Delhi District Court
C.B.I. vs . Raj Kumar Verma on 28 April, 2012
IN THE COURT OF SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Addl. Sessions Judge
CC No. 36/11
Unique Case ID No. 02401R0273232009
C.B.I. Vs. Raj Kumar Verma
S/o Sh. Chander Bhan
R/o HI/16, Sector 16,
Rohini, New Delhi.
RC No. : DAI2009A0001DLI
u/Ss : Sec. 7 and 13(1)(d) r/w 13(2) of PC Act, 1988.
Judgment announced on 25.04.2012
Date of order on sentence : 28.04.2012
ORDER ON SENTENCE
Present : Sh. D.K. Singh, Ld. PP for CBI
Convict Raj Kumar Verma in person with Sh. Neeraj Bansal,
Adv.
CBI Vs. Raj Kumar Verma CC No. 36/11 Page 1 of 7
1.0 Convict has been convicted for the offence u/S 7 and 13(1)(d)
r/w 13(2) of the PC Act, 1988.
2.0 Sh. Neeraj Bansal, Ld. Counsel for the convict has submitted
that accused is 52 years of age. He is suffering from multiple ailments
including damaged liver, chest infection, cataract in eyes, high blood pressure
etc. He has also produced the medical report in support of his contention.
The wife of the convict is also of 50 years of age. She is also suffering from
severe back problem. The mother of convict is 85 years of age and his father
has also expired. Convict has two children who are totally dependent on him.
Ld. Counsel submits that convict has rendered 35 years of unblemished
service. A prayer for a lenient view has been taken.
2.1 Sh. D.K. Singh, Ld. PP submits that maximum punishment may
be awarded to the convict.
3.0 In State of MP & Ors Vs. Ram Singh & Ors., (2000) 5 SCC
88, the Apex Court elaborated the history relating to the Prevention of
Corruption Act and set the guidelines of its implementation by the Courts. It
was inter alia held as under:
"9. The menace of corruption was found to have
enormously increased by the first and second world
CBI Vs. Raj Kumar Verma CC No. 36/11 Page 2 of 7
war conditions. Corruption, at the initial stages, was
considered confined to the bureaucracy which had the
opportunities to deal with a variety of State Largesse
in the form of contracts, licences and grants. Even
after the war of opportunities for corruption
continued as large amounts of government surplus
stores were required to be disposed of by the public
servants. As a consequence of the wars the shortage
of various goods necessitated the imposition of
controls and extensive schemes of post war
reconstruction involving the disbursement of huge
sums of money which lay in the control of the public
servants giving them a wide discretion with the result
of luring them to the glittering shine of wealth and
property. In order to consolidate and amend the laws
relating to Prevention of Corruption and matters
connected thereto, the Prevention of Corruption Act,
1947 was enacted which was amended from time to
time. In the year 1988 a new act on the subject being
Act 49 of 1988 was enacted with the object of dealing
with the circumstances, contingencies and short
comings which were noticed in the working and
implementation of the 1947 Act. The law relating to
Prevention of Corruption was essentially made to
deal with the public servants, not as understood in
common parlance but specifically defined in the Act.
10. The Act was intended to make effective provisions
for the prevention of bribery and corruption rampant
amongst the public servants. It is a social legislation
intended to curb illegal activities of the public
servants and is designed to be liberally construed so
as to advance its object."
CBI Vs. Raj Kumar Verma CC No. 36/11 Page 3 of 7
Corruption in a civil society is a serious disease, which is
leading this country towards disastrous consequences. Corruption in this
country is spreading like a fire in the jungle and has almost become like the
HIV leading to AIDS being incurable. The time has come when if harsh
steps are not taken this Country may crumble under the weight of corruption.
Corruption is not only anti people, but it has the potential of destroying the
democracy and polity of the country.
In Satish Kumar Vs. CBI, 2009 Cr.LJ 2716 it was inter alia held
as under:
"48. The menace of corruption has enormously
increased in various departments of the
Government. Corruption in a civilized society is a
serious disease like cancer which if not detected or
checked in time is sure to maliganise the polity of
the country leading to disastrous consequences.
Corruption not only adversely affects the public but
it also affects the economy of the country and
destroys the cultural heritage. Therefore, it is the
need of the day that corruption is nipped in the bud
at the earliest to ensure and maintain healthy,
effective and vibrating socioeconomic political
system."
In the present case, the convict has almost gone to the level of
extortion of money. The Court has to taken into account the harsh reality that
corruption has become so rampant that leniency in awarding punishment is
CBI Vs. Raj Kumar Verma CC No. 36/11 Page 4 of 7
not desirable. Sentence cannot be reduced merely because the accused
happens to be a petty clerk or a peon, or was caught while accepting a small
amount as a bribe for doing some little favour. In a landmark case, Suresh
Chandra v. State of Gujarat AIR 1976 SUPREME COURT 246, Hon'ble
Mr. Justice VR Krishna Iyer in his own signature style rejected the plea of
the accused that a lenient view may be taken as he was a very junior person
and accepted small amount of bribe. It was inter alia held as under:
"2. The petitioner is a tax inspector trapped in the
act of taking a bribe of Rs. 100/ a small sum and a
small official in the wide perspective of Indian public
service. May be, it is the lesser minions who get
caught and purging public life of maxicorruption by
deterrent sentences is more desirable but less
feasible. Both these alibis, perhaps valid outside
court, cannot attenuate the quantum of punishment
or the propriety of its severity. The watershed of
pollution in the administration cannot be permitted
to be crossed by misconceived judicial compassion
or high level executive indifference. One public
official who slips out of the processual meshes of the
anticorruption law is the hope of the hundred in
hiding. Indeed the culprit in this case is but one
salestax inspector who has stumbled into a police
laid markednote magnetic field as against many
choose operations are too secretive for detection. If
only all our tax authorities at all levels were stern,
strict, wideeyed, activist, of inviolable probity and
indifferent to disingenuous pleas of evasion, from big
tax dodgers, inequality of wealth and income would,
in a large measure, wither awaya social order
CBI Vs. Raj Kumar Verma CC No. 36/11 Page 5 of 7
devoutly to be wished. I refuse leave, sanguine that
judicial relentlessness in this area may help sweep
clean our public service, both at the higher and
lower echelons."
It is pertinent to mention here that a person who is caught
accepting bribe cannot be dealt with lenient view on the ground that he
accepted a very small amount, for the reason that when the accused was
caught, this might have been one of those innumerable occasions when he
had accepted bribe. The corruption is like a disease and once it goes into the
blood, then a person sometimes become so compulsive that he / she would
not spare anyone and would go to any extent for taking the bribe.
4.0 It is a settled proposition that an offence u/S 13(1)(d) r/w 13(2)
of the PC Act is distinct from Sec.7 of the PC Act and both are not "same
offence", as envisaged by Sec. 26 of the General Clause Act or Article 20
Constitution of India, separate sentence under two provisions are
permissible. Reference can be made to Om Prakash Gupta Vs. State of UP,
AIR 1957 SC 458, State of MP Vs. Veereshwar Rao Agnihotri, AIR 1957
SC 592 and Madhukar Vishram Sawant Vs. State of Maharashtra, ILR
(1974) Bombay 731.
CBI has proved beyond reasonable doubt that convict had
demanded the bribe from the complainant and the bribe was duly accepted
and the tainted money was recovered from the accused. CBI has also
CBI Vs. Raj Kumar Verma CC No. 36/11 Page 6 of 7
conclusively proved that the convict had repeatedly made demand of bribe
and the Court is also of the considered view that the demand of the convict
was bordering extortion.
4.1 I have considered the mitigating circumstances as being put by
the convict Raj Kumar Verma. I consider that taking into account the facts
and circumstances, SI for 03 years and fine of Rs. 25,000/ in default SI
for 06 months u/S 7 of the PC Act and SI for 03 years and fine of Rs.
25,000/ in default SI for 06 months u/S 13(1)(d) of PC Act, shall meets
the ends of justice.
Both the sentences shall run concurrently.
Benefit of Sec. 428 Cr.PC be given to the convict.
5.0 A copy of judgment and order on sentence be supplied to
the convict free of cost.
6.0 File be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma)
today on 28.04.2012 Spl. Judge(PC Act) CBI: N. Delhi
CBI Vs. Raj Kumar Verma CC No. 36/11 Page 7 of 7
IN THE COURT OF SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Addl. Sessions Judge
CC No. 36/11
Unique Case ID No. 02401R0273232009
C.B.I. Vs. Raj Kumar Verma
S/o Sh. Chander Bhan
R/o HI/16, Sector 16,
Rohini, New Delhi.
