/103 CBI vs Swet Manir directed Inspector Pramod Kumar to take back DVR from PW12 and after Inspector Pramod Kumar took DVR back from PW12 and put it to switch "OFF" mode on direction of PW14 then on directions of PW14, Inspector Pramod Kumar handed over DVR to PW9.
61. In the course of cross examination by Ld. Defence Counsel, PW14 also elicited that PW9 and Inspector Pramod Kumar had transferred recorded conversations from DVR to CDs with aid of laptop on direction of PW14 for which process the pin of DVR was inserted in the laptop and at the time of such transfer of recorded conversations PW5 and PW13 were present. It would also not be out of place to mention that in his entire testimony TLO PW14 did not speak of preparation of any investigation copy of CD Ex PW5/H2 (Q2) nor on this count PW14 was cross examined by Ld. PP for CBI.
62. PW12 in the course of his testimony stated that when he made call to accused in CBI office on asking of Inspector Pramod, then PW14 had put DVR in "ON" mode in his (PW12) left shirt pocket but PW12 did not say when DVR was put on "OFF" mode or returned. In his examination in chief PW12 stated that when he had come upstairs to residence of accused at that time DVR was in "ON" mode in his left shirt pocket and the DVR had been put in "ON" mode by Inspector Pramod Kumar in car of PW12 when PW12 left the car. Contradictory facts were deposed by PW12 in cross examination by Ld. Defence Counsel stating RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 47/103 CBI vs Swet Manir that DVR was put in "ON" position in pocket of PW12 by PW9 when vehicles were one street away from street of residence of accused and at that time no voice of PW5 and PW13 was recorded in DVR. In his examination in chief PW12 also stated that as soon as he alighted from his car after trap team members had surrounded the car and accused was apprehended, DVR was taken back from PW12 by PW14 and it was put on "OFF' mode and PW14 retained it. PW12 also stated that he accompanied CBI officials to CBI office where he signed on CD which was prepared and CD was sealed. Accordingly, as per PW12 the CD Ex PW5/H2 (Q2) was sealed in CBI office on return. Also PW12 elicited that at the residence of accused DVR used by PW12 for recording was connected with laptop of CBI. PW12 also introduced new facts foreign to prosecution case by saying that he had sent his friend Rajiv Walia to bring some CDs as they were required to be prepared and PW12 was asked by CBI officials to procure them and for the same PW12 had called his friend Rajiv Walia by making phone call to him. PW12 stated that his friend Rajiv Walia brought a packet of CDs which PW12 gave to PW14 and one or two CDs of such brought blank CDs were used by CBI officials in obtaining data from DVR by use of laptop. PW12 identified voice of PW13 in first audio file, voice of PW5 in second audio file and his own voice and voice of accused in fifth audio file on hearing recording in CD Ex PW5/H2 (Q2) in the course of cross examination by Ld. PP for CBI. As per PW12, before departing from CBI office for trap, voices of PW5 and PW13 were recorded in DVR and RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 48/103 CBI vs Swet Manir DVR was switched OFF. PW12 denied the suggestion in the cross examination of Ld. Defence Counsel that after DVR was put on "ON" mode in his pocket CBI officer gave him instruction that as soon as accused comes down, keep money in car. Also PW12 elicited that after coming out of car, PW12 had remained nearby the car and within half a minute PW12 handed over DVR to PW9 and PW9 had switched OFF the DVR. PW12 testified that though recording from DVR to CD was transferred in residence of accused by use of laptop but PW12 was not made to hear any recorded conversation from DVR or CD or laptop in residence of accused but infact PW12 was made to hear recorded conversation in CD/computer in CBI office after one or one and half months of trap.
63. PW5 in his examination in chief testified that voice recordings of PW5 and PW13 were done by SI Mishra of CBI when they were taken to another room in CBI office. As per PW5, CDs Ex PW11/B1 (Ex Q1), Ex PW5/H2 (Ex Q2) and Ex PW5/J2 (Ex S1) were prepared at residence of accused. In his examination in chief PW5 did not say of any preparation of CD i.e., Ex PW11/B1 (Ex Q1) at CBI office. In his cross examination by Ld. Defence Counsel, PW5 stated that his voice was recorded in DVR in CBI office and at spot. PW5 further stated that after trap his voice and voice of accused were recorded. PW5 could not elicit at what place DVR was given to PW12, whether functioning of DVR was explained to PW12 or what were the RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 49/103 CBI vs Swet Manir instructions given to PW12 or whether DVR was on "ON" or "OFF" mode when it was given to PW12. PW5 also asserted that in his presence recorded voice in DVR used by PW12 was not transferred, so PW5 could not say how it was transferred and who transferred it. PW5 stated of having heard recorded voices only once and on 06/06/2013 in CBI office on CD and then transcript Ex PW5/F was prepared. In the cross examination by Ld. Defence Counsel PW5 elicited that the dialogue "Uske baithey he gaadi band kar dena" was said perhaps by Inspector Pramod but the same was not part of transcript Ex PW5/F. As per PW5, the CD was sealed in CBI office on return from trap and the CD was with CBI officials before it was used. Even PW5 did not say of preparation of any investigation copies of CDs Ex PW11/B1 (Ex Q1) and Ex PW5/H2 (Ex Q2).
64. PW9 testified that at place where vehicle of CBI and PW12 were parked, a trap team member had put DVR on "ON" mode and gave it to PW12 and then PW12 with PW5 in car of PW12 proceeded towards residence of accused and parked the car just ahead of residence of accused. As per version of PW9, in his examination in chief, a trap team member had taken back DVR from PW12 before they left the spot of recovery of cash; then DVR was put on "OFF" mode but PW9 did not remember who retained DVR thereafter.
65. In cross examination by Ld. Defence Counsel PW9 elicited RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 50/103 CBI vs Swet Manir that on transfer of recorded conversations from DVR, CD was prepared in residence of accused but PW9 did not remember how such CD was arranged. PW9 asserted that he was not associated in the process of transfer of recorded conversation from DVR to CD at residence of accused. PW9 could not say whether CD used for transfer of recorded conversation from DVR was new or old or whether or not it was containing any prerecorded conversation prior to transfer of recorded conversation in it from DVR. PW9 did not whisper of any preparation of copy of CD Ex PW5/H2 (Ex Q2).
66. PW13 in his examination in chief testified that talk between PW12 and accused on mobile phone of PW12 in office of CBI was recorded in a recorder of CBI when such mobile phone was on speaker mode. PW13 stated of having heard conversation in PC (computer) between PW12 and accused and identified their voices and signed Ex PW5/E (D8) as well as transcript Ex PW5/F on 06/06/2013 in CBI office. As per PW13, he signed CD Ex PW5/H2 (Q2), cloth Ex PW5/H1, CD Ex PW5/J2 (S1) and cloth Ex PW5/J1 at residence of accused when recorded conversation was transferred in said CD. PW13 stated that memory card Ex PW13/C (colly) (previously Ex MC) was put in DVR in CBI office and after operation of trap was completed in residence of accused then Ex PW13/C (colly) was sealed. As per version of PW13, within 34 minutes of their reaching near car of PW12, DVR was taken back from PW12 by CBI officials and then accused was out of RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 51/103 CBI vs Swet Manir the car and by that time bribe money was already recovered . PW13 also stated in cross examination by Ld. Defence Counsel that CDs used for transfer of recorded voices were brought by CBI officials from office when they departed from there and he (PW13) had seen CDs in the trap kit. PW13 elicited that he had not seen memory card Ex PW13/C (colly) being placed in laptop for transfer of recording. As per PW13, he was made to hear recorded voices at residence of accused in the presence of PW12 and PW5. In the course of cross examination by Ld. Defence Counsel PW13 admitted that he did not witness actual transfer of recordings of voices by laptop to CD. PW13 stated that before and later to recording of questioned voices, sample voice of PW13 was obtained. Also was stated by PW13 that on 06/06/2013 he was made to hear the recorded conversations. Even PW13 did not speak of preparation of any investigation copy of CD Ex PW5/H2 (Ex Q2).
67. Facts culled out from evidence of prosecution witnesses and elicited here in before have proved that (1) blankness in memory card Ex PW13/C (colly) (earlier Ex MC) was not ensured before commencement of recordings in the verification proceedings in respect of alleged conversation inter se PW12 and the accused; (2) no investigation copy of CD Ex PW11/B1 (Ex Q1) was prepared before leaving of CBI office by trap team; (3) no investigation copy of CD Ex PW5/H2 (Ex Q2) was prepared at residence of accused; (4) blankness in CD Ex PW5/H2 (Ex Q2) was not ensured before its use; (5) CD Ex PW5/H2 (Ex Q2) was RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 52/103 CBI vs Swet Manir sealed in CBI office on return of trap team members; (6) memory card, part of Ex PW13/C (colly) (earlier Ex MC) was containing recordings allegedly of verification proceedings inter se PW12 and accused when PW14 TLO received it in DVR from Verifying Officer PW9 in the afternoon of 11/05/2013; (7) PW11 and PW12 did not witness actual process of copy of recorded conversation from memory card Ex PW13/C (colly) (earlier Ex MC) in DVR to CD Ex PW11/B1 (Ex Q1); (8) PW9 was not associated in transfer of recordings in memory card Ex PW13/C (colly) (earlier Ex MC) of DVR to CD Ex PW5/H2 (Ex Q2) nor PW5 nor PW13 were witness to such transfer process; (9) transcript Ex PW5/F did not contain all conversations of recordings in CD Ex PW5/H2 (Ex Q2). PW12 stated of having not heard recorded conversations at residence of accused per contra to version of PW13. TLO PW14 himself did not transfer recordings from Ex PW13/C (colly) (Ex MC) to Ex PW5/H2 (Ex Q2). Inspector Pramod has not been examined by prosecution. Contradictory versions of PW12, PW14 and other trap team members are on record in respect to as from where actually CD Ex PW5/H2 (Ex Q2) was procured before transfer of recorded conversations in it and as to ensuring of blankness in it at that stage. Memory card, part of Ex PW13/C (colly) (earlier Ex MC) was supposed to contain original recordings of audio files prepared during verification proceedings and trap proceedings since it was alleged to be sealed at residence of accused during trap proceedings in terms of presented case of prosecution. Yet, said memory card was found containing the five sub RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 53/103 CBI vs Swet Manir folders of zero bytes size with 01012012 as the creation date in folder voice. Even forensic voice examination report Ex PW16/A dated 27/09/2013 of PW16 finds mention of aforesaid five sub folders to be empty and no relevant voice files were found and accordingly Ex MC was not considered for voice examination. No justifiable, plausible explanation for such condition of voice files in Memory Card Ex PW13/C (colly) (Ex MC) of not containing recorded conversations has been put forth by PW12, PW9, PW15 or the prosecution.
