Delhi District Court
Cbi vs Awadhesh Kumar Singh on 27 March, 2014
CBI vs Awadhesh Kumar Singh
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 2/2012 (Old CC No. 10/2011)
RC No. DAI/2009/A0021/CBI/ACB/ND
U/s 7 IPC & 13(1)(d) read with Section 13(2) of PC Act 1988
Unique ID No.: 02403R0048172011
Central Bureau of Investigation
vs
Awadhesh Kumar Singh S/o Late Sh Braj Bhushan Singh
R/o M35, Sri Krishna Nagar, Patna, Bihar800001
Date of FIR : 08/04/2009
Date of filing of Chargesheet : 08/06/2011
Case received by transfer on : 03/07/2012
Arguments concluded on : 04/03/2014
Date of Judgment : 27/03/2014
Appearances
For prosecution : Sh V.K Ojha, Ld. Public Prosecutor for CBI.
For accused : Sh Satish Tamta, Ld. Counsel for accused.
JUDGMENT
FACTS GERMANE TO REGISTRATION OF CASE AND CONCLUSION OF INVESTIGATION.
In his complaint dated 08/04/2009, complainant Shri Achal Singh (hereinafter referred as PW 1) alleged that he is the proprietor of M/s. Savitri Consultants & Engineering Works, B113114, Sector10, RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 1/95 CBI vs Awadhesh Kumar Singh Noida. The firm of PW1 had been awarded the contract for execution of work of "Construction of user fee toll plaza" at NH2, Rasoiya Dhamna, Distt. Hazaribagh, Jharkhand from National Highways Authority of India, PIU, Dhanbad, Jharkhand. The total contract amount was Rs.2,22,14,320/. As per PW1, he started the construction and submitted IPC (Indian Payment Certificates) I & II and received the payment after deduction of 20% retention amount through the office of Project Director, PIU, Dhanbad as per the terms of contract. Allegedly, PW1 met Awadhesh Kumar Singh (hereinafter referred as accused), Project Director, PIU, Dhanbad at his office on 31/03/09 for expediting the sanction and release of the said payment as well as for forwarding of Updated Extension Of Time (EOT) application. Allegedly, accused had demanded bribe of Rs.20 lacs for the above mentioned work. On continuous request as well as expressing of inability to pay by PW1, allegedly accused asked PW1 to pay bribe of Rs.10 lacs otherwise he would not sanction the release of the said payment as well as would not forward the EOT proposal to the Head Office for evaluation. Allegedly, accused asked PW 1 to pay the first installment of bribe of Rs.5 lacs on 7th/8th April 2009 at the time of his visit at Delhi.
2. Complaint dated 08/04/09 was verified by PW15 SI Vikas Pathak. During verification, PW1 was asked to contact the accused on his mobile phone. The telephonic conversation was recorded with the help of Digital Voice Recorder (DVR) in the presence of independent witness RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 2/95 CBI vs Awadhesh Kumar Singh Mahesh Kumar Verma (PW 4) and was simultaneously heard with the help of inbuilt speaker of the mobile phone. After verification of the complaint, case was registered by CBI u/s 7 of Prevention of Corruption Act, 1988. Investigation was marked to Trap Laying Officer (TLO) Inspector Raj Singh (PW12). PW 12 constituted a trap team comprising other officers of CBI and two independent witnesses namely PW4 and Shri Nagendra Pal Singh (PW 3). Complaint dated 08/04/09 was shown and explained to trap team members including PW4 and PW3. In pre trap proceedings, PW1 produced an amount of Rs.2.5 lacs in denomination of GC notes of Rs. 500/ each to be used as trap money. The numbers of GC notes were mentioned in Handing Over Memorandum. The GC notes of trap money were treated with phenolphthalein powder. The process of application and working of phenolphthalein powder was demonstrated by Inspector Hitender Adlakha to the trap team including PW4 and PW3. The trap money was kept in a black handbag by PW4 and was handed over to PW1. Working of DVR was explained to PW1. PW1 was asked to switch on the DVR before entering into the conversation with the accused. PW3 was asked to act as a shadow witness and to remain close to PW1 to overhear the conversation and to see the transaction of bribe amount. Other independent witness PW4 was instructed to remain with the trap team. The sealed cassette of recorded conversation Q1 containing conversation between PW1 and accused during verification of complaint was seized vide Handing Over Memorandum. The proceedings of Handing Over Memorandum were concluded at about RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 3/95 CBI vs Awadhesh Kumar Singh 1645 hrs on 08/04/2009. All the members of team washed their hands with the soap and water. Handing Over Memorandum was signed by the members of the trap team including PW3 and PW4. PW1 and shadow witnesses were instructed to give a signal after completion of the transaction of bribe.
3. Members of trap team reached outside Vikram Hotel, Lajpat Nagar, New Delhi at about 1730 hrs on 08/04/2009. PW1 alongwith PW3 entered the said hotel. Other members of the trap team also took their positions. PW1 made a call from his mobile to the accused. Accused asked PW1 to wait for about an hour as he was in Connaught Place. PW1 again made a telephonic call and accused asked him to wait as he will be coming in another one hour. PW1 conveyed the message to TLO PW12. accused made a call on the mobile phone of PW1 and informed him that he will be meeting him at the hotel. PW1 and PW3 approached accused who was sitting in the lobby on sofa on the right side of the reception of Hotel Vikram. Accused entered into conversation with PW1 and PW3 which continued for about an hour. Thereafter, PW1, accused and PW3 went outside the main gate of the hotel and talked in parking area.
