Delhi District Court
Cc No. 137/14, Cbi vs . Anil Yadav Page No. 1 Of 88 on 29 January, 2016
IN THE COURT OF SH. M.K. NAGPAL, SPECIAL JUDGE
(P.C. ACT), CBI08, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CC No. : 137/2014
RC No. : DAI2014A0019
PS : CBI/ACB/New Delhi
U/s : 7 & 13(2) r/w 13(1)(d) of PC Act, 1988
Unique ID No. 02401R0540232014
Central Bureau of Investigation (CBI)
Versus
Anil Yadav
S/o Late Sh. B.S. Yadav
R/o H. No. B42/13, Ramesh Nagar
New Delhi
Date of FIR : 18.06.2014
Date of Institution : 31.10.2014
Arguments concluded on : 23.01.2016
Date of Judgment : 29.01.2016
J U D G M E N T
BRIEF FACTS OF THE CASE The present case was registered by ACB, CBI, New Delhi on the basis of a written complaint dated 18.06.2014 Ex. PW12/1 (D1) made by the complainant/PW14, CC No. 137/14, CBI Vs. Anil Yadav Page No. 1 of 88 Sh. Haresh G. Gajipara, proprietor of M/s Soham Industrial Diamonds (Ghaziabad) on allegations that he was an importer of rough synthetic diamonds and vide IEC code No. 5210007227, he imported rough synthetic diamonds through consignment no. B/E 5775477 dated 11.06.2014 and the said consignment was received at the IGI Airport, New Delhi on 12.06.2014. The complainant had hired the services of CHA Sh. Chetan Mathur of M/s M. R. Cargo Movers for clearance and release of the said consignment from the IGI Airport and on 17.06.2014 the CHA/PW8 met the accused Anil Yadav, who was posted there as a Jewellery Appraiser, being an official of the Customs Department. It was alleged in the complaint that the accused demanded a bribe of Rs. 2 per carat from the CHA/PW8 for clearing the said consignment and hence, the complainant himself had gone to meet the accused and the accused demanded bribe @ Rs. 500/ per kg, i.e. amounting to a total of Rs. 22,500/, for clearance of the whole consignment. It was further alleged in the complaint that the accused had also threatened the complainant that if he did not pay the above bribe amount, then his consignment will not be cleared and the accused will create problems for him in future also. Since the complainant did not want to pay the bribe, he lodged the above complaint with the CBI for taking action in the matter.
CC No. 137/14, CBI Vs. Anil Yadav Page No. 2 of 88VERIFICATION PROCEEDINGS AND THE REGISTRATION OF CASE
2. As per the prosecution case set up in the chargesheet and documents enclosed therewith, the above complaint made by the complainant/PW14 was entrusted to PW12 Inspector P. Shadang of ACB, CBI and he called an independent witness/PW13 Sh. Sudheer Shokeen and in presence of the independent witness, the complainant/PW14 was asked to make a call from his mobile no. 9426857996 on the mobile phone no. 9818165272 of the accused and the conversation between the complainant and the accused was heard by all, while keeping the mobile phone of the complainant/PW14 in loudspeaker mode, and the same was also simultaneously recorded in a blank memory card fitted with a Digital Voice Recorder (DVR) arranged by PW12. Since the above conversation established the demand of bribe on the part of the accused and the complaint made by the complainant/PW14 stood verified, PW12 had recommended the registration of a regular case and the FIR Ex. PW16/A (D3) of the present case was registered against the accused vide RC No. 19A/2014 and the investigation of the case was entrusted to PW16 Inspector S.P. Singh. The above verification proceedings were also duly recorded by PW12 in the Verification Memo Ex. PW13/A (D2).
CC No. 137/14, CBI Vs. Anil Yadav Page No. 3 of 88PRETRAP PROCEEDINGS
3. It is alleged that the investigation officer/PW16 Inspector S.P. Singh had then constituted a trap team consisting of himself, PW15 Inspector Pramod Kumar, SI Vipul Sharma and SI Ankit Chopra. One independent witness Sh. Sudheer Shokeen/PW13 was already available in the CBI office and the TLO/PW16 had also arranged the presence of another independent witness/PW11 Sh. Nand Kishore and they both were made part of the trap team. During the pre trap proceedings, a practical demonstration was also given to all the members of the trap team regarding the significance of the phenolphthalein powder and its reaction with sodium carbonate. The complainant/PW14 was introduced to the members of the trap team and independent witnesses and the independent witnesses satisfied themselves about the genuineness of the allegations made in the complaint. Thereafter, another call was made by the complainant from his above mobile number to the above mobile number of the accused for deciding the venue of delivery of the bribe amount and the said call was also recorded in the above DVR, with the help of the above memory card. The complainant produced the currency notes of Rs.18,000/, in denomination of 18 notes of Rs.1000/ each, and the said notes were treated with phenolphthalein powder and PW11 Sh. Nand Kishore was asked to touch these notes and to dip his fingers in the CC No. 137/14, CBI Vs. Anil Yadav Page No. 4 of 88 solution of sodium carbonate and on doing so the colour of the solution turned into pink. The above currency notes treated with phenolphthalein powder were then put in the right side pant pocket of the complainant by PW11. The complainant/PW14 was directed by the TLO/PW16 to handover the above currency notes to the accused only on a specific demand of the accused or to some other person on the instructions of the accused. The complainant was also asked to give a prefixed signal on completion of the transaction of bribe. PW11 was directed to be a shadow witness and to remain close to the complainant/PW14 for hearing the conversation between the complainant and the accused and also to see the above transaction of bribe. The introductory voices of the complainant as well as the two independent witnesses were recorded in the above DVR, with the help of the same memory card, and the complainant was also made to make another call to the accused for fixation of the place of delivery of the bribe money and the place of delivery of the bribe was fixed near the Raja Garden Flyover. The searches of the complainant and all the other trap team members were also got conducted in the CBI office to rule out the possibility of carrying anything incriminating by them at the time of the trap. All the above pretrap proceedings conducted in the CBI office were duly recorded in the handing over memo Ex. PW11/A (D4) prepared by the TLO/PW16 and the number of the above currency notes were also noted down in the said CC No. 137/14, CBI Vs. Anil Yadav Page No. 5 of 88 memo and the trap team, accompanied by the complainant and the two independent witnesses, had left the CBI office for the said place in their official vehicles. While they were present in the CBI office and also on their way to the above place of delivery of bribe, certain other calls were also exchanged between the accused and the complainant in connection with the above transaction of bribe.
THE ACTUAL TRAP
4. It is further alleged by the prosecution that, as per the instructions of the accused, the members of the trap team had reached near the Raja Garden Flyover and the complainant was again made to call the accused on his mobile and he was told that the accused was waiting for him in his Santro Car parked in front of the Indian Oil Petrol pump situated near the West Gate Mall and the parking indicators of his car were switched on. The complainant/PW14 was given the above DVR in the recording mode and he was instructed to meet the accused for delivery of the bribe amount and PW11 Sh. Nand Kishore was directed to remain as close as possible to the complainant for overhearing the conversation and for seeing the transaction of bribe. The other members of the trap team kept a watch on the above car of the accused in a discreet manner.
CC No. 137/14, CBI Vs. Anil Yadav Page No. 6 of 885. The complainant had then approached the car of the accused by opening the left side front door of the car and sat on the front left seat of the car. After sometime and conversation between him and the accused, a miss call was received from the above mobile number of the complainant on the mobile no. 9650394845 of the TLO/PW16 as per the pre fixed signal and the TLO and the other members of the trap team had surrounded the car of the accused. The TLO opened the driving side door of the car of accused, disclosed his identity to the accused and challenged him for accepting bribe, on which the accused became perplexed. PW15 Inspector Pramod Kumar had reached on the other side of the car and sat on the front left seat of the car, after the complainant was asked to get outside the car, and PW11 sat down on the rear seat of the car. The TLO and PW15 had caught hold the accused from the wrists of his hands. The trap team of members were told by the complainant/PW14 that during his conversation with the accused, the accused demanded the bribe amount through gestures and it was kept by him on the dash board of the car, on the right side of the steering, and on his insistence, the accused had also counted the currency notes with both his hands.
6. Thereafter, the left as well as the right hand fingers of the accused were dipped in freshly prepared solutions of sodium carbonate in glass tumblers and the colour CC No. 137/14, CBI Vs. Anil Yadav Page No. 7 of 88 of the said solutions turned into pink. The remnants of the phenolphthalein powder were also lifted from the dash board of the car of the accused with the help of a neat and clean cloth piece and it was also dipped in another glass tumbler containing the above solution of sodium carbonate and its colour also changed to pink. The contents of the above washes of the left and right hands of the accused and the car dash board, which were marked as LHW, RHW and CDBW respectively, were then transferred into separate glass bottles and cloth parcels thereof were prepared, which were similarly marked and sealed with the seals of CBI. The paper slips pasted on these glass bottles as well as the above cloth pieces were signed by the independent witnesses and these glass bottles have been exhibited on record as Ex. PW5/B, Ex. PW5/C and Ex. PW5/D and the cloth pieces as Ex. PW5/E, Ex. PW5/F and Ex. PW5/G respectively. On the instructions of the TLO/PW16, PW13 had also recovered the above bribe amount from the dash board of the car of the accused and the numbers thereof were tallied by both the independent witnesses with the numbers contained in the above handing over memo and these were found to be the same. The above currency notes were put in a paper envelope and it was also sealed in the same manner and the parcel signed by the independent witnesses. Since the above place of apprehension of the accused was a public place and crowd was also gathering there, the accused was brought to the CBI CC No. 137/14, CBI Vs. Anil Yadav Page No. 8 of 88 office for further proceedings. The car of the accused was also brought to the CBI office.
7. In the CBI office, the sample voice of the accused was also recorded in the above memory card, with the help of the above DVR, and the recorded conversations of the above memory card were transferred into a blank CD for the purposes of investigation and the above memory card was taken out of the DVR and was sealed in a paper envelope in the same manner and the envelope marked as Q1. The accused was also arrested and his personal search conducted vide Memo Ex. PW11/D (D7) and some documents, alleged to be incriminating, were also taken into possession from his car and all the above trap proceedings were duly recorded in the recovery Memo Ex. PW11/B (D5) prepared by the TLO/PW16 in this regard. Earlier, the TLO has also prepared one rough site plan Ex. PW11/C (D6) of the spot, at the spot itself.
8. It is also the case of prosecution that further investigation of the case was assigned to PW17 Inspector N.C. Nawal on 27.06.2014 and during the investigation, he had forwarded the above parcels of washes Mark LHW, RHW and CDBW to CFSL, Lodhi Road, New Delhi through his SP on 27.06.2014, and as per the report Ex. PW5/A (D22) dated 10.07.14 given by PW5 Sh. V.B. Ramteke subsequently, the contents of all these three washes had tested positively for the CC No. 137/14, CBI Vs. Anil Yadav Page No. 9 of 88 presence of phenolphthalein. Further, the above memory card Mark Q1 containing all the above recorded conversations was also forwarded by the IO/PW17, through his SP, to CFSL, Lodhi Road, New Delhi on 17.07.2014 vide letter Ex. PW2/DA (D21) and as per the report dated 08.08.2014 Ex. PW2/A (D23) given by PW2 Dr. S. K. Chaudhary subsequently, the questioned voices of the accused as contained in the said recordings were found tallying with specimen/sample voices of the accused sent for comparison and both these voices were opined to be probably of the same person.
9. It was also revealed during the investigation that the above consignment of rough synthetic diamonds of the complainant was opened and examined by the accused on 16.06.2014 in the presence of CHA/PW8 Sh. Chetan Mathur, but the accused was not satisfied regarding the nature and value, etc. of the said diamonds and hence, he had asked the CHA/PW8 to call the complainant. The complainant had accordingly come to Delhi and met the accused on 18.08.2014, in the office of the accused.