68. Cumulative effect of foregoing discussion is of there being every reasonable possibility of tampering, manipulations, insertions, deletions in the tape recorded conversations. Accuracy of tape recorded statements stands not proved by the maker of the records by satisfactory evidence, direct or circumstantial. Recorded CD Ex PW5/H2 (Ex Q2) was sealed in CBI office on return as per elicited evidence on record, per contra to presented case of prosecution that it was sealed in residence of accused. Accordingly, prosecution cannot take any benefit from the corroborative evidence of tape recorded conversations.
DEMAND OF BRIBE SUM
69. Per contra to his averments in complaint Ex. PW 9/A (D1) dated 11/05/2013, elicited herein before in Para 1 of this judgment, PW12 testified that on visit to his cooling plant the SDM PW 2 asked PW12 to shutdown the machine, upon which PW12 inquired the matter;
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 54/103 CBI vs Swet Manir also PW12 did not testify of accused having asked during his such aforesaid visit to PW12 to meet him (accused) in his office. PW12 testified that after two days of such aforesaid visit of SDM PW2 along with accused and others at his borewell, PW12 and other persons of other borewells received notices. It is pertinent to mention that note Ex. PW2/A at page 181 of D22 was prepared by accused and signed by SDM PW2 on 16/04/2013 whereas notices dated 03/05/2013, including Ex. PW 2/B1 to B3, which were in respect of VA Water Cooling Plant of PW12, were signed by PW2 on 03/05/2013. Ex. PW 2/C (colly) is the letter dated 20/04/13 with copy of certificate of Central Ground Water Authority at pages 197198 of D22 which were given by PW12 to SDM PW 2 in response to notice dated 16/04/2013 at page 199 of file D22 Ex. PW 13/D (Colly). As per PW12 on the next day of receipt of the notice of SDM PW 2, PW 12 and four other persons went to office of SDM PW2, found Shahzad (PW8) sitting there and lady advocate, daughter of accompanying person of PW12, told SDM PW2 that they were having permission for borewell. PW12 also stated that SDM PW2 told that he had orders of Government from above as to check the running borewells and seal borewells. PW12 testified that he and others accompanying him told SDM that they had permission for borewell and asked to explain how they were wrong in law and running borewell; upon which it was accused who told SDM PW2 that permission of PW12 and others were fake to which PW12 and others responded that their permission for borewell may be got checked. It is also the version of PW 12 in his RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 55/103 CBI vs Swet Manir examination in chief that SDM PW2 told them that the SDM of South Delhi was earning Rs. 10 Lakhs per month from boring, regarding which PW12 alleged that he had told such facts to SP Sh. Vivek Priyadarshi but it does not find mention either in statement u/s 161 Cr. PC Ex. PW 12/DA of PW 12 or his lodged complaint Ex. PW 9/A (D1). It is also the version of PW 12 in his examination in chief that after two days thereafter accused obtained mobile phone number of PW 12 from Sh. Harish Batra, brother of PW12 and accused asked Sh. Harish Batra to ask PW12 to talk to accused, which message Sh. Harish Batra conveyed to PW12 upon which PW12 made call from his mobile phone to mobile phone of accused and in such conversation accused asked PW12 to come to office of SDM PW2 newly built at Azadpur where PW12 reached at around 07.00 pm that day. PW12 further testified that accused took him from gate of aforesaid newly built office at Azadpur to inside and showed him the premises and at said place accused boasted that previously they had under them 14 or 16 Police Stations and now only 6 Police Stations remained there so previously they did not had time and now they will see who will escape from their hands. As per PW12 accused made him sit there and also boasted that he had big parties with him and he demands anything from them and they did not refuse and in between talks also received a call. As per PW12 at aforesaid newly built office at Azadpur, PW12 had inquired from accused that what accused wanted from PW12, upon which accused told PW12 that in his area of Kewal Park there were seven water cooling plants which were running RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 56/103 CBI vs Swet Manir and accused demanded Rs 2 lakhs per plant and in total Rs 14 lakhs for seven water cooling plants at the asking of SDM PW2. PW12 further testified that he (PW12) told accused that his elder brother namely Ved Batra (now deceased) whose daughter was advocate will not pay PW12 even 25 paisa upon which accused told PW12 that they will see his said brother later after 20/25 days and PW12 to talk for himself and then accused told PW12 to pay the amount, same as what was paid by his brother Sh Harish Batra. It is also in the testimony of PW12 that he (PW12) told accused that Sh. Harish Batra had not got the plan sanctioned and had paid to accused under pressure to avoid demolition and also PW12 told accused that he had permission of borewell so how could he pay Rs 2 lakhs to him and for new boring Rs 10,000/ is to be spent upon which accused told PW12 that these were the orders, which accused had shown to PW12, but had not given to PW12 and there upon accused asked PW12 that within two days either PW12 should pay Rs 2 lakhs or otherwise borewell of PW12 will be sealed. Aforesaid was absolutely new version in material contradiction with the version contained in complaint Ex. PW 9/A (D1) regarding sequence of events having taken place at the venue of new office of SDM PW2 at Azadpur in the meeting between PW12 and accused. Per contra, to version contained in Ex. PW 9/A (D1), PW12 did not testify that accused had asked PW 12 that Rs. 10,000/ or Rs. 20,000/ would be taken separately by him i.e. accused. In statement u/s 161 Cr. PC Ex. PW 12/DA there is no mention of accused having asked PW12 to come to new office of RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 57/103 CBI vs Swet Manir SDM at Azadpur but PW12 claimed of having told it to IO.
70. PW12 further testified that thereafter on Thursday evening i.e. on 09/05/2013 he had gone to the office of accused at about 05.30 pm and when he had requested accused time and again saying that he was having not much profits, then accused told PW12 that he was giving two day's time to PW12 and in case PW12 does not pay Rs 2 lakhs by Saturday i.e. 11/05/2013 then accused will seal aforesaid factory of PW12 and PW12 then should not say that accused had not given the chance to PW12. In complaint Ex. PW 9/A (D1) there is no mention of any fact of PW12 having so gone to the office of accused in the evening of Thursday i.e. 09/05/2013 or any such aforesaid deliberations having taken place or such threat advanced by accused. In his examination in chief, PW12 also elicited that when in the evening of Thursday i.e., 09/05/2013 he had time and again requested to accused, then accused had reduced his demand to Rs. 1,60,000/ saying Rs. 1,50,000/ were of SDM and Rs. 10,000/ were of him i.e. accused. In complaint Ex. PW9/A (D1) it is own version of PW12 that 34 days previously of complaint dated 11/05/2013 i.e. on 7th or 8th May 2013 accused had called PW 12 at his residence at Gidwani Road, Adarsh Nagar where PW12 requested accused that he had permission but did not have money to pay and at said place on request of PW12 allegedly finally accused agreed to accept Rs. 1,60,000/ about which Rs. 1,50,000/ were of SDM and Rs. 10,000/ were share of accused and PW12 was asked by accused to make RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 58/103 CBI vs Swet Manir arrangement of money sooner and PW12 sought time till Saturday i.e. 11/05/2013. PW12 did not testify about any such visit of him at the residence of accused on 7th or 8th May 2013 or any bargain having taken place there. In his testimony, PW12 has shifted the alleged scene of crime of bargain of demand of bribe regarding which in complaint Ex.PW 9/A (D1) it had been the residence of accused on 7th or 8th May 2013 and in Court PW12 testified it to be office of accused in the evening time of 09/05/2013.
71. As per CDR Ex. PW 4/D (D21) of PW12 pertaining to period of entire May 2013 there were only two calls made by PW 12 from his mobile phone number 9810033480 to mobile phone number 9868497061 of accused uptill the date 09/05/2013 wherein on date 03/05/2013 at time 19:58:58 of 43 seconds duration as well as on date 08/05/2013 at time 20:13:43 of 42 seconds duration were the two such calls made by PW12 from his mobile phone to mobile phone of accused before 11/05/2013 and in terms thereof the version of PW12 is falsified to the extent that after making call from his mobile phone to accused later on the same day he had reached new office of SDM PW2 at Azadpur at around 07.00 pm. In fact before 07.00 pm on any day in the month of May 2013 before 11/05/2013 there is no record of any call made by PW12 from his aforesaid mobile phone number to aforesaid mobile phone number of accused.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 59/103 CBI vs Swet Manir
72. On part resiling of PW12, PW12 was crossexamined by Ld. PP for CBI but in such crossexamination PW 12 was not asked a single question by Ld. PP for CBI regarding his improvements, additions or coming up of new version of facts of demands of bribe by accused from him.
