Delhi District Court
Cbi vs Balraj on 21 March, 2025
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
PRINCIPAL DISTRICT & SESSIONS JUDGE-CUM-SPECIAL
JUDGE (PC ACT) CBI, ROUSE AVENUE DISTRICT COURTS,
NEW DELHI
CBI No. 47/2020
CBI Vs. Balraj (A-2)
RC-DAI-2019-A-0038 dated 19.11.2019
U/s 120-B r/w Section 7 Prevention of Corruption Act, 1988 (as
amended in 2018) and Section 7 Prevention of Corruption Act,
1988 (as amended in 2018) .
Central Bureau of Investigation
vs
Balraj
S/o Sh. Hukum Chand
R/o Flat No.130-140, 2nd Floor, Pocket-20
Sector-24, Rohini, Delhi-110085.
Date of FIR : 19.11.2019
Date of filing of chargesheet : 22.12.2020
Date of cognizance : 24.02.2021
Date of framing of charge : 25.08.2021
Arguments concluded on : 12.03.2025
Date of Judgment : 21.03.2025
Digitally signed
Appearances
by ANJU BAJAJ
ANJU CHANDNA
BAJAJ Date:
CHANDNA 2025.03.21
14:50:57
+0530
CBI vs Balraj 1/72
CBI No. 47/2020
For prosecution : Sh. A. K. Kushwaha, Ld. Senior Public
Prosecutor for CBI.
For accused : Sh. Harsh K. Sharma, Advocate
JUDGMENT
FACTS:-
1. The public Servants Manoj Kumar, Upper Division Clerk (UDC) and Balraj, Assistant Commissioner, posted at Office of Deputy Commissioner, North MCD, Narela Zone, Delhi have been charge-sheeted for the offences punishable under Section 120-B IPC r/w Section 7 Prevention of Corruption Act 1988 (as amended in 2018) and Section 7 Prevention of Corruption Act 1988.
2. The present case was registered on the basis of written complaint dated 18.11.2019 preferred by complainant Prem Arora against public servants Balraj, and Manoj about demand of illegal gratification of Rs.2,00,000/- from the complainant.
3. The complaint was verified by Inspector Raman Kumar Shukla, ACB, CBI on 18.11.2019 in the presence of independent witnesses Shatrughan and Yograj. The said verification revealed conspiracy between Balraj and Manoj Kumar for taking illegal gratification from the complainant in lieu of de-sealing his factory. The demand of bribe of Rs.2,00,000/- was confirmed on CBI vs Balraj 2/72 CBI No. 47/2020 the part of Balraj and Manoj which was negotiated by the complainant and brought down to Rs.75,000/- during verification proceedings as during the course of verification, a Digital Voice Recorder (DVR) was provided to the complainant. The conversations that took place between accused and the complainant were recorded in memory card fitted in DVR. The memory card was marked as Q-1.
4. The FIR was registered vide RC 38 (A) / 2019-DLI against both accused Balraj and Manoj Kumar and entrusted to Inspector Pramod Kumar Tanwar, CBI, ACB for investigation. A trap team was constituted by Trap Laying Officer (hereinafter referred to as TLO) Inspector Pramod Kumar Tanwar which consisted of CBI officials and two independent witnesses namely Shatrughan, Senior Assistant/UDC and Yograj, Head Constable, Office of Chief Commissioner, CGST, ITO.
5. The pre-trap proceedings were conducted at CBI office wherein complainant produced a sum of Rs.75,000/- (37 GC notes of Rs.2000/- and 2 GC notes of Rs.500/- each) and the same were treated with phenolphthalein powder. The numbers of currency notes were noted down in the handing over memo. All the members were explained the purpose and significance of the phenolphthalein powder and its chemical reaction. The amount of Rs.75,000/- was kept in the right side front pocket of the pant worn by the complainant by independent witness Yograj.CBI vs Balraj 3/72 CBI No. 47/2020
Complainant was directed not to touch the said bribe amount and to hand over the same to accused Balraj on his specific demand or on his specific directions to some other person. Sh.Shatrughan was asked to act as a shadow witness and to remain close to the complainant. It was directed that after the transaction of bribe, signal be given by rubbing his face by both hands and complainant was also directed to give a missed call from his mobile phone to TLO.
6. The trap team left for the office of the accused. The DVR in recording mode was kept in the front right side pocket of shirt worn by the complainant. The complainant and independent witnesses Shatrughan entered the North MCD office and reached at first floor of the building. The door of the room of Balraj was found bolted and they went inside the office room of Manoj. On seeing them, accused Manoj Kumar came out and the complainant enquired about Balraj. Manoj Kumar informed that Balraj had gone for a meeting and might come later. Manoj Kumar asked about independent witness to which complainant introduced him as his accountant. Manoj asked the complainant to send him out. Complainant asked the independent witness to leave for factory but he remained present in the office at some distance. Manoj Kumar took the complainant into waiting room and asked the complainant about bribe money on which complainant told him that he has brought Rs.75,000/- for Balraj. Manoj Kumar asked about his share of money and the CBI vs Balraj 4/72 CBI No. 47/2020 complainant promised him to pay his share in a day or two. Thereafter, Manoj Kumar called Balraj and they had a telephonic conversation. Balraj told Manoj Kumar to accept the said bribe amount and hand over the same to him at Rohini. Manoj Kumar brought a yellow color envelope from his office and directed the complainant to put the said bribe amount in the said envelope. Complainant put the bribe money into the said envelope and handed over the same to Manoj Kumar. Manoj Kumar accepted the said yellow envelope and checked the amount with both his hands. Complainant came towards TLO Pramod Kumar and informed about the transaction of bribe amount. DVR was taken back from the complainant and memory card was marked as Q-2. Manoj Kumar was caught by CBI and he was challenged for having demanded and accepted bribe of Rs.75,000/-. Independent witness recovered the yellow color envelope containing bribe amount from backpack of Manoj Kumar. The details of GC notes recovered from accused were found tallied with that of GC notes mentioned in the handing over memo. Right hand and left hand washes of accused Manoj Kumar were taken in solutions and were kept in two separate bottles which were sealed on the spot.
7. On the direction of TLO, Manoj Kumar made a mobile call to Balraj about delivering the bribe money, given to him by the complainant. However, Balraj deliberately denied for having any bribe money, because he had already received information CBI vs Balraj 5/72 CBI No. 47/2020 regarding trap of Manoj Kumar from Lokesh Chander, ASO over mobile phone. Trap money and backpack were sealed. Table of Manoj Kumar was searched and file of M/s R. S. Plywood was recovered from the second drawer of table of Manoj Kumar and same was also seized. A site plan was prepared. Mobile phone of Manoj Kumar was seized. The specimen voices of Manoj Kumar and Balraj were taken in separate blank memory cards and marked as S-1 and S-2.
8. The Memory cards Ex.Q-1, Q-2, S-1 and S-2 were sent to CFSL for making copies thereof for the purpose of investigation. After receiving the copies, the same were sent to CFSL for expert analysis. The sealed bottles containing washes were also sent to CFSL for examination. CAF, CDR and Cell ID Chart of mobile phones seized were collected. The transcripts of conversations were prepared. The sanction for prosecution under Section 19 PC Act was accorded by competent authority against both Manoj Kumar and Balraj.
9. The charge-sheet was submitted in the court on 22.12.2020 qua accused Manoj Kumar and supplementary charge-sheet was submitted qua accused Balraj on 24.02.2021. Cognizance of the offence was taken on 07.01.2021 and 24.02.2021 against both the accused persons respectively.
CBI vs Balraj 6/72 CBI No. 47/2020CHARGE:-
10. Vide order on charge dated 08.04.2021, charges were framed against both accused for offences punishable under Section 120-B r/w Section 7 Prevention of Corruption Act, 1988 (as amended in 2018) and Section 7 Prevention of Corruption Act, 1988 (as amended in 2018) r/w Section 120-B IPC to which accused persons pleaded not guilty and claimed trial.
11. Thereafter, on the basis of an application moved under Section 19 of Prevention of Corruption Act 1988, vide order dated 21.05.2022, accused Manoj was discharged from the present case on the issue of sanction. However, the trial proceeded against accused Balraj.
PROSECUTION EVIDENCE:-
12. During the trial, prosecution examined 22 witnesses in all. The sum and substance of prosecution evidence is as follows:-
PW-1 Ms. Rashmi Singh posted as Additional Commissioner, North MCD from January till August 2020 granted sanction Ex.PW1/A in respect of accused Manoj Kumar. The requisition was received from CBI for granting the sanction along with complaint, statements of witnesses, transcripts of recorded conversations CFSL CBI vs Balraj 7/72 CBI No. 47/2020 report, seizure memos and other relevant documents. PW-1 deposed that there is noting of final approval for sanction in the file no. 177/SIOP/Vig./CBI/2019 wherein she mentioned that she had gone through the complete record produced by CBI for according sanction.
During cross examination, PW-1 stated that file came to her for the first time on 10.07.2020. As reflected from the office notes, she had discussion with DLO and only thereafter the sanction was finally accorded on 13.07.2020. Witness admitted that office note for approval of sanction does not have her specific note and it only bears her signatures. She has compared the draft order placed in the office record and the sanction order signed by her and she found that the sanction order signed by her is not verbatim of the draft sanction order sent by CBI. The requisition was received from CBI for granting the sanction along with investigation report, statements of witnesses and various documents.