10. Further, the IO/PW17 had also seized certain records from PW9 Sh. J. K. Nagpal of the Customs Department on 27.06.2014 vide productioncumseizure memo Ex. PW9/A (D13) and these records consisted of a copy of the Customs Manual Mark PW9/1 (D9) containing the procedure CC No. 137/14, CBI Vs. Anil Yadav Page No. 10 of 88 relating to the payment of custom duty, examination and release etc. of such consignments; a copy of the Custom Tariffs for the year 201314 Mark PW9/2 (D10) (another copy of the Custom Tariffs as contained in the official Custom Tariffs book of the Customs Department produced by PW9 on record during the trial is also Ex. PW9/B); Exemption Notification Ex. PW9/C (D11); certified copies of the transfer and posting orders Ex. PW4/D, Ex. PW4/E and Ex. PW9/D (all these documents are part of D12) and also one file (D8) of above bill of entry no. 5775477 dated 11.06.2014 pertaining to the above consignment of the complainant/PW14. The above file D8, consisting of 15 pages in total, seized by the IO/PW17 contained the documents like the original declaration by the importer/complainant, declaration for clearance through system agent, copy of airway bill no. 78444922883 Ex. PW8/A, out of charge order, examination order Ex. PW4/A, bill of entry Ex. PW7/A [it is mentioned herein that though the examination order dated 11.06.2014, along with the bill of entry containing the details of 16 items imported by the complainant, (total 6 pages, along with the back page) and the report of inspection given by the accused on the back side of the last page were earlier collectively exhibited as Ex. PW4/A, but inadvertently, the bill of entry was again exhibited as Ex. PW7/A], commercial invoice Ex. PW4/B and the packing list Ex. PW4/C. CC No. 137/14, CBI Vs. Anil Yadav Page No. 11 of 88
11. During the investigation, the IO/PW17 had also seized certain other documents produced by PW6 Sh. Laven Tamang on 10.07.2014 vide Seizure Memo Ex. PW6/A (D17), which consisted of the consignee copy of terminal storage and processing charges receipt import dated 16.06.2014 (D14) regarding the said consignment, Bank Challan dated 17.06.2014 Ex. PW8/B (D15) of the said consignment and certified copy Ex. PW6/B (another copy thereof is also Mark PW6/1) of the relevant entry no. 8006 of register no. 3 of the Strong Room regarding the deposit and movement of the said consignment, in and out of the Strong Room. On 16.07.2014, the IO/PW17 had also prepared one transcriptioncum identification memo from the recordings contained in the investigation copy of the CD of the said recordings, which was earlier prepared from the above memory card, and the said transcription was prepared in the presence of the complainant as well as the two independent witnesses and the voices contained in the said recordings were identified by them. Certain records, i.e. the Subscribers Application Form (SAF) Ex. PW3/A and the Call Detail Record Ex. PW3/Ccolly, accompanied by a certificate Ex. PW3/D under Section 65B of the Evidence Act (all these documents are part of D18) were also seized by the IO/PW17 during investigation from the Nodal Officer of M/s Bharti Airtel Ltd. in respect of the above said mobile number 9818165272 being used by the accused. After obtaining the sanction for prosecution of the accused CC No. 137/14, CBI Vs. Anil Yadav Page No. 12 of 88 vide sanction order Ex. PW1/A (D24) from the competent authority of the accused, recording the statements of the witnesses and completing certain other formalities of the investigation, the IO/PW17 had ultimately prepared the chargesheet Ex. PW17/A against the accused and had filed the same in the court, after obtaining the necessary approval of his senior officer.
FILING OF CHARGESHEET AND THE CHARGES FRAMED AGAINST THE ACCUSED
12. The chargesheet was filed in this court on 31.10.2014 and cognizance of the above said offences was taken by the court on the same day. On appearance, the copies of the chargesheet and documents were supplied to the accused and vide order dated 18.11.2014, charges for commission of the offences punishable U/s 7 & Section 13 r/w Section 13(1)(d) of the PC Act were also directed to be framed against the accused and the said charges were also framed against him on the same day and the trial started as the accused pleaded not guilty to the said charges.
EVIDENCE FOR THE PROSECUTION
13. The prosecution in support of its case has examined on record total 17 witnesses and their names and CC No. 137/14, CBI Vs. Anil Yadav Page No. 13 of 88 the purpose of examination are being stated herein below:
14. PW1 Sh. S. R. Barua was posted as the Commissioner, Customs, Air Cargo at IGI Airport at the relevant time and he being the competent disciplinary authority of the accused had accorded the sanction for prosecution of the accused vide his order Ex. PW1/A dated 17.10.2014 and forwarded the same to the CBI vide letter Ex. PW1/B on the same day (both documents are part of D24). He has stated that he applied his mind and had gone through the relevant documents forwarded by the CBI before according the sanction and the said documents were put before him through the Vigilance Department of the Customs.
15. PW2 Dr. S. K. Chaudhary was posted as Sr. Scientific Officer, GradeII (Physics) in CFSL, CGO Complex, Lodhi Road, New Delhi and he had examined the questioned as well as the sample voice recordings of the accused contained in the above memory card Mark Q1 and had given his opinion/report Ex. PW2/A dated 08.08.2014 (D23) regarding the same. As per his opinion, the above questioned voices of the accused were found tallying with the specimen voices of accused and probably these were voices of the same person. He has also stated that on the basis of the critical auditory examination, waveform and spectrographic examination of the said voices, it was revealed that the CC No. 137/14, CBI Vs. Anil Yadav Page No. 14 of 88 relevant audio recordings were continuous and not tampered with.
16. PW3 Sh. Chandra Shekhar is the Nodal Officer of M/s Bharti Airtel at the relevant time and he had handed over to the IO/PW17 the relevant records pertaining to the above mobile phone no. 9818165272 being used by the accused and the said record consisted of a copy of the Subscriber Application Form (SAF) Ex. PW3/A, alongwith a copy of the ration card Ex. PW3/B of the subscriber, and an attested copy of the Call Detail Record (CDR) Ex. PW3/Ccolly of the said mobile number and had further given the certificate Ex. PW3/D U/s 65 of the Evidence Act regarding the genuineness and authenticity of the above CDR (all these documents are part of D18). As per him, the above mobile number was subscribed in the name of Ms. Kamla Yadav, who is stated to be the mother of the accused, and there were certain calls and SMSs exchanged between the above mobile phone of the accused and the mobile phone no. 9426857996 of the complainant on 18.06.2014, which is the day of conduction of the trap proceedings.
17. PW4 Sh. Rajender Kumar is the then Deputy Commissioner, New Customs House, IGI Airport, New Delhi at the relevant time and he was looking after the Import Shed of the Air Cargo complex at the said time. He has explained the CC No. 137/14, CBI Vs. Anil Yadav Page No. 15 of 88 procedure being followed regarding the generation of a bill of entry, the inspection and clearance etc of such import consignments. As per him, the bill of entry of such consignments could be generated online by the importer concerned or his CHA and the print of bill of entry could be taken at the CMC Centre of the Customs House or at the office of the CHA and after taking the print out of the bill of entry, the same could be presented at the office of the Deputy Commissioner, Import Shed for physical examination of the goods, alongwith the challan, commercial invoice, packing list and airway bill of the said consignment. Thereafter, the CHA or the importer were to present the said bill of entry for goods registration and the goods were physically verified by the Inspector, Customs, under the supervision of the Superintendent, Customs, and if required the Appraiser was also called for the purpose of valuation and confirming the description of the imported goods.
18. On being shown the relevant documents contained in the file of the said consignment, he stated that the bill of entry of the above file no. 5775477 dated 11.06.2014 came on their online system on 11.06.2014 and the details like the description and classification etc of the items being imported vide the said consignment were checked by Sh. N. Sree Kumar and he gave the examination order dated 11.06.2014 and marked the same to this witness for approval CC No. 137/14, CBI Vs. Anil Yadav Page No. 16 of 88 of the assessment of the said bill of entry and this entire process was carried out online. He then gave an approval on the said bill of entry electronically and the same was transferred to the Shed Appraiser as there was no duty payable in this case, otherwise the consignment could have been transferred to PNB, Customs House for the purpose of payment of duty by the importer. He has also stated that the value of the goods imported through the above bill of entry no. 5775477 contained in the above file D8 was certified as correct by the accused Anil Yadav, who was posted as Jewellery Appraiser there, on the hard copy of the said bill of entry and he has also identified the signatures of the accused on the Inspection Report Ex. PW4/A dated 18.06.2014 given on the back side of last page of the hard copy of the above bill of entry. The commercial invoice and packing list of the said bill have also been exhibited in his statement as Ex. PW4/B and Ex. PW4/C respectively and he has further identified the signatures of some officials of his department on the attested copies of the transfer and posting orders Ex. PW4/D and Ex. PW4/E (both documents are part of D12) of the accused.
19. PW5 Sh. V. B. Ramteke, is the Chemical Expert of CFSL, New Delhi and he had examined the above washes of the hands and dash board of car of the accused and had given his report Ex. PW5/A (D22) dated 10.07.2014 in this regard, vide which the contents of all the above washes had CC No. 137/14, CBI Vs. Anil Yadav Page No. 17 of 88 given positive tests for the presence of phenolphthalein powder. During his examination, the above sample bottles have also been identified by him and exhibited as Ex. PW5/B, Ex. PW5/C and Ex. PW5/D and the cloth pieces thereof as Ex. PW5/E, Ex. PW5/F and Ex. PW5/G respectively.
20. PW6 Sh. Laven Tamang was working with M/s Celebi Delhi Cargo Terminal Management India Pvt. Ltd., which company was in charge of the Strong Room of the Import Cargo and this witness had handled the said cargo/consignment during his posting in the Strong Room. He has proved on record the relevant entry no. 8006 Ex. PW6/B (D16) of the concerned register of the Strong Room regarding the deposit and movement of the said consignment. As per him, the said consignment was imported vide airway bill no. 78444922883 from China by Flight No. CZ359 and was received in the Strong Room on 12.06.2014 and it was inspected on 16.06.2014 and was also requisitioned for inspection on 17.06.2014. He was told by the concerned CHA Sh. Chetan Mathur that the inspection was to be conducted by the accused Anil Yadav as a Jewellery Appraiser on 16.06.2014. However, he has also stated that the said inspection was not conducted in his presence and further that he was not sure if the said consignment was actually sent for inspection or not on 17.06.2014 as it could have been sent for inspection in the examination hall only if the representative of CC No. 137/14, CBI Vs. Anil Yadav Page No. 18 of 88 the consignment company came present in the said hall till 4:30 PM, which was the closing time of the Strong Room. He has further stated that the above consignment was actually released from the Strong Room on 20.06.2014 to the consignee concerned. He has also handed over certain documents/records pertaining to the said consignment to the CBI on 10.07.2014 vide the seizure memo Ex. PW6/A (D17).
21. PW7 Sh. N. Sree Kumar, is the then Superintendent posted there and he was looking after the Appraiser work. He has stated that the details of the 16 items of the above consignment of complainant vide bill of entry no. 5477577 dated 11.06.2014 were checked by him and he had forwarded the said bill electronically to his Deputy Commissioner for approval and onward submission to the said Appraiser. On being shown the documents of the said consignment, he has stated that the said consignment was inspected by the accused Anil Yadav as Jewellery Appraiser and the accused had given his report Ex. PW4/A on the bill of entry Ex. PW7/A.
22. PW8 Sh. Chetan Mathur is the concerned CHA, who was hired by the complainant for clearance of the above consignment. He is the person who had generated the above bill of entry Ex. PW7/A (also Ex. PW4/A) of the said consignment and had presented the relevant documents CC No. 137/14, CBI Vs. Anil Yadav Page No. 19 of 88 pertaining to the said consignment, i.e. commercial invoice Ex. PW4/B, packing list Ex. PW4/C, airway bill Ex. PW8/A etc, for the physical inspection of the said consignment, after obtaining permission on the challan Ex. PW8/B from the Celebi IGI Delhi on 16.06.2014 and was also present when the said consignment was inspected by the accused. The depositions of this witness will be discussed and appreciated in detail later on.
23. PW9 Sh. J. K. Nagpal was posted as Superintendent in the office of Import & General Commissionerate, New Customs House, New Delhi at the relevant time and on the instructions of his senior officers, he had visited the CBI office on 02.07.2014 and handed over certain documents to the IO/PW17 and the same were seized by the IO/PW17 vide seizure memo Ex. PW9/A (D13), as already discussed above. According to this witness, the above consignment of the complainant consisting of rough synthetic diamonds and as per the Custom Tariffs Ex. PW9/B (another copy thereof is Mark PW9/2), the entry at serial no. 7104 thereof, the rate of duty payable for the said diamonds was 10%, but the same were exempted and no duty chargeable thereon in view of the entry at serial no. 310 of the Exemption Notification Ex. PW9/C (D11).
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24. PW10 Sh. Pankaj Kumar was posted there as Inspector at the relevant time and he has also explained the procedure for dealing with such consignments and the relevant documents pertaining to the same. He has stated that as per the normal practice, a bill of entry like this is sent to them only after the articles have been examined and assessed by an Appraiser and he has also identified the commercial invoice Ex. PW4/B, packing list Ex. PW4/C of the above bill of entry Ex. PW4/A and further the signatures of the accused as a Jewellery Appraiser on the Inspection Report given on the back side of the said bill of entry.
25. PW11 Sh. Nand Kishore working as a Sr. Manager in Dena Bank, Scope Complex in CGO Complex, Lodhi Road, New Delhi and PW13 Sh. Sudheer Shokeen, Office Superintendent, GradeI of the office of Registrar Co operative Societies, New Delhi are both the independent witnesses joined in this case by the CBI in the pretrap, trap and posttrap proceedings of this case. As already discussed above, PW13 was also joined in the verification proceedings of the above complaint Ex. PW12/A (D1) made by the complainant. They have deposed regarding their participation in the said proceedings and the relevant documents prepared with regard to the same and their depositions will also be discussed in the later part of this judgment. They have further identified the accused and their signatures appearing on CC No. 137/14, CBI Vs. Anil Yadav Page No. 21 of 88 different documents of this case, as well as the exhibits of the case.