73. On hearing following conversation from third audio file in CD Ex. PW 11/B1 (Q1) "Achha Sun Thoda Mere Liye Kuch Kam Kar Dega? Ek Saath Me?" at portion X1 to X2 in transcription Ex. PW5/F in crossexamination, PW12 stated that when two days before said conversation i.e. on 09/05/2013 he had gone to office of accused then accused told him that he will take Rs. 2 lakh and will not reduce it by one paise. As per presented case of prosecution, if accused had already reduced his demand to Rs. 1,60,000/ much prior to 11/05/2013, what was the occasion for PW12 to say the dialogue as at portion X1 to X2 of Ex. PW 5/F, as above? After aforesaid elicited dialogue the utterance attributed to accused in conversation in Ex. PW 11/B1 (Q1) and transcription Ex. PW 5/F at portion X3 to X4 is "Aisa Kuch Bhi Nahi Hai". Afore elicited version of PW12 of non reduction of demand of bribe of Rs. 2 lakhs by accused in office of accused on 09/05/2013 all together shakes the prosecution version qua alleged demand of bribe by accused.
74. In eleven sheet rough transcription Ex PW16/DB (colly) RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 60/103 CBI vs Swet Manir received in office of PW16, placed on record by PW16 in course of his examination on 12/02/2014 with his signatures at bottom of each page, at page number 3 of it, there is dialogue, "Achha Sun Thoda Mereliye Kuch Kam Kar Dega? Is haal me?" per contra to afore elicited dialogue containing inter alia "Ek Saath Me?". Dialogue "EK Saath Me?" is not clear in recorded conversations in CD Ex PW11/B1 (Q1) on its display and even does not find place in rough transcription Ex PW16/DB (colly) which is at variance from transcript Ex PW5/F placed on record.
VERIFICATION PROCEEDING
75. Verifying Officer PW9 testified that PW12 negotiated with accused to reduce bribe sum, which was denied. PW9 has asserted that it was clear from the recorded conversation in call made by PW12 to accused that demand of bribe was made out. In verification memo Ex PW9/B (D2) there is mention that SO i.e., Suspect Officer i.e., accused demanded Rs 1,60,000/ from complainant and directed him to come to his residence before 6 pm with agreed money. In cross examination by Ld. Defence Counsel PW9 candidly admitted that in the call conversation of call made by PW12 to accused in verification proceedings there was no demand of bribe money by accused from complainant.
76. As per PW9, the recorded conversations in DVR was copied to one blank CD which was sealed with seal of CBI after which seal was RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 61/103 CBI vs Swet Manir given to independent witness. Meaning thereby that such seal was given to independent witness Sh P.K Deb (PW11) since as per presented case of prosecution PW11 was the only independent witness of verification proceedings. PW11 did not whisper of handing over of any seal to him or having retained any seal with him nor stated of any fact of handing back seal to anyone at any moment of time later to transfer of recorded conversations in CD nor produced any seal in Court. PW9 also elicited that he had himself copied from DVR to CD with the aid of laptop. PW9 testified that after registration of FIR Ex PW9/C (D3), the DVR, copied CD and verification memo Ex PW9/B (D2) were handed over to PW14 TLO. In cross examination by Ld. PP for CBI PW9 elicited that he did not see memory card Ex MC of DVR after preparation of copy from conversation in memory card of DVR to a CD of verification proceeding but elicited that DVR with MC was given by him to PW14. PW9 admitted suggestion of Ld. PP for CBI that Ex MC in cover and envelope was sealed in CBI office after obtaining signatures of PW14 and two witnesses.
77. In his examination in chief PW12 stated that at around 12 noon Inspector Pramod came and asked PW12 to make a call to a person demanding bribe and at that time PW5 and PW13 were there and it was PW14 who had put DVR in switch ON mode in left shirt pocket of PW12 after which PW12 made call from his mobile phone to mobile phone of accused and twice had talk with accused but since in first call PW12 RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 62/103 CBI vs Swet Manir became perplexed he disconnected the call. Also PW12 elicited that before they left for raid one CD was prepared in CBI office which he had heard. PW12 categorically stated that wherever he was asked by CBI officials he had so signed. In his cross examination by Defence Counsel, PW12 elicited that he reached CBI office at around 9 am on 11/05/2013, remained with SP for 15 minutes, thereafter remained with PW9 for 45 minutes before PW11 arrived. PW12 further stated that after one and half hours of his reaching CBI office PW11 had arrived but PW11 was not called in presence of PW12. As per PW12, voice of PW11 was recorded in DVR before PW12 made call to accused and then DVR was switched OFF. PW12 testified at variance in cross examination and in material contradiction with his version in his examination in chief by stating that when he made call to accused in verification proceedings then at that time Inspector Pramod, PW9, PW11 and one more inspector were present while at that time DVR was on "ON" mode and with PW9, per contra with facts testified by PW12 in his examination in chief, elicited herein before.
78. PW12 also stated that he noticed that DVR was attached to some instrument to transfer recorded conversations in office of CBI but then PW9 had sent PW12 after 5/7 minutes to one person and PW9 told PW12 to get his voice and talks checked to that person, which PW12 complied. As per PW12, when recorded conversation was being transferred, PW11 was sitting near him at seat of PW14 and PW12 and RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 63/103 CBI vs Swet Manir PW11 were seated at a distance of 250/300 feet in a big hall where there were cubicles. Accordingly, there was no occasion for PW12 or even PW11 to witness the process of transfer of recorded conversations from DVR to CD in verification proceedings. PW12 elicited that he went alone to cubicle where recorded conversation was transferred and made to hear it from computer and at that time PW5 and PW13 were not present. PW12 had also elicited different version and stated that in his presence no CD was prepared then in the verification proceeding. In cross examination by Ld. Defence Counsel PW12 elicited that when he had telephonic conversation with accused his signature on one page were obtained by CBI and when later PW12 was called after one and half months or two months, signatures of PW12 were obtained by CBI officials. Also PW12 stated that he signed on transcript of conversation on 11/05/2013. PW12 himself stated that he had not read complete document Ex PW9/B (D2) but had read only 24 lines and upon enquiry from PW14 about said document, PW14 told PW12 that what complainant PW12 had given and what people they had collected and what they were proceeding in the trap was recorded in said document and at that time PW11, PW5 and PW13 were present. PW12 stated that PW11 and PW9 did not sign Ex PW9/B (D2) in his presence.
79. PW11 elicited that he used to keep going to CBI office to be witness of CBI. Despite the fact that PW11 was a stock witness of CBI, as per his own saying, PW11 partly resiled and was cross RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 64/103 CBI vs Swet Manir examined by Ld. PP for CBI. In his examination in chief PW11 elicited that in the conversation on call made by complainant from his mobile phone to mobile phone of accused at around 12 noon the call was of duration of 5 to 10 minutes when the mobile phone of PW12 was on speaker mode and conversation heard by PW11 included demand of Rs 1.6 lacs by accused from PW12. Such version of PW11 is per contra to prosecution case as in the call conversation placed on record in the CD Ex PW11/B1 (Ex Q1) as well as transcript Ex PW5/F and even admitted by Verifying Officer PW9 there had been no demand made by accused amounting to Rs 1.6 lacs or even any other amount in the call conversation made between PW12 and accused in the course of verification proceedings.
80. As per PW11, the call conversation in verification proceeding between PW12 and accused was recorded in mobile instrument of PW12 and from memory card of mobile phone instrument of PW12 said conversation was transferred in blank new CD Ex PW11/B1 (Ex Q1). In cross examination by Ld. PP for CBI, PW11 could not admit or deny recording of call conversation in DVR. In cross examination by Ld. Defence Counsel, PW11 stated that he did not knew how from memory card of mobile phone recorded conversation was transferred in CD but had seen the memory card of phone of PW12 being put in laptop and then he (PW11) was sitting on back side of person doing such transfer process. PW11 stated that he could not say RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 65/103 CBI vs Swet Manir whether complete or incomplete data was transferred to CD. PW11 also testified that he was shown laptop screen and by use of headphone he was made to hear the recorded conversations time and again. PW11 claimed that memory card was sealed in his presence.
PRE TRAP PROCEEDINGS
81. TLO PW14 deposed that he explained the purpose of assembly, complaint and verification proceedings to trap team members. PW 14 deposed that PW 12 had produced new GC notes Ex. PW 5/L1 to Ex. PW 5/L100 of denomination of Rs. 500/ each. As per PW 14, Inspector Gursevak Singh gave demonstration by smearing Phenolpthlein Powder on notes and PW13 was directed by PW14 to touch the tainted GC notes and with his right hand fingers, PW13 touched the tainted GC notes and dipped said fingers in solution and solution turned pink, such solution was thrown. As per PW14 remaining Phenolpthlein Powder was deposited back in Malkhana and personal search of PW12 was carried to ascertain that he was not carrying any incriminating thing. PW14 did not whisper of any search conducted of car of PW12. PW14 had asked PW13 to keep the tainted GC notes in right pocket of pant of PW12 and PW13 did so. In his examination in chief PW14 stated that he had directed PW12 to hand over the money to accused on his specific demand or directions to hand over to any other person. Per contra, in crossexamination PW14 stated that original direction given to PW12 by him (PW14) was to hand over the bribe RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 66/103 CBI vs Swet Manir money to accused at his residence and if it is not so then in the car or at any other place, which may be visible. PW14 stated that on his directions all trap team members washed their hands with soap. Also PW14 stated that he had directed PW12 that after completion of transaction of bribe PW12 will rub his face with his both hands or make a call to mobile phone of PW14 in case they were not visible to him and same direction was also given to PW5 who had been directed to act as shadow witness, whereas PW13 was directed to remain with team and try to overhear/see transaction of bribe between PW12 and accused. Initially, PW14 stated that the DVR was arranged from office but later as his examination progressed then in crossexamination PW14 stated that DVR was obtained by PW9 from Care Taker and after using it in verification proceedings PW9 had given it to PW14 and then such DVR was containing Memory Card Ex. PW 13/C (colly) loaded in it. On such delivery of DVR to PW14, PW14 had played the DVR and found it containing conversations of verification proceedings dated 11/05/2013 between PW12 and accused and at that time PW13 and PW5 were present. After procuring the DVR as aforesaid, as per PW14, introductory voices of PW5 and PW13 were recorded in the DVR and said DVR was meant to be handed over to PW12 at spot. PW14 stated that he had seized the CD Ex. PW 11/B1 (Q1) vide Ex. PW 5/A (D4) i.e. Handing Over Memorandum prepared by him. PW14 also stated that the trap kit containing sodium carbonate, FIR, plain papers, seal, candle, tags, empty clean glass bottles, etc was shown to all trap team members.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 67/103 CBI vs Swet Manir PW14 elicited that PW12 had produced money with him and had not gone out of CBI office at any moment of time to bring money. No document was prepared for procuring, using or return of Phenolpthlein Powder from/to Malkhana, ACB, CBI nor any record was prepared to or to reflect the quantity of such Phenolpthlein Powder thereof. PW14 had also elicited that since he was not knowing the functioning of DVR so this aspect was looked after by PW9.