4. Allegedly, after few minutes all of them came back to the hotel lobby and again took the same seats in the hotel lobby. After some time, PW1 left his black handbag having tainted bribe amount of Rs.2.5 RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 4/95 CBI vs Awadhesh Kumar Singh lacs just adjacent to the accused on the sofa. PW1 with PW3 went outside the main gate in the parking lot. Thereafter, PW3 made a call from his mobile phone to the mobile phone of Inspector Rajesh Chahal and explained the manner of transaction. It was decided to wait for sometime before challenging the accused till he handled the bribe money/bag. Thereafter, it was seen by PW12, Inspector Rajesh Chahal as well as Constable Ms. Navneet Kaur that the accused opened the leather bag and checked the money with his right hand. Thereafter, accused started climbing the stairs in the lobby holding the said bag in his right hand. PW12 intercepted and challenged the accused after disclosing his identity as well as identity of Inspector Rajesh Chahal and Ct. Ms. Navneet Kaur and asked the accused whether he had demanded illegal gratification of Rs.10 lacs from PW1 and had accepted Rs.2.5 lacs as part of first installment from PW1. Accused threw the bag on the stairs and after pushing PW12 as well as Inspector Rajesh Chahal immediately rushed down the stairs and tried to escape but he was overpowered and was caught in the lobby just in front of the reception of the hotel. Then accused was taken in the lobby of the hotel. PW1 as well as PW3 also joined the other members of the trap team. DVR was taken from PW1. On the instruction of PW12, PW4 took out the said bag and kept the same in his custody.
5. Allegedly, wash of right hand of accused was taken in a colourless solution of sodium carbonate and the said solution was RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 5/95 CBI vs Awadhesh Kumar Singh transferred in a clean glass bottle and was sealed. Some crowd gathered in the lobby of the hotel. Shri Rev Sharma disclosed his identity as Duty Manager of the hotel. As there was crowd, considering the circumstances, further proceedings were carried out in room no.202 of the said hotel.
6. Allegedly on directions of PW12, PW4 took out the tainted amount from the bag and tallied the same with the numbers of the GC notes and their denomination mentioned in the Handing Over Memorandum with the help of PW3. Recovered GC Notes taken out of the bag tallied with the description of the GC notes mentioned in the Handing Over Memorandum. PW3 narrated the conversation and transaction of bribe between PW1 and accused. Thereafter, PW1 was asked to explain transaction of bribe money and he also corroborated the facts disclosed by PW3.
7. Allegedly the DVR which was taken back from PW1 was played and conversation was heard in the presence of witnesses. The recorded conversation was transferred into blank audio cassettes which were marked as Q2/1 to Q2/4. The said cassettes were sealed after preparing copies of the said cassettes for the purpose of investigation.
8. Allegedly accused was arrested in the presence of independent witnesses. Specimen voice of accused was taken in the RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 6/95 CBI vs Awadhesh Kumar Singh presence of independent witnesses on 09/04/09 for which a separate specimen voice memo was prepared.
9. The sealed bottles of the hand wash and specimen & questioned voices were sent to CFSL, New Delhi for opinion. Chemistry Division of CFSL gave positive opinion for the presence of phenolphthalein and sodium carbonate in the hand wash. Physics Division of CFSL opined that questioned voice were the probable voice of accused. Call details of the mobile phones used by PW1 and accused were taken during investigation. The relevant records/files pertaining to the construction project were seized. Statement of witnesses were recorded by IO. The sanction for prosecution was requested which was granted by Hon'ble Governor of Bihar through Shri Rajender Kumar Mishra, Secretary Bihar Government for prosecution of accused for the offences u/s 7, 13(2) r/w sec. 13(1)(d) of Prevention of Corruption Act, 1988.
10. Cognizance was taken on 10/06/2011 by my Ld. Predecessor and accused was summoned. Copies were supplied to the accused and requirements u/s 207 Cr. PC were complied with.
CHARGE
11. Charge for offences under (i) Section 7 of The Prevention of Corruption Act 1988 and (ii) Section 13 (1)(d) read with Section 13 (2) RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 7/95 CBI vs Awadhesh Kumar Singh of The Prevention of Corruption Act, 1988 was framed on 03/07/2012 in terms of Order dated 05/05/2012 of my Ld. Predecessor against accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
12. To connect arraigned accused with the offences charged, prosecution has examined in all 15 witnesses namely Sh Achal Singh (PW1); Sh Rajesh Kumar Singh (PW2); Sh Nagendra Pal Singh (PW3); Sh Mahesh Kumar Verma (PW4); Sh Awadesh Kumar (PW5); Sh Ram Krishan Singh (PW6); Sh Ajay Kumar Singh (PW7); Sh Basant Kumar Singh (PW8); Sh V.B Ramteke (PW9); Sh Deepak Kumar Tanwar (PW10); Inspector R. Parthasarathy (PW11); Deputy SP Raj Singh (PW12); Inspector Anand Sarup (PW13); Sh Ram Nath Prasad (PW14) and Inspector Vikash Pathak (PW15).
STATEMENT OF ACCUSED
13. Thereafter accused was examined under Section 313 Cr. P.C. All incriminating material in evidence was put to the accused. Accused pleaded innocence and false implication.