26. PW12 Inspector P. Shadang of ACB, CBI is the person to whom the above complaint Ex. PW12/A of the complainant was assigned for enquiry and who had conducted the verification proceedings vide the verification memo Ex. PW13/A (D2) on the said complaint, in the presence of PW13 Sh. Sudheer Shokeen, and had recommended the registration of this case.
27. PW14 Sh. Haresh G. Gajipara is the complainant of this case and has participated in the pretrap, trap and the posttrap proceedings. He has also proved his complaint Ex. PW12/A, identified the accused as well as his signatures on certain documents and the exhibits of the case. His depositions will also be appreciated and discussed in the later part of this judgment.
28. PW15 Inspector Pramod Kumar and PW16 Inspector S. P. Singh are both the official members of the above trap team of CBI and the trap was conducted by the TLO/PW16 and PW15 was assisting him. They both have also deposed in detail about the said proceedings and the documents prepared in this regard and have further identified the accused as well as the case property.
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29. PW17 Inspector N. C. Nawal is the subsequent Investigating Officer (IO) of this case and on being assigned the investigation of this case on 27.06.2014, he had seized various documents of this case vide the seizure memo Ex. PW9/A (D13) from PW9 Sh. J. K. Nagpal, vide the seizure memo Ex. PW6/A (D17) from PW6 Sh. Laven Tamang and had also sent the parcels of the above washes as well as the memory card Mark Q1 containing the recordings of this case to CFSL, Lodhi Road, New Delhi for analysis, received reports Ex. PW5/A (D22) and Ex. PW2/A (D23) thereof and had further obtained the sanction for prosecution of the accused vide order Ex. PW1/A (D24) and had ultimately prepared and filed the chargesheet Ex. PW17/A in the court.
30. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record was put to the accused in his statement recorded U/s 313 Cr.P.C. and the same was denied by the accused either as wrong or beyond his knowledge. Though the accused has admitted that he was posted as a Jewellery Appraiser at the IGI Airport at the relevant time and had inspected the above consignment of the complainant on 16.06.2014, in the presence of CHA/PW8 Sh. Chetan Mathur, but according to him he had raised certain objections about the said consignment as he was not satisfied regarding the nature and valuation etc of the above rough synthetic diamonds and hence, he had asked the CHA/PW8 to CC No. 137/14, CBI Vs. Anil Yadav Page No. 23 of 88 call the complainant. He has also admitted that on 18.06.2014, he had met the complainant in his office, but he has specifically denied the making of any demand of bribe either from the complainant or his CHA/PW8 on that day or on any other date. It is his case that the complainant fully satisfied him regarding the nature, valuation and classification etc of the said consignment of diamonds and therefore, he had cleared the said consignment vide his report Ex. PW4/A, given on the back side of the bill of entry Ex. PW7/A of the said consignment, in the afternoon of 18.06.2014 itself and hence, there was no question of demand or acceptance of any bribe by him from the complainant or his CHA for clearing the said consignment.
31. Further though, he has also admitted that he was picked up by some officials in plain clothes, claiming to be the CBI officials, at around 7:00 PM from the above said place when he had met the complainant at that place in his car, but it is his case that he met the complainant only because the complainant was insisting to meet him and the said meeting was fixed at the said place as it fell on the way from his residence at Ramesh Nagar to IGI Airport. He again denied the demand or acceptance of any bribe from the complainant even in the said meeting and further denied the entire case of the prosecution regarding the recovery of the above bribe amount from the dash board of his car or the taking of any CC No. 137/14, CBI Vs. Anil Yadav Page No. 24 of 88 washes and conduction of any proceedings at the spot. He claims that he was forcibly taken to the CBI office and was made to sit in a corner of a room and the entire proceedings were conducted there. He also claimed that the CBI officials had obtained his signatures on some papers in their office, without telling the contents thereof. He has also claimed the above recordings and the reports of the said recordings and washes to be a doctored evidence. He has further submitted that the above consignment might have been released to the complainant subsequently as he had already cleared it for release. He has also chosen to lead evidence in his defence.
32. The accused has examined on record only one witness namely Sh. Rajesh Kumar in his defence and this witness was posted as a Superintendent, Customs at the IGI Airport, New Delhi at the relevant time. He has claimed that he was involved in seizure of some gold at the airport on 18.06.2014, i.e. the day of trap of this case, and in connection with the said seizure, he had called the accused telephonically at around 7:30/8:00 PM on that day and the accused told him that he was reaching the airport shortly. He has further deposed that when the accused did not reach there for quite sometime, he again called the accused at around 9:30/10:00 PM, but the mobile phone of accused was found switched off and he then contacted the other Jewellery Appraiser Mr. Neeraj Aneja, who did the needful regarding the above seized CC No. 137/14, CBI Vs. Anil Yadav Page No. 25 of 88 gold.
33. I have heard the arguments advanced by Sh. Prabhat Kumar, Ld Sr. PP for CBI and Sh. Ajeet Kumar, Ld counsel for the accused. I have also gone through the evidence led on record and the other record of the case. Ld Sr. PP for CBI has relied upon the judgment of the Hon'ble Supreme Court in case titled as D. Velayutham Vs. State represented by Insp. of Police, Salem Town, Chennai in Crl. Appeal No. 787 of 2011 decided on 10.03.2015. Ld defence counsel has relied upon the following judgments in defence of the accused:
1) B. Jayaraj Vs. State of A.P. (2014) 13 SCC 55.
2) C.M. Girish Babu Vs. CBI, Cocin, High Court of Kerala (2009) 3 SCC 779.
3) T.M. Shanmughavelu Vs. State, 2011 (2) MWN (Cr.) 90.
4) Banarsi Dass Vs. State of Haryana (2010) 4 SCC 450.
5) State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200.
6) Suraj Mal Vs. State (1979) 4 SCC 725. 7) Subhash Chand Chauhan and Anr. Vs. CBI, 2005 (79) DRJ 644. 8) Khyamasagar Baina Vs. State, 2004 Crl. L J 2225. CC No. 137/14, CBI Vs. Anil Yadav Page No. 26 of 88 9) Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143. 10) Dr. Sunil Kumar Sambhudayal Gupta & Ors. Vs. State of Maharashtra (2010) 13 SCC 657. 11) M.R. Purushotham Vs. State of Karnataka (2015) 3 SCC 247. 12) C. Sukumaran Vs. State of Kerala, 2015 SCC Online SC 78. 13) CBI Vs. Ashok Kumar Aggarwal (2014) 14 SCC 295. THE LAW ON BRIBE
34. Earlier, the law relating to the offence of bribery and corruption amongst public servants was contained in Sections 161 to 165A of the Indian Penal Code (IPC), 1860 and the PC Act, 1947, but since the enactment of the PC Act, 1988, which contains more stringent provisions for these offences and has also widened the scope of law on the subject, the above Sections of IPC stand deleted and the old PC Act repealed. Before appreciating the evidence led on record, it is necessary to refer here to some of the relevant judgments on the subject, which specifically deal with the law in matters of bribe or corruption pertaining to public servants and lay down the essential ingredients of such offences.
CC No. 137/14, CBI Vs. Anil Yadav Page No. 27 of 88
35. It has been held by the Hon'ble Supreme Court in case of Dnyaneshwar Laxman Rao Wankhede, Supra being relied upon by Ld defence counsel: "16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirely. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused visavis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the prosecutions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonably doubt".
"21. Even in a case where the burden is on the accused, it is well known, the prosecution must prove the foundational facts. (See Noor Aga v. State of Punjab and Jayendra Vishnu Thakur vs. State of Maharshtra".
36. It has also been held by the Hon'ble Supreme Court in the case of Banarsi Dass, Supra being relied upon by Ld defence counsel: "11. To constitute an offence under Section CC No. 137/14, CBI Vs. Anil Yadav Page No. 28 of 88 161 of the IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused. In the case of M.K.Harshan Vs. State of Kerala (1996 (11) SCC 720) ; (AIR 1995 SC 2178 ; 1995 AIR SCW 3385), this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under :
" .............. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW1. Since PW1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5 (1) (d) of the Act, particularly when the version of the accused appears to be probable".
12. Reliance on behalf of appellant was placed upon the judgment of this Court in the case of C.M.Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 )(Supra), where in the facts of the case the Court took the view that mere recovery of money from CC No. 137/14, CBI Vs. Anil Yadav Page No. 29 of 88 the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under : "18. In Suraj Mal Vs. State (Delhi Admn.) (1979 (4) SCC 725); (AIR 1979 SC 1408), this Court took the view that (at SCC p. 727, para2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the 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.
20. A threeJudge Bench in M.Narsinga Rao Vs. State of A.P. (2001 (1) SCC 691 ; SCC (Crl.)
258); (AIR 2001 SC 318 ; 2000 AIR SCW 4427), while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed : (SCC p. 700, para24) :
"24. .... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi Vs. State of Maharashtra (2000 (8) SCC 571); (AIR 2001 SC 147 : 2000 AIR SCW 4018). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel :
(Madhukar case, SCC p. 577, para12).
'12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual CC No. 137/14, CBI Vs. Anil Yadav Page No. 30 of 88 premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
13. Infact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case (AIR 1979 SC 1408) (supra), where the Court had held that mere recovery by itself cannot prove the charge of 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. Reference can also be made to the judgment of this Court in Sita Ram Vs. State of Rajasthan (1975 (2) SCC 227) ; (AIR 1975 SC 1432), where similar view was taken.
14. The case of C.M. Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 ) (supra) was registered under the Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case."
37. It was also held by the Hon'ble High Court of Delhi in case titled as, "P.K. Gupta Vs. CBI, reported as 2011 (4) JCC 2352, as under:
"14. In A. Subair v. State of Kerala, (2009) 6 SCC 587, the Supreme Court held as under:
'The legal position is no more res integra that primary requisite of an offence under Section 13(1) (d) of the Act is proof of a demand or request of a valuable thing or pecuniary CC No. 137/14, CBI Vs. Anil Yadav Page No. 31 of 88 advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant, for a valuable thing or pecuniary advantage, the offence under Section 13(1) (d) cannot be held to the established.'
15. It is settled law that mere recovery of bribe money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantial evidence of demand and acceptance in the case is not reliable.
(See M. Narsinga Rao v. State of A.P. 2001 (1) JCC 118 :
2001(1) SCC 691. In view of above propositions of law, it is recapitulated that the statutory presumption under Section 20 of the Act is available for the offence punishable under Section 7 or Section 11 and not for Clause (d) of Section 13(1). For offence under Section 13(1) (d), it will be required to be proved that some initiative was taken by a person who receives and in that context demand or request from him will be a prerequisite."
38. Again in case of B. Jairaj, Supra also being relied upon by Ld defence counsel, the Hon'ble High Court of Delhi has made the following observations:
"7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu Vs. C.B.A. (2009) 3 SCC 779.
8. ...............
9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1) (d) (i) (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal CC No. 137/14, CBI Vs. Anil Yadav Page No. 32 of 88 gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
DEMAND OF BRIBE
39. It is clear from the above depositions that the demand and acceptance of bribe by a public servant are the two main constituents of the above said offences and both these elements have to be proved on record before any public servant can be held guilty and punished under the above said Sections. Further, it also comes out from the above that even mere recovery of the tainted bribe money, divorced from the circumstances under which it was paid, is not sufficient to convict the accused for the said offences when the substantive evidence led on record appears to be not reliable. It is so because it was held that the mere recovery of currency notes cannot constitute the offence U/s 7 of the PC Act unless it is proved beyond reasonable doubts that the accused voluntarily accepted the money knowing it to be bribe.
40. Firstly, coming to the evidence pertaining to the demand of the above bribe amount by the accused from the complainant/PW14, the most relevant document to be seen by the court is the complaint dated 18.06.2014 Ex. PW12/A (D1) made by the complainant/PW14 to the CBI regarding the said demand of bribe. It is necessary to reproduce herein some of CC No. 137/14, CBI Vs. Anil Yadav Page No. 33 of 88 the relevant extracts of the above complaint: "For the above purpose I have hired Sh. Chetan Mathur and had sent my CHA agent Sh. Chetan Mathur on 16/6/2014 to the Import Shed, Delhi pertaining to the clearance of my consignment vide B/E 5775477 dated 11/6/2014 having rough synthetic diamond received at Delhi on 12/6/2014.
However, the dealing officer Sh.
Anil Yadav, Jewellery Appraiser, IGI Airport, Terminal3, New Delhi asked my CHA on 17/06/2014 to pay Rs. 2 per carat for clearing the consignment. Hence, today on 18/06/2014 I have gone to the same officer Sh. Anil Yadav and on meeting him at Import Shed, he demanded Rs.