PW-2 Sh.Mahesh Chandra posted as Under Secretary in the Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, Govt. of India granted sanction Ex.PW2/B in respect of accused Balraj. The requisition was received from CBI for granting the sanction along with investigation report, various CBI vs Balraj 8/72 CBI No. 47/2020 documents and statements of witnesses. He examined all materials and thereafter on the basis of the same, he prepared office note and submitted the same along with all the records to his Deputy Secretary. The record and file went up to Secretary of their department. Secretary submitted complete record and file before Minister of State, Union of India who approved for according sanction for prosecution against Balraj. PW-2 finalized sanction order as approved and signed the same on behalf of President of India on the basis of authentication order issued by Ministry of Home Affairs.
During cross examination, witness denied the suggestion that no approval by the sanctioning authority was obtained.
PW-3 Prem Arora is the complainant. He narrated about the facts of the case where an application was moved by his nephew Rohit Suneja in the office of MCD for de- sealing of the factory in the month of August 2019. On 13/14.11.2019, when the employees of the factory were dismantling the machines for the purpose of transferring the same, MCD officials visited the factory including Manoj and they threatened that machines should not be transferred without their permission or otherwise FIR would be registered. MCD officials sealed the second gate of the factory. On 17.11.2019, complainant (PW-3) visited MCD office and met Mr.Manoj and tried to explain their CBI vs Balraj 9/72 CBI No. 47/2020 position at which he proposed to arrange a meeting with Balraj who was Assistant Commissioner and also informed that demand of Rs.2,00,000/- has been raised by him for getting the factory de-sealed. Complainant (PW-3) was taken to the room of accused Balraj but he was not available. Complainant was asked to come next day for the purpose of meeting. Since the complainant was not willing to give bribe, he approached CBI office and filed a written complaint. Complainant also deposed about verification proceedings conducted by Raman Kumar Shukla in the presence of independent witness Shatrughan. During verification proceedings, a recorder and chip was arranged and voice of Shatrughan was recorded. Complainant along with Shatrughan and Raman Kumar Shukla visited MCD office and the recording device was carried by the complainant inside the office. Witness Shatrughan was asked to hear the conversations. On reaching MCD office, complainant met Mr.Manoj who took the complainant to the room of Balraj while the independent witness was stopped from entering the room. A meeting was going inside the room and they were asked to wait outside. After sometime, complainant along with Manoj again entered the room of accused Balraj and when witness Shatrughan entered the room, he was again asked to wait outside. Accused Balraj was informed about sealing of the factory and the purpose of visit and interest CBI vs Balraj 10/72 CBI No. 47/2020 of the complainant in de-sealing the same and about already raised the demand of Rs.2,00,000/-. Complainant negotiated with Balraj at which proposal for Rs.1.5 Lakhs came from Mr.Balraj and when complainant expressed his inability to pay such amount, accused Balraj asked about his capacity to pay. Complainant proposed to pay Rs.75,000/- while Manoj also asked about his share through gesture to which complainant agreed to manage separately. Accused Balraj agreed through gesture for payment of Rs.75,000/- at which complainant informed to arrange the same and that he was visiting Panipat, Haryana on the same day. Complainant informed accused Balraj to make the payment next day and requested to de-seal the factory as soon as possible. Accused Balraj also enquired from the complainant as to if he had recorded conversation in his mobile phone at which complainant shown him his mobile phone and assured him that he was not engaging in such activities. On coming out, complainant informed about the entire proceedings to Raman Kumar Shukla and recording device was also given to him. Thereafter, they came to CBI office where recorded conversations were heard and the chip was taken out from the recorder and was sealed in the envelope. Documents were also prepared relating to the proceedings. Complainant was asked to arrange the demanded amount for the next day. The recorder was also sealed separately. The complaint has CBI vs Balraj 11/72 CBI No. 47/2020 been identified as Ex.PW3/A and verification memo as Ex.PW3/B bearing the signatures of PW-3.
PW-3 further deposed about the proceedings dated 19.11.2019 whereby a team was constituted consisting of CBI officials and two independent witnesses namely Shatrughan and Yograj. Complainant produced an amount of Rs.75,000/- and the currency notes numbers were noted down in the computer system. The demonstration about the chemical powder by applying the same on the notes was given showing that in the liquid same would turn pink.
The team members washed their hands after the demonstration. The currency notes were put in the right pocket of pant of the complainant and complainant was asked not to touch the notes until demanded by accused persons Manoj and Balraj. Witness Shatrughan was instructed to accompany the complainant and to overhear the conversations, while other independent witness was not to enter the MCD office and to remain outside. The complainant was instructed to give a missed call after the transaction is over or otherwise to give indication by gesture by scratching his head. The documents were also prepared and the team were given due instructions. Recording device was also arranged with a new chip and same was given to the complainant after recording the specimen voice of witness.
CBI vs Balraj 12/72 CBI No. 47/2020The team thereafter reached the MCD office, where the complainant and Shatrughan along with one CBI officer entered the main gate of MCD office. The recording device / DVR was put in the shirt pocket of the complainant in switched on mode. Complainant and witness Shatrughan went to the room of Balraj which was locked and thereafter they went to Chamber of Manoj who was available and sitting with 3-4 other persons. On seeing the complainant, Manoj came out of his chamber and also scolded the complainant for being accompanied by Shatrughan. Manoj took the complainant privately to a rest room and asked if the complainant had brought the bribe amount. On confirmation by the complainant that he had brought the amount, Manoj informed that Balraj was not available being busy in some meeting and he made a mobile call to Balraj to inform about arrival of complainant. Manoj asked accused Balraj as to whether he could take and keep the amount and thereafter disconnected the call. Complainant informed Manoj that he was carrying the amount in his pocket at which Manoj left and again came with a yellow color envelope and asked the complainant to put the amount in the yellow color envelope. Complainant asked Manoj to check the amount at which he counted the money and again put the same in the yellow envelope. Manoj also asked about his CBI vs Balraj 13/72 CBI No. 47/2020 share through gesture at which complainant assured to arrange for the same. Complainant was told that his file would be expedited about de-sealing of the factory. After this, Manoj went to his chamber and complainant through gesture to Shatrughan and Inspector Pramod indicated that task was over and immediately all the team members came there. The team member entered the Chamber of Manoj who was caught hold of his hands and was asked about the amount. Manoj initially tried to avoid but thereafter accepted that he had received the amount on the instructions of Balraj. The table drawer of Chamber of Manoj was searched by independent witness Yograj but nothing could be found but thereafter a backpack lying beside the table was searched and said yellow envelope was found which the complainant identified. DVR was taken from the complainant before entering the chamber of Manoj. Accused Manoj was being held by CBI officials and was taken to rest room where hand wash of both hands were taken and the solution turned pink. The solution was poured into the glass bottles and thereafter sealed. Backpack from which the recovery of yellow envelope was made was also sealed in an envelope. Independent witness Yograj was asked to take out the amount from the yellow envelope and to count the same, which came out to be Rs.75,000/- (37 currency notes of Rs.2000/- and 2 currency notes of Rs.500/-). The currency notes were CBI vs Balraj 14/72 CBI No. 47/2020 separately sealed in an envelope and similarly the chip was also sealed. The site plan was prepared by Inspector Pramod Kumar.
Mobile phone of Manoj was taken into possession and was sealed by keeping the same in the envelope. The specimen voice of Manoj Kumar was recorded in a separate memory card and was kept in an envelope and was sealed. At about 7.30 p.m, accused Balraj reached there and he was interrogated about the demand and acceptance of Rs.75,000/- from the complainant Prem Arora. Accused Balraj was arrested and his mobile phone was taken into possession. His mobile phone was separately sealed in an envelope. The specimen voice of Balraj was also recorded in a new memory card and same was also sealed. PW-3 identified his signatures on the handing over memo Ex.PW3/C, recovery memo Ex.PW3/D, site plan Ex.PW3/E. On 14.12.2019 complainant again visited CBI office and independent witnesses Shatrughan and Yograj were also present. The recorded conversations were played and voices were identified by them. The transcripts were also prepared of the conversations. PW-3 also identified the voices of Manoj, Balraj and himself in the court during his testimony. The audio files / recorded conversations were played and transcriptions were duly identified by the CBI vs Balraj 15/72 CBI No. 47/2020 witness Ex.PW3/F, Ex.PW3/G, Ex.PW3/H, Ex.PW3/I, Ex.PW3/J, Ex.PW3/K and Ex.PW3/L. Complainant (PW-3) identified the following as produced by MHC(M):-
1. Memory card Q-1 as Ex.PW3/Article-5
2. Memory card Q-2 as Ex.PW3/Article-6
3. Samsung Mobile as Ex.PW3/Article-7
4. Memory card S-1 as Ex.PW3/Article-8
5. Memory card S-2 as Ex.PW3/Article-9
6. Currency notes / trap money of Rs.75,000/- as Ex.PW3/Article-10,
7. DVR as Ex.PW3/Article-16 During cross examination, PW-3 denied the suggestion that he made a false complaint against accused Balraj or that he filed the complaint to take revenge from MCD officials, who in discharge of their duties sealed the premises of M/s R S Plywood which was being operated from illegal site. It is admitted that M/s R. S. Plywood was a partnership firm and complainant was not the partner.