14. Accused stated that PW1 never met him on 31/03/2009 nor he made any demand to PW1 to make any kind of payment. Accused further stated that he had agreed to meet PW1 at Hotel Vikram; PW 1 RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 8/95 CBI vs Awadhesh Kumar Singh called him (accused) 23 times before the meeting at Hotel Vikram. Accused denied that (1) PW 1 told him (accused) that he (PW1) had brought Rs. 2.5 Lakhs and this is the only amount he (PW1) could arrange; (2) balance amount he (PW1) will pay to him (accused) shortly. Accused stated that he did not knew, if PW1 was carrying the money in old computer laptop bag Ex P2 nor PW 1 handed over the bag to him (accused) nor did he (accused) took the bag from PW1. Accused also stated that PW 1 did go outside the Hotel for a little while but he (accused) remained in the hotel. Accused stated that before leaving PW 1 shook hand with him (accused); he (accused) had made a call to PW1 after few minutes of his (PW1) leaving the hotel. Accused further stated that he had telephone conversation with PW 1 informing him (PW1) that he (accused) was at Connaught Place. Accused further stated that he was in the process of making a call from the reception to his room calling his (accused) family downstairs for dinner at that very moment, he (accused) was stopped by Inspector Rajesh Chahal. Accused stated that apart from him (accused) the hand wash of PW1 was also taken; some formal proceedings were carried out in the hotel but all writing work was done in the office of CBI. Accused admitted that he had told the CBI that his wife and daughter were in Room No. 205 of hotel. Accused stated that his phones were taken by the CBI team but they were not seized at that time; the Recovery Memo Ex. PW 1/D was prepared at CBI office; Transcript Ex. PW 1/F (D17) was a false document; the transcript / voice recording was incorrect. Accused stated that it is hypothetical to RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 9/95 CBI vs Awadhesh Kumar Singh say had test checks been carried out, the remaining 25% of IPC would have been paid; the retention money as per procedure was kept towards the security till completion of the work, issuance of completion certificate by the supervision consultant and after the end of defect liability period to the satisfaction of the supervision consultant and NHAI. Accused stated that report Ex. PW 10/A was wrong. Accused also stated that sanction Ex. PW 14/A was wrong and not obtained from concerned department with due application of mind. Accused stated that no proper investigation was carried out; the case was registered, investigated and chargesheet was presented to help PW1; the witnesses have deposed falsely under the pressure of the CBI at the instance of PW1. Accused stated that he had been made a scapegoat and falsely implicated by PW1 in connivance with other persons; he (accused) never made any demand of any bribe from PW1 nor did he (accused ) accept any bribe from PW1 at any point of time. Accused further stated that the procedure for release of payment against IPC3 was a normal procedure adopted as per the guidelines of the NHAI Manual and the concerned contractual provisions for all contractors and projects; the same normal procedure was adopted with regard to the bills of M/s Savitri Consultants and Engineering Works for release of IPC1, IPC2 and also IPC3; in all these cases, the IPCs received from the Supervision Consultant (RITES HALCROW JV) were marked to the concerned Manager (Technical) and Manager (Finance & Audit) the same day of their being put up before him (accused) and that the note/comments with their recommendations RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 10/95 CBI vs Awadhesh Kumar Singh were approved the very day they were put up to him (accused) and never kept pending with him (accused) even for a day; the payments were released exactly as per the recommendation of the Manager (Technical) and Manager (Finance & Audit) in all the cases and PW1 was aware even on the date of the complaint that the payment of the IPC III had already been made. Accused stated that the updated Extension of Time proposal received on 31/03/2009 from the Supervision Consultant (RITES HALCROW JV) was marked immediately to the Manager (Technical) concerned PW7, the proposal was with PW7 since 31/03/2009 itself (Ex. PW 1/J (colly) page 129 sl. No. 6); the note /comments or any recommendation was not received from the Manager (Technical) even till 08/04/2009; in fact it remained with the Manager (Tech.) from 31/03/2009 till 24/04/2009 (note sheet by Manager (Tech) and PIU letter vide Ex. PW 1/J (colly) placed at page 202; the note of PW7 clearly stated that the proposal was deficient and incomplete; the EOT was eventually approved on 08/09/2010 i.e. after 16 months from 31/03/2009; this goes to show that process of EOT proposal is time consuming. Accused stated that as per the contractual provisions, the Supervision Consultant (RITESHALCROW JV) while certifying the bills, IPC1, IPC2 and IPC3 deducted the Retention Amount @ 20 % of the IPCs along with other statutory deductions like sales tax and income tax; the NHAI PIU Dhanbad released the payment against the IPCs as per the recommendations of the Supervision Consultant, the contractual provisions and the NHAI Manual guidelines. Accused stated that the RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 11/95 CBI vs Awadhesh Kumar Singh Supervision Consultant /(RITESHALCROW JV) had recommended deduction of Retention Money from IPC1 (Ex. PW 1/J (colly) page 27 Sl. No. 5(b)), from IPC2 (Ex. PW 1/J (colly) page 93 Sl. No. 5(b)) and from IPC3 (Ex. PW 1/J (colly) page 142 Sl. No. 5(b). Accused further stated that "Construction projects as per the nature of work and their volume are required to be completed in a specified time frame with specified quality and for a specified sum. The terms and conditions, the item of work, time frame for completion and related issues are listed and incorporated in a document which when agreed upon by parties becomes the contractual agreement. The employer/owner is responsible for making timely and adequate payment released to the executing agency or the contractor as per the conditions of the contract. However, in case of any amount receivable by the employer / owner from the executing agency on account of the conditions of the contract not being followed by the contractor, the amount has to be recovered from the contractor. To enable the employer / owner to recover the required amount from the contractor, it becomes imperative to incorporate in the contract such condition by which the contractor has to deposit certain amount as Security Amount / Performance Guarantee Money at the very beginning itself by the contract to take care of any if recovery to be made even at the initial stage of the work or at a later stage also. The total amount estimated to be a just security for the entire work may be partly be deposited at the beginning itself and partly deducted as security deposit or retention money from each bill. In case of a situation arising due to RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 12/95 CBI vs Awadhesh Kumar Singh delay in completion of work, not completing the work, defect in quality of work the amount receivable by the owner from the contractor is recovered and adjusted from the amount lying with the owner in form of either Security Deposit, Performance Guarantee, Retention Money and finely the bill amount. To manage and supervise the work a third party organisation is engaged by the NHAI. This third party setup is called the Supervision Consultants have a designated person named as the Engineer. The Engineer further deputes a Team Leader as the resident Engineer who is stationed near the concerned project to monitor it. In the present case the Supervision Consultant was RITESHALCROW JV. As per the procedure the work was to be supervised on regular basis by the Supervision Consultant. The procedure is that the contractor has to submit all its proposals to the Supervision Consultant. It is only the Supervision Consultant which interacts with the NHAI and not the contractor directly. The Supervision Consultant reviews and scrutinises the proposals and when required or when necessary submits its recommendations to the NHAI PIU for further necessary and needful action. The NHAI on receipt of any proposal from the Supervision Consultant after due scrutiny, evaluation, verification may act upon the recommendation or may ask the Supervision Consultant to resubmit the proposal after reevaluation or submit more documents or information. As per contractual provision and agreement clause 48.1 (Ex. PW 1/H (colly) page 65) certain percentage was to be deducted from every bill /IPC. On completion of the whole of the works half of the total amount RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 13/95 CBI vs Awadhesh Kumar Singh retained was to be repaid to the contractor and other half when the Defects Liability Period has passed and the Engineer has certified the all Defects notified by Engineer to the contractor before the end of this period have been corrected as per clause 48.2 (Ex. PW 1/H (colly) page
65). The whole of the work is taken to be complete only when a certificate of completion is issued by the Engineer (Supervision Consultant). For this purpose, as per clause 55.1 of conditions of contract of the agreement (Ex. PW 1/H (colly) page 67) the Contractor shall request the Engineer to issue a certificate of Completion of the works and the Engineer will do so upon deciding that the work is completed. The Cetrificate of Completion was issued by the Supervision Consultant only on 20.04.2009. The proportion of retention money to be deducted from each IPC / bill as per the provision made in the contract agreement, exhibit Ex. PW 1/H (colly) and conforming to clause 27 of contract data, place at page 77, was 20 percent of the bill amount. The retention money was to be deducted from each bill. The clause 27 of Contract Data, Ex. PW 1/H (colly) Page 77 states that " The proportion of payment retained (retention money) shall be 20 % from each bill subject to a maximum of 20 % of the final contract price.". Supervision Consultant (RITES HALCROW JV) recommended to NHAI for refund of Retention Money to M/s Savitri Consultants & Engineering Works only on 25.03.2010 and 50 % of Retention Money was refunded by NHAI on 27.03.2009. Use of fabricated documents were made later by Sh Achal Singh for the purpose of supporting claim of completion of work and as a consequence leading RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 14/95 CBI vs Awadhesh Kumar Singh to release of balance 25 % of IPC3, approval of updated EOT and refund of Retention Amount. The manner in which Sh Achal Singh and others got them approved by the officials of the NHAI on site and in great hurry further substantiate the ulterior motive of Sh. Achal Singh."