500/ per kg amounting to a total of 22,500/ for the whole consignment".
41. It is clear from the above extracts of the complaint Ex. PW12/A made by the complainant/PW14 that the initial demand of bribe was not made by the accused from the complainant/PW14 himself and rather it was made by the accused from the CHA/PW8 Sh. Chetan Mathur on 17.06.2014 and the accused demanded the payment a bribe @ Rs. 2 per carat for clearing the above consignment. However, when the depositions made by the CHA/PW8 Sh. Chetan Mathur on record are scrutinized, the same destroy this very basis of the prosecution story regarding the making of the above initial demand of bribe by the accused from him on 17.06.2014.
42. In his statement made in this court, the CHA/PW8 has deposed about his being involved in clearance of the CC No. 137/14, CBI Vs. Anil Yadav Page No. 34 of 88 above said consignment, after he was authorized by the complainant/PW14 for the said purpose and the complainant had also mailed the requisite documents pertaining to the said consignment to him. He has also stated that the bill of entry, B/E No. 5775477, of the said consignment was created by him online and then he had gone to the Import Shed for physical inspection of the consignment on 16.06.2014. On this aspect, he also states in his examination in chief itself that on 16.06.2014, they took permission from Celebi IGI Delhi for taking out the consignment for physical inspection and the said permission was granted on 16.06.2014 by the Supervisor, Celebi IGI Delhi at point A on the Bank Challan Ex. PW8/B (D15) and he has also identified the relevant documents and told the details regarding the said permission. He also states on record that thereafter, 5 packets of the consignment were taken out of the Strong Room and at that time, the accused Anil Yadav, Jewellery Appraiser from the Customs Department, was also present with him. The said packets of the consignment were opened by the loader on their instructions and the accused then compared the packets with the invoice, bill of entry and packing list and after checking, all the packets of the consignment were repacked and deposited back in the Strong Room. He has again deposed specifically that the above inspection was conducted on 16.06.2014 and he has also identified the signatures of the accused on the Inspection Report Ex. PW8/A (D8) made on the last page of CC No. 137/14, CBI Vs. Anil Yadav Page No. 35 of 88 the above bill of entry, though he has also stated that he does not know as to when the above Inspection Report Ex. PW4/A was given by the accused as it was not given or written by the accused in his presence.
43. He has further stated in his examination in chief itself that the accused had raised certain objections regarding the above consignment and the accused had also asked him to call the importer of the said consignment and accordingly, he (PW8) had informed the importer on 17.06.2014 and the importer visited their office on 18.06.2014. Regarding the nature of the objection raised by the accused at the time of the above inspection, he has stated on record that the objection was that the diamonds contained in the said consignment were meant for use in jewellery and the same were not meant for industrial use. He has also stated that the importer was aggrieved with the delay in release of the consignment and hence, when the importer visited their office on 18.06.2014, he had taken the importer to the Import Shed and introduced him with the accused and he had handed over the NOC against the bill of entry of the said consignment to the importer Mr. Haresh Gajipara and the importer then told him that he (importer) will himself get the consignment released as it stood already delayed. He has further stated on record that the above NOC was never handed over back to him by the importer and he never met with the accused again after CC No. 137/14, CBI Vs. Anil Yadav Page No. 36 of 88 18.06.2014 in connection with the said consignment.
44. During his cross examination conducted by Ld counsel for the accused, he also went to state on record specifically that the importer of the above consignment was not present with him at the time of inspection of the consignment on 16.06.2014. He has further stated specifically on record during his cross examination that at the time of inspection of the above consignment or thereafter on the above day, there was no demand of any kind of bribe made by the accused from him in respect of the above consignment nor he himself had offered anything to the accused. He has also stated it to be correct that on 17.06.2014, no inspection of the jewellery consignment of this case took place. Regarding the incidents of 18.06.2014, he states on record in his cross examination that it might be around 11:30 AM/12:00 Noon when he had taken the importer to the accused on 18.06.2014 and they stayed with the accused only for about 1015 minutes and he had been present with the importer throughout during the above meeting of the importer with the accused and they both came out together. He has further stated on record that in his presence, the importer did not go to meet the accused again alone on 18.06.2014 and has also stated it to be correct that no meeting took place between him and the accused on 17.06.2014. He further states on record specifically that on 18.06.2014 the accused did not demand anything from him or CC No. 137/14, CBI Vs. Anil Yadav Page No. 37 of 88 from the importer in his presence and he has also stated it to be correct that on 16.06.2014, he (PW8) was not able to satisfy the accused during the inspection and that was the reason as to why he and the importer were asked to come again on 18.06.2014 with all the relevant documents pertaining to the above consignment. He even states on record that he had been working as a CHA for the last about 78 years and the accused had been an Appraiser of jewellery in his 34 other cases also, prior to this consignment, but the accused never demanded any money or other consideration from him in respect of the consignments inspected by him (accused) in the past and further that a CHA had no choice in respect of selection of any particular Appraiser of jewellery for such consignments and it depended only upon the availability of an Appraiser.
45. Thus, the above depositions made by PW8/CHA establish that no demand of any bribe was made by the accused from him on 16.06.2014 at the time of inspection of the above consignment or even on any time thereafter on that day. Since the complainant/PW14 himself was not present in Delhi at the time of the inspection of the above consignment on 16.06.2014 by the accused, in the presence of PW8/CHA, there was no question of making of any such demand of bribe by the accused from him or in his presence and it is also not the case of the prosecution otherwise. It further stands CC No. 137/14, CBI Vs. Anil Yadav Page No. 38 of 88 established from the depositions made by PW8/CHA on record that neither he met the accused in connection with the said consignment on 17.06.2014 nor any inspection of the above consignment by the accused had taken place on 17.06.2014. This fact is further corroborated from the depositions made by PW6 Sh. Laven Tamang of M/s Celebi IGI Delhi that the said consignment was actually inspected only on 16.06.2014 and was received back in the Strong Room after inspection in sealed condition and though an inspection slip/consignee note was also received in the Strong Room for inspection of the said consignment on 17.06.2014, but he was not sure if the said consignment was actually sent for inspection in the examination area of the Import Shed on 17.06.2014 or not as it was to be sent only when a representative of the consignee company came in the examination area by 4:30 PM, which is also not the prosecution case. No other evidence has also been led on record by the prosecution to show that the said consignment was again inspected by the accused on 17.06.2014 or to the effect that the CHA/PW8 had again met the accused on that day in connection with the inspection or otherwise of the said consignment. Hence, there could not have been any occasion for the accused to make the demand of bribe @ Rs. 2 per carat from the CHA/PW8 on 17.06.2014 for clearing the said consignment and therefore, there was also no question of conveying of the said demand by PW8/CHA to the complainant/PW14 telephonically on that CC No. 137/14, CBI Vs. Anil Yadav Page No. 39 of 88 day, as was alleged by the complainant/PW14 in his written complaint Ex. PW12/A (D1) on record. Therefore, the above evidence and the depositions made by PW8/CHA on record falsify the contents of the above complaint Ex. PW12/A (D1) in this regard.
46. Now, coming to the testimony of the complainant/ PW14 himself regarding the initial demand of bribe, he deposes on record about the nature of the business being carried out by his company named M/s Soham Industrial Diamonds and import of the above consignment of rough synthetic diamonds by his company from China, through the IGI Airport, New Delhi. He also talks about hiring of the services of the CHA/PW8 for clearance of the said consignment, mailing of the requisite documents pertaining to the said consignment to PW8/CHA for clearance thereof and further states on record that PW8/CHA informed him on 12.06.2014 that his consignment had reached at the Delhi Airport and he (PW8) had already submitted the relevant documents pertaining to the said consignment to the concerned authorities and the talks for its release were in progress. He has also deposed on record that after 23 days thereof, the CHA/PW8 had again called and told him that though the consignment was cleared from the other sources, but it was now with the Appraiser, who was not satisfied with the nature of the said consignment of diamonds and also the CC No. 137/14, CBI Vs. Anil Yadav Page No. 40 of 88 value of Rs. 4.5 lac declared for the said consignment. He also claims that he had then asked Mr. Mathur/CHA to make understand the concerned Appraiser that the nature and value of the consignment as declared were correct and he had also mailed some documents/bills showing the clearance of similar consignments in past to the CHA/PW8.
47. He has further deposed on record that on 17.06.2014, he had received a call from Mr. Mathur/CHA who told him to come to Delhi to convince the Appraiser regarding the above consignment and accordingly, he had taken a flight from Baroda in the morning of 18.06.2014 and reached Delhi, alongwith the relevant documents of his company like the tools catalog, diamond catalog and the bills of entry etc. Then he talks about his meeting with the accused, in the office of the accused, at around 12:00 noon on that day, after he was taken there by the CHA/PW8. However, in his entire statement made in this court, i.e. his chief examination as well as in his cross examination, he has nowhere stated or deposed specifically that any demand of bribe was made by the accused either from him or from his CHA/PW8 on 18.06.2014 when he had met the accused or from the CHA/PW8 even on 17.06.2014. Though, he has deposed about the receiving of a telephonic call from the CHA/PW8 on 17.06.2014 in connection with the said consignment, as stated above, but he also does not talk anything about conveying by the CHA/PW8 CC No. 137/14, CBI Vs. Anil Yadav Page No. 41 of 88 to him of the alleged demand of bribe made by the accused from the CHA/PW8 @ Rs. 2 per carat for clearing the said consignment. Some of the relevant depositions made by the complainant/PW14 in his statement (examinationinchief) dated 17.09.2015 recorded in this court, regarding their meeting with the accused on 18.06.2014, are being reproduced herein below: "We both had then reached at the IGI Airport and met the accused Anil Yadav, who was the concerned jewellery appraiser, sometime after 12:00 noon on that day, after taking permission from the concerned authorities of the Customs. The accused asked me as to why I had got imported the above consignment through Delhi and not at Mumbai and I told him that I always imported the consignment through Delhi Airport and Mr. Chetan Mathur was having association with me since long. I also tried to convince the accused regarding the nature and value of consignment by showing the previous bills relating to similar consignments. On being asked by the accused, I had explained him the purpose, process and use of the above imported synthetic diamonds. However, still the accused was not satisfied and he told that the above diamonds were imported for being used for jewellery purposes and after having detailed discussions, he asked me to go and told me that he will talk with Mr. Chetan Mathur regarding the said consignment. I came outside the office/room of the accused while Mr. Chetan Mathur remained inside.
After sometime, Mr. Chetan Mathur came outside the room of the accused and told me that the accused was not satisfied with the said consignment and was saying that I was doing illegal work and he further told me that the accused was demanding 2 Rs. per carat (in weight), which comes to around Rs. 4,70,000/ in total as my consignment was weighing around 45 Kg and there are 5000 carats in 1 Kg and 5 carats in 1 gm. I told Mr. CC No. 137/14, CBI Vs. Anil Yadav Page No. 42 of 88 Chetan Mathur that I cannot pay such a huge amount as my consignment itself was valuing only Rs. 4,50,000/ and I refused to pay. I flatly told Mr. Chetan Mathur that I will not pay any money and I asked him to talk with the accused for getting the consignment released. Mr. Chetan Mathur had again gone to the room of the accused and came outside after sometime and told me that the accused did not agree for release of the consignment.
Then I had asked Mr. Chetan Mathur to offer Rs. 500 per kg to the accused, but Mr. Mathur was reluctant to go with the above offer and told me that the amount being offered was too less. I told him to go and offer the above amount to the accused and if the accused does not agree for the same, I will do something else to get the consignment released. Thereafter, Mr. Chetan Mathur had gone to the room of the accused and again came outside after sometime and told me that the accused had accepted my above offer. I asked him about the release of the consignment, to which Mr. Mathur replied that it will be release immediately on making of the above payment.
We both came outside the office of the Customs and then I had searched the address of CBI office on my mobile through internet and asked Mr. Mathur to take the vehicle to the CBI office. After reaching the CBI office, I was told to meet one S. P. Singh, an officer of CBI. Till then, Mr. Mathur was not aware about my plans. I told Mr. S. P. Singh that the accused was demanding bribe from me for releasing my consignment and after being satisfied, Mr. S. P. Singh took me and Mr. Mathur to some Sr. Officer of CBI. I told Mr. S. P. Singh the entire facts and he asked from me as to where the demanded bribe amount was to be paid by me and I told him that the place of delivery was yet to be fixed. I was asked to remain in the CBI office and Mr. Chetan Mathur was allowed to go".