The suggestion has been denied that M/s R. S. Plywood was sealed by the office of accused in April 2019 with a specific notice that same was being used for unauthorised purpose. The suggestion has been denied by the complainant that he opened the locks of M/s R. S. Plywood and took the labour inside to dismantle the CBI vs Balraj 16/72 CBI No. 47/2020 machines with the objectives of removing the same. The complainant was not present at the time dismantling was being done nor he had instructed the labour to dismantle the machines for the purposes of transferring. The complainant had no conversation with MCD officials on the day machines were being dismantled. The information was received by the complainant from Rohit Suneja. The complainant advised Rohit Suneja to send a fresh letter to MCD seeking permission to dismantle the machines and one such letter was written by Rohit Suneja. The notice was pasted on the premises of M/s R. S. Plywood mentioning the name of Tony Arora and record of MCD was shown to the complainant but he could not identify the signatures on Ex.A-3. Rohit Suneja had applied for temporary de-sealing of the factory and he has no knowledge that in August 2019, accused had passed an order that owner of the factory premises is being given final opportunity to vacate the premises and submit the compliance. It is admitted that factory premises was not vacated in August 2019. Complainant has no knowledge that vide sealing order no. 98 dated 19.08.2019, the factory premises was sealed on 20.08.2019 in the presence of officials of DPCC and Delhi Police. On the letter Mark Y1, witness was unable to identify the signatures of Rohit Suneja. It is admitted that Ex.A-3 was taken into possession by CBI officials after the same was being CBI vs Balraj 17/72 CBI No. 47/2020 produced by Manoj from drawer of his table. The complainant was however unable to identify the signatures on the documents as that of Rohit Suneja. The suggestion has been denied that complainant having never been participated with the activities of M/s R.S.Plywood or with municipal authorities qua de-sealing process, he is unable to identify the signatures of Rohit Suneja (his nephew). The conversations were played again during cross examination and complainant was asked to identify the voices which he specifically identified. Various questions were put to the witness with respect to the nature of voices including background noises of traffic and other persons. The suggestion has been denied by the complainant that there was no telephonic conversation between Manoj and Balraj except after the arrest of accused Manoj by CBI officials. Complainant stated that Manoj made a call on mobile of Balraj after taking the bribe amount. The suggestion has been denied that Manoj had not taken the complainant to rest room or that Balraj had never given his specimen voice or that complainant has identified the voices falsely. PW-3 has denied the suggestion that case is false and that he is making false statement.
PW-4 Rohit Suneja was running the factory in the name and style of M/s R. S. Plywood in partnership. On 04.06.2019 PW-4 received a notice from MCD with regard CBI vs Balraj 18/72 CBI No. 47/2020 to heavy machinery in the factory. On 13.06.2019, he replied to the notice requesting for 2-3 months for shifting the machinery from the factory. On 19.08.2019 a notice was affixed by MCD with regard to sealing of the factory. On 03.10.2019, he again requested for grant of time. On 13-14.11.2019 he received a phone call from guard of the factory who informed that MCD officials were sealing the other gate of the factory. Witness than talked to MCD official Balraj who asked him to speak about the same next morning in the office. On 18.11.2019, PW-4 reached MCD office along with his uncle Prem Arora and also CBI official Raman Kumar Shukla. Witness deposed that his uncle informed him about demand of MCD official Balraj of Rs.75,000/- for de-sealing the factory.
PW-4 identified the voice of his uncle Prem Arora (the complainant) in the CBI office. Transcripts of the conversations were prepared in the presence of the witness. Witness identified the production cum seizure memo dated 18.11.2019 Ex.PW4/A (colly), MCD notices dated 04.06.19 and 19.08.19 and DVR Ex.PW3/Article-16.
During cross examination, PW-4 identified the relevant documents Ex.PW4/DA to Ex.PW4/DJ. Witness denied the suggestion that he had consciously made a false statement about association of his uncle Prem Arora with activities of M/s R. S. Plywood.
CBI vs Balraj 19/72 CBI No. 47/2020PW-5 Pawan Singh, Alternate Nodal Officer has provided Customer Application Form and Call Detail Records (CDR) for the period from 18.11.2019 to 19.11.2019 of mobile numbers 8929522445, 9643479794, 9818280676 Ex. PW5/A (colly) to the CBI. Witness was cross examined on behalf of defence.
PW-6 Bishambhar Kumar Suneja deposed that his son Rohit Suneja and his brother in law Prem Arora used to look after the affairs of his business namely M/s R. S. Plywood. The factory was situated on the land belonging to Ranbir Singh which they had taken on rent. During cross examination, witness denied the suggestion that he had deposed falsely to the effect that factory was looked after by his brother-in-law.
PW-7 Suraj, Assistant Section Officer, Public Health Department has proved the copy of judgment dated 07.05.2004 Ex.PW7/A, order dated 03.06.2011 issued by Additional Commissioner, Factory Licensing Ex.PW7/B, note dated 04.06.2014 of Chief Law Officer, NDMC Ex.PW7/C and order of Supreme Court dated 04.02.2019 in Writ Petition No.4677/1985 Ex.PW7/D. PW-8 Rajiv Vashisht, Nodal Officer, Bharti Airtel Limited provided the eKYC Ex.PW8/B, CDR Ex.PW8/C and Cell CBI vs Balraj 20/72 CBI No. 47/2020 ID Chart Ex.PW8/D of mobile number 9810633420 in the name of Lokesh Chander to the CBI. He further deposed that on 19.11.2019 there was a call at 17:25:51 from mobile number 9810633420 to mobile number 8929522445. Witness was cross examined on behalf of defence.
PW-9 Inspector Raman Kumar Shukla was posted as Inspector with ACB, CBI in November 2019. The witness has conducted verification of the complaint of complainant Prem Arora on 18.11.2019 by arranging DVR and memory card and by giving instructions to complainant and independent witness Shatrughan. PW-9 has deposed about verification proceedings whereby conversations of the complainant and accused were recorded at the office of Assistant Commissioner, MCD, Narela. The complainant informed that matter was discussed with accused Manoj and Balraj. Initially the bribe amount was Rs.2 Lakhs which was negotiated for Rs.1.5 Lakhs for de-sealing of the factory of complainant. Complainant told to Balraj that he is able to arrange only Rs.75,000/- which was agreed to by the accused Balraj. Recorded conversations were heard and thereafter memory card Q-1 was sealed in an envelope. CBI handed over the brass seal to independent witness. The proceedings were recorded in the verification memo dated 18.11.2019 Ex.PW3/B. On the basis of CBI vs Balraj 21/72 CBI No. 47/2020 verification, PW-9 recommended registration of FIR against Assistant Commissioner, Balraj and Manoj and was also part of the trap team. The witness further deposed about pre-trap and trap proceedings, memos prepared in this regard and about apprehension of accused Manoj and recovery of tainted money. PW-9 further deposed about taking of handwashes of accused Manoj and about preparation of site plan by SI Vikrant Tomar on the directions of TLO. Witness deposed that Balraj was not available in the office as he had gone out from the office. A call was made to Balraj through Manoj and the said call was recorded in the memory card through DVR. In the said call, Balraj denied having any knowledge of bribe. The mobile phone of the accused Manoj was seized. After checking the phone, it was found containing call recorded conversations between Manoj and Balraj. The details of the proceedings were noted down in the recovery memo Ex.PW3/D. Balraj came in the office at about 7.30 p.m. He was challenged about bribe money to which he got perplexed and also arrested by the TLO. The recordings in the memory card were heard in the presence of independent witnesses and specimen voices of the accused persons were recorded.
During cross examination, witness denied the suggestion that he prepared a false verification memo at the instance of TLO. He admitted that during the CBI vs Balraj 22/72 CBI No. 47/2020 verification, he did not meet accused Balraj. He also admitted that even the complainant had not met accused Balraj before filing the complaint. He denied the suggestion that he had falsely drawn and incorporated false conversation in Ex.PW3/B or that same is fabricated piece of evidence. He admitted that for the first time, he met Balraj when he came to the office on the calling of Deputy Commissioner at 7.25 p.m. He denied the suggestion that during the trap proceedings, before apprehension of accused Manoj, the complainant had handed over the envelope containing money to Pramod Kumar Tanwar and it is so recorded in Q-2.
PW-10 Parveen Kumar deposed that he was posted as Junior Engineer (Electrical), City Sadar Paharganj Zone, North (MCD), Delhi in December 2019. Vide handing over cum taking over memo Ex.PW10/A, he had provided original Vodafone Enrollment Form of mobile number 8929522445 along with request letter dated 05.08.2019 submitted by Balraj, copy of office order dated 01.08.2019, self certified copy of identity proof of Balraj and copy of driving license of Balraj Ex.PW10/B colly. Witness deposed that mobile number 8929522445 belongs to accused Balraj. Witness was cross examined on behalf of defence.