RC No. : DAI2009A0001DLI
u/Ss : Sec. 7 and 13(1)(d) r/w 13(2) of PC Act, 1988.
Date of Institution : 30.06.2009
Received by transfer on : 13.10.2011
Arguments Heard on : 21.04.2012
Date of Decision : 25.04.2012
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. Neeraj Bansal, Ld. Counsel for accused
CBI Vs. Raj Kumar Verma CC No. 36/11 Page 8 of 7
JUDGMENT
1.0 Sh. Nanheram approached CBI on 6/1/09 with a complaint Ex.PW2/A alleging therein that while he was raising construction in Flat No. 104, Sector 24, Pocket 26, Rohini and had replaced the old shutter with a new one, accused Raj Kumar Verma, visited the above said flat on 31/12/08 and introduced himself to be an employee of DDA, Rohini office and demanded a sum of Rs. 3,000/ as bribe for installing the shutter. The accused threatened that in case the bribe is not paid, the shutter would be demolished. Complainant pleaded his inability to pay Rs. 3,000/, on which the accused reduced the demand to Rs. 1,000/. Sh. Verma visited the complainant on 3/1/09 and 4/1/09 for realising the bribe amount. The complainant recorded the conversation between him and the accused regarding demand of bribe on 31/12/08, 3/1/09 and 4/1/09. The accused also gave his mobile No. 9312592807 to the complainant and asked him i.e., the complainant to give a call to him i.e., the accused, whenever the bribe amount is ready. The complainant supplied the copy of audio cassette containing conversation between him and the accused alongwith the complaint Ex.PW2/A. On the complaint Ex.PW2/A, regular Case No. DAI2009 A0001DLI was registered on 6/1/09 against accused Raj Kumar Verma. The FIR was entrusted to Inspt. RC Sharma (PW8) for verification and for laying a trap. Sh. B.Chatterjee and Sh. SK Chaudhary, both Inspectors, Central Excise, o/o Assistant Commissioner, Central Excise DivisionII, CBI Vs. Raj Kumar Verma CC No. 36/11 Page 9 of 7 were joined as independent witnesses. The digital voice recorder was arranged and the introductory voice of the witnesses were recorded. The complaint was read over and explained to the witnesses. The cassette supplied alongwith the complaint by the complainant containing the recorded conversation between complainant and the accused having taken place on 31/12/08, 3/1/09 and 4/1/09 was played and heard and the investigation copy of the said cassette (Q1) was prepared.
Pursuant to the directions of the TLO Inspt. RC Sharma (PW8), complainant Nanhe Ram (PW2) contacted the accused on his mobile No. 9312592807 from his mobile phone No. 9871766372 on 6/1/09 at about 2:45pm itself . This conversation was also heard by the members of trap team through inbuilt speaker of the mobile, and same was recorded simultaneously in the digital voice recorder. On being satisfied that the accused has demanded and had agreed to accept the illegal gratification of Rs.1,000/ from the complainant and the time and place for receipt of the bribe had also been fixed i.e., at 5pm at the house of complainant, the party prepared itself for conducting the raid. The conversation recorded between the complainant and the accused in the CBI office was also transferred into blank audio cassette (Q2). The complainant took out Rs.1,000/ which was to be given as bribe. The numbers of the currency notes were duly noted down in handing over memo.
TLO Inspt. RC Sharma (PW8) joined Inspt. Raj Singh, Inspt. Rajesh Chahal, Inspt. Prem Nath (PW11), SI Nikhil Malhotra and other CBI Vs. Raj Kumar Verma CC No. 36/11 Page 10 of 7 subordinate staff as well as complainant, besides, independent witnesses in the trap team. SI Nikhil Malhotra gave the demonstration to explain the purpose and significance of the phenolphthalein powder and its chemical reaction with sodium carbonate. The GC notes to be offered as a bribe were treated with phenolphthalein powder. The demonstration was done with the help of independent witness Sh. SK Chaudhary. It was explained that anything smeared with phenolphthalein powder, if comes into contact with colourless solution of sodium carbonate, the colourless solution turns pink. Subsequent to the personal search of the complainant and the other members of the raiding party, the treated currency notes were kept in the left inner side chest pocket of the jacket of the complainant. The complainant was directed to deliver the GC notes to the accused on his specific demand. The complainant was also given the digital voice recorder and he was explained the functioning of the same. Sh. B. Chatterjee was deployed as a shadow witness. He was directed to overhear and see the likely conversation and transaction of bribe amount between the complainant and the accused. Sh. Chatterjee was also directed to give the signal on completion of transaction of bribe amount and in case, he is not able to see the TLO or the members of the raiding party, he would give a missed call from his mobile phone to the mobile phone of the TLO. Sh. SK Chaudhary was directed to remain with the trap team. The handing over memo Ex.PW2/B was prepared which contained all the proceedings conducted at the pretrap stage. CBI Vs. Raj Kumar Verma CC No. 36/11 Page 11 of 7
The complainant and the independent witness B. Chatterjee reached at the main road of Sector 24, Pocket 26, Rohini at about 5pm and proceeded towards the residence of the complainant. The other members of the trap team took their position in disguised manner. Accused Raj Kumar Verma was found waiting, at the prescheduled place. The accused demanded money through gesture of his hand. On this the complainant took out the tainted money of Rs.1,000/ from the left inner side pocket of the jacket and extended the same towards the accused. The accused accepted the same with his right hand and then moved towards the scooter, which was parked opposite to the house of the complainant on the other side of the road. The shadow witness gave the preappointed signal by making the missed call, on which the trap team reached on the spot. Inspt. RC Sharma, TLO challenged the accused for demanding and accepting the illegal gratification of Rs.1,000/ from the complainant. The accused was caught from his wrist by Inspt. RC Sharma and Inspt. Prem Nath. Allegedly, the accused turned pale and did not utter anything. He was found holding GC notes of Rs.500/ denomination in his right hand. Since it was public thoroughfare, the accused was taken inside the house of the complainant, there the accused threw the GC notes on the wooden bed. The currency notes were picked up by independent witness Sh. SK Chaudhary. The number of the currency notes were tallied with the numbers mentioned in the handing over memo and were found same. The handwash of the accused was taken on which the colourless CBI Vs. Raj Kumar Verma CC No. 36/11 Page 12 of 7 solution turned into pink. The handwash was stored in a glass bottle and it was duly wrapped in cloth and sealed with the seal of CBI. The recorded conversation on the spot between the complainant and the accused was transferred into a blank audio cassette (Q3). Accused Raj Kumar Verma was formally arrested vide arrest memo Ex.PW5/A. The rough siteplan Ex.PW5/C was prepared. The specimen voice of the accused was recorded in the blank audio cassette (S1) vide memo regarding specimen voice Ex.PW5/B. The recovery memo Ex.PW2/C was prepared. The handwash of the accused were sent to CFSL. The cassettes of recorded conversation Q1, Q2, Q3 and cassette containing specimen voice (S1) was also sent to CBI for comparison. The reports (Ex.PW9/A and Ex.PW10/A) were duly collected and after investigation, the chargesheet u/S 7 and 13(2) r/w 13(1)(d) of PC Act, 1988, was filed on 30/6/09. Being a prima facie case, the cognizance was taken and the copies were duly supplied under compliance of Sec. 207 Cr.PC.
2.0 Being a prima facie case, charge u/Ss. 7 and 13 (1)(d) r/w13(2) PC Act, 1988 was framed against the accused, to which accused pleaded not guilty and claimed trial.