DEFENCE EVIDENCE
15. Accused entered into his defence and examined Sh. R.C Tiwari, General Manager, Administration and Sh Yogendra Mohan, General Manager and Project Director, both of NHAI as DW1 and DW2 respectively as defence witnesses.
16. DW1 brought on record and proved National Highways Authority of India (NHAI) Works Manual 2006 as Ex DW1/A.
17. DW2 brought on record and proved documents Ex DW2/A to Ex DW2/S in respect of comments of officials of NHAI, Supervision Consultant, letters, notes, legal advice, certificate, all concerning contract Ex PW1/H (colly) between PW1 as proprietor of M/s Savitri Consultants & Engineering Works and NHAI. Appropriate appreciation of these documents will follow in later part of this judgment.
ARGUMENTS
18. I have heard the arguments of Sh V.K Ojha, Ld. Public RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 15/95 CBI vs Awadhesh Kumar Singh Prosecutor for CBI; Sh Satish Tamta, Ld. Counsel for accused; accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
19. Ld. PP for CBI had argued that by the documentary evidence, recordings of the call conversations, transcripts of such call conversations and the deposition of prosecution witnesses, the prosecution has been able to prove that accused being public servant had agreed to take Rs 2.5 lakhs as part of the demanded illegal gratification from PW 1 for expediting the sanction and release of the payments of retention amounts of IPCs as well as for forwarding of Updated Extension Of Time (EOT) application; pursuant thereto on the fateful evening of 08/04/2009 in the Hotel Vikram, Lajpat Nagar, New Delhi accordingly accused obtained Rs 2.5 lakhs in laptop bag Ex. P2 of PW 1 as illegal gratification from PW 1; so, accused accordingly had committed the offences punishable under Sections 7 and 13 (2) read with 13 (1)(d) of Prevention of Corruption Act 1988. Ld. PP for CBI has prayed for conviction of the accused person accordingly relying upon the following precedents since prosecution has proved its case beyond reasonable doubt:
1. Gangabhavani vs Rayapati Venkat Reddy & Ors, 2013 Cri.L.J 4618 (SC);
2. M. Narsinga Rao vs State of A.P, 2001 Cri.L.J 515 (SC);
3. B. Noha vs State of Kerala & Anr, 2006 IV AD (Cri) (S.C) 465;
4. Krishna Ram vs State of Rajasthan, 2009 Cri.L.J 2436;
5. Dhaneshwar Narain Saxena vs Delhi Administration, AIR 1962 SC 195.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 16/95 CBI vs Awadhesh Kumar Singh
20. Ld. Counsel for accused argued as follows. The prosecution has failed to prove the allegation of demand having been made by the accused on 31/03/2009 at NHAI, PIU, Dhanbad by not being able to prove the presence of PW 1 at NHAI, PIU, Dhanbad office on 31/03/2009. The prosecution has also failed to prove that any work of PW 1 was pending with the accused on 31/03/2009 as alleged by PW 1. There was nothing outstanding nor payable by the office of NHAI, PIU, Dhanbad to PW 1 in terms of the contract interse NHAI, PIU, Dhanbad and PW 1 as on 31/03/2009 or even as on 08/04/2009. Per contra, it was PW 1 whose documents submitted with Supervision Consultant were deficient and the proposal of EOT submitted by Supervision Consultant was incomplete. PW 1 is guilty of suppression of material facts and his testimony lacks credence and is unreliable and without corroboration on material crucial point from reliable independent evidence / sources and cannot be acted upon to convict the accused since other arraigned material witnesses in their deposition have stated material facts in contradiction with version of PW 1 making version of PW 1 improbable. There is unexplained delay in lodging of complaint by PW 1 bringing every likelihood of introduction of coloured, concocted and tutored version, embroideries, exaggerations, embellishments in interested version of PW 1. The prosecution has failed to prove its case beyond all reasonable doubts on the aspects of demand of bribe and acceptance of bribe on the part of the accused on 08/04/2009. Material witnesses RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 17/95 CBI vs Awadhesh Kumar Singh examined not only deposed in material contradiction with each other on material facts but also bring on record entirely different versions on material aspects of demand of bribe and acceptance of bribe on the part of the accused as well as delivery of bribe sum to accused and / or obtainment of bribe sum by accused. Examined independent witnesses deposed of TLO PW 12 and Inspector Rajesh Chahal having participated in verification proceedings as well as pre trap proceedings on 08/04/2009 in CBI office but PW 12 denies to have any role in the verification proceedings conducted in CBI office on 08/04/2009. PW 12 was interested in the success of the trap, whether or not accused accepted the bribe sum and was an interested witness and his testimony embodies embellishments, material contractions, infirmities, which go to the root of the matter to check and shake the basic version and core of the prosecution case. Alleged verification conducted was sham and actually no verification was conducted. No official of CBI made even any confirmation of the mobile number attributed by PW 1 to accused, to be registered in the name of accused or being used by accused. No verification was made from office of accused or any official in office of accused as to whether any amount as claimed by PW 1 was outstanding or payable to him by NHAI, PIU, Dhanbad for the works done in terms of the contract in question as alleged by PW 1. The prosecution story brought on record by examined prosecution witnesses is full of gaping holes and is fraught with surmises and conjectures. There is no proof of content of the conversation having taken place in the hotel lobby while RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 18/95 CBI vs Awadhesh Kumar Singh sitting on the sofa, its precise timing, the demand of the bribe by the accused, handing over of bribe amount and acceptance of bribe amount on part of accused in the hotel lobby. The rough site plan of prosecution contradicts the prosecution story. The statement of sole witness TLO PW 12 with regard to apprehension of accused raises serious doubts about its truthfulness as it is perse contrary to natural human conduct and accused was permitted to move upstairs in terms of prosecution version instead of having been apprehended at first opportune time after alleged moving with bag containing