CBI vs Balraj 23/72 CBI No. 47/2020PW-11 Anil Kumar posted as Administrative Officer in North, MCD, Narela Zone deposed that he was known to Balraj as he was his senior officer. On playing the file of call recording 19119_170823, PW-11 deposed that it appears to contain the voice of Balraj. Witness further deposed that he identified the voice of Balraj in the CBI office by saying "lag rahi hai". The voice identification memo is Ex.PW11/A. During cross examination, witness denied the suggestion that he was not in a position to identify the voice of Balraj being not acquainted with the same or that he has done so at the instance of CBI.
PW-12 Lokesh Chander was posted as Assistant Section Officer, Property Tax Department, MCD, Narela Zone in the year 2019. He deposed that in the year 2019 accused Balraj was Assistant Commissioner, North MCD Narela Zone and accused Manoj was working as UDC/License Inspector. He deposed that he was having mobile phone number 9810633420. He further deposed that on 19.11.2019 there were some noises in their office and he came to know that accused Manoj was trapped by CBI. He made a call to accused Balraj and informed him about the same. Witness identified the voice of Balraj in file 19118_1338, voice of Manoj in file 191119_1658, voice of Manoj and Balraj in file 191119_1727, 19119_170823.
CBI vs Balraj 24/72 CBI No. 47/2020PW-13 Vinod Kumar posted as Data Entry Operator, Deputy Commissioner Office, Narela Zone, deposed that he knew Manoj who was UDC in PA Section, Deputy Commissioner. On 19.11.2019 while PW-13 was in his office and was doing his routine work in the office of Manoj, some persons came inside the office and informed that they all are CBI officials. They asked about Manoj from PA Sh.Om Mansukhani who pointed out towards Manoj. CBI officials apprehended Manoj by his both wrists. On asking, Manoj accepted before CBI officials that he had taken the bribe money and also pointed out the place i.e. in backpack on the office table. One person namely Yograj accompanied with CBI officials searched out the bag containing yellow envelope. Yograj opened the envelope and took out the tainted money from the backpack and tallied the number of GC notes. He has also deposed about handwashes. Manoj also made a call to Balraj which was recorded through recording instrument. After sometime Balraj reached at the spot and CBI official interrogated him for taking bribe of Rs.75,000/-. CBI team seized the mobile phones of Manoj and Balraj. Witness admitted that Manoj accepted before CBI officials that he had demanded and accepted the bribe amount on the asking of Balraj. He was cross examined on behalf of defence.
CBI vs Balraj 25/72 CBI No. 47/2020PW-14 Yograj working as Head Constable, CGST, Principal Commissioner, CR Building, I.P.Estate (since 2014) has been the part of trap team. He deposed about pre-trap proceedings and trap proceedings conducted in his presence. He kept the tainted amount of Rs.75,000/- in the right pant pocket of complainant Prem Arora and noted down the number of currency notes. The demonstration of phenolphthalein powder has been admitted. Witness had accompanied the CBI team to MCD office. PW-14 further testified that complainant and another independent witness Shatrughan were asked to go inside the office of accused Balraj. After sometime complainant came out from the MCD office and informed that accused Manoj had taken the bribe amount and kept in a backpack. PW-14 searched the bag and a yellow envelope was found in the said bag which was taken out by him and the said envelope was found containing tainted amount. PW-14 tallied the said currency notes with the memo prepared at CBI office. PW-14 further testified about handwashes of accused Manoj taken in his presence. Witness further deposed that Manoj was asked to call accused Balraj and to inform Balraj that complainant had delivered the bribe amount to him. Witness further deposed that after 2 hours, Balraj reached the spot and he was interrogated. The introductory voice of PW-14 was recorded and voices of Manoj and Balraj were also recorded. Witness further deposed about CBI vs Balraj 26/72 CBI No. 47/2020 site plan and recovery memo prepared in his presence. Witness testified about arrest of accused Manoj and Balraj vide arrest cum personal search memo Ex.PW14/A and Ex.PW14/C. The articles produced during the trial such as handwashes, envelope of recovered money, recovered money, transcripts of Q-1 and Q-2, voice identification memos have been identified. Witness identified the voice identification memo Ex.PW14/B, handwashes bottles (RHW and LHW) as Ex.PW14/D and Ex.PW14/E. The witness also identified his voice in the audio recordings. Witness has also identified the voices of Manoj and Balraj.
During cross examination, witness denied the suggestions that brass seal was given to him only in the court premises by CBI staff or he had signed the documents of the present case at the instance of CBI officials despite the fact he had not witnessed the respective facts. The suggestion has also been denied that he falsely stated in his deposition that the complainant after meeting Manoj came towards stairs and met Inspector Pramod Tanwar. Witness stated that DVR which was played at the spot was containing the recorded conversations amongst Manoj and the CBI officials. He again stated that there was no such conversation in the DVR containing voice of CBI officials. The DVR contained conversation of only one person. He denied the CBI vs Balraj 27/72 CBI No. 47/2020 suggestion that he had deposed incriminating facts at the instance of CBI.
PW-15 Om Mansukhani deposed that in the year 2019 he was posted in the office of Deputy Commissioner, Narela Zone, MCD. He knew Balraj and Manoj. On 19.11.2019 one person (who was later identified as Prem Arora) entered the room. Manoj and Prem Arora went out from the office room. After sometime Manoj came back to his office with one envelope in his hand. CBI officials entered the room and caught hold of Manoj. CBI recovered the amount of Rs.75,000/- from the backpack in yellow envelope as told by Manoj. Handwashes of Manoj were taken. Witness had tallied the recovered currency notes with the numbers mentioned in a document carried by CBI. CBI officials also recovered some file from the drawer of Manoj. Witness also called Balraj on the directions of CBI officials and asked him to come to the office for some urgent official work. After about 1-2 hours, accused Balraj came to the office and he was enquired by CBI officials.
During cross examination, witness denied the suggestion that he never conversed with any of the CBI officials as stated in his examination in chief. Witness denied the suggestion that as his position has not been CBI vs Balraj 28/72 CBI No. 47/2020 shown in Ex.PW3/E, he was not present at the spot at the time CBI officials entered the office nor any activity was conducted by CBI officials in his presence.
PW-16 Deepti Bhargava, Government Scientific Expert has given chemical examination report Ex.PW16/A with respect to the sealed glass bottles which tested positive for the presence of phenolphthalein. During cross examination, witness denied the suggestion that her report Ex.PW16/A is scientifically incorrect.
PW-17 Ms. Anjana K, Scientific Officer, TSFSL, Hyderabad has given the forensic examination report Ex.PW17/B with respect to the mobile phone of accused Manoj Ex.PW17/F. During cross examination, witness admitted that TSFSL has not been notified u/s.79A of Information Technology Act 2000. Witness denied the suggestion that she is not an expert u/s 45A of Indian Evidence Act.
PW-18 Milind Mahadev Dumbere was working as Deputy Commissioner, Narela Zone, North MCD in the year 2019. Witness identified the note-sheet regarding sealing / closure of unauthorized industrial unit under step-III Ex.PW18/A and order dated 19.08.2019 Ex.PW18/B. CBI vs Balraj 29/72 CBI No. 47/2020 PW-19 DSP Pramod Kumar Tanwar, CBI, ACB was posted as Inspector, on 19.11.2019. The FIR Ex.PW19/A of the present case was marked to him. PW-19 is the trap laying officer and has deposed about constituting a trap team and about arranging Rs.75,000/- through the complainant and treating them with phenolphthalein powder. Witness deposed about pre-trap, trap and post-trap proceedings conducted in the present case and has proved various memos drawn during the same. Witness stated that on receiving information from the complainant that accused Manoj had taken the bribe money, he along with trap team members entered the room and on the pointing out of the complainant, Manoj was challenged for having accepted the bribe amount and yellow envelop containing money was recovered from the backpack. The details of post-trap proceedings have been given by this witness and various articles recovered / seized have been identified. At the time of arrest, Mobile phone make Samsung of Manoj was checked and it was found that the call to Balraj was automatically recorded in his mobile. Mobile phone was also seized and sealed. On the direction of this witness, Manoj made a call to Balraj and informed about receiving the money and asked Balraj as to where the amount was to be delivered. However, Balraj had shown his ignorance. MCD Deputy Commissioner was requested to call Balraj to come to the office. Accused Balraj came to the office at CBI vs Balraj 30/72 CBI No. 47/2020 7.30 p.m and he was interrogated and confronted. Mobile phone of Balraj Ex.PW19/D was also seized and sealed. Witness identified the mobile phones and memory cards.
During cross examination, PW-19 denied the suggestion that at no point of time, he had directed Manoj to have any telephonic conversation with accused Balraj or that no recorded conversation was found in the mobile phone of accused Manoj. He denied the suggestion that no specimen voice of accused was taken. PW-19 denied the suggestion that he had falsely implicated accused Balraj in the present case in order to help his friend Prem Arora. Witness denied the suggestion that recovery memo Ex.PW3/D contain incorrect facts.