48. Thus, it is clear from the above depositions made CC No. 137/14, CBI Vs. Anil Yadav Page No. 43 of 88 by the complainant/PW14 himself on record that he does not even talk about the making of any demand of bribe by the accused from him on 18.06.2014 @ Rs. 500 per kg, i.e. amounting to a total of Rs. 22,500/, as was alleged by him in his written complaint Ex. PW12/A (D1) on record. Rather, his depositions suggest that whatever demands of the alleged bribe, whether @ Rs. 2 per carat or @ Rs. 500 per kg, were made by the accused, the same were made from the CHA/PW8 and not from him as, according to him, it was the CHA/PW8 who was visiting the room of the accused again and again for negotiating the bribe amount and he himself was made to sit outside the room. However, as already discussed above, the CHA/PW8 has not at all corroborated or supported his above claims and according to him, no demand of any bribe was made by the accused from him on 16.06.2014, 17.06.2014 or even on 18.06.2014. The relevant depositions made by the CHA/PW8 in his chief examination dated 24.04.2015 with regard to the incidents of 18.06.2014 are also being reproduced herein below: "The importer was aggrieved with the delay in release of the consignment and hence, when he visited our office on 18.06.2014, he was taken to import shed and introduced with Sh. Anil Yadav, the Appraiser. I had also handed over the NOC, against bill of entry, to the importer Mr. Haresh Gajipara and he told me that he himself will get the consignment released as the same stood already delayed. The above NOC was never handed over back to me by the importer. I never met Sh. Anil Yadav again after 18.06.2014, in connection with the consignment of this case or the report pertaining to the same".
CC No. 137/14, CBI Vs. Anil Yadav Page No. 44 of 88
49. Some of the relevant depositions made by the CHA/PW8 during his cross examination dated 03.06.2015 in this regard are also being reproduced herein below: "It might be around 11.30 AM or 12 Noon when I had taken the importer to accused Anil Yadav on 18.06.14. We had stayed with accused Anil Yadav on 18.06.14 for about 1015 minutes only and I had been present with the importer throughout during his meeting with accused Anil Yadav and we came out together. In my presence, the importer did not go to meet the accused again alone on 18.06.14. It is correct that no meeting took place between me and accused Anil Yadav on 17.06.14".
"On 18.06.14, the accused did not demand anything from me or from the importer in my presence. It is correct that on 16.06.14, I was not able to satisfy the accused during the inspection and that was the reason I and the importer were asked to again come on 18.06.14 with all the relevant documents pertaining to the above consignment".
50. Thus, the depositions made by the CHA/PW8 show that no demand of any kind of bribe was made by the accused from him or in his presence from the complainant/PW14 on 18.06.2014 or even on 16.06.2014, as already discussed. Even the depositions made by the complainant/PW14 make it clear that no bribe was demanded by the accused on 18.06.2014 from him or from the CHA in his presence. The contrary depositions of the complainant/PW14 regarding the making of alleged demand of bribe by the accused from the CHA/PW8 on 17.06.2014 and conveying of CC No. 137/14, CBI Vs. Anil Yadav Page No. 45 of 88 the said demand by the CHA/PW8 to him have not been substantiated on record by the CHA/PW8 and hence, the above contradictory evidence led by the prosecution on record on this vital aspect pertaining to the demand of the bribe is sufficient to falsify the contents of the above complaint Ex. PW12/A (D1) made by the complainant/PW14 to the CBI and to destroy the very roots of the prosecution case. The same is, therefore, not sufficient to constitute or show any initial demand of bribe on the part of the accused, either from the complainant/PW14 or from the CHA/PW8.
51. Though Ld Sr. PP for CBI has argued that the demand of bribe on the part of the accused is duly established from the contents of the above complaint Ex. PW12/A (D1) on record, which was made by the complainant/PW14 to the CBI, and no further proof in this regard is required when the said complaint has been proved by the complainant/PW14 himself, but there is no merit in this submission being made by Ld Sr. PP for CBI as the accused cannot be held guilty and convicted merely on the basis of the allegations made in the above complaint, which have not been proved on record by any substantive evidence. Moreover, both the CHA/PW8 as well as the complainant/PW14 have also specifically stated on record that at the time of inspection of the above consignment of diamonds, the accused was not satisfied regarding the valuation declared for the said consignment and the nature of CC No. 137/14, CBI Vs. Anil Yadav Page No. 46 of 88 the diamonds and it is for the said reason that the accused had asked the CHA/PW8 to call the complainant/PW14 to Delhi. It is also the admitted case of the prosecution that the complainant/PW14 had then reached Delhi and met the accused on 18.06.2014 with all the relevant documents pertaining to the said consignment, i.e. like the tools catalog and diamond catalog and the bills of entries etc of the previous consignments imported by him through Delhi. The complainant has also specifically deposed on record that he was questioned by the accused regarding importing the said consignment through Delhi and not through Mumbai and he had further explained the purpose, process and use etc of the above imported synthetic diamonds. The CHA/PW8 has also stated on record that the objection which the accused had raised at the time of inspection of the diamonds on 16.06.2014 was to the effect that the said diamonds were meant for use in jewellery and not for industrial use. Even in his statement made U/s 313 Cr.P.C., the accused has admitted of having inspected the said consignment of diamonds on 16.06.2014 and of having raised certain objections about the valuation and nature of the above consignment of diamonds. However, simply because the accused had raised certain objections regarding the valuation and nature etc of the said consignment and had also called the complainant/PW14 to Delhi to explain the above, no presumption can be drawn by this court against the accused that it was done with an intent only to raise or CC No. 137/14, CBI Vs. Anil Yadav Page No. 47 of 88 make a demand of bribe by him from the complainant/PW14 or his CHA/PW8.
52. One other argument of Ld Sr. PP for CBI is that though the inspection of the said consignment was admittedly conducted by the accused on 16.06.2014, in the presence of the CHA/PW8, but the Inspection Report Ex. PW4/A (D8) on the last page of bill of entry Ex. PW7/A (D8) was not given by the accused at the time of said inspection or on 16.06.2014 and with some malafide intentions of demanding of bribe for clearing the said consignment, he had intentionally kept his report pending and had given it only on 18.06.2014. Here again, no inference can be drawn or acted upon by this court against the accused that it was done by the accused in furtherance of his intents to make any such demand of bribe as it has already been discussed above that he was not satisfied regarding the nature of the diamonds and the valuation of the said consignment. Hence, there is nothing wrong if the accused had not given his above Inspection Report Ex. PW4/A (D8) on 16.06.2014 and had given it on 18.06.2014 as the same appears to have been given only after the complainant/PW14 met him on 18.06.2014 and satisfied him regarding the said consignment. Even otherwise, there was also no requirement under the Customs Manual or any other procedure of the said department that the above Inspection Report should have been given by the accused at CC No. 137/14, CBI Vs. Anil Yadav Page No. 48 of 88 the very time of inspection itself as no such rule or provision could have been inserted or made therein for the simple reason that it could never have been possible to give the reports of such valuations then and there.
53. Moreover, it is the admitted case of prosecution that vide his Inspection Report Ex. PW4/A (D8) dated 18.06.2014, the accused had cleared the said consignment for release and the consignment was also actually released to the complainant on 20.06.2014. The above report given by the accused is to the effect that the five packets of the consignment had been opened and examined by him, in the presence of the CHA, and the same were found to contain the goods, i.e. synthetic diamonds, as per the invoice and packing list and the valuation of the goods also appeared to be fairly correct. The accused had been allegedly trapped with the bribe amount only at around 7:30/8:00 PM on 18.06.2014 from the above place, whereas the evidence led on record shows that he had already given the above report and cleared the said consignment sometime after 12:00 noon, when the complainant/PW14 had met him in his office. Further, as per the procedure deposed by PW4 Sh. Rajender Kumar, Deputy Commissioner Customs, after such a report of inspection is finalized and prepared by an Appraiser, the same was to be handed over to the CHA and the CHA then took it to the concerned Inspector or Superintendent of Customs and then CC No. 137/14, CBI Vs. Anil Yadav Page No. 49 of 88 the same used to be entered in the computer system, along with comments/remarks of the concerned Inspector or Superintendent, and once the above report reached to the above officials, it could not have been taken back or changed by the Appraiser. During his crossexamination, the complainant/PW14 has also admitted on record that when the conclusion of the trap proceedings, he visited the office of the CHA/PW8 in the morning of 19.06.2014 for getting his consignment released, he was surprised to see the file regarding his consignment available in the office of the CHA and on being questioned, the CHA told him that the said file was handed over to him by the accused yesterday, i.e. on 18.06.2014, after signing the said file for release of the consignment. Hence, when the accused had already given his above report of clearing the said consignment for release, after meeting the complainant/PW14 in his office during the noon hours on 18.06.2014, and had even handed over the Inspection Report and the file to the CHA/PW8 for getting the consignment cleared for release, there was no question or occasion of making any demand of bribe and acceptance thereof by him from the complainant/PW14 or CHA/PW8 thereafter. Ld defence counsel has rightly argued that the possibility cannot be ruled out that the CHA/PW8 himself was playing a dubious role and was raising or making demands of bribe on his own part, though in the name of the accused, and this argument is further strengthened from the depositions CC No. 137/14, CBI Vs. Anil Yadav Page No. 50 of 88 made by the complainant/PW14 in this court when he has stated that it was the CHA/PW8 who was conveying the demands of bribe to him and negotiating with the accused for settling the bribe amount during his meeting with the accused on 18.06.2014.
54. Now some other evidence led on record regarding the alleged demand of bribe made by the accused during the course of the verification proceedings is also to be considered and appreciated. It is the prosecution case that after the complainant/PW14 had approached the CBI office on 18.06.2014, he had given his above complaint Ex. PW12/A (D1) in writing and the said complaint was assigned to PW12 Inspector P. Shadang for enquiry. PW12 had arranged the presence of an independent witness/PW13 Sh. Sudheer Shokeen and also a DVR and a blank memory card of 4GB capacity and after the formal introduction of the complainant and the independent witness, the complainant was asked to make a call to the accused and the said call was made from the mobile number 9426857996 of the complainant to the mobile number 9818165272 of the accused and the conversation between the complainant and the accused was heard by all, while keeping the mobile phone of the complainant in loudspeaker mode, and it was also simultaneously recorded in the above DVR. As per the prosecution case, as well as the depositions made by PW12, CC No. 137/14, CBI Vs. Anil Yadav Page No. 51 of 88 since the said conversation established the demand of bribe on the part of the accused, the verification memo Ex. PW13/A (D2) was prepared and PW12 had recommended the registration of a regular case U/s 7 of the PC Act against the accused and subsequently the FIR Ex. PW16/A (D3) of this case was registered by the CBI.
55. On this aspect, PW13 Sh. Sudheer Shokeen has deposed about his joining the proceedings, on the directions of his senior officers. He claims that sometime after 4:00 PM, he was introduced by the DO of CBI with some officer and that officer had taken him to a room, where he was introduced with the complainant Mr. Haresh G. Gajipara and was told about his complaint. He has stated that the above complaint was regarding the clearance of some consignment of diamonds at the airport and he (complainant) had complained that 23 days prior, he (complainant) approached the Excise Department for clearance of the consignment, but one Mr. Anil Yadav (accused) had demanded some money for clearing the said consignment. This part of his depositions regarding his being apprised about by the complainant regarding the demand of bribe from the complainant 23 days prior to that day, i.e. 18.06.2014, is not believable and is also against the case of the prosecution itself.
56. PW13 has then also deposed about the making of CC No. 137/14, CBI Vs. Anil Yadav Page No. 52 of 88 a call by the complainant/PW14 to the accused from his mobile phone, the playing of the conversation between them through the loudspeaker of the mobile phone for hearing thereof by all and also its recording in some recording device. He further states on record that in the above conversation, the complainant expressed his inability to pay the demanded amount, which he could not remember, and also told the accused that he (complainant) could pay only Rs. 18,000/ and the accused then asked the complainant to come with the said amount. He further states that thereafter also, the complainant had received 23 other calls from the accused, which were attended by the complainant, but he could not recollect the contents of the entire conversations between the accused and the complainant, but has also deposed that in one such conversation, the complainant told the accused that he was not having even Rs. 18,000/ at that time and his ATM card was stuck in the machine and he will have to take money from his friend. He has further stated on record that 12 other calls between the complainant and the accused were also recorded outside the office of CBI, just to show that the complainant was in traffic, but he was not there during the said calls. His above depositions appear to have been made with reference to the calls which were exchanged between the complainant and the accused in connection with the said transaction, whether in the office of CBI during the verification proceedings or during the pretrap or trap proceedings as this witness had also CC No. 137/14, CBI Vs. Anil Yadav Page No. 53 of 88 subsequently participated in the trap.
57. However, nowhere he has specifically deposed on record that in any of such calls, the accused made any specific demand of any amount of money or bribe from the complainant during the said verification proceedings or even thereafter. During his cross examination, he was specifically questioned by Ld defence counsel in this regard and he has stated on record specifically that in none of the conversations between the complainant and the accused, which he was made to hear in the CBI office, he heard any demand of money being made by the accused from the complainant or even any reference of any particular amount by the accused. He has further volunteered that he could not hear the conversations properly and whatever about the money was stated, it was stated by the complainant himself.