bribe sum. Contradictory version of witnesses are on record in prosecution evidence for transfer of data from Digital Voice Recorder (DVR) to audio cassettes and the sealing of the audio cassettes. It makes the corroborative evidence in form of tape recorded conversations inadmissible and of no help to prosecution. PW 1 deposed of having left the spot after handing over of bribe sum in the bag Ex. P2 to accused in the lobby of Hotel Vikram on the fateful evening, per contra to case of prosecution. PW 1 also alleged that while so departing he had a handshake with accused. It brought into existence every likelihood of transmission of Phenolpthalein contents from hand of PW 1 to hand of accused bring into fore possibility of the solution of sodium carbonate with water turning pink on dipping of hand of accused. Prosecution witnesses have also deposed in contradiction in respect of the hand wash of accused. PW 1 had deposed that he had seen the glass of red water on the table but had not seen the hand wash of accused got done in tumbler. No wash of black handbag Ex. P2 was taken to confirm RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 19/95 CBI vs Awadhesh Kumar Singh of it containing Phenolpthalein contents coming there by GC notes of bribe sum kept there. PW 3 speaks of preparation of transcription Ex. PW 1/F after 4 or 5 days of occurrence. Transcription Ex. PW 1/F bears date 13/04/2010. CFSL Report Ex. PW 10/A finds mention of receipts of sealed exhibits of audio cassettes along with copy of transcript comprising 41 pages of questioned conversation between accused and PW 1 received with forwarding letter Ex. PW 12/B dated 16/04/2009. In the course of evidence, it has been established that transcript Ex. PW 1/F contains only part of the alleged recorded questioned conversations between accused and PW 1 as on display of the audio cassettes during course of recording of prosecution evidence, it has been established that the all dialogues of the recordings have not been transcribed in the transcript Ex. PW 1/F. PW 10 claimed to be Forensic Expert but admitted to have no knowledge of linguistic typology. PW 10 elicited that he attended the course in Germany in which he was taught about English words only. In this matter, PW 10 had done the comparisons of Hindi words in the recorded conversations. PW 10 also admitted that he had not done any course or diploma nor obtained any degree or certificate in respect of Hindi Phonetic language. So PW 10 was not qualified to be termed as a Forensic Expert for voice examination of Hindi words spoken and recorded in questioned conversations. Report Ex. PW 10/A is erroneous and unqualified. Even PW 10 and his laboratory were under administrative control of CBI and were not independent and there was every likelihood of report Ex. PW 10/A having been given by PW 10 as RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 20/95 CBI vs Awadhesh Kumar Singh to what suited the case of prosecution. The primary evidence, the DVR used to record the questioned conversations between accused and PW 1 was neither seized nor sent to forensic expert for expert opinion nor produced in Court for proving accuracy of the tape recorded statements and prove of their being no possibility of tampering with or erasure of any part of the tape recorded statements. Even the audio cassettes or the transcript Ex. PW 1/F do not embody any data containing the exact dates and time of the different calls recorded and of the other alleged conversations recorded at spot. No video recordings nor photography was done nor produced in respect of pre trap proceedings, post trap proceedings, search proceedings, crime scene, prior or later to apprehension of accused, which were feasible / possible, keeping in view provision 14.16 in Chapter 14 of CBI Manual containing General Instructions Regarding Investigation & Enquiries. Even in the investigation it was not ascertained whether any CCTV was in operation in Hotel Vikram, Lajpat Nagar, New Delhi at the place where bribe was allegedly received by accused from PW 1 or in the Reception therein or on the stairs from where accused was allegedly apprehended. No CCTV footage was secured from said Hotel Vikram regarding any sequence of occurrence in the evening of 08/04/2009. No employee of Hotel Vikram including its Manager was cited as prosecution witness nor examined as prosecution witness to corroborate the interested versions of PW 1 and PW 12 since the shadow witness PW 3 had not seen handing over of bribe sum by PW 1 to accused or accused handling bag Ex. P2 RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 21/95 CBI vs Awadhesh Kumar Singh containing alleged bribe sum left by PW 1 at spot. Whereas, Ct. Navneet Kaur was not cited nor examined as prosecution witness while Inspector Rajesh Chahal was not examined as prosecution witness so as to depose about accused handling bag Ex. P2 containing alleged bribe sum left by PW 1 at spot. Withholding of these material witnesses calls for taking adverse inference against prosecution. It was also argued that when read as a whole, entire prosecution evidence establishes that the material witnesses examined viz TLO PW 12 and complainant PW 1 were fully interested in the success of the trap since inception of the investigation and for such motive the questioned recordings were fabricated to suit the case of prosecution and primary evidence of DVR was withheld. Also was argued that neither in verification proceedings nor in the trap proceedings at any stage any demand of any bribe sum was made by the accused at any point of time. It was also argued that records were fabricated, manipulation / tampering of data in recorded questioned conversations was done by the concerned officers of the investigating agency with the sole object to secure conviction for the accused. It was also argued that as per settled law, existence of all doubts in the case of prosecution should go in favour of the accused. Ld. Counsel for accused has relied upon the followings precedents, praying for acquittal of accused:
1. Ganpathi Sanya Naik vs State of Karnataka, 2007 (4) JCC 2715;
2. Subhash Chand Chauhan & Ors. vs C.B.I, 2005 III AD (Delhi) 41;
3. Narendra Champaklal Trivedi vs State of Gujarat, (2012) 7 SCC 80;
4. State of Maharashtra vs Dnyaneshwar Laxman Rao Wankhede (2009) 15 RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 22/95 CBI vs Awadhesh Kumar Singh SCC 200;