PW-20 Hitesh Mathur was posted as Junior Secretariat Assistant in Narela Zone, North MCD in the year 2019. He was knowing accused Balraj as well as Manoj. Vide production-cum-seizure memo dated 14.12.2019, he handed over joining report dated 02.08.2019 and 01.08.2019 of accused Balraj, office order dated 19.01.2018 of Manoj and office order dated 24.09.2019 vide which ward no.35 was allocated to Manoj Kumar by accused Balraj.
CBI vs Balraj 31/72 CBI No. 47/2020PW-21 Inspector Pradeep, CBI, Lucknow was posted in ACB, Delhi from November 2017 to July 2023. Witness had taken permission u/s. 17A of PC Act for conducting investigation of the case. The present case was handed over to him by Pramod Kumar Tanwar, TLO for further investigation. He proved FIR as Ex.PW21/A. He examined several witnesses and recorded their statements. He collected the CDRs and CAF of mobile numbers of accused Manoj Kumar and Balraj. He prepared the transcription of recordings available in memory cards Q1 and Q2. The data of mobile phone of accused Manoj Kumar was got extracted from FSL, Hyderabad. Voices of accused persons in Q1 and Q2 were identified by ASO Lokesh Chandra, MCD. Voices of accused persons available in pen drive containing the data extracted from mobile of accused Manoj Kumar was got identified. Memory cards were sent to CFSL. He also collected various documents from MCD and collected sanction of prosecution against accused persons and filed the charge- sheet in the court. Witness identified the production cum seizure memos, voice identification memos, transcripts, voice identification cum transcription memos.
During cross examination, witness stated that no evidence had surfaced to show permission to dismantle and remove the machinery from the sealed premises for a CBI vs Balraj 32/72 CBI No. 47/2020 short period of time. Various questions have been asked from the witness regarding notings in the MCD file of M/s R. S. Plywood. Witness denied the suggestion that consciously crucial facts, available in the notings refuting the allegations of the complainant were not brought on record as he filed the charge-sheet in collusion with Prem Arora and Rohit Suneja. He denied the suggestion that false transcriptions, voice-cum-transcription memos and other documents were prepared by him. Witness denied the suggestion that he in collusion with Rohit Suneja, Prem Arora and Bishambar Kumar Suneja fabricated the documents to falsely implicate the accused.
PW-22 Jayesh Bhardwaj, Government Scientific Expert, CFSL, New Delhi is an expert and examined audio conversations containing questioned conversations and specimen voices (Q1, Q2, S1, S2, DVR-1 and DVR-2). Witness has given his detailed report Ex.PW22/A and has also identified memory cards and DVRs so produced. During cross examination, witness denied the suggestion that he had prepared the report containing false facts at the request of SP, CBI. He admitted that neither CFSL nor witness are notified u/s. 79A of IT Act 2000 or u/s. 45A Indian Evidence Act 1872.
STATEMENT OF ACCUSED:-
CBI vs Balraj 33/72 CBI No. 47/202013. After closure of the prosecution evidence, statement of accused Balraj was recorded under Section 313 Cr.P.C.
When questioned about each incriminating evidence appearing on record, accused Balraj pleaded innocence and false implication. Accused stated that he did not know anything about the activities of M/s R. S. Plywood except one recorded in the corresponding file. He denied that he had visited the factory on 13/14/11.2019 or had any conversation with any one, with respect to either demand or negotiation of money. He saw the complainant for the first time when he was called by his superiors and introduced to CBI officers. Accused has no knowledge with regard to pre-trap, trap and post trap proceedings. He came back to MCD office on the instructions of his superior officers, when he was arrested on false allegations. He denied that he became perplexed. He did not give his specimen voice voluntarily and he was asked to state certain sentences in a particular manner and tone which by themselves were containing incriminating allegations.
Accused further stated that sanction is defective as entire material was not put across before the sanctioning authority and no approval from the sanctioning authority was obtained. Accused denied the scientific report of CBI vs Balraj 34/72 CBI No. 47/2020 DVR, Q1, Q-2, S-1 and S-2. Accused further stated that since he was one of the functionary of MCD office who used to deal with the sealing of the premises as per the order of NGT, Delhi and Hon'ble Supreme Court, therefore lot of persons who are doing illegal commercial activities have animosity towards MCD officials and therefore only in order to take personal vengeance, he has been falsely implicated.
14. Accused preferred not to lead any evidence in defence.
15. I have heard arguments as advanced by Sh. A. K. Kushwaha, Ld. Sr. PP for CBI and Sh.Harsh K. Sharma, Ld. defence Counsel. I have also gone through the entire record including complaint, trap memos, audio conversations, transcripts and other exhibited documents. I have also gone through the written submissions filed on behalf of defence.
16. Arguing on behalf of prosecution, Ld. Sr. PP for CBI Sh. A. K. Kushwaha contended that the present case is under Section Section 7 Prevention of Corruption Act, 1988 (as amended in 2018) read with Section 120-B IPC. The accused Balraj is a public servant and has been working as Assistant Commissioner, MCD and accordingly sanction for prosecution under Section 19 of Prevention of Corruption Act has been duly accorded by PW-2 Mahesh Chandra. The elements of offence under Section 7 of CBI vs Balraj 35/72 CBI No. 47/2020 Prevention of Corruption Act, mainly, demand and acceptance of undue advantage have been duly proved with the direct testimony of witnesses. Sufficient evidence has been brought on record in the form of oral, documentary and electronic evidence. It is evident from the record that accused Balraj was dealing with the file of R. S. Plywood which was recovered from the possession of co-accused Manoj. In pursuance of the demand, co-accused Manoj on behalf of accused Balraj accepted the bribe amount and therefore his hand washes tested positive for phenolphthalein. The recovery memo was drawn with all details mentioned therein. The tainted money (produced by the complainant for the purposes of trap) was recovered from the possession of accused Manoj.
17. The presumption under Section 20 of Prevention of Corruption Act 1988 arises against the accused, while the accused has failed to give any reasonable explanation in rebuttal. The version of the prosecution is duly supported by independent witness Yograj as also his testimony remained strong on crucial ingredients of the alleged offences. The official witnesses of CBI have remained consistent and cogent during their depositions and further the documentary evidence prepared during the proceedings properly corroborate the prosecution version. The original devices through which the recordings were done have been produced in evidence. The expert analysis and reports thereof have supported and corroborated the case of the CBI vs Balraj 36/72 CBI No. 47/2020 prosecution. The element of demand and acceptance are clearly coming forth in the recorded conversations. There are no material discrepancies with respect to the testimony of prosecution witnesses, the documents produced as well as recorded conversations which are sufficient to bring home the guilt of the accused. The charges against the accused are sufficiently proved and accordingly the conviction of the accused be recorded. Ld. Prosecutor has referred to the judgment of C. M. Sharma vs State of Andhra Pradesh, (2010) 15 SCC1. Ld. Prosecutor has further submitted that Section 7 is wide enough to cover such situation where demand is raised by one public servant and acceptance is made by some other person. Ld. Prosecutor has relied upon the judgment of T. Shankar vs. State of A. P., 2004 Cri.L.J. 884.
18. On the other hand, Ld. defence Counsel Sh.Harsh K. Sharma argued that this is a case of false implication of accused as also there are material contradictions, several infirmities and improbabilities in the evidence. It is pointed out that there has been no corroboration to the evidence of the complainant PW-3 Prem Arora and the testimony of the complainant suffers from contradictions during his cross examination. According to the Ld. defence Counsel, the voice identification has not been properly done in the present matter as also the expert report is not conclusive. Merely on the basis of probability of similar voices, the audio recordings have been placed on record. There are CBI vs Balraj 37/72 CBI No. 47/2020 inconsistencies in the depositions of the witnesses and the documentary evidence produced on record. It is also pointed out that there are various noises and disturbances in the audio conversations as well as absence of continuity and clarity and therefore, quality of audio conversations is not sufficient enough to be accepted in evidence.
19. Ld. Counsel also argued that accused was not present in the office at the time of alleged acceptance as also voice of accused is not there in the audio recordings. Complainant Prem Arora (PW-3) is a false witness and complaint preferred by him Ex.PW3/A does not contain specific and material particulars. There are material contradictions in the version of the complainant and therefore his testimony cannot be relied upon. Ld. Counsel vehemently submitted that accused deserves to be acquitted in the present case.
20. Ld. Counsel has relied upon the following judgments:-
1. Parminder Kaur @ P.P.Kaur @ Soni vs. State of Punjab, 2020 SCC OnLine SC 605.
2. Arjun Panditrao Khotkar vs. Kailash Khushanrao Gorantyal, (2020) 7 SCC1.
3. Ajay Gupta vs. State, thr. CBI, 2022 SCC OnLine Del 3549.
4. Neeraj Dutta vs. State, Delhi Admn. (2023) 4 SCC 731.CBI vs Balraj 38/72 CBI No. 47/2020
5. Ziyauddin Burhanuddin Bukhari vs Brijmohan Ram Dass Mehra, (1976) 2 SCC 17.
6. Ram Singh & Ors. vs. Col. Ram Singh, 1985 (Suppl.) SCC
611.