58. The complainant/PW14 himself on this aspect has stated that in the CBI office, he was asked to give in writing regarding the filing of a case and his signatures were taken on that writing. He has further stated that two other persons were also there and they were introduced to him as witnesses and then the CBI officers started the process of his case and one device known as DVR was arranged and he was asked to record his name and parentage etc in the said device and the details of the witnesses were also recorded in that device. He CC No. 137/14, CBI Vs. Anil Yadav Page No. 54 of 88 has further stated on record that he had inadvertently left his catalog etc in the Customs Office and after sometime, he received a call from the accused and the accused asked from him as to why he had not taken his parcel with him. He has also stated that perhaps, the accused had taken his number from the above catalog. He claims to have told the accused that he was busy in arranging the money and further that he will take his parcel as soon as the same is arranged. He also states that the accused then told him to take the parcel first and the money could be arranged later on. On being asked by the accused about his location, he told the accused that he was at some ATM booth and his card was stuck in the ATM machine and he was not in a position to reach the accused as he was not having any conveyance. He also told the accused that he was going to a friend in Rohini for arranging the money and further that he will come to take his parcel at around 5:00 PM.
59. He has also stated on record that 34 CBI officers were preparing for the raid and they were being prepared and given some training for the same and he was also given some training and was told as to what he had to say and do, but he was not able to remember the instructions given to him. He has further stated that after sometime, he again received a call from the accused and the accused told him that he (accused) has to come somewhere and insisted him to take the parcel.
CC No. 137/14, CBI Vs. Anil Yadav Page No. 55 of 88 He further states that they became late in the CBI office for the raid as no vehicle in the CBI office was available and it was only at around 6:30 PM that they had left the CBI office and he also states that even about 15 minutes prior to their leaving the CBI office, the accused had given a call to him and in this conversation, he told the accused he had already cancelled his flight scheduled for 5:00 PM as he was getting late and the accused told him that if he had any problems, then the accused would reach at his place.
60. It transpires from the above depositions made by the complainant on record that three calls were exchanged between him and the accused prior to their leaving the CBI office and all these calls were made by the accused to him and the fourth call made by him to the accused was only when they had left the office of CBI. These depositions made by the complainant are in sharp contrast and in contradiction to the depositions made by the independent witness/PW13 Sh. Sudheer Shokeen, who had stated that it was the complainant who was made by the CBI officers to first make the frequent calls to the accused during the above proceedings and even the depositions made by PW12, the verification officer, and the TLO/PW16 on this aspect show that the initial calls were made by the complainant/PW14. In any case, though PW12 has deposed that the conversations held between the complainant and the accused during the verification proceedings CC No. 137/14, CBI Vs. Anil Yadav Page No. 56 of 88 established a demand of bribe on the part of the accused and it is also mentioned so in the verification memo Ex. PW13/A (D2) prepared and proved by him on record (though inadvertently not exhibited in his statement), but from the contents of the depositions made by the complainant/PW14 himself or even by the independent witness/PW13 Sh. Sudheer Shokeen, which are specifically to the effect that the accused never demanded any money from the complainant during such conversations, no demand of bribe on the part of the accused even during the said proceedings is established by the prosecution on record by any satisfactory evidence. The reference to some money or the amount of Rs. 18,000/ as made by the complainant/PW14 during his above conversations with the accused and in his above depositions cannot constitute such demand of bribe on the part of the accused.
61. Besides the above evidence, the IO/PW17 had also seized during the investigation certain records pertaining to the above mobile number 9818165272 being used by the accused and the said records consist of the Subscriber Application Form (SAF) Ex. PW3/A, a photocopy of the ration card of the subscriber Ex. PW3/B and the Call Detail Record (CDR) Ex. PW3/C of the said mobile, accompanied by a certificate U/s 65B of the Evidence Act Ex. PW3/D given by this witness regarding the genuineness and authenticity of the CC No. 137/14, CBI Vs. Anil Yadav Page No. 57 of 88 above Call Detail Record (all these documents are part of D18). According to this witness, there were total five calls and four SMSs exchanged between the complainant and the accused at and around the relevant time on the above day of trap, i.e. 18.06.2014, and first of these conversations was in the form of an incoming call received by the accused from the complainant at 17:11:04 and the last call was also an incoming call from the complainant received at 20:35:37. Out of these five calls, the first two calls were made by the complainant, the third call was made by the accused, followed by three SMSs sent by the complainant and one by the accused and the fourth and fifth calls were also made by the complainant. PW3 has also stated on record that the above CDR was retrieved from the server room of their company, which was located in Noida and he had been given an access of the server with a unique user name and password to have the said records, which are stored in the server of their company automatically and it was not possible to humanly tamper with or change the stored record and further that the said record was provided in the HTML format, which could not have been tampered with.
62. Though, the above secondary evidence in the form of CDR of the above mobile number of the accused apparently appears to be admissible in evidence and has not been challenged by Ld defence counsel on technical grounds, but he has pointed out certain discrepancies regarding the CC No. 137/14, CBI Vs. Anil Yadav Page No. 58 of 88 said calls as contained in this document and the oral evidence brought on record in the form of the depositions made by the complainant/PW14 himself. One discrepancy pointed out is as to who had made the said calls as according to the complainant, the first three calls to the accused from the CBI office were made by him, whereas according to this document, the first and second calls at points A1 and A2 were made by the complainant/PW14, whereas the third call at point A3 was made by the accused. Even some discrepancies in the alleged timings of making these calls have also been pointed out. Moreover, no presumption or inference can be drawn by this court merely from the exchange of the above calls between the parties that during the said calls or conversations between them, the accused had made or raised a demand of any bribe from the complainant. Even otherwise, this evidence in the form of CDR could only have been used by the prosecution only for the purposes of corroboration of the other substantive evidence on the point of demand of bribe, which has been found missing by the court, and it cannot be converted into a piece substantive evidence and made the basis of conviction of the accused. Further, as far as the exchange of SMSs between them is concerned, there is nothing in the entire evidence led on record, or even any whisper thereof made by the complainant himself, as to in what context the said messages were exchanged between them or of the contents of these messages. Moreover, unless CC No. 137/14, CBI Vs. Anil Yadav Page No. 59 of 88 and until, the contents of the said messages are brought and proved on record as per the provisions of the Evidence Act, it also cannot be presumed or inferred that the same contained or constituted any such demand of bribe on the part of the accused or were made exchanged in relation to the same.
63. Further, the prosecution has also brought on record one transcription of the entire recordings and conversations of this case as Ex. PW11/E colly (D19) and this is transcription of the recordings contained in different files of the above memory card, which was used in recordings of this case with the help of the above DVR. This transcription is in the form of a document called Transcription Cum Voice Identification Memo and going by the date which this document is bearing, it was prepared on 16.07.2014 by the IO/PW17 Inspector N. C. Nawal, in the presence of the complainant and the above two independent witnesses. However, even the very authenticity and genuineness of this document is under serious doubts as admittedly this was not prepared from the recordings contained in the original memory card Mark Q1, which was sealed and converted into a parcel on the day of trap proceedings itself, and this transcription was admittedly prepared subsequently by way of playing the contents of the CD also Marked Q1, which was allegedly prepared from the recordings of the original memory card on 18.06.2014. The above investigation CD is claimed to have CC No. 137/14, CBI Vs. Anil Yadav Page No. 60 of 88 been prepared by the TLO/PW16, but it is not clear as to with the help of which technical instrument or device, the said investigation CD was prepared by him and further admittedly, he had also not given any certificate U/s 65B of the Evidence Act regarding the genuineness and authenticity of the above process of making of the said CD or copying the contents of the said conversations from the recordings of the original memory card to the above CD. In the absence of such a certificate, the above CD could not have been treated as a secondary evidence of the contents of the said recordings transferred therein and could not have been admissible in evidence in this court, in view of the law laid down by the Hon'ble Supreme Court in case of Anwar P.V. Vs. P. K. Basheer & Ors. Civil Appeal No. 4226/2012 decided on 18.09.2014 and also by the Hon'ble Delhi High Court in case of Ankur Chawla Vs. CBI & Ors, Crl. M.C. No.2455/12 & Crl. M.A. No. 8318/2017. Hence, even the above transcription of the alleged recordings prepared on the basis of the above CD cannot said to be an admissible document under the provisions of law and cannot be considered by the court.
64. Moreover, besides the above, there are also certain other discrepancies regarding the timing and manner of preparation of the above transcription Ex. PW11/E. Neither the complainant nor any of the above two independent witnesses has specifically stated on record that they had CC No. 137/14, CBI Vs. Anil Yadav Page No. 61 of 88 visited the office of CBI on 16.07.2014 in connection with the preparation of the said document and had signed this document on the alleged day of its preparation, though they had simply identified their signatures appearing on the above document. Besides deposing about his participation in the trap proceedings, PW11 has only stated that after about three months thereof, i.e. the day of conduction of the trap proceedings, he was again called in the CBI office for writing down his statement in connection with his participation in the said proceedings and his these depositions are certainly not with reference to the preparation of the above transcription, which was allegedly prepared after about one month only from the date of the trap. The other independent witness/PW13 is also silent regarding his visit to the CBI office on that day of preparation of the above document or his presence at the relevant time of its preparation and even the complainant/PW14 himself has not deposed anything regarding the same, though they all have identified their signatures on the said document. Hence, simply the identification of the respective signatures of the above witnesses by them cannot be considered to be a proof of the said document and even this transcription of the alleged recordings cannot be held and acted upon as an authentic document. Moreover, it was also to be used only for the purposes of corroboration and not as a substantive piece of evidence about the demand of bribe, which could have come CC No. 137/14, CBI Vs. Anil Yadav Page No. 62 of 88 on record only out of the mouth of the complainant/PW14 himself and the other relevant witnesses on the above aspect.
EVIDENCE ABOUT ACCEPTANCE AND RECOVERY OF BRIBE MONEY
65. As already discussed above, the next equally important element of the above offences pertaining to corruption by public servants is the acceptance of bribe by the concerned public servant. Unless and until, there is a clear and convincing evidence to show the acceptance of the bribe amount by the accused, he cannot be held guilty and punished for the above said offences even though some evidence regarding demand of bribe on his part could have been there on record. Further, even with regard to the recovery of the bribe amount, it is desired that all the evidence brought on record should be scrutinized and analyzed in entirety and the prosecution must prove that the accused was aware about the nature of the recovered amount as bribe or he was consciously possessing the said amount as bribe. On this aspect, the relevant witnesses of the prosecution story are the complainant/PW14 himself, two independent witnesses Sh. Nand Kishore/PW11 and Sh. Sudheer Shokeen/PW13 as well as the two officials of the CBI who had participated in the above trap proceedings, i.e. PW15 Inspector Pramod Kumar and the TLO/PW16 Inspector S. P. Singh. PW11 Sh. Nand Kishore, one of the two independent witnesses is the person CC No. 137/14, CBI Vs. Anil Yadav Page No. 63 of 88 who had acted as a shadow witness and the other independent witness/PW13 Sh. Sudheer Shokeen is alleged to be the witness of recovery of the above bribe amount from the car of the accused. However, when the depositions of all the witnesses are appreciated in entirety by this court, the same are found to be full of material contradictions and discrepancies and the court is forced to form an opinion that the same do not even show or constitute the acceptance of the alleged bribe amount of Rs. 18,000/ by the accused from the complainant and make the entire circumstances surrounding the acceptance and recovery of the alleged bribe amount to be highly doubtful.
66. PW11 Sh. Nand Kishore has deposed in brief regarding the pretrap proceedings conducted in the CBI office and their departure for the undisclosed spot for trap, after the above currency notes of Rs. 18,000/ treated with some chemical were put in the right side pocket of the complainant. Though, as per the prosecution case, it was he who had put these notes in the pocket of the complainant/PW14, but he has kept mum on this material aspect of the prosecution story and has not made any such claim. He has stated only that he was told to follow the complainant by remaining at a distance of about 4 feet from the complainant, so that he can watch the proceedings, and other members of the team were also following them independently. He claims that thereafter, the CC No. 137/14, CBI Vs. Anil Yadav Page No. 64 of 88 complainant had gone to sit in the vehicle of the said person, i.e. the accused, who was sitting on the driving seat of his vehicle, and the complainant remained seated there on the front left seat for about 1015 minutes. Then he talks about giving of some prefixed signal by the complainant to the CBI officials, but strangely enough, he was not able to tell as to what this signal was, though the entire pretrap proceedings were held in his presence. He also claims that he was standing at a distance of about 810 feet from the car and on receiving of the said signal from the complainant, the CBI officials had surrounded the car of the accused. He also states that the driving side gate of the car was then opened by the CBI officials and then he talks about taking the chemical washes and their subsequent going to the CBI office for further proceedings. However, nowhere in his entire statement, he has claimed or stated on record that he had seen the complainant handing over or the accused accepting the above currency notes of Rs. 18,000/ from the complainant. Further, though he has deposed about taking of the chemical washes by the CBI officials, but he has also not stated anything on record as to from which particular place or portion of the said car, the above currency notes of Rs. 18,000/ were recovered by the CBI officials and this was despite the fact he was very much present at the relevant time when the accused was allegedly apprehended from the spot and the proceedings at the spot were also conducted in his presence and further as CC No. 137/14, CBI Vs. Anil Yadav Page No. 65 of 88 per the depositions made by the TLO/PW16, this witness had also gone to sit on the rare seat of the car of the accused immediately after his apprehension.