82. PW12 testified that he had initially not brought money to be used as bribe money but since PW14 asked him that it was to be brought by PW12, then PW12 had made call to his friend Sh Rajiv Walia to bring Rs 50,000/. PW12 stated that in about an hour his said friend brought such money and PW12 went outside CBI office, brought GC notes Ex PW5/L1 to Ex PW5/L100 and gave them to PW14. As per PW12, PW14 noted down the numbers of the GC notes in a document in computer and handed them to Inspector Guru who explained the procedure by treating GC notes on table by sprinkling while colour powder on them after which PW13 touched the tainted GC notes and hands of PW13 were washed in water in small tub, where upon the water turned pink and such water was thrown. In his examination in chief on 22/11/2013 PW12 stated that remaining powder which was left after sprinkling on GC notes had remained with CBI officials and that day further examination of PW12 was adjourned since PW12 did not then bring original of certificate, whose copy is Ex PW12/B. Again PW12 had entered into the RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 68/103 CBI vs Swet Manir witness box on 05/12/2013 and in crossexamination by Ld. PP for CBI, at the outset PW12 stated that after demonstration was over, remaining Phenolpthlein Powder was deposited back in Malkhana by CBI officers. Tutoring of PW12 on this count is accordingly apparent on the face of record.
83. As per PW12 Inspector Guru had kept the tainted GC notes in right pant pocket of PW12. PW12 candidly admitted that he did not see what document was prepared in computer in CBI office but had only signed two documents before leaving for trap.
84. As per PW5, he reached CBI office at around 01.00 pm on 11/05/2013 and met Dy. SP Yadav who sent PW5 to PW14 and PW14 told PW5 and PW13 about complaint of PW12 and they were shown the complaint. As per PW5, for demonstration, powder was put on fingers of hand of technician of CBI who dipped such fingers in water and the water turned pink. PW5 testified that before they left CBI office, powder was put on GC notes and they had waited in CBI office for half an hour. As per PW5, PW14 gave the packet of GC notes treated with powder to PW12 which PW12 had put in his pant pocket. PW5 deposed that voice recordings of PW5 and PW13 were done by SI Mishra of CBI whereas in presence of PW5 and PW6, PW12 was time and again taking time by use of his mobile phone by calling the accused; fixed time between accused RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 69/103 CBI vs Swet Manir and PW12 was 04.00 or 05.00 pm so PW12 was telling the person called that "Mere Ko thodi der ho jayegi, shayad saade panch ya chey baj jaye". As per PW5 SI Mishra was hearing call conversations and monitoring it, PW5 and PW13 were taken to another room in the CBI office, where their voice samples were recorded in a device which was like a mobile phone which was with SI Mishra but PW5 did not knew what was done to said recording device by SI Mishra thereafter. In crossexamination by Ld. PP for CBI on resiling of PW5, PW5 had admitted that PW14 had put powder on GC notes and Inspector Gurusevak had done demonstration but PW5 had denied the suggestion of Ld. PP for CBI that fingers were touched on the tainted GC notes and then dipped in the solution of sodium carbonate and water. Further, PW5 stated in his cross examination by Ld. PP for CBI that PW12 had himself put tainted GC notes in his pocket. PW5 in his crossexamination by Ld. Defence Counsel further elicited that sum of Rs. 50,000/ was brought by PW12 and in between PW12 had not gone to obtain the said sum and it was technical person who had treated the GC notes with powder and said person was carrying a bag, said bag was carried to spot also. As per PW5, in his crossexamination by Ld. Defence Counsel, after treating GC notes with powder, remaining powder was kept in bag. PW5 also testified that demonstration was done by putting powder in water in glass. PW5 was unable to elicit what instructions were given to PW12 or whether he signed Ex. PW 5/A (D4) before leaving for trap or on return from trap in CBI office.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 70/103 CBI vs Swet Manir
85. PW9 in his examination in chief deposed that trap kit including Phenolpthlein powder, sodium carbonate, empty glass bottles, seal, laakhs, clothes, some paper, etc was carried by a Constable with trap team and nothing else was taken by other trap team members whereas DVR was taken by a trap team member. In terms of version of PW9, no CD was in trap kit but instead the trap kit interalia included Phenolpthlein Powder. In crossexamination by Ld. PP for CBI on part resiling of PW9, PW9 denied suggestion of Phenolpthlein Powder being not in trap kit when trap team left CBI office but subsequently said that he was confused on this count as Phenolpthlein Powder was not mentioned in Ex. PW 5/A (D4).
86. PW13 deposed that PW12 brought Rs. 50,000/; CBI officials brought some white coloured chemical which was put over simple paper and said simple paper was put in water making the water red. As per PW13, later powder was put over GC noted brought by PW12. PW13 further deposed that PW12 had a talk with accused on mobile phone in which PW12 asked accused "Mai aap ke pass, paise lekar kitney baje aa jau" and from the other side accused replied "Sham ko aa jao". While remaining conversation at length could not be remembered by PW13. PW13 also deposed that PW14 directed him (PW13) that when Rs. 50,000/ was given as bribe to accused and accused takes money in his hand then PW13 had to take said money from RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 71/103 CBI vs Swet Manir accused; also that PW14 directed PW5 that PW5 is to sit on the back seat of the car of PW12 and is to witness whether accused accepts the bribe amount or not. Also as per PW13, PW14 directed PW12 that if accused accepts the bribe amount then PW12 is to give indication by putting the dipper of the car in "ON" position. As per PW13, before leaving CBI office, CBI officer kept powder treated GC notes of Rs. 50,000/ in right pant packet of PW12 and nothing else was done in CBI office. PW13 was candid and vivid by saying that he signed on Ex. PW 5/A (D4) on 1112/05/2013 on return back to CBI office around 12.30 am but after he perused the document Ex. PW 5/A (D4), PW13 somersaulted from aforesaid version and said that he signed Ex. PW 5/A (D4) at around 03.00 pm on 11/05/2013. In his crossexamination by Ld. Defence Counsel PW13 stated that he reached CBI office at 01.00 or 01.30 pm on 11/05/2013 and pre trap proceedings started at around 02.00 pm at outside cabin of PW14. PW13 stated that only for five minutes PW 12 went but PW 13 had not seen PW12 having gone outside CBI office for bringing bribe money. In crossexamination by Ld. Defence Counsel PW13 elicited that after demonstration remaining Phenolpthlein Powder was kept in trap kit/bag and he (PW5) and PW13 were witness to it.
TRAP PROCEEDINGS
87. TLO PW14 testified that after reaching at residence of accused at 4.50 pm on 11/05/2013, he (PW14) rebriefed the trap team including PW12, PW5, also about the signals which were to be given RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 72/103 CBI vs Swet Manir after transaction. No other examined prosecution witnesses i.e., PW12, PW9, PW5, PW13 amongst trap team members said of PW14 having so briefed. PW14 also stated that when PW12 had talked from his mobile phone to mobile phone of accused then DVR was with Inspector Pramod Kumar and in such talk accused had called PW12 to his home, where upon PW14 thereafter directed all members of the trap team to take suitable positions and PW5 was seated on the back seat in the car of PW12 behind the driver seat. PW14 deposed that DVR was given to PW12 by Inspector Pramod Kumar in "ON" mode, which PW12 kept in his left upper side shirt pocket and thereafter PW12 entered the corridor and climbed the stairs to reach the first floor residence of accused. PW14 testified that after 1015 minutes PW12 with accused came out and moved towards car of PW12, after which PW12 sat at driver seat and accused sat on the front seat near driver seat of car of PW12. PW14 also deposed that after 10 minutes of aforesaid sitting of PW12 and accused, he (PW14) and others saw the lights of the car of PW12 blinking, which was the pre decided signal. None amongst other examined prosecution witnesses including PW13 or PW9 deposed of having seen lights of the car of PW12 blinking. PW14 further stated that he, PW13, Inspector Pramod Kumar moved towards the car of PW12; PW14 reached the side of the car of PW12, on which side accused was seated whereas Inspector Pramod Kumar reached the side of the car, where PW12 was sitting. As per PW14, PW12 opened the door of car and informed PW14 about accused sitting in car whereas Inspector Pramod Kumar sat on the driver RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 73/103 CBI vs Swet Manir seat of the car of complainant and held the right hand of accused sitting in the car; meanwhile PW14 opened the door of the car and held the left hand of accused, sitting in the car but before such holding of hands of accused by PW14 and Inspector Pramod Kumar, the DVR was taken back from PW12 by PW9 and the DVR was switched OFF. Meaning thereby that while accused was so seated on the seat next to driver seat and his hands were so held by PW14 and Inspector Pramod Kumar, accused was not able to move from said seat where he was so seated. Further as per PW14,other trap team members reached near the car of PW12 when hands of accused were held and PW14 directed PW13 to recover the bribe money of Rs. 50,000/, which was seen between the two thighs of seated accused from where PW13 picked such money and kept in his (PW13) pocket and at that moment of time accused tried to get his hands freed while people including neighbors collected there, so they decided to proceed to residence of accused for further proceedings.