APPRECIATION AND ANALYSIS:-
21. The accused has been charged for the offences punishable under Section 120-B IPC read with Section 7 of Prevention of Corruption Act and substantive offence under Section 7 of Prevention of Corruption Act 1988 r/w Section 120-B IPC.
22. Section 7 of Prevention of Corruption Act 1988 (as amended in July 2018) is defined as under :-
''7. Offence relating to public servant being bribed Any public servant who,--
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for CBI vs Balraj 39/72 CBI No. 47/2020 forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration.--A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2.--For the purpose of this section,--
(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his CBI vs Balraj 40/72 CBI No. 47/2020 personal influence over another public servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
Sanction:-
23. The first and foremost requirement for the prosecution is to prove sanction under Section 19 of the Prevention of Corruption Act 1988. In the present case, PW-2 Mahesh Chandra posted as Under Secretary in the Department of Personal & Training has accorded sanction vide order dated 22.01.2021 Ex.PW2/B. It is not in question that PW-2 Mahesh Chandra had the required capacity and competence to grant sanction qua accused Balraj. However, the sanction is questioned on the ground that no approval by the sanctioning authority was obtained to prosecute the accused. It is further contended by the defence that sufficient material was not produced before the sanctioning authority for proper consideration of the issue of grant of sanction.
24. I have examined the sanction order Ex.PW2/B. Sanction order mentions in brief the facts of the case and also the factum of transcriptions of conversations recorded during the verification and trap proceedings and also that sanctioning authority has CBI vs Balraj 41/72 CBI No. 47/2020 carefully examined the material including statements of witnesses and documents collected during investigation. It is important to note that sanction is granted on the basis of satisfaction of the competent authority. The satisfaction of competent authority cannot be substituted with the satisfaction of prosecution or defence. The adequacy of material is also to be gone into by the sanctioning authority while considering the material. The sanctioning authority was also at liberty to call or summon for any other material from the investigating agency during the process of consideration of sanction issue.
25. The law on this subject has been considered in detail by the Supreme Court of India in its judgment, State of Maharashtra through CBI vs Mahesh G. Jain, 2013 (8) SCC 119. The Apex Court culled out various principles of law relating to the sanction which are as follows:-
"14. From the aforesaid authorities the following principles can be culled out: -
14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.CBI vs Balraj 42/72 CBI No. 47/2020
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him. 14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6. If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction. 14.7. The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity."
26. Coming to the case in hand, in view of aforesaid principles and on proper analysis of the sanction order and testimony of PW-2 Mahesh Chandra, I am of the opinion that sanction has been granted on due application of mind by the sanctioning authority. The necessary material was placed and made available to the sanctioning authority and on consideration of the same, sanction has been granted. The sanctioning authority was satisfied with respect to the sufficiency of material. During cross-examination of PW-2, no suggestion has been put to the CBI vs Balraj 43/72 CBI No. 47/2020 witness that material was insufficient for the purpose of grant of sanction. No question was asked to ascertain, whether the sanctioning authority had called for original material. PW-2 stated in his examination that he had examined all the material and prepared the office note which was sent up to Secretary. The Secretary, then, submitted complete record and file before the Minister of State, Government of India who approved for according sanction.
27. In view of the above discussion, I am of the opinion that sanction has been properly and validly granted under Section 19 of the Prevention of Corruption Act 1988 and no substantial pleas have been raised by the defence to challenge the validity of sanction.
Element of Demand:-
28. The next important requirement for the prosecution is to prove specifically the demand of undue advantage or bribe or illegal gratification by the accused.
29. The legal position in this regard remains settled that proof of demand is sine-qua-non to prove the offence under Section 7 of Prevention of Corruption Act 1988.
CBI vs Balraj 44/72 CBI No. 47/202030. In the case of Krishan Chander vs State of Delhi, (2016) 3 SCC 108, on the basis of previously pronounced judgments, the Hon'ble Supreme Court reiterated the law on the subject and made the following observations:-
35. It is well-settled position of law that the demand for the bribe money is sine-qua-non to convict the accused for the offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj v. State of A. P. (2014) 13 SCC 55, A. Subair.
State of Kerala (2009) 6 SCC 587 and P. Satyanarayana Murthy (2015) 10 SCC 152 upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant.
36. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus:
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. (2010) 15 SCC1 and C.M. Girish Babu v. CBI (2009) 3 SCC 779. "... In the case of P. Satyanarayana Murthy (2015) 10 SCC 152, it was held by this Court as under (paras 21-23):
"21. In State of Kerala and another V. C.P. Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-a-vis CBI vs Balraj 45/72 CBI No. 47/2020 the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, the conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13(1)(d) of the Act, it has been underlined in B. Jayraj (supra) in unequivocal terms, that mere possessions and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not rise.
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, CBI vs Balraj 46/72 CBI No. 47/2020 would thus not be sufficient to bring home the charge under these two Sections of the Act. As a corollary failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction there under. ..."
31. In a recent judgment, Neeraj Dutta vs State (Government of NCT of Delhi) (2023) 4 SCC 731, Supreme Court has clearly down the principles in this context:-
88 What emerges from the aforesaid discussion is summarised as under:
88.1 (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)
(i) and (ii) of the Act.
88.2 (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
CBI vs Balraj 47/72 CBI No. 47/202088.4(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and
(ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
88.5 (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only CBI vs Balraj 48/72 CBI No. 47/2020 when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
88.6 (f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7 (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
88.8 (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5 (e), above, as the former is a mandatory presumption while the latter is discretionary in nature."
32. Basically "demand" precedes the complaint of corruption. No specific form of demand is the requirement of law. The CBI vs Balraj 49/72 CBI No. 47/2020 demand can be expressed by words, gestures, signs, indications or even by adopting clever methodology so that the purpose of conveying the message is served. The making of demand is a matter of understanding between the person who demands and the person who proceeds to pay. It is not necessary that the act for which the bribe is given, be actually performed. A representation by a public servant that he has done or he will do an act, impliedly includes a representation that it was or is within his power to do that act. Once the premise is established, the inference is to be drawn that said gratification was accepted as a motive or reward for doing or forbearing to do any official act.
33. Corruption is not a technical issue. It is simply give and take system to serve the purpose of bribe seeker and bribe giver. The demand may not be direct and categorical by the public servant but it should be clearly discernible from the evidence of his conduct. Moreover, it is not the requirement of law that demand must be proved by direct evidence. The element of demand can also be established through circumstances surrounding the transaction of acceptance or agreement to accept illegal gratification. The inference from the facts and attending circumstances however must be natural, probable and based upon the process of intelligent reasoning.
34. In view of aforementioned legal position, I have analysed the evidence of this case.
CBI vs Balraj 50/72 CBI No. 47/202035. The genesis of the present case is complaint Ex.PW3/A moved by the complainant Prem Arora (PW-3). In the complaint, it is specifically mentioned that factory in the name of R. S. Plywood is closed for last six months and articles were to be shifted from there. MCD officials, however, came and threatened not to dismantle the machines and sealed the factory on 14.11.2019. In the MCD office, complainant met Manoj who had taken him to the room of Balraj, Assistant Commissioner, MCD but he was not present there and Manoj told the complainant to get his work done through Balraj and demanded Rs.2,00,000/-. Since, the complainant was not willing to pay the bribe, the complaint has been filed before CBI. The complaint Ex.PW3/A is an important piece of evidence being the basis of First Information Report. A close reading of Ex.PW3/A reveals that facts and allegations contained therein could have been in the personal knowledge of the complainant only. The details contained in this handwritten complaint are duly corroborated on record whereby the factory of complainant R. S. Plywood was sealed by the MCD officials. The complete file Ex.A-3 was recovered during the trap proceedings from office drawer of Manoj which shows that matter was under the discretion of accused Balraj.