3.0 CBI examined 12 witnesses in support of its case.
3.1 PW1 Sh. Satender Singh Gosain proved the sanction order CBI Vs. Raj Kumar Verma CC No. 36/11 Page 13 of 7 Ex.PW1/A. 3.2 PW2 Sh. Nanhe Ram, the de facto complainant in his testimony deposed on oath that he came into contact with the accused while he was doing construction work at his flat No. 104, Rohini and accused introduced himself as a DDA official. Accused demanded Rs. 1,000/ for allowing him to change the shutter. The complainant was unwilling to pay the bribe and he pleaded that since it is an old shutter, there is no occasion to pay the bribe. The complainant proved his complaint as Ex.PW2/A. SP, CBI endorsed the complaint for verification. The complainant stated that he produced Rs. 1,000/ in the denomination of Rs. 500/ each. The handing over memo was identified as Ex.PW2/B. The complainant also proved the presence of independent witnesses. He stated that currency notes were smeared with powder and demonstration of the same was given to the effect that on touching the currency notes, the solution would turn pink. The complainant stated that after completion of the demonstration proceedings, 78 persons visited his flat where the accused was present. The complainant specifically stated that the accused demanded Rs. 1,000/ and he handed over the same to him and immediately thereafter, officials of CBI and Corporation Bank came there and apprehended the accused. The complainant stated that accused had thrown away the currency notes and on being asked by the CBI, the accused pointed out the place where he had thrown the bribe amount. The recovered GC notes were tallied with the record and the same were CBI Vs. Raj Kumar Verma CC No. 36/11 Page 14 of 7 found to be the same. The hand of the accused was dipped into the solution which turned pink. The complainant stated that after the recovery of the bribe amount, the handwriting work was done at the spot itself. Recovery memo was proved as Ex.PW2/C. Sh. Nanheram stated that he had conversation with accused Raj Kumar Verma on telephone during pretrap proceedings. The currency notes were identified as Ex.P1 and Ex.P2. The cassette containing the conversation before the complainant approached the CBI (Q1) was proved as Ex.P3. The cassette was duly played in the court and the complainant identified the conversation as to be of between him and the accused. The complainant duly identified the portion 'A to A' and 'B to B' as of the conversation between him and the accused. The voice at point 'C' was specifically identified to be of the accused and voice at point 'D' was identified by the complainant as his voice. The voice at point 'F to F' and 'G to G' were also identified to be the conversation between him and the accused. The complainant specifically stated that telephone No. 9312592807 was given by the accused. It seems that there is an inadvertent mistake in the recording of the evidence as having been that telephone No. 9312592807 was given by the accused to Shankar whereas on perusal of the transcription, there is no mention of an individual called Shankar. The prosecution and the defence case also are silent about any person called Shankar. The cassette Q2 containing conversation during pretrap proceedings was proved as Ex.P5 and the same was also played in the Court. The complainant identified the CBI Vs. Raj Kumar Verma CC No. 36/11 Page 15 of 7 voice at point 'H to H' of independent witness and point 'J to J' the conversation having taken place between him and the accused. Similarly, the conversation from point 'K to K' and 'L to L' was also identified to be of the accused and him. The cassette containing conversation between accused and the complainant of the spot (Q3) was proved as Ex.P9 and the same was also played in the Court. However, the Court observed that there was lot of disturbance in the voice and no voice could be identified. In the cross examination, the complainant stated that flat No. 104, Rohini, is the ground floor residential flat in the name of his father. The entire flat was demolished in the year 2008 and fresh construction was raised. Admittedly, the complainant had not taken any permission from DDA for either demolition of the flat or its reconstruction. The complainant stated that the accused had made the demand around 56 days before making of the complaint. The complainant admitted that he had approached CBI on 2/1/09 with the complaint against the accused for demand of bribe. However, he was called by the CBI to bring the papers pertaining to his house. The complainant stated that they reached on the spot at about 56pm and found the accused sitting in his shop. The accused came out on seeing the complainant. The complainant further stated that when he moved towards the shop, the witnesses arranged by the CBI were accompanying him. The accused told him "Bhai sahab mein shutter ke paise ke liye khada hoon" and further demanded the money by saying "paise de dijiye". The complainant stated that he handed over Rs. 1,000/ to the accused. The complainant was CBI Vs. Raj Kumar Verma CC No. 36/11 Page 16 of 7 confronted with the statement Ex.PW2/DA where the complainant had stated that the accused had demanded money through gesture of his hand, on which he took out the tainted money of Rs.1,000/ and extended the same towards the accused and accused accepted the same.
In the cross examination, the complainant reiterated about the handwash of both the hands of the accused and he stated that the bottles containing the handwash was duly sealed by the CBI.
The complainant was also cross examined regarding his earlier complaint made to CBI and the complainant admitted that earlier he had lodged three cases pertaining to anti corruption against Rajender Singh and Kapil Kumar, MCD employees. The complainant had also lodged a complaint against Sh. Madan Lal Singh, DESU. The complainant also stated that his sister Kamlesh is also a complainant in one of the cases pertaining to anti corruption. It is interesting to note that only a suggestion was put to the complainant that there was no demand or acceptance from the side of the accused and the present complaint has been lodged to blackmail the accused. It is interesting to note that there is not even an iota of the cross examination regarding the tape recorded conversation between the complainant and the accused. The accused has also not disputed about his specimen voice taken by the CBI.
3.3 PW3 Sh. Sanjay Kumar Gupta, deposed regarding the nature of duty of the accused. Sh. Sanjay deposed on oath that he had posted the CBI Vs. Raj Kumar Verma CC No. 36/11 Page 17 of 7 accused in pocket 1, 10, 13, 25 and 26, Sector 24, Rohini to supervise the scavenging work and allotment of unallotted flats of said pockets. PW3 stated that he had no control over the field activities and it was not part of the duty of the accused to allow or disallow any construction work in the area. In the cross examination, the witness admitted that he had submitted the report regarding unauthorised construction in flat No. 104, Pocket 26 Sec. 24, Rohini. The reports were identified by the witness as Ex.PW3/DA and PW3/DB. PW3 proved the order Ex.PW3/DC vide which the accused was only required to perform his duty in pocket 26, sector 24, Rohini. 3.4 PW4 RK Singh, Nodal Officer, Bharti Airtel Ltd., proved the call detail record of mobile No. 9871766372 for the period 1/1/09 to 6/1/09 as Ex.PW4/D. The photocopy of the customer enrollment form of the complainant has been proved as Ex.PW4/B and the ID proof attached to the form as Ex.PW4/C. The perusal of the call detail record Ex.PW4/D would indicate that there is an outgoing call from the mobile No. 9871766372 belonging to the complainant to 9312592807 (belonging to the accused) on 6/1/09 at 2:43pm. The call lasted for 90 sec. It is pertinent to mention here that in the cross examination, the defence has not taken any plea regarding tampering with the record. The witness specifically stated that he has generated the call detail from computer.
CBI Vs. Raj Kumar Verma CC No. 36/11 Page 18 of 7 3.5 PW5 Bhaskar Chatterjee an independent witness deposed on oath that he joined the CBI proceedings on 6/1/09, after having been directed by his superiors. The witness met TLO RC Sharma and then he was introduced to complainant Nanhe Ram. The witness was told about the contents of the complaint and about it's verification. He also stated that complainant also gave a tape of recorded conversation between him and the accused. The compaq voice recorder was arranged and the complainant was directed to contact accused Raj Kumar Verma on mobile and the conversation between the accused and the complainant was recorded. Sh. B. Chatterjee stated that the complaint was found genuine and thereafter the demonstration regarding phenolphthalein powder was given and the currency notes were kept in the pocket of the complainant. Sh. B. Chatterjee was deployed as a shadow witness. He accompanied Nanheram and reached Rohini at about 5pm. The shadow witness stated that he alongwith Nanheram proceeded towards the house of the complainant and found accused sitting on a plastic chair. The complainant had been given a tape recorder and was directed to switch on the same while entering into a conversation with the accused. The witness stated that accused demanded money by hand gesture and both the currency notes were taken by accused Raj Kumar Verma by his right hand. The witness stated that thereafter, they left the place and proceeded towards the scooter of the accused which was on the opposite side of the road. The witness as per direction gave the signal on which CBI team arrived on the spot and accused was caught from his wrist. The accused was CBI Vs. Raj Kumar Verma CC No. 36/11 Page 19 of 7 taken in the room inside the house of Nanheram from the roadside, where accused threw away both the GC notes on the wooden bed lying there. Sh. SK Chaudhary, PW7 picked up the notes and tallied the number of the notes with the handing over memo. The witness stated that handwash of the accused was taken and the water turned pink which was poured into a bottle and was sealed. The recovery memo was proved as Ex.PW2/C. The witness also proved the personal search cum arrest memo as Ex.PW5/A and rough siteplan as Ex.PW5/C. The specimen voice of the accused was also taken vide specimen voice recording memo Ex.PW5/B. The currency notes and right hand wash bottle of the accused were identified. The witness identified the signatures on the cloth wrapper of the cassette as Ex.P4, P5 and P9. The cassette containing the specimen voice of the accused (S1) was identified as Ex.P11. The witness identified his signatures on the same. In the cross examination, the witness stated that he had never joined any raiding party with the officials of CBI prior to this case. In the cross examination, the witness reiterated about the demonstration concerning the phenolphthalein powder. He specifically stated that the pink solution of the pretrap proceeding was duly thrown away. It came in the cross examination that the shadow witness was deployed with the complainant and he entered the shop alongwith complainant only. The witness denied the suggestion that he had never joined the raiding party and nothing was recovered from the accused in his presence. PW5 was not able to tell that where did he sign the documents Ex.PW2/B and Ex.PW2/C nor was he able to tell the time and place where CBI Vs. Raj Kumar Verma CC No. 36/11 Page 20 of 7 he signed such document.