5. C.M Girish Babu vs CBI, Cochin, (2009) 3 SCC 779;
6. M. Narsinga Rao vs State of A.P, (2001) 1 SCC 691;
7. Suraj Mal vs State (Delhi Administration), (1979) 4 SCC 725;
8. Madhukar Bhaskarrao Joshi vs State of Maharashtra, (2000) 8 SCC 571;
9. Vishal Chand Jain @ V.C Jain vs C.B.I, 2011 (1) JCC 570;
10. Prem Raj Meena vs CBI, 2011 (1) Crimes 730 (Del.);
11. Ram Singh and Others vs Col. Ram Singh, 1985 (Supp) SCC 611;
12. Mahabir Prasad Verma vs Dr. Surinder Kaur, (1982) 2 SCC 258;
13. Nilesh Dinkar Paradkar vs State of Maharashtra, (2011) 4 SCC 143.
RELEVANT LAW
21. The essential ingredients of Section 7 of Prevention of Corruption Act 1988 are that (i) the accused was a public servant; (ii) accused accepted or obtained the gratification for himself or for any other person; (iii) the said gratification was a motive or reward (a) for doing or forbearing to do any official act or (b) for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person.
22. The essential ingredients of Section 13 (1) (d) of Prevention of Corruption Act 1988 are (i) the accused was a public servant; (ii) accused used corrupt or illegal means or otherwise abused his position as such public servant and (iii) accused obtained valuable thing(s) or pecuniary advantage for himself or for any other person.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 23/95 CBI vs Awadhesh Kumar Singh
23. In Section 13(1) (d) of Prevention of Corruption Act 1988, the word used is 'obtained'. The Apex Court in the case of C.K. Damodaran Nair v Govt. of India [(1997) 9 SCC 477] had the occasion to consider the word 'obtained' used in Section 5 of Prevention of Corruption Act 1947, which is now Section 13(1)(d) of Prevention of Corruption Act 1988. It was held in para 12 thus:
"12. The position will, however, be different so far as an offence under Section 5 (1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused `obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c), (d) or (e) of the Act. `Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1) (d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be,established by proof of either `acceptance' or `obtainment' ".
24. In the case of Gangabhavani (supra), it was held that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the Court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the Court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 24/95 CBI vs Awadhesh Kumar Singh
25. In the case of M. Narsinga Rao (supra) wherein prosecution proved that accused received gratification from complainant, in that event and circumstances Court can draw legal presumption that said gratification was accepted as reward for doing public duty and such legal presumption is compulsory and not discretionary. It was also held that the only condition for drawing such a legal presumption under Section 20 of The Prevention of Corruption Act 1988 is that during trial it should be proved that the accused had accepted or agreed to accept any gratification. The said section does not say that the said condition should be satisfied only through direct evidence.
26. In the case of B. Noha (supra) wherein trial court placed reliance on evidence of two material witnesses finding them credible and cogent and held that one of them had no basis to falsely implicate the accused and in said matter the illegal gratification was demanded and accepted by accused. It was held therein that when it is proved that there was voluntarily and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive.
27. In the case of Krishna Ram (supra) accused Patwari RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 25/95 CBI vs Awadhesh Kumar Singh allegedly demanded bribe from complainant for conversion of temporary lease and money was recovered from possession of accused Patwari in his house where trap was laid, number of notes recovered had matched with numbers noted and evidence of complainant and other witnesses was consistent and credible. It was held that in the backdrop of aforesaid facts since Appellant could not rebut presumption under Section 20 of The Prevention of Corruption Act 1988 by adducing evidence to prove defence plea that amount was paid as repayment of loan, conviction of accused was held to be proper.
28. In the case of Dhaneshwar Narain Saxena (supra), it was inter alia held that misconduct by public servant need not be in connection with his own official duty.
29. In the case of Ganpathi Sanya Naik (supra), it was held that view taken by the Trial Court was clearly on the basis of evidence in the case. Plea of defence at the very initial stage was that complainant had serious animosity towards accused and that the currency notes had been put on the table by the complainant, was a plausible explanation. Such currency notes were neither touched by accused nor recovered from his person. Arguments that there was no occasion to make a demand for any bribe was also plausible. Conviction of the accused by the High Court was set aside and accused was acquitted by the Apex Court.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 26/95 CBI vs Awadhesh Kumar Singh
30. In the case of Subhash Chand Chauhan (supra), it was held that each of three material prosecution witnesses gave different version of the incident, place where money was handed was also different, contradictions were material and cast a serious doubt on the case of prosecution. It was also observed that normal human conduct would be to catch a culprit with alacrity. It is a highly unhuman conduct for the raiding party not to pounce immediately when money was handed over. In respect of the manner the bribe was offered and received as also the place where offer and receipt took place, serious doubts arose entitling accused benefit of doubt since version of prosecution witnesses did not inspire any confidence. Also alleged place of recovery was found accessible to all and sundry. It was also impressed upon that in a criminal trial, evidence of eye witnesses requires a careful assessment and evaluation for credibility. The evidence must be tested for its inherent consistency or inherent inconsistency in reference to the account as stated by one witness on being cross checked with the account as stated by the other witness. Finally, probative value of the evidence has to be put into scales for a cumulative evaluation. The evidence must point only towards the guilt and should exclude innocence of accused.