36. Complainant Prem Arora appeared as PW-3 and deposed about approaching CBI with the complaint and about being part CBI vs Balraj 51/72 CBI No. 47/2020 of the verification proceedings. The complainant has given his testimony in a strong manner standing firm on crucial elements of the case. The complainant at no stage exonerated the accused and at no point of time, controverted the version contained in the complaint. The truthfulness of the complaint is therefore established with the consistent testimony of the complainant. During his testimony, complainant narrated about the facts of the case that an application was moved by his nephew Rohit Suneja in the office of MCD for de-sealing of the factory in the month of August 2019. On 13/14.11.2019, when the employees of the factory were dismantling the machines for the purpose of transferring the same, MCD officials visited the factory including Manoj and they threatened that machines should not be transferred without their permission or otherwise FIR would be registered. MCD officials sealed the second gate of the factory. On 17.11.2019, complainant visited MCD office and met Mr.Manoj and tried to explain their position at which he proposed to arrange a meeting with Balraj who was Assistant Commissioner and also informed that demand of Rs.2,00,000/- has been raised by him for getting the factory de-sealed. Complainant (PW-3) was taken to the room of accused Balraj but he was not available. Complainant was asked to come next day for the purpose of meeting. Since the complainant was not willing to give bribe, he approached CBI office and filed complaint Ex.PW3/A. CBI vs Balraj 52/72 CBI No. 47/2020
37. The defence has conducted lengthy cross-examination of the complainant with respect to the complaint Ex.PW3/A and allegations so levelled but the defence has failed to shake the confidence of the complainant particularly with respect to the specific allegations of demand of bribe. The verification proceedings have also been duly proved with the testimony of complainant (PW-3) and verifying officer Inspector Raman Kumar Shukla (PW-9). From the verification memo Ex.PW3/B and the conversations recorded through memory card Q-1 demand of bribe is clearly discernible. The memory card Q-1 was played in the court during the evidence and also at the final stage and on examining the same, the element of demand is clearly found as initially the bribe amount was Rs.2 Lakhs which was negotiated for Rs.1.5 Lakhs and thereafter to Rs.75,000/-. The accused finally agreed to Rs.75,000/-. The factum of demand is thus proved with the testimony of complainant, corroborated by complaint Ex.PW3/A and recorded conversations in Q-1 (Ex.PW3/Article-5), extract reproduced as follows:-
बलराज : आप क्या चाहते है प्रेम अरोड़ा : मैं तो चाहता हं साहब, आप का सहयोग चाहता हूं मेरे उपर बलराज : आप क्या चहते है प्रेम अरोड़ा: मैं चाहता हूं जो कम हो सकते है कर दीजिए इसके अंदर मैं तो सर को बोला एक में करवा दो इसको बलराज : एक में ऐसे -
CBI vs Balraj 53/72 CBI No. 47/2020प्रेम अरोड़ा: सर देख लो इसमें कोई कमाई कर रहा हो तो मैं सर कोई दिक्कत ही नहीं खुद से ही नुकसान चल रहा है ओर कोई बात नहीं थी 6 महीने बंद थी उसमें स्टाफ को भी देना पडता है जी बलराज : अगर इसमें एफआईआर हो गई तो इसमें आपकी सारी मशीनरी इमबाउंउ हो जायेगी प्रेम अरोड़ा: सर आप एफआईआर करवाओगें, भाई है आपके थोडी सी मददमिल जायेगी बस यहीं चाहिए जी आप को पता है आज की डेट में व्यापारी वैसे ही मरा पडा है जी, क्या करे जी, अरे कोई छोटी सी चीज जो तो चल रख के ले जाये जो उठेगी आधा कबाड में जाना है .....
प्रेम अरोड़ा: डेढ ज्यादा हो जाये सर, इसलिए मैं कह रहा था
बलराज : 2 में कर लो
प्रेम अरोड़ा: 2 में आप मालिक हो जी आप 2 में न कहों, 2 में कर लेगे जी,
आप नहीं मानोगें तो करना ही पड़ेगा जी
बलराज : नहीं फिलहाल हम भी नहीं चाहते किसी का कु छ
....
CBI vs Balraj 54/72
CBI No. 47/2020
प्रेम अरोड़ा: सर 75 आप को दे दूंगा भाई साहब को मैं अपने आप निपट
लूंगा जी, इनको मं निपट लूंगा, आप को 75 दे जाउंगा जी प्रेम अरोड़ा: ठीक है जी मैं कल 4,5 बजे आ जाउं जी बलराज : कल प्रेम अरोड़ा: हां जी बलराज : ठीक है मनोज को कर देना प्रेम अरोड़ा: मैं भाई साहब को कर - सामान इंही को दे दूं बलराज : हां प्रेम अरोड़ा: ठीक कल चाय तो पी जायेगें आप के पास बलराज : मॉस्ट वेलकम
38. In view of cogent testimony of PW-3 complainant, complaint Ex.PW3/A and nature of recorded conversations proved through Q-1, it is sufficiently proved on record that accused Balraj demanded undue advantage from the complainant PW-3 Prem Arora for getting the factory M/s R. S. Plywood de- sealed.
Acceptance and Recovery:-
39. The next important essentiality for the prosecution is to prove acceptance and recovery of bribe by the accused.
CBI vs Balraj 55/72 CBI No. 47/2020Acceptance of illegal gratification by the public servant is an important ingredient. Once the acceptance is established, presumption under Section 20 of Prevention of Corruption Act 1988 invariably arises to the effect that bribe was accepted by accused as a motive or reward for giving favour in the matter in which the complainant has been interested.
40. The important witnesses on this point are complainant (PW-3), independent witness Yograj (PW-14), Raman Kumar Shukla (PW-9), officials of CBI and TLO Pramod Kumar Tanwar (PW-19). The witnesses have detailed the sequence of events whereby pre-trap proceedings were conducted at CBI office and thereafter team proceeded to the MCD office to lay the trap upon the accused. The complainant went to meet Manoj along with DVR fitted with memory card. During this meeting, Manoj confirmed from the complainant as to whether he had brought the amount, although at this time, accused Balraj was not present in the office. It is important to note that before accepting the bribe amount from the complainant, Manoj made a call to accused Balraj to seek his permission to accept the bribe amount on his behalf. This call has been recorded in the audio conversations recorded through DVR in Q-2 Ex. PW3/Article-6 and transcript Ex.PW3/H. It is further interesting to note that this conversation between Manoj and accused Balraj got recorded in the mobile phone of Manoj, which was seized at the time of trap. On checking the mobile phone make Samsung, the recording of this CBI vs Balraj 56/72 CBI No. 47/2020 call is available and clearly audible (transcript Ex.PW3/K). The call recording can be accessed through app 'My files' on opening it leads to 'internal storage' and on opening the folder of 'call' is seen and on opening several recordings are found. The call recording ---- 170823 is showing the acceptance part.
41. The nature of conversation so recorded clearly proved on record that accused Balraj instructed Manoj to accept the bribe amount and hand over the same to his place in the evening. It is, therefore, proved on record that Manoj accepted the bribe amount on behalf of Balraj. The complainant brought yellow envelope and asked the complainant to keep the amount in the said envelope and same was kept by Manoj in his backpack and was recovered at his instance by the trap team. The particulars of the currency notes also tallied and recovery is duly proved with the testimony of witnesses and also handwashes of Manoj (which turned pink) as Manoj counted the bribe amount in front of the complainant before securing the same. The conversation so recorded through memory card Q-2 and its transcript make it evident that Balraj accepted the amount through Manoj. Extract of transcript Ex.PW3/K is reproduced as follows:-
मनोज : सर नमस्ते बलराज : नमस्ते मनोज मनोज : सर वो आये हुए है जी मिलने आपसे CBI vs Balraj 57/72 CBI No. 47/2020 बलराज : हा भाई मैं तो भाई फिल्ड में हूं मनोज : जी बलराज : आप कर लो जो करना है ठीक है बात हो ही गई थी कल मनोज : हा लेकिन मैं लेकर रखू बलराज : आप कहां रहते हो मनोज : मैं रहता हूं सर बुराड़ी रहता हूं बलराज : बुराड़ी ...कोई नहीं रोहिणी के तरफ से निकल जाना मनोज : सर उल्टा पर जायेगा मेरा मेरा उघर से नहीं होता, बख्तावरपुर के पीछे ही पर जाता है मेरा तो बलराज : तो एक दिन निकल आओगे तो कोनसा क्या हो जायेगा, वो तो मुझे भी पता है मनोज: जी जी बलराज : मैं अभी इधर रंणहोला में हूं मनोज: अच्छा बलराज : हा डीपीसीसी के साथ वो चल रहा है डाइव, ठीक है न मनोज : जी तो इन्हीं को भेज दू ये उधर ही जायेंगे बलराज : यार तुम्हारा दिमाग ठीक है क्या मेरी समझ नहीं आ रही यार मनोज मनोज: ठीक है सर मैं ले लेता हूं मैं आता हूं आपके पास
42. The witnesses who participated in the trap proceedings have also testified in favour of the prosecution and they have confirmed their participation in the pre-trap and trap proceedings.
CBI vs Balraj 58/72 CBI No. 47/2020All the witnesses have consistently proved the factum of recovery of Rs.75,000/- from Manoj. Complainant has remained categorical on his version that amount of Rs.75,000/- was given by him to Manoj and later on when the trap team apprehended Manoj, the amount was recovered. No motive could be attributed to the complainant or to any other prosecution witness for giving false testimony against accused Balraj.
43. The presumption of law as contained under Section 20 Prevention of Corruption Act 1988, invariably arises in the facts and circumstances of the case. Although the presumption is rebuttable but same is required to be rebutted by proof and not by just explanation which may seem to be plausible, although the test of strict proof may not be required.
44. According to Section 20 of Prevention of Corruption Act, 1988:-
20. Presumption where public servant accepts gratification other than legal remuneration.--(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or CBI vs Balraj 59/72 CBI No. 47/2020 that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub- sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub- sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
45. It was held in Madhukar Bhaskarrao Joshi Vs. State of Maharashtra (2000 (8) SCC 571) as follows :-
"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' CBI vs Balraj 60/72 CBI No. 47/2020 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 premises 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."
46. In the case B. Noha Vs. State of Kerala & Anr., 2006 12 SCC 277, it has been held by Supreme Court :
"When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case ...."
47. The ratio of law as laid down in recent case V. Sejjappa vs. State by Police Inspector Lokayukta, 2016 3 JCC 1488 is that:
"The initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and CBI vs Balraj 61/72 CBI No. 47/2020 acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise u/s 20 of the Prevention of Corruption Act.