3.6 PW6 Sh. Sanjeev Lakra, Alternate Nodal Officer proved the call record of mobile No. 9312592807 belonging to the accused for the period 1/1/09 to 6/1/09 as Ex.PW6/B. The photocopy of the customer enrollment form was also placed on record. If we peruse the call detail record we would find that on 6/1/09 there was an incoming call on 9312592807 from 9871766372 at 2:43pm and the call lasted for around 90 seconds. In his cross examination also, there is no plea of tampering with the record. 3.7 PW7 S.K. Chauhdhary, an independent witness, deposed on oath that on the direction of his superior officer, he reported at the office of CBI and met Insp. R.C. Sharma, who introduced him to one Mr. Nanhe Ram. Sh. S.K. Chaudhary stated that complaint was explained and complainant Nanhe Ram also produced a cassette containing conversation between him and the accused regarding payment of bribe. The cassette was duly identified. The witness identified his signatures on in lay card of the cassette Ex. P4 and on the cloth wrapper in which the cassette was sealed. Sh. S.K. Chaudhary also stated that a digital recorder was arranged and the complainant was asked to contact the accused on mobile phone and the said conversation was also heard by all of them and the conversation was also recorded in the digital recorder. During this conversation, the time, place and CBI Vs. Raj Kumar Verma CC No. 36/11 Page 21 of 7 mode of payment of bribe was discussed. The said conversation was transferred in another blank audio cassette Ex. P5. The witness identified has signatures on the inlay card. The demonstration of phenolphthalein powder was made after the complainant produced the currency notes. The digital recorder was also handedover to the complainant and he was directed to record the conversation between him and the accused. The witness stated that the personal search of complainant Nanhe Ram and other members of the raiding party was taken. Sh. S.K Chaudhary also reaffirmed that another independent witness Sh. B. Chatterjee was asked to give an indication, after the transaction of bribe was complete. The handing over memo Ex. PW2/B was duly prepared. Sh. S.K. Chaudhary stated that after receiving pre decided indication , he alongwith other CBI officers reached the spot. There they saw that one CBI officer was holding the hand of accused Verma and the accused was holding two currency notes of Rs. 500/ in his hand. The witness stated that initially, the accused tried to throw the currency notes, however, he was caught hold and then his hands were dipped into sodium bicarbonate solution. The colour of the solution turned pink. The number of the currency notes were verified in the mentioned in the handing over memo and thereafter the voice sample of the accused was also taken, recovery memo Ex.PW2/C was prepared on the spot. The cassette Ex. P9 containing conversation between the complainant and the accused was prepared and witnesses identified his signatures on the cassette's, in lay card and on the cloth wrapper in which the cassette was sealed. It is pertinent to mention CBI Vs. Raj Kumar Verma CC No. 36/11 Page 22 of 7 here that the witness specifically stated in the crossexamination that he had never been associated in any other case in which Nanhe Ram was the complainant and that he had nor been associated in any other case with the members of raiding party of this case. However, he had joined the raiding party in a CBI case prior to this case only once.
In the crossexamination, the defence attempted to raise suspicion about the identity of the accused by putting a question that in the complaint Ex. PW2/A , the name of the accused has not been mentioned. In the crossexamination, Sh. S.K. Chaudhary reiterated that when he alongwith other members of the raiding party reached at the spot, accused was found holding two currency notes of Rs. 500/ in his hand and after they entered into the room, accused threw the notes on the wooden bed and he was instructed to collect the currency notes from the bed and he was asked to tally the number of the GC notes which were recorded in the handing over memo and he handedover the same to CBI.
3.8 PW8 Inspector RC Sharma, TLO formally proved the case of the CBI and stated that he was handed over the handwritten complaint of Sh. Nanhe Ram by SP CBI with the direction to verify and lay a trap. The complainant was introduced to him . The trap team consisting of Inspr. R.C. Sharma, , Inspr. Rai Singh, Inspt. Rajesh Chahal, Inspt. Prem Nath and SI Nikhil Malhotra, two independent witnesses namely SK Chaudhary and B. Chatterjee was constituted. The complaint Ex. PW2/A was shown to all the CBI Vs. Raj Kumar Verma CC No. 36/11 Page 23 of 7 all the members of the trap team. The FIR was proved as Ex.PW8/A. The complainant had also submitted a cassette containing the conversation held between him and the accused on 31.12.2008, 03.01.2009 and 04.01.2009 regarding demand of bribe. This cassette was played and was heard by all the members of the trap team present and one copy of the said cassette was prepared. In the pretrap proceedings, the complainant was asked to contact the accused on mobile and this conversation was also recorded. The conversation between the complainant and accused was heard with the help of the inbuilt speaker of the mobile of the complainant. Accused had agreed to accept Rs.1,000/ as bribe and told the complainant that he would visit premises of complainant at about 5pm for receiving the same. This conversation was converted / transferred into new audio cassette. The demonstration regarding the reaction of phenolphthalein powder in a sodium bicarbonate solution was done. The search of all the members of the trap team was taken and GC notes coated with phenolphthalein powder were kept in the pocket of the complainant. The complainant was duly explained the functions of the DVR and he was directed to switch on the same while entering into conversation with the accused on the spot. The handing over memo Ex.PW2/B was prepared. Sh. B. Chatterjee was appointed as shadow witness and was also directed to give prescheduled after the completion of transaction of bribe on the spot. Thereafter, the CBI team reached at the spot at about 5 PM. The complainant and the shadow witness Sh. B. Chatterjee moved prescheduled spot and at around 5:15pm, the shadow witness gave CBI Vs. Raj Kumar Verma CC No. 36/11 Page 24 of 7 the prescheduled signal and on receipt of the signal, he informed the other trap team members and rushed towards the spot. On reaching there, the shadow witness and the complainant were found standing near the entrance gate of the spot. The shadow witness indicated towards the person who was standing in front of the said premises across the road and the person was identified as accused Raj Kumar Verma, On being challenged by Inspr. R.C. Sharma, the accused turned pale and did not utter anything and the accused was caught hold from both of his hands and was found holding GC notes in his right hand. The accused was taken inside the house of the complainant to conduct the further proceedings. The accused threw the GC notes on the wooden bed which was collected by Sh. SK Chaudhary from the bed and the number of the GC notes were tallied from the handing over memo. Thereafter, a fresh solution of sodium carbonate was prepared and handwash of the accused was taken and the colourless solution turned pink. The pink colour solution was then transferred into a clean glass bottle Ex. P7 and was duly sealed. The DVR containing the conversation held between accused and the complainant on the spot was then transferred into new audio cassette Ex. P9. Accused was formally arrested. Specimen sample voice of the accused was taken.
3.9 PW9 Sh. V.B Ram Teke, Sr. Scientific Officer has stated that contents of the bottle were examined by chemical test and the contents gave positive test for the presence of phenolphthalein and the chemical CBI Vs. Raj Kumar Verma CC No. 36/11 Page 25 of 7 examination report was proved as Ex.PW9/A. 3.10 PW10 Dr. Rajinder Singh examined the cassettes Q1, Q2, Q3 and S1. The witness stated that he examined the question voice of accused R.K. Verma with specimen voice by auditory and voice spectography techniques which tallied with his specimen voice in respect of linguistic, phonetic and other general spectography parameters. The witness examined the genuinity of the cassette and found that the same were not tampered with. The witness proved his report as Ex. PW10/A. There is no material crossexamination of PW9 and PW10.
3.11 Inspr. Prem Nath, another member of the trap team was examined as PW11. He made a consistent and corroborative statement. Inspr. Premnath deposed about the demonstration during pretrap proceedings. The witness also sated that the complainant had handed over the audio cassette containing conversation between him and the accused held on 31.12.2008, 03.01.2009 and 04.01.2009 regarding the demand of bribe. Witness Prem Nath stated that on receipt of the missed call, he himself alongwith Insp. R.C. Sharma reached near the house of the complainant and they found the accused holding currency notes in his hands. The accused was caught hold there with wrist and was taken to the house of the complainant. On reaching there, the accused threw the currency notes on the CBI Vs. Raj Kumar Verma CC No. 36/11 Page 26 of 7 wooden bed. Sh. S.K. Chaudhary collected the notes from the bed and they were checked from the handing over memo and the handwash of the accused was done and the colourless solution turned pink. The witness prepared the site plan Ex. PW5/C. He further stated that on the recovery memo, the impression of CBI brass seal was taken on Ex. PW2/C. 3.12 PW12 Inspr. Manish Kumar Upadhyay is a formal witness. He had filed the charge sheet after collecting the CFSL report. 4.0 In his statement u/s 313 Cr.PC, the accused denied to have talked to the complainant on 31.12.2008, 03.01.2009 and 04.01.2009 and stated that he had never demanded any bribe from the complainant. Accused stated that his telephone no. was given by Junior Engineer to the complainant. The complainant had lodged a complaint regarding sewerage. Broadly, the accused has either denied the incriminating evidence against him or expressed ignorance. It is stated by the accused that the complainant had raised unauthorised construction and converted the residential property into commercial on which JE had lodged a complaint . The complainant had come to the office and threatened the JE that if he is not allowed to raise unauthorised construction, he would file a false complaint with CBI and that he had nothing to do with this case and that he was merely sent by the JE to CBI Vs. Raj Kumar Verma CC No. 36/11 Page 27 of 7 prepare the report regarding unauthorised construction and there the complainant got him implicated falsely. The accused further stated that Nanhe Ram himself has amassed huge wealth whereas he was only a sweeper in MCD and that he has been involved in blackmailing, pickpocketing and flesh trade and that the complainant himself has remained in jail several times.