88. PW14 testified that at residence of accused upstairs the brotherinlaw of accused namely Amit was stopped whereas other persons namely Sh. Prabhu (DW2), Sh. Suraj and Sh. Sehzaad (PW8) were permitted to go. PW14 deposed that hand washes of accused were taken and right hand wash of accused turned into light pink colour while PW14 was unable to remember the colour of left hand wash and Bermuda wash of accused. As per PW14, at the residence of accused PW12 and PW5 gave their narration of sequence of events. PW14 RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 74/103 CBI vs Swet Manir testified that tainted GC notes Ex PW5/L1 to Ex PW5/L100 were tallied by PW13 on directions at residence of accused with Ex PW5/A (D4) which so tallied and recorded conversation in DVR was transferred to CD Ex PW5/H2 (Ex Q2) with aid of laptop, which CD was sealed. As per PW14, introductory voice of PW5 and PW13 were recorded in DVR, then transferred to CD Ex PW5/J2 (Ex S1); thereafter specimen voice of accused was recorded in DVR and transferred to aforesaid CD Ex PW5/J2 (Ex S1) with laptop and such CD was sealed. PW14 stated that search was conducted at residence of accused and search list Ex PW5/B (D13) was prepared by Inspector Gursevak Singh whereas rough site plan Ex PW5/D (D7) was prepared by Inspector Pramod Kumar consequent to which accused was arrested vide arrest cum personal search memo Ex PW5/C (D6). PW14 deposed that he prepared recovery memo Ex PW5/B (D5) by which he had seized the sealed bottles of washes and CDs besides memory card Ex PW13/C (colly) and the seal after use was given to PW13, concluding the proceedings at residence of accused by 11.45 pm on 11/05/2013. As per PW14, PW5 and PW13 had reported to him at about 3 pm on 11/05/2013 and at that time PW12 was with PW14. PW14 clarified that PW12 had not gone out of CBI office to obtain money for trap but had brought the same with him. PW14 testified that he had directed Inspector Pramod Kumar to take back DVR from PW12 and Inspector Pramod Kumar took it back and on directions of PW14 gave it to PW9 after switching it OFF. PW14 categorically denied of the fact that PW5 and PW13 did not witness the RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 75/103 CBI vs Swet Manir preparation of solutions for hand washes but signatures of PW5 and PW13 were not obtained on cloth pieces used for sealing such bottles. As per PW14, paper slips were first written and then pasted on bottles. PW14 elicited that PW9 and Inspector Pramod Kumar had transferred recorded conversations from DVR to CDs with aid of laptop on direction of PW14 for which process pin of DVR was inserted in the laptop and thereby such transfer process took place. Per contra, to such version of PW14, PW9 absolutely denied of being associated with any such aforesaid transfer process of conversations from DVR to CD Ex PW5/H2 (Ex Q2). PW14 claimed that PW5 and PW13 were present during such transfer of recorded conversations from DVR to CD Ex PW5/H2 (Ex Q
2) at residence of accused. PW5 and PW13 categorically denied to have witnessed any such transfer process of conversations from DVR to CD Ex PW5/H2 (Ex Q2) by aid of laptop in residence of accused. As per PW14, CDs used at residence of accused had been carried from CBI and was not given by PW12 to CBI officials after arranging. PW14 also categorically denied of having kept remaining Phenolpthlein Powder in the trap kit or having misused it.
89. PW12 testified that they left CBI office in between 2.15 to 2.30 pm on 11/05/2013 for residence of accused and he was in the driver seat of his Toyota Altis car while PW5 and PW14 were on back seat of his car and Inspector Pramod Kumar was on front seat near driver seat whereas other trap team members were in their official cars. As per RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 76/103 CBI vs Swet Manir PW12, two or three streets prior to the residence of accused, three vehicles were stopped at around 3.15 or 3.30 pm, where PW14 came out of the car and thereafter PW12 proceeded driving his car towards residence of accused; from a distance PW12 showed other occupants of his car the residence of accused by pointing towards it after which PW12 backed his car. PW12 further stated that Inspector Pramod Kumar alighted from the car and then Inspector Pramod Kumar instructed PW12 that PW5 was his shadow witness and whatever money PW12 had to give, he had to give in the presence of PW5 and after money is given to accused what signal PW12 will give. No such version has been put forth by TLO PW14. PW12 further testified that he told Inspector Pramod Kumar that he will put dipper of his car "ON" and as soon as the four lights will switch "ON" then they can understand that he (PW12) had given the money to accused. As per PW12, when he and shadow witness PW5 remained in the car of PW12, he (PW12) made call from his mobile phone to accused which call was not picked up and within minutes later PW12 again made such call from his mobile phone to mobile phone of accused, accused picked up the call but thereafter PW12 asked accused to come down; accused asked PW12 to come up to his residence declining to come down, upon which PW12 went upstairs to the first floor residence of accused whose landlord was Bhutani, friend of PW12. PW12 testified that there was noise in the residence of accused, IPL match was being seen on TV; PW8, another person, brother in law of accused were present there drinking Beer from RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 77/103 CBI vs Swet Manir tins. PW12 described that he remained at residence of accused for 5 or 7 minutes and after exchange of pleasantries accused told PW12 that he had sealed water cooling plant of brother of PW12 in such a manner that for present work of taking out of water will proceed and on Monday brother of PW12 will pay Rs 2 lacs upon which PW12 asked accused, "Kyon Kasai Ki Tarah Hamare Pichey Pad Gaya Hai, Reham Kar Ley Kuch Humare Uppar". Such elicited version of PW12 about claim of accused that his brother after sealing borewell will pay Rs 2 lacs on coming Monday or afore elicited and quoted dialogue of PW12 to accused do not find part of displayed recorded conversation in CD Ex PW5/H2 (Ex Q2) and its transcript on Ex PW5/F. PW12 further testified that accused made gesture by his hand about money by putting his thumb over the above few fingers and moving the thumb upwards. This fact is also an improvement in version of PW12 as such kind of gesture has not been elaborated either in his complaint Ex PW9/A (D1) or in his statement under Section 161 Cr.P.C Ex PW12/DA. PW12 stated that he told accused that money was in car downstairs. It is also the claim of PW12 that when he had come upstairs the DVR in his left shirt pocket was on, "ON" mode till the time the DVR was later taken back after apprehension of accused but yet fact remains that the recorded conversation in CD Ex PW5/H2 (Ex Q2) and transcript Ex PW5/F does not contain any dialogue attributed to PW12 having told accused that money was in car downstairs in so many words in Hindi or English language. PW12 asserted that accused made gestures to his brother in RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 78/103 CBI vs Swet Manir law to go downstairs and bring the money but PW12 told accused that nearby water cooling plant was functioning about which he required to talk to accused and had two minutes work with accused to come downstairs. Accordingly, it was PW12 who had brought accused downstairs on aforesaid pretext. PW12 further stated that on reaching downstairs he (PW12) and accused moved towards their car and when he was about to sit in his (PW12) car, PW12 took out the bundle of tainted GC notes Ex PW5/L1 to Ex PW5/L100 from his pocket and had put it in the arm rest box by opening its lid taking care that accused may not come to know that the money was in pocket of PW12 as PW12 had told accused that money was in his car. Taking out of tainted GC notes Ex PW5/L1 to Ex PW5/L100 from his pocket by PW12 and putting it in the arm rest box of car of PW12 by opening its lid are the facts which were told by PW12 first time in the Court and were never said so either in his complaint Ex PW9/A (D1) or in his statement under Section 161 Cr.P.C Ex PW12/DA nor they find part in the detailed recovery memo Ex PW5/B (D5) containing vivid details of alleged sequence of occurrence of trap proceeding. It is also the version in deposition of PW12 that after he and accused got seated in the car then PW12 introduced accused with PW5 as his uncle and also said to accused that, "Mere Chachaji Hai, Inki Tabiyat Kharab Chal Rahi Hai, Inko Maini Rohini Chodna Hai, Paise Maine Inse Liye Hai, Mere Paas Paise Ka Intjam Nahi Tha". Here also new facts have been introducted by complainant PW12 by asserting that he had no arrangement of money RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 79/103 CBI vs Swet Manir and he had borrowed the money from his aforesaid uncle i.e., PW5, sitting in the car. Such assertion finds no place in either recorded conversation in CD Ex PW5/H2 (Ex Q2) or in transcript Ex PW5/F or in the recovery memo Ex PW5/B (D5). PW12 further stated that accused made gesture with hand similar to gesture made at his house about demand of money after which PW12 opened the arm rest box of his car with his left hand, took out the bundle of tainted GC notes Ex PW5/L1 to Ex PW5/L100 with his right hand and handed them to accused which accused held with both his hands but after having seen sum of Rs 50,000/, accused became infuriated and put the bundle of tainted GC notes on his underwear asking PW12 what it is and he wanted entire amount and also said that, "Sahab Nahi Manege, Mera Man Janta Hai Maine Kaise Tere Ko Bacha Ke Rakha Hai", upon which PW12 told, "Mei Tera Ehsan Nahi Bhulunga Mujhe Do Din Ka Time De Mei Somwar Tak Tere Paise Pahucha Dunga", after which accused told, "Aaj Sham Ko Sahab Ke Ghar Jaa Raha Hu" and simultaneously made gesture by hands by putting thumb over upper few fingers and moving thumb upwards to demonstrate to go there to deliver money and after such request of PW12, accused then became calm. Such sequence of occurrence as narrated by PW12 finds no place in testimony of shadow witness PW5. As per PW12, he made signal by putting the central button to "ON" position by which the four parking lights came to "ON" position and within half a minute the trap team surrounded the car of PW12, Inspector Pramod knocked on the window of driver seat of car of PW12 RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 80/103 CBI vs Swet Manir and asked, "Ha Ji" upon which PW12 made gesture to Inspector Pramod about the work being done and when accused enquired from PW12 who all those persons were then PW12 told accused that they were his Chachaji and meet them and talk to them. As per PW12, as soon as he came out from the car, Inspector Pramod got seated on the driver seat of car of PW12 and on the side of accused PW14 stood so that accused may not run away and then accused got scared; PW14 opened the door of the car of the side of accused and brought accused out of the car but before taking accused out of the car, PW14 had picked up the bundle of tainted GC notes Ex PW5/L1 to Ex PW5/L100 about which PW12 was unable to say from where PW14 had lifted the said tainted GC notes. As per PW12, on coming out of the car, accused shouted, "Maine Koi Paise Nahi Mange, Jabardasti De Raha Hai, Jabardasti Fasa Raha Hai, Dekh Loonga, Tera Plant Seal Kara Dunga". As per PW12, accused also gave threats to PW12 before he was taken upstairs to his residence. Aforesaid facts are the improvements, additions in the testimony of PW12 on being so compared with his version contained in his statement under Section 161 Cr.P.C Ex PW12/DA, wherein PW12 had stated that on being challenged, accused got perplexed and kept mum.