67. PW13 Sh. Sudheer Shokeen has also deposed regarding the conduction of the verification as well as the pre trap proceedings in the office of CBI and further about their departure towards Punjabi Bagh, after the above currency notes of Rs. 18,000/ were put in the pocket of the complainant by the shadow witness. Regarding the proceedings conducted at the actual place of trap he states that after the complainant had come to know about the exact location of the accused on making a telephonic call to him, he and other members of the trap team remained behind and the complainant was asked to go and sit in the vehicle in which the accused was sitting. He also states that after waiting for about 10 minutes, the complainant gave a miss call to an Inspector of CBI and then the CBI officers had gone to trap the accused and it was sometime after 8:00 PM. He has further stated that since he was far behind from the said car, he could not see as to what happened inside the car, though however, after sometime, he was called near the car and had found the accused being held by the Inspectors of CBI inside the said car. He has also stated that then an Inspector of CBI asked to call the recovery witness and then on being called, he reached just near the car and was asked to see where the above money was kept in the CC No. 137/14, CBI Vs. Anil Yadav Page No. 66 of 88 car. He claims that the complainant then pointed out the place where the money was kept and it was somewhere in the front portion of the car, but he was not able to remember the exact place where the same was kept. Then he states that he recovered the money and on being asked by the CBI officers, he had counted the currency notes and also tallied their numbers and then kept the money with him, as instructed by the CBI officers. Then he also talks about the taking of the chemical washes and their going to CBI office for further proceedings etc. However, it is clear from the above depositions made by him on record that even he does not claim to have seen the complainant handing over the above bribe amount of Rs. 18,000/ to the accused or the acceptance thereof by the accused as he has stated that he was standing at a distance from the car and does not know as to what happened inside the car. Even regarding the place or portion of the car from where the above bribe amount was recovered, he was not sure as to at which particular place or portion of the car the said money was kept at the time when he was asked to recover the same.
68. Now coming to the depositions of the complainant/ PW14 himself, who is the most material witness of the prosecution story on this aspect also, he has deposed in detail about the import of his above consignment and the reasons why he had come to Delhi and had approached the CC No. 137/14, CBI Vs. Anil Yadav Page No. 67 of 88 CBI with his above complaint. He also deposes about the verification and other proceedings conducted in the CBI office and most of his depositions touching upon the element of demand of bribe have already been discussed and appreciated by this court. Regarding the aspect of acceptance of the bribe amount and its recovery from the accused, he has stated on record that he was instructed by the CBI officers to go near the car of the accused and to stand outside the car, but not to sit in the car so that the accused may not take away the car to some other place. His these depositions are in sharp contrast and contradiction to the depositions made by the independent witness/PW13 who claims that the complainant was instructed to go and sit in the car of the accused.
69. For proper appreciation of his depositions regarding the manner in which he had handed over or given the above bribe amount to the accused, the relevant extracts of his examination in chief dated 17.09.2015 are being reproduced herein below: "When I reached near the car of the accused and opened the front left side door of the said car, I asked the accused to come out of the car. However, the accused told me to come inside the car and though I initially refused for the same, but ultimately I entered his car and sat on the front left seat of the car, despite the fact that I was strictly instructed by the CBI officers not to sit inside the car. I kept on conversating with the accused for about 1015 minutes and we remained talking on other issues and accused was telling me about the atmosphere in Delhi. I was thinking all this CC No. 137/14, CBI Vs. Anil Yadav Page No. 68 of 88 time as to why the accused was not demanding the money and I was also conscious of the fact that I was being followed by the CBI officers and no wrong takes place to the accused. After about 15 minutes, I had taken out the above amount of Rs. 18,000/ from my pocket and kept it either in the gear box or in the dash board of the car of the accused. As instructed by the CBI officers, I had given a missed call to them as soon as I had kept the above amount in the car.
The CBI officers immediately reached near the car and I was told by them to come out of the car and go behind the car. As soon as I had reached behind the car of accused, some quarrel took place there between the two other persons standing there and many persons started gathering on the said quarrel. I was worried on seeing the same as one side the quarrel was going on and on the other side, the above incident had taken place in the car. Thereafter, some proceedings were conducted in the car, but I am not aware about the same as I remained standing behind the car of the accused. At the end of the proceedings, the accused was taken out of his car and made to sit in the CBI vehicle and I was asked to drive the car of accused and to follow the vehicle of CBI and accordingly, we reached back in the office of CBI at around 11:30 PM".
70. Thus, even the depositions made by the complainant himself nowhere show that he had actually given or handed over the above bribe amount of Rs. 18,000/ to the accused, on the demand of accused or otherwise, or it was accepted by the accused from him and all he states on record is only that he had taken out the said amount from his pocket and kept it either in the gear box or at the dash board of the car of the accused as the accused was not demanding the money and he was conscious of the fact that he was being followed by the CBI officers. His these depositions even show CC No. 137/14, CBI Vs. Anil Yadav Page No. 69 of 88 as if he was under the pressure of the CBI officers to give, hand over or part with the money to/for the accused and under that pressure, he had put or placed the said amount of Rs. 18,000/ in the car of the accused, though he was not even able to remember as to in which particular place or portion of the car it was kept by him. His these depositions certainly cannot constitute the acceptance of bribe amount by the accused nor the same are sufficient to establish the particular place from where the said amount was recovered. Hence, the depositions of the above three material witnesses of the prosecution story on this aspect are found to be entirely lacking in nature and spirit to establish the acceptance of bribe by the accused or the place of recovery thereof.
71. Now, coming to the depositions made by PW15 and the TLO/PW16, they both have deposed in detail, almost on the lines of the prosecution story, regarding the different proceedings conducted by them in connection with the above trap. On the lines of their story, they also talk about the recovery of the tainted currency notes from the dash board of the car and as per them the notes were found kept on the dash board, on the right side of steering of the car. Since neither in the statements of the two independent witnesses nor in the testimony of the complainant/PW14, it has come on record that the above tainted currency notes were accepted by the accused or the accused had even touched or counted CC No. 137/14, CBI Vs. Anil Yadav Page No. 70 of 88 these notes, to justify their story regarding the taking of washes of the fingers of both hands of the accused, besides the wash of the dash board of the car, and turning of the colour of these washes to be pink, both these official witnesses have specifically stated on record that after the apprehension of the accused, the complainant narrated them that he had handed over the said currency notes to the accused only on demand from the accused and the accused had though initially kept the said notes on the dash board of the car, but then, upon the insistence of the complainant, the accused had counted these currency notes and again put the same on the dash board of the car. Further, though the TLO/PW16 is silent regarding the manner in which the above demand of the tainted currency notes/bribe amount was made by the accused from the complainant, but PW15 has also stated on record that the said demand was made by the accused through gestures, while he was conversing with the complainant sitting in the said car. However, in the absence of any such depositions made by the complainant himself regarding handing over of these currency notes by him to the accused personally or the acceptance or counting of these notes by the accused with his hands, the above depositions made by these two official witnesses of CBI cannot be given any weight and made the basis of arriving at a conclusion about the acceptance of the above bribe amount by the accused. Similarly, in the absence of any specific depositions CC No. 137/14, CBI Vs. Anil Yadav Page No. 71 of 88 made by the complainant or the two independent witnesses regarding the particular place of recovery of the said bribe amount from the car of the accused, the depositions made by these two witnesses that the same was recovered from the dash board of the car, from the right side of the steering, also cannot be accepted. Hence, the evidence led by the prosecution on record even on this vital aspect of acceptance of the bribe amount by the accused is found to be not sufficient or convincing enough to prove the said ingredients.
72. It has also been argued by Ld Sr. PP for CBI that during the course of making submissions in his statement recorded U/s 313 Cr.P.C., the accused has admitted that he was apprehended from the above place with the complainant by some persons in plain clothes and was also taken to the CBI office and there is no satisfactory explanation on record furnished by the accused as to why he had gone to meet the complainant at the above place and it clearly shows that the meeting of the accused with the complainant at the said place was only for the purpose of acceptance of the bribe amount. However, as already discussed above, the evidence led by the prosecution on record is not sufficient to constitute the demand and acceptance of bribe from the complainant by the accused. Hence, simply because the accused has admitted of his having been apprehended from the above place, no presumption or inference can be drawn therefrom that he had CC No. 137/14, CBI Vs. Anil Yadav Page No. 72 of 88 reached or met the complainant at the said place for acceptance of the bribe.
73. Moreover, in his defence, the accused has also examined on record one defence witness Sh. Rajesh Kumar and this witness has claimed that on the relevant day, he had given a call to the accused in connection with the parcel of some gold seized at the IGI Airport and Ld Sr. PP for CBI has not disputed the said call or these depositions of the defence witness. The accused has also claimed during his statement made U/s 313 Cr.P.C. that he was on the way to his office/IGI Airport from his residence at Ramesh Nagar at the relevant time and he met the complainant at the said place merely because the complainant was consistently calling and insisting him for a meeting. Therefore, it is probable that the above defence evidence and submissions being made by the accused may be correct and no presumption can be raised by this court that the defence evidence being produced on record is false. Again, as already discussed in the case law cited earlier on the subject of bribe, it is for the prosecution to prove its case against the accused beyond reasonable doubts and the onus placed upon the accused for proving his innocence, even despite the presumption contained U/s 20 of the PC Act, cannot be equated with the degree of burden which is placed upon the prosecution.
CC No. 137/14, CBI Vs. Anil Yadav Page No. 73 of 88
74. While dealing with the extent of the burden of proof placed upon the prosecution and the defence of an accused, it has been held by the Hon'ble Supreme Court in case titled as Krishna Janardhan Bhatt Vs. Dattatraya G. Hegde, (2008) 2 SCC (Cri) 166, as under:
"34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."
75. It is also held by the Hon'ble Supreme Court in case titled as Sanjiv Kumar Vs. State of Punjab (2010) 3 SCC (Cri.) 330, as under: "20. We cannot lose sight of the principle that while the prosecution has to prove its case beyond reasonable doubt, the defence of the accused has to be tested on the touchstone of probability. The burden of proof lies on the prosecution in all criminal trial, tough the onus may shift to the accused in given circumstances, and if so provided by law. Therefore, the evidence has to be appreciated to find out whether the defence set up by the applicant is probable and true.
23. It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose, and cannot be ignored outright. In every case the court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard."
CC No. 137/14, CBI Vs. Anil Yadav Page No. 74 of 88 EVIDENCE REGARDING VOICE IDENTIFICATION
76. It is the case of the prosecution that the sample voice of accused was taken on the same day in the CBI office, during the proceedings conducted after the trap, and it was recorded in the same memory card with the help of the same DVR, which was used in the verification as well as the trap proceedings. The above original memory card containing the sample voice of the accused as well as his questioned voices recorded during the conversations between the accused and the complainant were then sent to the CFSL, New Delhi and were analyzed vide the report Ex. PW2/A (D23) given by PW2 Dr. S. K. Chaudhary, which stands duly proved on record from his depositions. As per this report, the questioned and sample voices of the accused were found tallying with and the same were opined to be probably the voices of the same person.
77. However, Ld defence counsel has rightly pointed out that the above original DVR used by the CBI officials in making the recordings of this case should also have been seized by the CBI and was required to be analyzed by the CFSL to make the above evidence of the prosecution to be more authentic and reliable. The non seizure of the original DVR has certainly affected adversely the credibility of the prosecution story and the admissibility of the above evidence CC No. 137/14, CBI Vs. Anil Yadav Page No. 75 of 88 about recordings. Moreover, it has also come on record during the statement of the TLO/PW16, as well as of PW2, that the above DVR used in the recordings of this case was also having its own inbuilt memory. The case of the prosecution is that the conversations of this case and the sample voices were recorded directly in the memory card and not in the inbuilt memory of the DVR, but this fact has also not been proved on record by any satisfactory evidence as the verification officer/PW12 Inspector P. Shadang has deposed that the blankness of the above memory card was ensured and the recordings put on the memory of the above card by some of his some subordinate official, who has not been cited as a witness in the present case. The official witnesses of CBI were not even properly conversant with the working of the above DVR. Moreover, even during the trial of this case, the prosecution has not got the voice of the accused identified from the relevant or concerned witnesses as the recordings containing the conversations between the accused and the complainant were neither played during the testimony of the CHA, the complainant or even the two independent witnesses and the TLO/PW16 and the same were played only before the subsequent IO/PW17 Inspector N. C. Nawal to whom, the investigation of the case was entrusted only subsequent to the actual trap proceedings and he could not have been in a position to identify the voice of the accused for the reason that he never personally heard the accused speaking.