31. In the case of Narendra Champaklal Trivedi (supra), it was held that mere recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 27/95 CBI vs Awadhesh Kumar Singh demanded or money was paid voluntarily as a bribe. The demand and acceptance of the amount as illegal gratification is the sine qua non for constituting an offence under the PC Act. The prosecution is found to establish that there was an illegal offer of bribe and acceptance thereof. The same has to be founded on facts. In the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery alone would not be a ground to convict the accused.
32. In the case of Dnyaneshwar Laxman Rao Wankhede (supra), it was held that demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of The Prevention of Corruption Act 1988. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on record in their entirety.
33. In the case of C.M. Girish Babu (supra), it was held that mere recovery of tainted money by itself is not enough, in absence of evidence to prove payment of bribe or to show that accused voluntarily accepted the money knowing it to be bribe.
34. In the case of Suraj Mal (supra) it was held that mere RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 28/95 CBI vs Awadhesh Kumar Singh recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Mere recovery by itself cannot proved the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
35. In the case of Madhukar Bhaskarrao Joshi (supra), it was held that 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 in terms of Section 20 of The Prevention of Corruption Act 1988 is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act.
36. In the case of Vishal Chand Jain @ V.C Jain (supra), it was held that the accused lacked motive for demanding and accepting bribe. The star witness of prosecution viz. the complainant, who was alone witness to actual transaction did not support the case of prosecution either on initial demand or on demand and acceptance of bribe at the time of trap. Besides that audio recording of alleged conversation between complainant and accused was also being suspect. Elicited facts entitled the accused acquittal since he was able to explain the hand washes and pocket wash turning pink.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 29/95 CBI vs Awadhesh Kumar Singh
37. In the case of Prem Raj Meena (supra), it was held that tainted money was put in the briefcase by complainant of his own and not at the instance of accused, so it could not be said that accused was in conscious possession of tainted money recovered from briefcase. It was also held that said recovery of tainted money cannot be taken as a proof for acceptance of tainted money by the accused.
38. The core question that needs to be seen is as to whether there is sufficient legal evidence on record for the prosecution to prove its case beyond reasonable doubt against arraigned accused for the offences charged.
39. PW14 Sh Ram Nath Prasad, the then Assistant in Law Department, Government of Bihar produced the records of the file of sanction order Ex PW14/B dated 24/03/2011 along with letter of his Under Secretary Ex PW14/A dated 22/11/2013 authorizing him to do so. PW14 stated that Sh Rajinder Kumar Mishra, the then Secretary cum Legal Remembrancer to Government of Bihar under orders of Hon'ble Governor of Bihar had accorded the sanction Ex PW14/B dated 24/03/2011 under Section 19 of Prevention of Corruption Act 1988 for prosecution of accused for offences under Sections 7 and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act 1988 after RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 30/95 CBI vs Awadhesh Kumar Singh perusal of the documents of CBI including statement of witnesses. PW14 also deposed that Sh Rajinder Kumar Mishra, the then Secretary cum Legal Remembrancer to Government of Bihar is presently Hon'ble Judge in Patna High Court. Ld. PP for CBI had placed on record the Government of India (Allocation of Business) Rules dated 14/01/1961 of Government of India after downloading them from website cabsec.nic.in in terms of which sanction for prosecution of a government servant for any offence, is to be accorded by the department which is the cadre controlling authority for the service of which such government servant is the member. In case of a public servant other than a government servant, appointed by Central Government, the department administratively concerned with the organization in which such public servant was working at the time of commission of the alleged offence, is to accord such sanction. In any other case, the department which administers the Act under which the alleged offence is committed is to accord such sanction. Ex PW14/B inter alia finds mention that accused was such public servant who was removable from service by consent of State Government of Bihar and the alleged offences were committed by him in the course of discharge of his duties. In view of the foregoing and as per law laid in the cases of State vs K. Narsimhachari, 2006 Cri.L.J 518 and State of Maharashtra through C.B.I. v. Mahesh G. Jain, 2013 Cri. L.J. 3092, the prosecution has been able to prove that the valid sanction had been accorded vide order Ex PW14/B by the sanctioning authority since such sanction was so accorded in the name of RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 31/95 CBI vs Awadhesh Kumar Singh Hon'ble Governor of Bihar and the Hon'ble Chief Minister of Bihar had accorded it after perusal of the note of Sh Rajinder Kumar Mishra, the then Secretary cum Legal Remembrancer to Government of Bihar.
40. PW9 Sh. V.B. Ramteke, the then Senior Scientific Officer, GradeII, CFSL, New Delhi deposed that on 17/04/2009 one sealed bottle marked as RHW with letter dated 16/04/2009 of SP ACB CBI i.e., Ex PW12/C (D11) was received in CFSL. PW9 had analysed contents of sealed bottle Ex P1, previously marked as RHW by physicochemical methods, chemical tests and thin layer chromatographic technique and it gave positive tests for the presence of phenolpthalein and accordingly PW9 gave his report Ex PW9/A dated 08/07/2009.
41. PW11 Sh. R. Parthasarathy, the then Assistant Manager (Vigilance) in National Highways Authority of India (NHAI), Dwarka, New Delhi deposed that he had handed over the documents including file Ex PW1/H (colly) (D19), file Ex PW1/J (colly) (D20) from the office records of NHAI to IO PW13 which documents were seized vide production cum seizure memo Ex PW11/A (D18) dated 25/05/2009.
42. PW6 Sh Ram Krishan Singh, Divisional Engineer in BSNL, Patliputra Telephone Exchange, Patna, Bihar had sent the call detail records (CDR) of mobile no. 09431018472 of the period 06/04/09 to 09/04/2009 with letter dated 26/08/2009, all collectively Ex PW6/A RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 32/95 CBI vs Awadhesh Kumar Singh (colly) (D14) to IO.