90. In the course of cross examination by Ld. PP for CBI on 05/12/2013 after part resiling of PW12, PW12 parrot like admitted that at the time of recovery of tainted GC notes, those GC notes were in between legs of accused on seat of car whereas in his earlier examination RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 81/103 CBI vs Swet Manir on 22/11/2013, which was deferred as PW12 sought time to bring original certificate of registration of his borewell which he had not brought that day, PW12 had stated that he was unable to remember from where PW14 had lifted the tainted GC notes on apprehension of accused.
91. In the course of cross examination by Ld. Defence Counsel, PW12 also changed version saying when he was to climb stairs, he was not given any instruction by any CBI official and had no talk with any CBI official whereas earlier in his examination in chief PW12 had categorically stated about the instruction given by Inspector Pramod Kumar, as elicited herein before.
92. PW12 also testified that DVR was put on "ON" position in pocket of PW12 by PW9 when vehicles were one street away from the street of residence of accused and at that place no CBI officer had given any instruction to any trap team member. PW12 also elicited that hand washes of accused were taken in his presence in residence of accused but he could not say whether they were taken together or separate of each hand but the water of hand wash was collected in a utensil, about which PW12 could not elicit whether it was a thali or otherwise and such water turned light pink and was poured in a small glass bottle. PW12 further stated that three or four times he was called from downstairs to residence of accused and joined the proceedings and in between he was asked by RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 82/103 CBI vs Swet Manir CBI Officials to go down again. As per PW12, as soon as he alighted from the car after trap team member had surrounded the car and accused was apprehended, DVR was taken from PW12 by PW14 and PW14 had put it on "OFF" mode and PW14 retained it. PW12 also elicited that in the residence of accused, documents were prepared in the laptop, were taken in pendrive and its print outs were obtained from nearby Cyber Cafe by CBI officials and at residence of accused he (PW12) had signed the documents whose complete description he was unable to remember and testify. As per PW12, he had accompanied CBI officials to CBI Office and on CBI office on return he had signed on CD Ex PW5/H2 (Q
2) and CD was sealed then. PW12 further deposed that on return to CBI office, he had signed one or two documents which were left to be signed about talks on mobile phone. PW12 was unable to specify the procedure how voice sample of accused was taken after his hand washes at his residence.
93. PW12 testified that at residence of accused he told accused that "money was in the car downstairs", at that time Shahzad was present there and at that time DVR was in switch "ON" mode as PW12 had not switched it "OFF" and DVR was taken back in switch "ON" mode. Neither Shahzad (PW8) testified of any such fact told by PW12 to accused about money to be in the car downstairs nor such dialogue finds place in recorded conversation in CD Ex PW5/H2 (Ex Q2).
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 83/103 CBI vs Swet Manir
94. Original instructions given by TLO PW14, as alleged by PW14 were that PW12 was to hand over bribe money to accused at his residence and if it is not so then in the car or any other place. Per contra to such original instructions despite the fact that PW12 was having in his pant pocket the trap money, the tainted GC notes Ex PW5/L1 to Ex PW5/L100, when he went upstairs to residence of accused, PW12 did not hand over such money as bribe to accused regarding which in his cross examination PW12 simply put forth the reason that since he was instructed by Inspector Pramod Kumar that he was to pay the bribe sum in the presence of shadow witness and the shadow witness was in car of PW12 and he had alone went upstairs to residence of accused believing that to take bribe accused will come down and when PW12 would say that money was in the car, so PW12 did not pay bribe sum to accused in his residence. In terms of presented case of prosecution, Ex PW5/A (D4) and Ex PW5/B (D5) no such aforesaid instructions were given by Inspector Pramod Kumar to PW12, even as per statement Ex PW12/DA, whereas Inspector Pramod Kumar has not been examined as prosecution witness, so such narration on this count by PW12 appears to be an after thought to make his testimony believable.
95. As per PW12, the official of CBI who had given demonstration in CBI office i.e., Inspector Gursevak Singh, was carrying the bag i.e., trap kit and he had also climbed upstairs at residence of accused with the bag i.e., trap kit but PW12 was unable to see what was RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 84/103 CBI vs Swet Manir taken out from said bag i.e., trap kit since crowd had gathered there and PW12 was at back. PW12 was unable to tell which CBI official took hand washes of accused stating several persons including public persons were present there and he had seen the hand washes of accused from distance of 5 or 6 feet and in between various persons of public were standing. PW12 also admitted presence of his brother Puran Chand Batra downstairs while trap proceedings were in progress at residence of accused. On display of fifth audio file in CD Ex PW5/H2 (Ex Q2) during cross examination of Defence Counsel, it was stated by PW12 that the dialogue, "Uske baithey he........." was in the voice of shadow witness PW5 but said dialogue was not part of the transcript Ex. PW5/F [relevant page bearing markings 265 (in pencil), 33 and 8 (in pen)] but PW12 denied that the dialogue was in the voice of a CBI officer suggesting, "baithey he paise rakh dena".
96. Shadow witness PW5 testified that he was simply asked by CBI officers to accompany them, no specific instruction was given to him. As per PW5, he was asked to board one CBI vehicle from office of CBI and along with him, one Inspector Singh and PW14 also boarded the said vehicle, in which they had left CBI office for residence of accused. PW5 further deposed that 2/3 kilometers before reaching the destination, the vehicles were stopped, strategy was formed, PW5 was directed to sit on the back seat of car of PW12 and there PW5 was instructed by Mr. Yadav and PW14 that PW5 would sit on the back seat of car of PW12 RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 85/103 CBI vs Swet Manir while PW12 would call accused and if accused enquires them, it is to be told to accused that PW5 was the uncle of PW12 and PW5 had to be left at Rohini or Peeragarhi. Also PW5 stated that, there he was instructed that as soon as accused accepts bribe money then PW5 had to give a missed call to PW14 and PW12 was instructed to switch ON the back light of his car. PW5 elicited that he was not knowing what was the conversation between PW12 and accused on the call made by PW12 to accused sitting in the car at below residence of accused despite the fact that PW5 was sitting in the same car on whose driver seat was PW12. PW5 further narrated that PW12 told him that within five or ten minutes he will be coming back with accused and when the car of PW12 had reached near residence of accused, then vehicles of CBI had not reached there but instead had maintained a distance from car of PW12 in transit. As per PW5, within 15 or 20 minutes of leaving of car, PW12 came back with accused where upon accused sat on the front seat adjacent to driver seat of car of PW12 and PW12 sat on the driver seat of his car. So, as per PW5 it was accused who got seated in car of PW12 before PW12 occupied driver seat on coming from residence of accused. If that is so, then there was no occasion for PW12 to have pulled out GC notes Ex PW5/L1 to Ex PW5/L100 from his pant pocket and to have put it in the arm rest box by opening its cover without escaping attention of accused. As per PW5, on enquiry of accused from PW12 about who PW5 was, then PW12 told accused that PW5 was his uncle and PW12 had to leave PW5 at Rohini / Peeragarhi. As per PW5, PW12 told accused in the car RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 86/103 CBI vs Swet Manir that he could made arrangement of Rs 50,000/ and balance money he would pay till Monday after which PW12 gave packet of 100 GC notes Ex PW5/L1 to Ex PW5/L100 to accused which accused received by his right hand but PW5 could not see where accused kept the said money, after which PW5 gave missed call from his mobile phone to PW14 TLO. PW5 was a shadow witness and supposed to see and hear all proceedings taking place in his presence and hearing during the trap proceedings. Fact of the matter is that there is no whisper in the testimony of PW5 of either PW12 having taken out GC notes Ex PW5/L1 to Ex PW5/L100 from his pant pocket and kept it in the arm rest box in the car before being seated in the car after arrival with accused from residence of accused. Said arm rest box was located in the middle of the front two seats in the car of PW12 and it cannot be said that it was in any manner away from the range of vision of shadow witness PW5 seated on the back seat of car of PW12. PW5 also did not testify the fact that PW12 had taken out the said bribe sum from arm rest box of car and then had given to accused, as was so testified by PW12. In terms thereof the testimonies of the two material witnesses i.e., PW12 and PW5 regarding fact of alleged handing over of bribe sum by PW12 to accused are at complete variance, in material contradiction not only with each other but also with the presented case of prosecution.
97. As per PW5, after PW14 opened the door of car of PW12 then accused had tried to run away and the packet of GC notes Ex RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 87/103 CBI vs Swet Manir PW5/L1 to Ex PW5/L100 fell down on the ground near the gate of the car from where accused had come out and had tried to run away. As per PW5, on the asking of PW 14, PW13 had picked up such bribe sum from the ground.
98. In the cross examination by Ld. PP for CBI on part resiling of PW5, PW5 elicited that bribe sum was recovered either from floor of car or from ground near the gate of car of PW12. PW13 on this count had all together different version saying that he had seen accused having Rs 50,000/ while accused was seated in the car of PW12, which bribe money accused threw on floor of car where he was so seated. Even PW13 did not say of PW12 having initially opened the door of the car or was first one to come out of the car of PW12 when trap team members had surrounded the car.