CC No. 137/14, CBI Vs. Anil Yadav Page No. 76 of 88
78. Even otherwise, the evidence regarding the voice identification is scientifically not a very strong or conclusive evidence to be acted upon and Ld defence counsel has rightly relied upon the judgment in case Nilesh Dinkar Paradkar, Supra in this regard, wherein the following observations have been made by the Hon'ble Supreme Court: "31. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification.
32. In Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors. (1976) 2 SCC 17, this Court made following observations : '19. We think that the High Court was quite right in holding that the taperecords of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subjectmatter recorded had to be CC No. 137/14, CBI Vs. Anil Yadav Page No. 77 of 88 shown to be relevant according to rules of relevancy found in the Evidence Act.'
33. In the case of Ram Singh & Ors. Vs. Col.
Ram Singh 1985 (Supp) SCC 611, again this Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows: '(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker, it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Every possibility of tampering, with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.'
34. In Ram Singh's this Court also notices with approval the observations made by the Court of Appeal in England in the case of R. Vs. Maqsud Ali (1965) 2 AER
464. In the aforesaid case, Marshall, J. observed thus: '.....We can see no difference in principle between a taperecoding and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does not appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and CC No. 137/14, CBI Vs. Anil Yadav Page No. 78 of 88 otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.'
35. To the same effect is the judgment in the case of R. Vs. Robson (1972) 2 AER 699, which has also been approved by this Court in Ram Singh's case (supra). In this judgment, Shaw, J. delivering the judgment of the Central Criminal Court observed as follows: 'The determination of the question is rendered more difficult because taperecordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts'."
MISSING LINK EVIDENCE
79. Apart from the above, the entire link evidence in the chain of the prosecution case is missing and this discrepancy of the prosecution case further makes the other evidence led on record to be unworthy of acceptance. As per the prosecution story, the hand washes of the accused Mark LHW, RHW as well as the wash of the dash board of car Mark CDBW were taken by the TLO at the spot of trap itself and the parcels of these washes were also prepared and sealed at the spot and even the parcel of currency notes was prepared at the spot on 18.06.2014. However, as per the depositions made by PW5 Sh. V.B. Ramteke, who had examined the said washes, three sealed parcels of glass bottles containing the CC No. 137/14, CBI Vs. Anil Yadav Page No. 79 of 88 above washes were received by them only on 27.06.2014, having been forwarded by the SP, ACB, CBI vide letter dated 27.06.2014. There is no evidence on record to show as to where these parcels of above exhibits have remained during the said period and if the same were lying deposited in the malkhana of the CBI, as to when the same were deposited there and taken back for forwarding or deposit thereof with the CFSL authorities. Similarly, the sealed parcel of the original memory card was also allegedly prepared on the day of trap itself, when the accused was brought to the office of CBI, after the trap proceedings, and as per the depositions made by PW2 Dr. S. K. Chaudhary, this parcel was received by them from the CBI on 18.07.2014, i.e. almost a month after its preparation. Likewise the other parcels, no evidence is also led on record as to where this parcel had remained during the said period as neither the concerned malkhana incharge at the relevant time has been cited or examined as a witness in this case nor any record or register of the malkhana has been seized or produced in the court during the trial. Further, even the concerned officials of CBI who had taken and got these parcels/exhibits deposited with the CFSL, New Delhi have not been examined or cited as witnesses on record and because the above missing link evidence about the case property/exhibits, it can be said that the prosecution has also failed to prove that the case property/exhibits of this case had remained safe and intact during the period the same were CC No. 137/14, CBI Vs. Anil Yadav Page No. 80 of 88 lying in the custody of the CBI officers and till their examination by the CFSL experts.
80. Further, the prosecution has also not led on record any documentary evidence regarding the issuance of the above DVR, memory card, phenolphthalein and sodium carbonate powder etc from the malkhana in connection with the above trap proceedings or the return or redeposit of the residue of the phenolphthalein powder back in the malkhana, after the conclusion of the verification proceedings, because as already stated above, no record, document or register of the malkhana of CBI is a part of the evidence led on record and even the concerned malkhana incharge has not been examined as a witness. In the absence of this evidence, the possibility of misuse of the above articles by the CBI officials involved in the investigation of this case cannot also be ruled out, as has been argued by Ld defence counsel. Again, as per the TLO/PW16, the seal of CBI which was used in sealing the said parcels was handed over to one of the independent witness, but the evidence led on record fails to establish on record as to which of the above two independent witness the said seal was handed over or even that the same was actually handed over to any of them. There is also no evidence on record as to what happened with the said seal thereafter as the same has not been produced on record of the court by any of the two independent witnesses nor it is the case of the CC No. 137/14, CBI Vs. Anil Yadav Page No. 81 of 88 prosecution that it was returned back by such independent witness to any official of CBI. Hence, in the absence of the above missing link evidence about the seal also, even the entire veracity of the sealing process of these parcels becomes doubtful.
81. It has been held by the Hon'ble Supreme Court in case titled as, "Ukha Kolhe Vs. State of Maharashtra, reported as AIR 1963 SC 1531", as under:
"8. But there is no evidence on the record about the person in whose custody this phial remained till it was handed over to the SubInspector of Police on April 13, 1961 when demanded. There is also no evidence about the precautions taken to ensure against tampering with the contents of the phial when it was in the Civil Hospital and later in the custody of the police between April 13, 1961 and April 18, 1961. Even the special messenger with whom the phial was sent to the Chemical Examiner was not examined: and Ext. 43 which was the acknowledgment signed by some person purporting to belong to the establishment of the Chemical Examiner does not bear the official designation of that person. The report of the Chemical Examiner mentions that a sealed phial was received from the police officer by letter No. C/010 of 1961 dated April 18, 1961, but there is no evidence that the seal was the one which was affixed by Dr. Rote on the phial. These undoubtedly were defects in the prosecution evidence which appear to have occurred on account of insufficient appreciation of the character of the burden which the prosecution undertakes in proving a case of an offence under S. 66 (1) (b) relying upon the presumption under S. 6 (2)."
82. Thus, the missing link evidence about the case property and the possibility of tampering therewith further adds CC No. 137/14, CBI Vs. Anil Yadav Page No. 82 of 88 to the miseries of the prosecution and makes this court to discard the prosecution evidence led on record.
OTHER DISCREPANCIES OF THE PROSECUTION STORY
83. As has been discussed above, according to the complainant/PW14, he had reached Delhi from Baroda in the morning of 18.06.2014 and had first gone to the office of the CHA/PW8 because as the Customs Office was not open by that time and then he had visited the airport, alongwith the CHA/PW8, and met the accused there and it was sometime after 12:00 noon on that day. Then they had stayed there for about 1015 minutes and were allegedly negotiating the bribe money with the accused and it is only thereafter that they reached in the office of CBI for filing his complaint, after he has taken the address of the CBI office from the internet. However, PW13 Sh. Sudheer Shokeen has stated on record that he had reached the office of CBI on 18.06.2014, on being directed by his senior officer, at around 9:30 AM and had reported in the room of the DO of CBI and was asked by the DO to wait in the CBI office and the DO had noted down his mobile number. He even claims that he had marked his attendance in the attendance register kept by the DO and was made to wait till around 4:00 PM, when he was called by the DO and introduced with some officer, in connection with the trap proceedings. Though, the other independent CC No. 137/14, CBI Vs. Anil Yadav Page No. 83 of 88 witness/PW11 Sh. Nand Kishore has stated his time of reaching in the CBI office to be around 3:15 PM, but no cross examination of PW13 was sought to be conducted by Ld Sr. PP for CBI on the aspects of the above timing of his reporting in the office and marking his attendance there. In the absence of that, there is nothing to disbelieve or to take the above depositions of this witness as untrue and when the same are believed, these damage the very roots of the prosecution case as these depositions show as if something was being cooked up in the CBI office, even in the early morning of the day of trap, and for that the CBI officials had also arranged the presence of the above independent witnesses.
84. Again, the evidence led on record regarding the above complaint Ex. PW12/A (D1) made by the complainant and its proof by him is also having serious contradictions and discrepancies. On this aspect, the complainant himself has stated initially in the very first line of his cross examination that the same was not in his handwriting and then he has also volunteered that it was already written and handed over to him by the CBI officials and he was only asked to sign it. However, he again deposed in the very next line that the said complaint was written on some paper and it was handed over to him and he was asked to copy and reproduce it in his own handwriting and hence, he can say that the said complaint Ex. PW12/A is written by him. However, contrary to his these claims, the CC No. 137/14, CBI Vs. Anil Yadav Page No. 84 of 88 independent witness/PW13 Sh. Sudheer Shokeen, who had participated in the verification proceedings on the said complaint and also in the subsequent trap held by the TLO/PW16, the above complaint given by the complainant was written in his presence and it was not written by the complainant himself, but by some other person who was accompanying the complainant at that time. He was also asked by Ld defence counsel to tell the name of the said person and though, he was not able to remember the said name, but he has stated that perhaps it was the agent of the complainant. According to the complainant, he had sent back his agent/CHA when he reached in the CBI office after meeting the accused and it is not his case that the CHA was also present in the CBI office when he had written or reproduced the said complaint. Even the CHA/PW8 does not make any such claim of his being present there and according to him, he only introduced the complainant with the accused in the CBI office on that day and did nothing further. It is also not understood as to when the complainant himself was able to write the said complaint then why the complaint was pre written by some other person and the complainant was asked only to reproduce it. The above contrary depositions made by these two witnesses and also the self contradictory statement of the complainant on this aspect make the very authenticity and proof of the above complaint on record to be doubtful. Further, there are also serious contradictions in the statements CC No. 137/14, CBI Vs. Anil Yadav Page No. 85 of 88 of the witnesses on record as to what documents of the prosecution case were prepared in the CBI office prior to the time the trap team left for the spot and what documents were prepared after they had returned back in the CBI office. The depositions made by these witnesses regarding the proceedings conducted at the spot and their sitting arrangements in the vehicles while they were going for the spot are also found to be contradictory and inconsistent. Hence, in the light of these additional contradictions and discrepancies of the prosecution evidence, and also certain other discrepancies, it is just not possible for this court to rely upon the testimonies of the prosecution witnesses and the other evidence led on record regarding the alleged offences committed by the accused.
85. The judgment in case D. Velayutham, Supra being relied upon by Ld Sr. PP for CBI in support of his arguments for conviction of the accused is found to be not applicable to the given facts and circumstances of this case. Further, though Ld defence counsel has also assailed the validity of the sanction for prosecution of the accused given by PW1 vide order dated 17.10.2014 Ex. PW1/A (D24) mainly on the ground that it was given in the format of the draft sanction order sent by the CBI and was thus not a valid and proper sanction and it had resulted in miscarriage of justice to the accused, in view of the law laid down by the Hon'ble Supreme CC No. 137/14, CBI Vs. Anil Yadav Page No. 86 of 88 Court in case of Ashok Aggarwal, Supra, but after going through the depositions made by PW1, this court fails to accept the above submission of Ld defence counsel and rather the sanction given in the present case is found to be fulfilling the legal requirements and the criteria laid down by the Hon'ble Supreme Court in the above case being relied upon by Ld defence counsel as no failure of justice to the accused on account of the said sanction is found to have taken place. However, still in view of the earlier discussion made on different points discussed above, it is not possible for this court to arrive upon a conclusion or finding regarding the guilt of the accused.
86. In view of the above, it is held that the evidence brought on record by the prosecution is not sufficient to bring home the guilt of the accused for the above said offences beyond reasonable doubts and the accused is, therefore, acquitted of the above charges framed against him.
87. A personal bond in the sum of Rs. 50,000/ with one surety of the like amount, alongwith the proofs of addresses and photographs of the accused and surety, has been furnished on record by the accused in terms of the provisions contained U/s 437A Cr.P.C. and it shall remain valid for a period of six months from today, as provided under the said Section. The accused is further directed to appear before CC No. 137/14, CBI Vs. Anil Yadav Page No. 87 of 88 the Hon'ble High Court in case a notice of the appeal, if any, filed by the prosecution/CBI against his acquittal by this court is received by him.
88. File be consigned to record room, after completing the necessary formalities. The case property be dealt with and disposed off as per law, subject to the outcome of the above appeal or after the expiry of the prescribed period of limitation, in case no appeal is decided to be filed by the CBI. Announced in open Court on 29.01.2016 (M.K. Nagpal) Special Judge (PC Act), CBI08, Central District, THC, Delhi CC No. 137/14, CBI Vs. Anil Yadav Page No. 88 of 88