............mere recovery of money was not enough to draw the presumption under Section 20 of the Act."
48. In defence, accused pleaded that complaint is false and he has been falsely implicated. However, no strong motive could be attributed to the witnesses of the case about false implication of Manoj and accused Balraj. On appreciation of evidence of witnesses and nature of conversations contained in Q-1 and Q-2, the clear conclusion comes out against the accused thereby incriminating in nature and accused has failed to rebutt the presumption about acceptance of money as gratification.
49. In view of above discussion, I conclude that prosecution has successfully proved the facts sufficient for raising the presumption while defence has failed to rebut or displace the presumption through proper explanation and evidence.
50. The recorded conversations are an important piece of evidence and the prosecution has heavily relied upon the same. The law of admissibility of tape recorded conversation is established through the judgments of Hon'ble Supreme Court. In CBI vs Balraj 62/72 CBI No. 47/2020 R.M Malkani vs State of Maharashtra, (1973) 1 SCC 471 Supreme Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape recorded statement admissible otherwise not; and observed:
"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act".
51. In the case of Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3 it was held that:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.CBI vs Balraj 63/72 CBI No. 47/2020
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial. (3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant. (5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."
52. The defence has raised questions about admissibility of recorded conversations by arguing that they are not substantive piece of evidence and prescribed guidelines for acceptance of audio recordings are not met in the present case. It is contended that tape recorded conversations can only be relied upon as corroborative evidence of conversations deposed by any of the parties and in the absence of evidence of any such conversations, the tape recorded conversation is indeed no proper evidence and cannot be relied upon.
53. The questioned conversations have been recorded on DVR through micro SD cards Q-1 Ex.PW3/Article-5 and Q-2 Ex.PW3/Article-6. All these devices in original have been produced during the evidence and duly identified by the witnesses and in such circumstances, there is no requirement of furnishing certificate under Section 65 B of Indian Evidence Act.
CBI vs Balraj 64/72 CBI No. 47/202054. Each person has distinctive voice with characteristics features. The technology is in a position to say whether two voice recordings are of the same person or of two different individuals. With the development of science and technology, the voice sample can be analyzed or measured on the basis of time, frequency and intensity of speech sound waves so as to compare and identify the voice of the person who must have spoken or participated in recorded telephonic conversations. Voice sample is "identification data" which can be used for the purposes of recognition of questioned voices.
55. The prosecution has examined expert witness PW-22 Jayesh Bhardwaj, Government Scientific Expert who is an expert in the field of forensic examination of Audio and Video. The natural audio conversations contained in Memory card Q-1 Ex.PW3/Article-5, Memory card Q-2 Ex.PW3/Article-6, Memory card S-1 Ex.PW3/Article-8, Memory card S-2 Ex.PW3/Article-9 and DVR Ex.PW3/Article-16 were analysed by PW-22. On examining the credentials of this witness, I find that he is an expert in the field of voice identification and used scientific and advanced methods to compare the questioned voices. PW-22 has confidently answered all questions put across during his cross examination and there is no scope to disbelieve the expertise and report Ex.PW22/A furnished by PW-22. Report is specific, clear, comprehensive and supported with reasons.
CBI vs Balraj 65/72 CBI No. 47/2020There is no reason to doubt the credibility of expert witness who has done his job properly and elaborated the procedure adopted by him during the auditory examination. There has been no specific suggestion on behalf of defence that questioned voices are not of accused or that they do not match with the specimen voices. The expert report is a strong piece of evidence and adds credibility to the genuineness of audio recordings.
56. To be more careful, the questioned micro SD cards have been played on the laptop and examined at the final stage. The conversations appearing in Q-1 and Q-2 are clearly audible, continuous and uninterrupted and matching with the specimen voices. The dialogues are naturally and mutually spoken by the speakers ruling out any possibility of editing and tampering. The voices are clearly audible, while background noises and voices add credibility as MCD office is a public place and is not supposed to be a quite place. and there is no disturbance. I therefore, conclude that recorded conversations (Q1 and Q2) fulfill all parameters of admissibility in terms of judgments of R.M Malkani Vs. State of Maharashtra and Ram Singh & Ors. (supra).
57. The complainant himself and official and independent witness have confirmed the factum of recordings through DVR and Micro SD Card. No substantial questions about authenticity of recordings have been raised during the cross examination of CBI vs Balraj 66/72 CBI No. 47/2020 the witnesses. No question has been raised about the preparation of transcripts. The specimen voices have also been recorded particularly of the accused and voice matching has been properly done with the help of expert witness. Even the witnesses namely complainant Prem Arora (PW-3) and Lokesh Chander (PW-12) who have been acquainted with the voice of the accused have testified that the voice in the tape recorded conversations is of accused Balraj. The audio recordings fully support the prosecution version and elements of offences are established therefrom.
58. Further, on behalf of defence, it has been contended that there are inconsistencies and contradictions amongst the statements of prosecution witnesses and therefore the version of the prosecution is seriously doubtful.
59. It is settled principle of law that prosecution is required to bring clear and convincing evidence to prove its case beyond reasonable doubt but it does not mean evidence or proof to rigid mathematical precision. The evidence is to be examined as a whole and not with a narrow view to find flaws and lapses. The reasons and effects of contradictions and improvements in the statements of witnesses has been beautifully described by Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753. I would like to reproduce the same as under:
CBI vs Balraj 67/72 CBI No. 47/2020"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.CBI vs Balraj 68/72 CBI No. 47/2020
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
60. On proper analysis, I find that witnesses have been clear in their depositions. Each witness deposed about specific role assigned to him in the case. Some variations are natural and bound to occur in the process of recoding evidence but are not material so as to affect the credibility of prosecution case. It is convenient to point out lapses in depositions and documentary evidence, but lapses must be serious to indicate that prosecution case is absolutely baseless. The evidence has to be weighed and not counted, therefore number of witnesses examined does not matter if otherwise evidence is strong and convincing.
CBI vs Balraj 69/72 CBI No. 47/202061. In the present case, witnesses have been put to rigorous and lengthy cross examination which must have been difficult if not torturous experience for the witnesses to say the least, and if there are any discrepancies in the statements of witnesses, same should be considered in the light of aforesaid situation. Even otherwise, I find that inconsistencies are minor in nature and are not material so as to render the case of prosecution wholly unreliable. In my opinion, the witnesses have stood their ground and I have no hesitation in holding that witnesses are truthful.
62. The defence has also raised questions about various memos and their contents, about timings and place of preparing said memos and about the manner in which they have been prepared but on proper and careful examination of the same, I do not find any infirmities therein to discard the prosecution case. All the proceedings are recorded therein with proper sequence and details and are matching the deposition of prosecution witnesses. In my opinion, plea of innocence or false implication of the accused Balraj has no merit or substance.
63. I have thoroughly examined and considered the defence statement (under Section 313 Cr.P.C) of the accused in the light of evidence appearing on record. The accused pleaded innocence and false implication. According to the accused, since he was one of the functionary of MCD office who used to deal with the sealing of the premises as per the order of NGT, Delhi and CBI vs Balraj 70/72 CBI No. 47/2020 Hon'ble Supreme Court, therefore lot of persons who are doing illegal commercial activities have animosity towards MCD officials and therefore only in order to take personal vengeance, he has been falsely implicated.
64. The above mentioned defence pleas could not be proved on record as no evidence in defence has been brought. Even the prosecution witnesses were not questioned on these aspects. The defence pleas therefore, appear to be an afterthought and were not brought on record at the time of conducting cross examination of the crucial witnesses. No substantial defence has been raised and it is simply stated that accused has been falsely implicated but the evidence of the prosecution is clear and sufficient to prove the involvement of the accused in seeking and accepting bribe from the complainant in the matter of M/s R. S. Plywood. The defence pleas have no merit or substance. Accused has pleaded manipulations of audio conversations by the CBI officers, however, accused has failed to prove on record any material to attribute any purpose or motive to CBI officials to create false evidence or to falsely implicate the accused in the present case. On proper analysis, I find no justification or reasonableness in the defence pleas taken by the accused.
Conclusion:-
CBI vs Balraj 71/72 CBI No. 47/202065. In view of the aforesaid detailed discussion, I conclude that accused Balraj raised the demand of undue advantage of Rs.75,000/- from the complainant and accepted the same through Manoj by misusing his official position as public servant and the offence punishable under Section 7 Prevention of Corruption Act, 1988. Prosecution has been able to bring home the guilt of the accused beyond reasonable doubt.
66. In the result, I hold the accused Balraj guilty and convict him for the offence punishable sections 7 Prevention of Corruption Act, 1988 (As amended in 2018).
67. Let the convict be heard on the point of sentence.
Digitally signed ANJU by ANJU BAJAJ
Announced in the open court BAJAJ
CHANDNA
Date:
on 21st day of March 2025 CHANDNA 2025.03.21
14:51:06 +0530
(Anju Bajaj Chandna)
Principal District & Sessions Judge-
cum-Special Judge (PC Act) (CBI),
Rouse Avenue District Court
21.03.2025
CBI vs Balraj 72/72
CBI No. 47/2020