5.0 Sh. Neeraj Bansal, Ld. Counsel for the accused made oral submissions as well as filed the written arguments. Ld. Counsel submitted that verification proceedings, if any, were conducted after the registration of the FIR. Even the complaint Ex. PW2/A does not bear the signature of the complainant. In the handing over memo also, the signature of complainant does not appear. Ld. Counsel submitted that in the complaint and handing over memo, merely the name of the accused has been written. The defence has highlighted the fact that the complainant stated in the cross examination that on 6/1/09 he had remained at the CBI office till around 11:30am. The counsel also pointed out the contradiction in the testimony of the prosecution witnesses. The defence has also highlighted that as per the case of the prosecution, the accused had thrown the currency notes on the bed and the same were picked up by independent witness Sh. SK Chaudhary at the direction of the TLO whereas the complainant in the cross examination had stated that accused had thrown the currency notes at a distance of around 78 steps at the spot in the shop and the said notes were picked up by the CBI CBI Vs. Raj Kumar Verma CC No. 36/11 Page 28 of 7 officials. It has been stated by the Ld. counsel for the accused that the case of the prosecution is totally unreliable. The pleas taken by the defence in the written submissions, have not been reproduced herein, for the sake of brevity. In support of its contention, the Ld. Counsel for the accused has cited Ved Parkash Vs. State of Punjab, 2011 (1) CC Cases (HC) 258 and Roshan Lal Saini & Anr Vs. CBI, 2011 (1) CC Cases (HC) 219.
5.1 Sh. D.K. Singh, Ld. PP for CBI argued vehemently that PW2 complainant, PW5 B. Chatterjee Shadow witness and PW7 S.K. Chaudhary, independent witness have made consistent and corroborative statement on oath. The prosecution has produced positive evidence on record that accused had demanded the bribe from the complainant. The acceptance of bribe and recovery of bribe has also been proved with the statement of PW5, PW7, PW8 and PW11. The defence taken by the accused is contradictory, afterthought and unreliable. In respect of motive or reward, since the demand and acceptance have been proved, the presumption under Section 20 can be raised. The accused admitted his presence as stated in his statement u/s 313 Cr.P.C. that he was sent by JE to prepare the report regarding unauthorised construction. Ld. PP also pointed out that accused in his statement u/s 313 Cr.P.C., raised serious allegation against the complainant but these were never put to the complainant while he was crossexamined. Ld. PP has relied upon State of West Bengal Vs. Kailash Chandra Pandey, 2005 AIR (SC) CBI Vs. Raj Kumar Verma CC No. 36/11 Page 29 of 7 119 and Harish Kumar Vs. CBI, ILR (2011) IV Delhi 642.
6.0 I have heard Sh. DK Singh, Ld. PP for CBI and Sh. Neeraj Bansal, Ld. Counsel for the accused and have perused the record carefully. 7.0 Perusal of Sec.7 of the Prevention of Corruption Act, 1988 (49 of 1988) would indicate that broadly, the following requirement have to be satisfied to attract Sec. 7 of the Prevention of Corruption Act:
1) demand of bribe;
2) acceptance thereof; and,
3) recovery of tainted money from the possession of the accused.
The prosecution is required to prove the above ingredients by way of acceptable and clinching evidence.
7.1 Besides this, for an offence u/S 7, 8 or 9, there must be a motive or reward for doing or forbearing to do something, showing favour or disfavour to any person or for inducing such conduct by the exercise of personal influence. However, these are not required to be proved for the offence u/S 13(1)(d). For the offence u/S 13(1)(d) it would be sufficient if a public servant by abusing his position obtains for himself any pecuniary advantage entirely irrespective of motive or reward for showing favour or disfavour. If a public servant has obtained pecuniary advantage by the abuse of his position, he will be guilty u/S 13(1)(d) of the PC Act. If we compare CBI Vs. Raj Kumar Verma CC No. 36/11 Page 30 of 7 Sec. 7 and Sec. 13(1)(d), it would be clear that the scope of Sec. 13(1)(d) is wider. Sec. 7 and 13 are the distinct offences. Though the same set of facts constitute the distinct offences, there is no bar to convict and punish the offenders for both the offences.
In Krishna Ram Vs. State of Rajasthan, 2010 (1) SCC (Cri.) 147, the Apex Court cited with approval the case of Inspector of Police, Pudukottai.T.N. Vs. A. Parthiban, (2006) 11 SCC 473, where in it was held that:
"every acceptance of an illegal gratification, whether preceded by a demand or not, would be covered by Section 7 of the Act. But, if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the PC Act."
In A. Subair Vs. 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 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 be established."CBI Vs. Raj Kumar Verma CC No. 36/11 Page 31 of 7
It is pertinent to mention here that Sec. 20 of the Prevention of Corruption Act, 1988 provides for presumption in a case where public servant accepts gratification and he / she is tried for an offence punishable u/S 7 or 11 or 13(1)(a) & (b) of PC Act, 1988. The perusal of Section 20 would indicate that if an accused person has accepted or agreed to accept any gratification or any valuable thing, it shall be presumed, unless contrary is proved, that the public servant has accepted or agreed to accept the gratification as a motive or reward as mentioned in Sec. 20. Thus, if it is proved that an accused has accepted any gratification, a legal presumption u/S 20 can be raised regarding motive or reward.
7.2 On the basis of the facts of the present case and legal prepositions, following questions have come up for answer in this case:
1. Whether the accused is public servant?
2. Whether sanction for prosecution against the accused is in accordance with Law?
3. Whether the accused had raised demand for the illegal gratification?
4. Whether the accused accepted the bribe from the complainant?
5. Whether the GC notes of Rs.1,000/ received as bribe were recovered from the accused?
6. Whether there was any motive or reward on the part of the accused to accept the bribe or Whether presumption u/S 20 PC Act, 1988 can be CBI Vs. Raj Kumar Verma CC No. 36/11 Page 32 of 7 raised in this case?
7. Whether the conviction can be based on the testimony of the complainant, despite contradictions in the case of the prosecution?
Whether the accused is public servant?
7.3 The complainant filed the complaint alleging therein that accused introduced himself as a DDA employee. The CBI has also filed the chargesheet after obtaining sanction from PW1 Satender Singh Gosain. the defence has not disputed the fact that accused is a public servant. Hence, it is taken on record that accused was a public servant at the relevant time. Whether sanction for prosecution against the accused is in accordance with Law?
7.4 Accused has challenged the sanction on the ground that it has been granted mechanically without any application of mind. It is pertinent to mention here that this Court cannot look into the adequacy or inadequacy of the material before the sanctioning authority and the Court cannot sit as a Court of appeal over the sanction order. In the cross examination of the sanctioning authority nothing material has been put by the defence. It has repeatedly been held that grant of sanction is a solemnous exercise and the sanctioning authority should grant the same independently with due application of mind. The object behind the grant of sanction is that there CBI Vs. Raj Kumar Verma CC No. 36/11 Page 33 of 7 should not be unnecessary harassment of public servants and to save the public servant from the harassment of frivolous or unsubstantiated allegations. Reference can be made to CR Bansi Vs. State of Maharashtra, AIR 1971 SC 786 and RS Nayak Vs. AR Antulay, AIR 1984 SC 684. The provision for sanction is a most salutory safeguard. It is not an idle formality. I have gone through the sanction Ex.PW1/A in the present case. The sanctioning authority has taken into account, all the facts and circumstances of the case. There is nothing on the record to suggest that sanction has been granted mechanically or without any application of mind, nor is there any miscarriage or failure of justice on this account.