99. PW5 elicited that in his presence in the car of PW12, accused had not demanded the money. PW5 also did not whisper of any kind of gesture made by accused for demand of money while sitting in the car of PW12, as so stated by PW12.
100. PW5 stated that at residence of accused his signatures were obtained on matter written on papers and then these papers were pasted on the bottles Ex RHW, Ex LHW and Ex BW. Accordingly, obtaining of signatures of PW5 on such papers which as aforesaid were later pasted RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 88/103 CBI vs Swet Manir on said three bottles pales into insignificance since such signatures were not obtained simultaneously on pouring of such hand washes separately after these papers were pasted on such bottles.
101. PW5 testified that seal after use was kept by CBI official. On this count PW5 has not been cross examined by Ld. PP for CBI in his cross examination. In the cross examination PW5 elicited that on his (PW5) return downstairs from residence of accused, PW5 had found one or two brothers of PW12 standing there. Regarding taking of hand washes of accused, PW5 blowed hot and cold in the same breath. Initially PW5 stated that hand washes of accused were taken in the last, which was in the period between one or two hours of recovery of bribe sum and it was not done in first span of his stay in residence of accused. Again PW5 stated that he did not remember the time or period of taking of such hand washes of accused but simply stated that they were taken in his presence and in glasses but could not say whether glasses were of CBI or taken from residence of accused or procured from some where else. PW5 further elicited that the technical person who gave demonstration in CBI office i.e., Inspector Gursevak Singh was also part of trap team. In cross examination of Ld. Defence Counsel, PW5 reiterated that seal after use was kept by CBI officials in their kit bag. PW5 admitted that in his presence no direction was given by any CBI official to PW12 that without demand of money, the bribe money should not be paid to accused.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 89/103 CBI vs Swet Manir
102. Tone and tenor of version of PW13 had been that within 2 3 minutes of PW12 having climbed stairs to residence of accused, PW12 came back alone and sat in his car, five minutes thereafter accused came downstairs from his first floor residence and sat on front seat next to driver seat; thereafter 45 minutes later PW14 told PW13 to move towards the car of complainant and car of PW12 was surrounded by trap team members from all sides. PW13 did not whisper of any call received by PW14 on his mobile phone from shadow witness PW5 or lights of car of PW12 having started blinking, as testified by PW14 who was standing adjacent to PW13 at the scene of crime. As per PW13, he was on the side of CBI officer who opened the door of car of side of the accused. PW13 did not whisper of PW12 having stepped out of his car first but stated that as soon as the door of car of side of accused was opened he saw accused having bundle of GC notes Ex PW5/L1 to Ex PW5/L100 which accused threw on the floor of the car where accused was seated which were picked up by PW13 on the directions of CBI officer who opened the door. PW13 produced seal Ex PW13/A stating it was given to him at residence of accused in the course of trap proceeding after completion of proceedings. Even PW13 elicited that he had signed the paper slips first, which paper slips were pasted on the bottles of hand washes later.
103. PW9 testified that trap team members went near residence RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 90/103 CBI vs Swet Manir of accused, two vehicles of trap team were parked at some distance from residence of accused from where they proceeded on foot to near residence of accused and all trap team members scattered in the near by area. As per PW9, PW12 was in his own car and shadow witness PW5 was with PW12. PW9 testified that PW12 and shadow witness PW5 proceeded from their car towards residence of accused and parked their car just ahead of the residence of accused, where PW9 and others reached on foot and PW9 took position on the way on left side; after about 10 minutes, PW9 saw accused coming with PW12 upon which PW9 moved slowly towards car of PW12 and at that time PW9 also saw TLO PW14 and Inspector Pramod Kumar proceeding towards the car of the PW12 and they came towards the right side of the car while PW9 reached the left side of the car. Accordingly, there was absolutely no time gap, even of a single minute, in seating of accused and PW12 in car of PW12 and reaching of PW9, PW14 and Inspector Pramod Kumar on the left and right side of car. Such elicited fact falsifies presented prosecution version of detailed conversation inter se PW12 and accused inside car of PW12 for several minutes, elicited herein before. As per PW9, he saw cash was lying on front left seat of car and such cash was in the form of bundle of GC notes of Rs 500/ and these notes were on the side of seat towards the side of door on which seat accused was seated adjacent to driver seat. PW9 was unable to tell whether besides PW12 and accused there was any person inside the car of PW12 at that time. PW9 stated that people started collecting there and accused started RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 91/103 CBI vs Swet Manir shouting "Tumne aise kaise pakad liya, chhod dochhod do". As per PW9, from said seat of the car, cash was given to second independent witness but PW9 was unable to tell who lifted the cash and gave it to said second independent witness. Afore elicited version is not only in material contradiction with the version of other material witnesses but also in direct conflict and in complete variance from presented facts of case of prosecution. In cross examination by Ld. PP for CBI, PW9 parrot like admitted the suggestion that tainted GC notes were recovered from between both the legs of accused while seated on the front seat adjacent to the driver seat of car of PW12 and that after use of seal, seal was handed over to PW13. In cross examination by Ld. Defence Counsel PW9 elicited that he was not searched before search at residence of accused.
104. As per PW9, besides hand washes of accused, pant wash of accused was taken. In cross examination by Ld. PP for CBI it was not suggested even to PW9 that wash of Bermuda of accused was taken and no pant wash of accused was taken. In his examination in chief PW9 had elicited that after use seal was retained by constable of CBI.
105. PW7 Sh. V.B. Ramteke, Senior Scientific Officer, GradeI (Chemistry), CFSL, CBI, New Delhi testified that three sealed bottles marked RHW, LHW and BW with memo dated 20/05/2013 of SP CBI ACB New Delhi were received for chemical examination in his RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 92/103 CBI vs Swet Manir laboratory on 20/05/2013 with seals intact. On examination and analysis, PW7 opined vide report Ex PW7/A (D24) dated 30/05/2013 that the exhibit bottles RHW, LHW and BW gave positive test for the presence of Phenolpthalein. The remnants of the exhibits were sealed with seal of PW7 and sent back to the forwarding authority with a sealed envelope containing seal impression along with the wrappers removed from exhibit bottles.
106. IO PW15 testified that he had prepared transcript Ex PW5/F (part of D8) on 06/06/2013 and transcript, part of Ex PW11/A (colly) (D9) of verification proceedings on 10/06/2013. PW15 was not conversant with the voices of accused and PW12 on or before 06/06/2013. PW15 did not testify that he had prepared such transcripts on being assisted by either PW12 or PW5 or PW13 or PW11 nor deposed that such transcripts were prepared when said witnesses had identified their respective dialogues from the recorded conversations. PW15 simply stated that recorded conversations were played in the presence of independent witnesses and complainant, upon which complainant identified his own voice and voice of accused while independent witnesses identified their voices as well as the conversation held in their presence beside voices of complainant and accused. Even PW5, PW11 and PW13 in their testimonies have not elicited of having contributed or performed any role in identifying the dialogues of recorded conversations for preparation of transcription Ex PW5/F (part RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 93/103 CBI vs Swet Manir of D8) and transcript, part of Ex PW11/A (colly) (D9).
107. It would not be out of place to mention that neither during verification proceedings nor in the course of investigation the authenticity or genuineness of certificate Ex PW12/B (D15) was ascertained from the issuing Central Ground Water Authority despite the fact that office of such Authority in New Delhi110001 was located at distance of an elbow from the office of premier investigating agency. The Call Detail Records Ex PW3/D (D18) of mobile phone number of accused from 01/05/2013 to 28/05/2013 as well as the Call Detail Records Ex PW4/D (D21) of mobile phone number of PW12 of period of May 2013 were obtained during the course of investigation but the Investigating Officer PW15 did not analyse them to verify the authenticity of the claim of PW12 for having made a call to accused before 7 pm on the day when PW12 alleged to have reached at New Azadpur office of SDM to meet accused there at 7 pm. Bare analysis of Call Detail Records, afore said would have made clear falsity in version of PW12 on this count.
108. PW15 elicited that during typing the statements of PW12, TLO PW14, Verifying Officer PW9 and independent witnesses PW13 and PW5, he committed a typographical error/mistake and mentioned "the currency note comprised of 100/ and 500/ of G.C. notes" wrongly instead of correct fact "the currency notes comprised of 100 GC notes of RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 94/103 CBI vs Swet Manir denomination of Rs. 500/ each." Per se such version reflects that either the contents of statements of such witnesses were copied, pasted in computer and it was a genuine mistake in such process or it is a fact testified incorrectly by PW15. Either of the above fact situations reflect that conducted investigation was not above board.
109. DW2 Sh Prabhu Nath happened to be present when trap team members reached the residence of accused. DW2 stated that on the afternoon of fateful day of occurrence while they were having a party at residence of accused and watching cricket match on Television, PW12 arrived there and said that condition of his uncle was not well and his uncle wanted to meet accused. As per DW2, since accused was not in a mood to go with PW12, DW2 was getting late, so DW2 went downstairs and after proceeding 5/6 paces ahead was apprehended by 5/6 persons of CBI who came there and gave beatings to DW2 who could not escape from them. DW2 was not told about his fault and he even tried to call PCR by making call at number 100 but on coming down of accused, accused was apprehended whereupon DW2 and accused were taken upstairs at residence of accused where all persons were searched, their mobiles were kept by CBI officials and they were threatened by CBI officials. Before CBI officials, PW12 was asked who was 'Mani' i.e., accused and PW12 pointed towards the accused and thereafter they all were made to sit for more than one hour and residence of accused was searched.
RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 95/103 CBI vs Swet Manir
110. DW3 testified that on the fateful afternoon a person enquired from working DW3 as to where accused was residing, DW3 by gesture pointed towards residence of accused and said person had a talk on mobile phone and went away; meanwhile DW2 came downstairs for getting clothes ironed but while he was in the middle of road in process of crossing road, 4/5 persons of CBI came and apprehended DW2, grappling took place and DW2 shouted upon which accused came downstairs and when accused was in the process of separating DW2 from those persons then even accused was apprehended and other persons also arrived there; there upon accused and DW2 were taken to first floor residence of accused.
111. DW4 under whom accused had worked as Reader till 11/12/2012 testified that accused was having good conduct in tenure of DW4 as SDM Model Town and in such tenure DW4 had not received any complaint against accused. DW1 testified that till October 2012 he was Tehsildar Model Town and accused as Reader to SDM Model Town used to do whatever work was assigned to him by the SDM Model Town. As per DW1, SDM was not having any power for desealing of any sealed borewell, which power vested with Deputy Commissioner.
112. Testimony of PW12 not only embodied material improvements, additions, deletions of facts as they are contained in his RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 96/103 CBI vs Swet Manir complaint Ex PW9/A (D1) and statement Ex PW12/DA under Section 161 Cr.P.C but also was at complete variance, in material contradictions with his complaint and said statement regarding alleged demand of bribe money, bargain and negotiated amount of bribe money, places of such demand and bargain of bribe money, sequence of events of such alleged demand and bargain of bribe money. Testimonies of material witnesses PW5, PW9, PW11, PW12, PW13 and PW14 embody in them entirely different versions of manner and sequence of occurrence of the (1) verification proceedings conducted on 11/05/2013; (2) pretrap proceedings conducted on 11/05/2013; (3) trap proceedings on 11/05/2013 including alleged handing of bribe money by PW12 to accused and alleged acceptance of bribe money by accused, which all relevant facts in issue have been testified by these material witnesses in material contradictions, at variance, with material improvements, additions, deletions, embodying inherent improbabilities and severe infirmities, elicited above in detail in preceding paras of this judgment, which have corroded the credibility and reliability of these witnesses which also casts a serious doubt on the case of prosecution since these facets go to the root of the matter to check and shake basic version and core of prosecution case. When read as a whole, testimony of PW12 does not inspire any confidence and on careful assessment and evaluation, it is found as wholly unreliable whereas testimonies of PW5, PW9, PW11, PW13 and PW14 are found as neither wholly reliable nor wholly unreliable as classified in the case of Vadivelu Thevar v. The State of RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 97/103 CBI vs Swet Manir Madras, AIR 1957 SC 614. Finally, putting probative value of the evidence into scales for a cumulative evaluation, I find that it would be extremely hazardous to place implicit reliance upon tainted, wholly unreliable testimony of PW12 and neither wholly reliable nor wholly unreliable testimonies of PW5, PW9, PW11, PW13 and PW14 to convict the accused accordingly since the evidence does not point out only towards the guilt of accused excluding innocence of accused. Versions of examined material witnesses have brought into light new cases, exceeding one, made vivid herein before with respect to alleged demand of bribe, place of negotiation of bribe and arriving at negotiated sum of bribe, manner and sequence of handing over of bribe sum by PW12 to accused, obtaining of bribe sum by accused from PW12, place where bribe sum was first noticed by trap team members on apprehension of accused, place of recovery of bribe sum, which all relevant facts in issue have been deposed in material contradictions, with presented case of prosecution in terms of complaint Ex PW9/A (D1), verification memo Ex PW9/B (D2), handing over memo Ex PW5/A (D4) and recovery memo Ex PW5/B (D5). No new case(s) can be reconstructed/carved out by divorcing essential details presented by the prosecution completely from the context and the background against which they are made. The only available course to be made is discard the prosecution evidence in toto. (See Zwieolae Areal vs. State of Madhya Pradesh, AIR 1954 SC 15 and Balaka Singh and Others vs The State of Punjab, AIR 1975 SC 1962). Alleged demand of bribe sum of Rs 2 lakhs by accused from RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 98/103 CBI vs Swet Manir PW12, arriving at negotiated bribe sum of Rs 1.6 lakhs by accused, obtainment of bribe sum of Rs 50,000/ or receipt of such bribe sum by accused or delivery of bribe sum by PW12 to accused comes under shadow of doubt. Suspicion howsoever grave it may be cannot be a substitute of proof beyond reasonable doubt. There accordingly exists no ground to raise the presumption embodied in Section 20 of The Prevention of Corruption Act 1988 against the accused. Accordingly, precedents relied by prosecution, which are embodying sets of facts and circumstances which are entirely different from the set of facts and circumstances of the case in hand, as elicited herein before, are of no help to prosecution to secure conviction of accused. The substratum of the prosecution case has several holes which cannot be plugged. Tape recorded statements contained in CDs Ex PW11/B1 (previous Ex Q1) and Ex PW5/H2 (Ex Q2) for lack of accuracy, genuineness of recordings with the existence of every reasonable possibility of their tampering, manipulations, insertions, deletions have been held to be of no aid as corroborative evidence to ocular/primary evidence. PW5, PW9, PW12 and PW13 admitted carrying of phenolpthalein powder in the trap kit from CBI office to the place of occurrence and residence of accused making it probable for use of such phenolpthalein powder for turning solutions purportedly of hand washes and bermuda wash in pink colour while neither any record was maintained nor shown of issuance, use or deposit back of phenolpthalein powder in/from Malkhana. No video recordings or photography were done nor produced in respect of pretrap RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 99/103 CBI vs Swet Manir proceedings, post trap proceedings, search proceedings, crime scene, prior to or later to apprehension of accused, which were feasible, keeping in view the provision 14.16 of Chapter 14 of CBI Manual containing General Instructions Regarding Investigation & Enquiries. In the event of any such digital still photography and videography done for such proceeding as aforesaid, the images were required to be downloaded/transferred, in the presence of witnesses, to a 'write only' compack disk (CD) or 'write only' digital video disk (DVD) for preservation in terms of aforesaid provision 14.16 in Chapter 14 of CBI Manual. There is no explanation by any officers of investigating agency or prosecution for non compliance of the afore elicited provision 14.16 in Chapter 14 of CBI Manual, required to be followed as an act of fair investigation in terms of MOTTO, MISSION & VISION of Central Bureau of Investigation embodied in the CBI Manual. There was no impediment in the way of concerned officers of investigating agency for following the mandate so laid in the afore elicited provision 14.16 in Chapter 14 of CBI Manual but by not following such mandate dimensions are added to shadow of doubt casted over presented prosecution case. PW8 proved on record that PW12 nursed grudge against accused since accused participated as Reader to SDM Model Town in sealing of borewell of Fruity Water Cooling Plant of PW12 in last week of April 2013 and of sealing of borewells of other brothers of PW12 while at the time of trap proceedings more than one such brother of PW12 was present downstairs residence of accused. Reasonable RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 100/103 CBI vs Swet Manir possibility of false implication of accused at behest of complainant PW12 is writ large on the face of record. Dimensions to such reasonable possibility of false implication of accused are added by afore elicited versions of DW2 and DW3. It is trite to say that the evidence tendered by the defence witness is entitled to equal treatment and equal respect as that of the prosecution and cannot always be termed to be a tainted one and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. So was held in the case of State of Haryana vs Ram Singh, 2002 (1) JCC 385.
113. The elicited intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in mind regarding the complicity of the accused in the commission of offences charged. Even falsehood is sometimes given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases. The aforesaid infirmities in the background of reasonable possibility of false implication of the accused as elicited above, renders the prosecution version not proved, beyond reasonable doubt.
114. In the case of Prem Singh Yadav vs. Central Bureau of Investigation, 178 (2011) DLT 529, it was held that where it is possible to have both the views, one in favour of the prosecution and the other in RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 101/103 CBI vs Swet Manir favour of the accused, the latter should prevail. Pronouncements in case of Dilip v. State of M.P., 1 (2007)CCR 354 (SC)=II (2007) SLT 60=[2009] 1 SCC 450 and Gagan Kanejia v. State of Punjab, I (2007)CCR 89 (SC)= IX (2006) SLT 406=[2006] 13 SCC 516 were relied.
115. Relying upon the law laid and elicited in the preceding paragraphs, since two views are possible on the evidence adduced in this case, one pointing to the guilt of the accused which is under umbrella of all reasonable doubts and other to his innocence, view which is favourable to the accused is being adopted. Since the prosecution has failed to prove its case against accused Swet Mani beyond reasonable doubt, accused is given benefit of doubt and acquitted for the offences charged. His bail bond is cancelled. Surety is discharged.
116. Complainant PW12 is sole claimant of GC notes Ex PW5/L 1 to Ex PW5/L100 totalling Rs 50,000/. It is directed that after expiry of period of appeal, if no appeal is preferred or in case if appeal is preferred, then subject to decision of the appeal (1) the GC notes Ex PW5/L1 to Ex PW5/L100 totalling Rs 50,000/ be released to complainant PW12 by the Central Bureau of Investigation; (2) case properties viz. CDs Ex PW11/B1 (previously Ex Q1), Ex PW5/H2 (previously Ex Q2) and Ex PW5/J2 (previously Ex S1) be confiscated RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 102/103 CBI vs Swet Manir to State and (3) case properties viz. file Ex PW13/D (colly) (D22) inter alia containing orders Ex PW2/B1 to Ex PW2/B15 dated 03/05/2013 and register Ex PW2/D (D23) be released to the office of SDM, Model Town, Delhi by Incharge Record Room concerned, after retaining their certified copies, for proceeding in accordance with law since these documents were seized on 13/05/2013 vide memo Ex PW2/F [D14(A)] by PW14.
117. A copy of judgment be given to the Central Bureau of Investigation.
118. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.
119. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 28/04/2014 Patiala House Court, New Delhi. Deepika RC. 14(A)/2013CBI,ACB, N.Delhi CC No. 58/13 103/103