Whether the accused had raised demand for the illegal gratification? 7.5 The complainant in his complaint duly proved as Ex.PW2/A specifically stated about the demand of bribe by the accused. The contents of the complainant have been discussed in the earlier part of the judgments, and, therefore, not repeated here for the sake of brevity. In order to prove the demand, Sh. Nanheram appeared as PW2 and specifically stated on oath that accused introduced himself as a DDA official and demanded Rs.1,000/ for allowing him to continue with the construction work. It came in the statement of the complainant that accused demanded bribe because complainant was changing the shutter. The complainant stated that he was unwilling to pay the bribe and even told the accused that it is an old shutter CBI Vs. Raj Kumar Verma CC No. 36/11 Page 34 of 7 so why the complainant should pay the bribe. However, the accused insisted and therefore, the complaint lodged the complaint Ex.PW2/A. The complaint was duly proved by the complainant. The cassette handed over by the complainant alongwith his complaint was duly proved as Ex.P3. The same was played in the Court and the complainant duly identified the voice of himself and the accused and specifically proved the conversation between him and the accused and the same was duly marked in the transcription. If we go through the transcription filed alongwith the chargesheet, there is an apparent conversation between the complainant and accused regarding the shutter and demand of Rs. 3,000/. It is a matter of common knowledge that now a days, people are little cautious while talking on telephone and therefore, it may not be justified to expect the explicit demand in the tape recorded conversation. The public servant asking for the bribe would normally speak indirectly so as to create an impression of innocuous talks. Therefore, while reading such conversation, one has to cull out the substratum of such talk. If we peruse the transcript filed alongwith the chargesheet, it is apparently clear that the talks are regarding some transaction of Rs. 3,000/ in context of the shutter. If we read the complaint Ex.PW2/A alongwith the statement of complainant on oath, it is clear that complainant was raising some construction involving shutter. It is also pertinent to mention here that accused in his statement u/S 313 Cr.PC in reply to Ques. 56, has specifically stated that he was sent by his JE to prepare the report regarding unauthorised construction. Therefore, the accused and CBI Vs. Raj Kumar Verma CC No. 36/11 Page 35 of 7 complainant had a common issue at the relevant time regarding construction of shutter. The tape recorded conversation in cassette Q1 (Ex.P4) and Q2 (Ex.P5) are quite clear. In the same conversation the telephone No. 9312592807 has been given by the accused himself to the complainant. The accused did not dispute that mobile No. 9312592807 belong to him. The defence has argued that the complainant himself was raising an unauthorised construction and a report regarding unauthorised construction was also made against him. If we peruse the cross examination of the complainant, the complainant has admitted that he never obtained any permission from DDA for the demolition or reconstruction of the flat. Be that as it may be, even if the complainant was raising unauthorised construction, it would not give the right to the accused or anybody to ask for the bribe. If the accused was doing something wrong, the duty of the accused or any other public servant would be to initiate legal action against him. The demand of bribe cannot be justified on the ground that the complainant or the bribe giver himself was at the wrong. Even during the cross examination, the complainant reiterated that accused had visited him on several occasions after making initial demand of Rs.3,000/ and subsequently, he reduced the same to Rs.1,000/. The defence has also cross examined the complainant on the ground that he i.e. the complainant had initially gone to CBI on 2/1/09 to report the matter. However, on that day, his report was not lodged and ultimately, the report was lodged on 6/1/09. Ld. Counsel for the accused argued that this creates a doubt in the story of the prosecution. I consider that this argument is to be CBI Vs. Raj Kumar Verma CC No. 36/11 Page 36 of 7 noted only to be rejected. Even if, there was any irregularity on the part of the CBI officer it would not amount to rejecting otherwise the cogent and creditworthy statement of the complainant regarding the demand of bribe. I consider that in view of the specific statement of the complainant on oath corroborated with the tape recorded conversation, the prosecution has successfully proved that the accused had demanded bribe from the complainant. It is also pertinent to note that on the complaint Ex.PW2/A itself, SP, CBI specifically directed Inspt. RC Sharma, TLO to verify the complaint. PW2 complainant, PW5 B. Chatterjee shadow witness, PW7 SK Chaudhary another independent witness, PW8 Inspt. RC Sharma and PW11 Inspt. Prem Nath another member of the raid, have made a consistent and corroborative statement on oath that before proceeding for the trap, the contents of the complaint were duly verified. During pretrap verification proceedings, the complainant again made the telephone call to the accused and this conversation was also duly proved on record by the complainant on oath. In this conversation also, there is a mention of the demand of bribe and the time and place was also fixed during this conversation. In the call record, proved on record by the prosecution as Ex.PW6/B and Ex.PW4/B, it is specifically indicated that there is a conversation between the two on 6/1/09 at about 2:43pm. It is also to be noted that there is no cross examination regarding the telephonic conversation between the accused and the complainant. Hence, it has been proved on record by the prosecution CBI Vs. Raj Kumar Verma CC No. 36/11 Page 37 of 7 witnesses that the accused had demanded illegal gratification from the complainant.
Whether the accused accepted the bribe from the complainant? 7.6 According to Shorter Oxford Dictionary "accept" means 'to take or receive with a consenting mind'. Such consent can be established by evidence of prior agreement or from the circumstances surrounding the transaction itself without proof of such prior agreement.
In CK Damodaran Nair Vs. Govt. of India, AIR 1997 SC 551, the Supreme Court considered the word "obtain" used in Sec. 5(1)(d) and held as under:
"12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence, prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)
(c), (d) or (e) of the Act. "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) CBI Vs. Raj Kumar Verma CC No. 36/11 Page 38 of 7 of the Act unlike an offence under Section 161 IPC which as noticed above, can be, established by proof of either 'acceptance' or 'obtainment'.
In MW Mohiuddin Vs. State of Maharashtra, 1995 (2) SCR 864, the Supreme Court referring to the case of Ram Krishan and Anr Vs. State of Delhi, (1956) SCR 183 as well as dictionary meaning of the word "obtain" observed as under:
"whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances of each case. In that case, the Court held that it was proved that accused made a demand and also got the affirmation from the complainant that he had brought the demanded money and at his instance, the complainant wrapped the money in the handkerchief given by the accused and placed the same on the bag which was brought by the accused and as asked by him; these steps have been taken into consideration in arriving at the conclusion that the accused had in fact "obtained" the pecuniary advantage, namely, that he received the illegal gratification. Therefore, the Court upheld the conviction under Section 13(1)(d)."
The second most important link to prove the case against the accused u/S 7 & 13(1)(d) PC Act is the acceptance of bribe. The complainant in his statement specifically stated on oath that as per conversation between CBI Vs. Raj Kumar Verma CC No. 36/11 Page 39 of 7 him and the accused, he i.e. complainant reached on the spot i.e., at the complainant's flat and accused demanded Rs. 1,000/ and the complainant handed over the same to him and immediately, thereafter, the officials of CBI and Corporation Bank came and apprehended the accused. It may be clarified here only that the complainant has wrongly stated that the witnesses were from Corporation Bank whereas the officials were actually from Central Excise. I consider that even the CBI may not have actually told the complainant that from which office the independent witnesses were actually called. In the cross examination on the point of acceptance, the complainant reiterated that the accused was sitting in his shop when they reached and thereafter, he i.e., accused came out of the shop and told him i.e. the complainant "Bhai sahab mein shutter ke paise ke liye khada hoon". Accused further demanded the money by saying "paise de dijiye". Complainant stated that he handed over Rs.1,000/ to the accused. The complainant was confronted with his statement u/S 161 Cr.PC Ex.PW2/DA wherein the complainant had stated that accused had demanded money through gesture of his hand on which he took out the tainted money of Rs. 1,000/ and extended the same towards the accused with his right hand. It is apparent that there was some contradiction regarding this fact. However, the question is that whether on such contradiction, the case of the prosecution can be thrown. There is a settled law on this point. In several cases, the superior Courts have laid time and again that minor contradictions which does not go into the root of the case, cannot be taken into account. In State CBI Vs. Raj Kumar Verma CC No. 36/11 Page 40 of 7 of West Bengal Vs. Kailash Chanra Pandey, AIR 2005 SC 119, it was inter alia held that cosmetic contradiction in statements of witnesses cannot improbablise the prosecution story. The basic Law is that the contradictions which damage the roots of the case, can be taken into account. The minor contradictions are bound to occur and the same are liable to be rejected.
I consider that this contradiction is not sufficient to discard the testimony of the complainant. In the cross examination, merely a suggestion was given that there was no demand or acceptance from the side of the accused. In respect of the acceptance of the bribe PW5 Sh. Bhaskar Chatterjee a shadow witness specifically stated on oath that he alongwith the complainant proceeded towards the house and found accused sitting there. He further stated on oath that accused demanded money by hand gesture and he took the currency notes from his right hand. In the cross examination, there is nothing substantial to discard the cogent and creditworthy evidence of PW2 Nanheram and PW5 Bhaskar Chatterjee regarding acceptance of bribe money by the accused from the complainant in the sum of Rs. 1,000/. In the present case, the complainant has specifically stated on oath that accused had accepted the bribe money from him and this has been corroborated by PW5 Bhaskar Chatterjee. Both the witnesses have stood the test of cross examination and their testimony could not be shattered. Hence, it is proved on record that the accused accepted an amount of Rs. 1,000/ from the complainant.
In view of the above, the acceptance of bribe amount by the CBI Vs. Raj Kumar Verma CC No. 36/11 Page 41 of 7 accused has duly been proved by the cogent and creditworthy evidence of PW2 complainant, PW5 B. Chatterjee.
Whether the GC notes of Rs. 1,000/ received as bribe were recovered from the accused:
7.7 The case of the prosecution is that accused was caught while he was holding the currency notes in his hand and after the indication being given by the shadow witness, the accused was caught from his wrist by Inspt.
RC Sharma and Inspt. Prem Nath. Since, it was a public road, the accused was taken inside the house of the complainant. After entering into the house, the accused threw the money on the bed. TLO directed PW7 Sh. SK Chaudhary to pick up the currency notes and thereafter handwash of the accused was taken. The colourless solution turned pink and the chemical report of that solution has been proved as positive showing presence of phenolphthalein powder. The complainant in his testimony has specifically stated that after the accused was apprehended, he threw away the currency notes and on being asked by the CBI officials, he pointed out the place where the money was thrown. The complainant also specifically stated that the number of the GC notes were tallied with record and found the same to be correct and when the handwash of the accused was taken, it turned pink. In the cross examination of the complainant, there is no material which could discredit this part of the testimony of the complainant. Rather in the cross CBI Vs. Raj Kumar Verma CC No. 36/11 Page 42 of 7 examination, the complainant reaffirmed that currency notes were thrown by the accused. The only contradiction which has appeared is that the complainant stated that the same were picked up by the CBI officials. I consider that this is a minor contradiction which does not go to the roots of the case. The complainant has also specifically reiterated in the cross examination that handwash of both the hands of the accused were taken and the same were duly sealed by the CBI. Regarding the currency notes, the testimony of the complainant was corroborated by PW5 B. Chatterjee. He also stated on oath that the accused was taken inside the house of the complainant where the accused threw away the tainted GC notes and the same were picked up by PW7 SK Chaudhary at the instance of CBI officials. PW5 also reaffirmed that on the handwash of the accused being taken, the colourless solution turned pink. In his cross examination also, there is nothing which could raise a doubt on the recovery aspect. Similarly, PW7 SK Chaudhary has also made a specific statement on oath regarding recovery of currency notes from the possession of the accused. This fact has also been duly corroborated by PW RC Sharma. All the witnesses have made consistent and corroborative statement on oath. The prosecution has successfully proved that the currency notes being handed over by the complainant during the pretrap proceedings were duly treated with phenolphthalein powder, which fact is proved from the handing over memo as well as the testimony of the complainant, independent witnesses and CBI officials. The fact that accused was holding the currency notes have also CBI Vs. Raj Kumar Verma CC No. 36/11 Page 43 of 7 been proved by the cogent and creditworthy testimony of the above said witnesses. This fact has also been proved on record that accused threw the currency notes on the bed from where the same were picked up by independent witness Sh. SK Chaudhary. The fact that handwash of the accused was taken and the solution turned pink has also been proved by way of statement on oath by the witnesses. This proves that complainant had touched the GC notes treated with phenolphthalein powder. The chemical report Ex.PW9/A has also been proved by the chemcial analyst. Therefore, I consider that prosecution has proved by way of consistent and corroborative statement on oath that the tainted money was recovered from the possession of the accused.
Whether there was any motive or reward on the part of the accused to accept the bribe and whether presumption u/S 20 PC Act, 1988 can be raised in this case?
7.8 One of the necessary ingredient of offence u /S 7 of the PC Act is that the gratification must have been received by an accused as "motive or reward" for committing an act or omission in connection with official function. The prosecution must show that there was an understanding that the bribe was given in consideration of some official act or conduct. It is pertinent to mention here that the incapacity of the public servant to show any favour or render any service does not necessarily take the case out of mischief. However, it must be proved on the record that the public servant CBI Vs. Raj Kumar Verma CC No. 36/11 Page 44 of 7 who had received the bribe had a requisite incriminatory motive. Explanation (d) of Sec. 7 makes it clear that receipt of gratification by a public servant as a motive or reward for doing (1) what he does not intend, (2) what he is not in a position to do or (3) what he has not done, are covered within the meaning of the offence defined in this section.
The defence has taken the plea that since the accused was not at all posted in pocket 26 nor he had any authority to allow or disallow any construction, therefore, there was no occasion for the accused to demand any bribe or for the complainant to pay any bribe. The plea of the defence is that one of the main ingredients of Sec. 7 of the PC Act is that the gratification must have been accepted as a motive or reward for doing an official act. Since the accused was not in a position of doing any favour or disfavour to the complainant, the ingredient of motive or reward stands failed. I am afraid that this plea of the defence cannot be accepted. The legislature in its wisdom has added Explanation (d) to Sec. 7 which reads as under:
"a motive or reward for doing - a person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within the expression"
The bare perusal of this explanation makes it clear that even if the accused is not in a position to do an act and he receives illegal gratification claiming to be empowered to do or forbear something would not go out of the purview of this provision saying that they did not have any CBI Vs. Raj Kumar Verma CC No. 36/11 Page 45 of 7 power to do or forbear that thing.
In Harish Kumar Vs. CBI, ILR (2011) IV Delhi 642, it was inter alia held as under:
"14. In the present case, since acceptance and demand has been proved in terms of Section 7 of the POC Act, this Court is duty bound to raise presumption for offence under Section 20 of the POC Act. In M. Narsinga Rao Vs. State of Andhra Pradesh, 2001 (1) SCC 691, it was held that where receipt of illegal gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as reward for doing a public duty. In the report, it was held:
"13. Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as "factual presumptions" or discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression " shall be presumed" is employed in Section 20(1) of the Act it must have the same import of compulsion.
14. When the subsection deals with legal presumption it is to be understood as in terrarium i.e. in tone of a command that it has to be presumed that the accused accepted the CBI Vs. Raj Kumar Verma CC No. 36/11 Page 46 of 7 gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act."
Furthermore, if we read Sec. 20 of the PC Act, it specifically provides that in a trial of an offence punishable u/S 7, if the accused has accepted any illegal gratification, it shall be presumed that the same was accepted or obtained as a motive or reward. Sec. 20 of the PC Act provides that this is revertable and the onus is upon the accused to prove otherwise. It is correct that the burden on the accused is not same as that on the prosecution. Such onus is only to the extent of raising the probability. There is no doubt about settled proposition that for taking resort to the presumption, the prosecution is required to prove the demand as well as acceptance of illegal gratification on the part of the accused. In the present case, the complainant by way of his cogent and creditworthy testimony has proved the demand of illegal gratification on the part of the accused and the CBI Vs. Raj Kumar Verma CC No. 36/11 Page 47 of 7 acceptance and recovery of tainted money has also been proved by the complainant as well as the independent witnesses. Therefore, there is no hindrance in taking help of the presumption as raised u/S 20 of the PC Act. In such a case, this fact would not make a difference that accused was not in a position to show any favour or disfavour to the complainant. Whether the conviction can be based on the testimony of the complainant, despite contradictions in the case of the prosecution? 7.9 The defence has assailed the testimony of the complainant. It has been highlighted that the complainant had been filing repeated complaints against the public servants and he himself was raising unauthorised construction and therefore, the conviction cannot be based on his testimony. CBI has argued that the complainant has specifically stated on oath regarding the demand, acceptance and recovery of bribe money and there is no hindrance in accepting the testimony the complainant. It has been submitted that the conviction in such cases can be based even on the uncorroborated testimony of the complainant.
It is pertinent to mention here that it is a settled principle of appreciation of evidence that the Court has to separate the grain from the chaff. The evidence of a witness is to be read as a whole and then to find out that which portions are believable and can be relied upon. Even if there are some weakness in the testimony of prosecution witness, the entire testimony CBI Vs. Raj Kumar Verma CC No. 36/11 Page 48 of 7 of the prosecution cannot be rejected.
It is a settled proposition of law that as a rule of law, it cannot be said that the evidence of every complainant in a bribery case should be corroborated in all material particulars. However, it would depend upon the facts and circumstances of the case. The only rule of caution that the evidence of bribe giver should be scrutinized very carefully and it is for the Court to consider and appreciate the evidence in a proper manner.
The principle regarding appreciation of evidence of a witness of bribery cases was discussed in detail by the Hon'ble High Court in State Vs. PK Jain & Ors., 2007(6) AD Delhi 403 and it was inter alia held as under:
"This country is facing unprecedented rise in corruption. Situation has come to a stage that MCD officials, due to the corrupt practices, have turned the whole city into a slum by allowing all types of unauthorized constructions, encroachment, squatting over public land. Engineers of local body who were supposed to check the unauthorized construction and encroachment of the public land, encroachment of roads, encroachment of pavements, turn a blind eye to all this, since their pockets are warmed and palms are greased."
It was further held that :
"In case of a legitimate trap, the persons and police officials taking part in trap, in no sense can be said to be accomplice or uncredit worthy witnesses so that then evidence would require, under law to be corroborated by independent CBI Vs. Raj Kumar Verma CC No. 36/11 Page 49 of 7 witness. The rule of corroboration is not a rule of law. It is only a rule of prudence and the sole purpose of this rule is to see that innocent persons are not unnecessarily made victim. The rule cannot be allowed to be a shield for corrupt. Moreover, the corroboration need not be by direct oral evidence and can be gathered from circumstantial evidence. The sole evidence of a complainant, is sufficient to convict a person, if it is reliable, acceptable and trust worthy."
The defence has also made an attempt to assail the testimony of the complainant on the ground that he has filed number of other complaints also, and, therefore, he is a chronic litigant and can't be believed. I consider that there is no substance in this argument of the defence. Merely, because the complainant has filed some other complaints also, would not make the complainant unreliable.
7.10 In the bribery cases, the conduct of the accused is very relevant. In Maha Singh Vs. State, AIR 1976 SC 449, the Supreme Court held that in prosecution for an offence of bribery, the conduct of the accused would be relevant u/S 8 of the Evidence Act. Similarly, in State of Madras Vs. A. Vaidyanatha Iyer, AIR 1958 SC 61, the Supreme Court considered the evidence relating to the conduct of the accused, to the effect that he was seen trembling and he silently produced the notes from the folds of his dhoti, when he was confronted by the Police officer with the allegation that he had CBI Vs. Raj Kumar Verma CC No. 36/11 Page 50 of 7 received a bribe. Similarly, in Prakash Chand Vs. State, AIR 1979 SC 400, the Supreme Court held that the conduct of the accused when confronted or questioned by a police officer during the course of investigation is admissible u/S 8 of the Evidence Act. However, at the same time, if the substantive prosecution evidence is totally unreliable or unworthy of credit, the conduct of the accused can never be permitted to become a substitute for proof by the prosecution. In the present case, in addition to consistent and corroborative statement of witnesses, the conduct of the accused is also noteworthy. The accused turned pale and did not utter anything on being challenged by the TLO, Inspt. RC Sharma.
7.11 CBI has also relied upon tape recorded conversation as a corroborative piece of evidence. It is a settled proposition that tape recorded conversation can be treated as corroborative piece of evidence. While appreciating the evidence in context of tape recorded conversation, it has repeatedly been held that Courts have to be extremely cautious in basing a conviction purely on the basis of voice identification. It has been held in the catena of judgments that the tape records of speeches were "documents" as defined in Sec. 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.CBI Vs. Raj Kumar Verma CC No. 36/11 Page 51 of 7
(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 shown to be relevant according to rules of relevancy found in the Evidence Act.
In Ram Singh & Ors. Vs. Col. Ram Singh, AIR 1986 SC 3, the Apex Court stated some of the conditions necessary for admissibility of tape recorded conversation, which are 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 tape recorded 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 tape recorded 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.CBI Vs. Raj Kumar Verma CC No. 36/11 Page 52 of 7
(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. Reference can also be made to Nilesh Dinkar Vs. State of Maharashtra 2011 VII AD (SC) 10"
The tape recorded conversation has duly been proved by the prosecution. PW10 Dr. Rajinder Singh has also specifically stated on oath that he examined the question voice of accused R.K. Verma with specimen voice by auditory and voice spectography techniques which tallied with his specimen voice in respect of linguistic, phonetic and other general spectography parameters. The witness examined the genuinity of the cassette and found that the same were not tampered with. It has also been proved on record that sample voice of the accused was taken. There is nothing on the record to challenge the accuracy of the tape recorded conversation, nor there is anything to even suggest that the tape recorded conversation was tampered with, in any manner. Thus, the tape recorded conversation can be accepted on corroborative piece of evidence. However, it is pertinent to mention here that even de hors tape recorded conversation, there is ample evidence to record the conviction against the accused.
In order to accept or reject the testimony of a witness, the Court is required to apply the golden principle of relaibility and creditworthiness. If the complainant has made cogent and reliable statement, which has inspired CBI Vs. Raj Kumar Verma CC No. 36/11 Page 53 of 7 the confidence of the Court, the testimony of a witness cannot be rejected on flimsy grounds. The complainant has made consistent and corroborative statement on oath regarding demand, acceptance and recovery of bribe. This has also been corroborated by the independent witnesses and CBI officials. There is no reason to disbelieve the testimony of the complainant. 7.12 I have gone through the authorities cited by the defence. Perusal of the judgments would indicate that the accused persons were acquitted on the basis of peculiar facts and circumstances and on the basis of the material contradiction in the testimony of prosecution witnesses, I respectfully seek to distinguish the cases from the facts of the present case. The cases cited by the defence are distinguishable on the facts as in all the cases peculiar facts were found which improbablise the case of the prosecution. 8.0 The prosecution by way of cogent, consistent and creditworthy evidence of witnesses has proved on record beyond reasonable doubt that accused being a public servant demanded and accepted bribe of Rs.1,000/ from the complainant PW2 Nanheram as a motive or reward for doing any official act. The recovery of tainted currency notes has also been proved on record by way of the impeccable evidence. The prosecution has also duly proved on record that the accused by adopting corrupt or illegal means obtained pecuniary advantage and abused his position as a public servant. Thus, in view of the above discussions, I consider that the prosecution has CBI Vs. Raj Kumar Verma CC No. 36/11 Page 54 of 7 successfully proved its case against the accused beyond reasonable doubt. Hence, accused Raj Kumar Verma is convicted for the charge u/S 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988.
Announced in Open Court (Dinesh Kumar Sharma)
on 25/04/2012 Spl. Judge (PC Act) : CBI
Saket Courts : New Delhi
CBI Vs. Raj Kumar Verma CC No. 36/11 Page 55 of 7
CC No. 36/11
CBI Vs. Raj Kumar Verma
RC No. 1(A)/09
25/4/2012
Present: Sh. DK Singh, Ld. PP for State.
Accused on bail with counsel.
Vide separate judgment, accused Raj Kumar Verma is is convicted for the charge u/S 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988.
Now to come up on 28/4/2012 for arguments on the point of sentence.
(Dinesh Kumar Sharma) Spl. Judge (PC Act) : CBI Saket Courts : New Delhi CBI Vs. Raj Kumar Verma CC No. 36/11 Page 56 of 7 CC No. 36/11 CBI Vs. Raj Kumar Verma RC No. 1(A)/09 28/4/2012 Present: Sh. DK Singh, Ld. PP for State.
Convict in person with Sh. Neeraj Bansal, Adv.
Arguments on the point of sentence heard.
Vide separate order on sentence, convict Raj Kumar Verma is sentenced to SI for 03 years and fine of Rs. 25,000/ in default SI for 06 months u/S 7 of the PC Act. Convict is further sentenced to SI for 03 years and fine of Rs.25,000/ in default SI for 06 months u/S 13(1)(d) of PC Act.
Both the sentences shall run concurrently.
Benefit of Sec. 428 Cr.PC be given to the convict.
Fine deposited.
An application u/S 389 Cr.PC has been moved on behalf of the convict. In view of the same, the sentence of the convict is suspended on his furnishing a personal bond in the sum of Rs. 25,000/ with one surety in the like amount, till 28/05/2012.
A copy of judgment and order on sentence be supplied to the convict free of cost.
File be consigned to Record Room.
(Dinesh Kumar Sharma) Spl. Judge (PC Act) : CBI Saket Courts : New Delhi CBI Vs. Raj Kumar Verma CC No. 36/11 Page 57 of 7 CBI Vs. Raj Kumar Verma CC No. 36/11 Page 58 of 7