43. PW8 Sh. Basant Kumar Singh, Sub Divisional Engineer (Mobile) in BSNL had attested (1) Ex PW8/A (part of D13) i.e., copy of Order Form for post paid cellular connection of BSNL of number 94310 18472 in the name of accused; (2) Ex PW8/B (part of D13) of wireless landline connection number 626490 in the name of accused; (3) copy of the PAN Card Ex PW8/C (part of D13) of accused; which documents were verified by PW8 from their originals in office records and were submitted along with letter Mark P8/1 (part of D13) dated 10/07/2009 of Sh S. Jha, Chief Superintendent to IO of CBI.
44. PW2 Sh. R.K. Singh, Nodal Officer in Bharti Airtel Limited (previously Bharti Cellular Limited and Bharti Televentures Limited) vide forwarding letter Ex PW2/A (D12), dated 08.05.2009 had forwarded the attested Call Detail Records (CDRs) Ex PW2/B of mobile no. 9818540236 in the name of Savitri Consultants Engineering Works through Sh Achal Singh (PW1) of the period from 06/04/2009 to 09/04/2009 with attested copy of Customer Application Form (CAF) and supporting documents Ex PW2/C (colly). PW2 also brought on record Ex PW2/DA, the tower location chart describing the locations of Cell 1 and Cell 2 depicted in Ex PW2/B.
45. Particulars of relevant calls made between mobile number RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 33/95 CBI vs Awadhesh Kumar Singh 09818540236 [in name of Savitri Consultant and Engineering Work as per Ex. PW 2/C (colly) and used by PW 1 as stated by PW 1] and mobile number 09431018472 [in the name of accused as per application form Ex. PW 8/A of BSNL and used by accused] as per Call Detail Records (CDRs) Ex. PW 2/B (part of D12) of mobile phone no. 09818540236 proved on record by PW 2 are:
S.No. Call From Call To Duration Date Time
(in
seconds)
01 09818540236 09431018472 33 08/04/2009 11:47:24
02 09818540236 09431018472 30 08/04/2009 11:49:28
03 09818540236 09431018472 56 08/04/2009 12:41:43
04 09431018472 09818540236 25 08/04/2009 13:38:08
05 09431018472 09818540236 10 08/04/2009 13:39:04
06 09431018472 09818540236 60 08/04/2009 13:39:30
07 09818540236 09431018472 48 08/04/2009 18:00:37
08 09818540236 09431018472 40 08/04/2009 19:00:04
09 09431018472 09818540236 22 08/04/2009 19:57:16
10 09431018472 09818540236 42 08/04/2009 20:20:59
11 09818540236 09431018472 23 08/04/2009 20:27:43
12 09431018472 09818540236 13 08/04/2009 21:27:36
13 09818540236 09431018472 45 08/04/2009 21:28:39
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 34/95
CBI vs Awadhesh Kumar Singh
TAPE RECORDED CONVERSATION
46. In the case of Dharambir vs. CBI, 148 (2008) DLT 289, it was inter alia held that "(i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it is restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.
(ii) Given the wide definition of the words 'document' and 'evidence' in the amended Section 3 the EA, read with Sections 2 (o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 EA.
(iii) The further conclusion is that the hard disc in the instant cases are themselves documents because admittedly they have been subject to changes with their having been used for recording telephonic conversations and then again subject to a change by certain of those files being copied on to CDs. They are electronic records for both their latent and patent characteristics."
47. It was also held in aforesaid case that the accused therein had a right of inspection of the hard disc since making mirror image copies of entire hard discs was uncalled for; it was also directed that the four hard discs be brought back from the forensic laboratory and be kept RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 35/95 CBI vs Awadhesh Kumar Singh in either Cyber Crime Section of CBI or any other similar convenient place but under the control of the Special Judge CBI and original recorded conversations of relevant intercepted telephone calls relied upon by CBI in these four hard discs were to be played before the Special Judge CBI in the presence of accused or their representatives, the Counsel for the parties subject to the directions of Special Judge CBI.
48. In the case of Ram Singh (Supra) it was held that:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
(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."
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 36/95 CBI vs Awadhesh Kumar Singh
49. In the case of Mahabir Prasad Verma (Supra), it was held that tape recorded conversations can only be relied upon as corroborated evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon.
50. The conditions laid for admissibility of tape recorded statement in evidence in the cases of Ram Singh (Supra) and Mahabir Prasad Verma (Supra), found approval of the Supreme Court in the case Nilesh Dinkar Paradkar (Supra).
51. It is own version of PW1 that every call conversation between him and the accused was recorded in the Digital Voice Recorder (DVR). PW 1 also stated that in presence of all, he (PW 1) had called up accused. As per PW 1, recordings of the calls between him and accused was done by the officials present in CBI office on 08/04/2009 whereas PW 12 TLO Inspector Raj Singh operated the DVR to record calls and the transcript of the recorded call conversations was made simultaneously. Also as per PW1 when he had mobile call conversations with accused in CBI office, at that time PW 3 and PW 4 were behind him. In his deposition, PW1 says of there being 3 call conversations between him and accused while he was in CBI office on 08/04/2009 RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 37/95 CBI vs Awadhesh Kumar Singh before leaving for Hotel Vikram for trap. As per version of PW1, first and third such call conversations between him and accused was when PW1 made call from his mobile phone 09818540236 to mobile phone of accused; second such call conversation was when accused made call from his mobile phone to mobile phone 09818540236 of PW1.
52. PW4 has his own version in respect of call conversation between PW 1 and accused before leaving CBI office for trap to Hotel Vikram on 08/04/2009. PW4 deposed of two call conversations between PW 1 and accused before leaving CBI office for trap and first call was made by PW 1 from his mobile phone to accused at around 11:30 am or 11:45 am on 08/04/2009 on asking of Inspector Rajesh Chahal, which conversation was recorded in DVR and transferred in audio cassette. The second call conversation aforesaid was when PW1 received call at around 01:30 pm or 01:45 pm on 08/04/2009 on his mobile phone from mobile phone of accused, part of which conversation PW4 heard as accused having called PW 1 at about 05:30 pm that day in Hotel Vikram, which conversation was also recorded in separate audio cassette in a system. As per PW4 the such prepared audio cassette in Vikram Hotel was sealed in CBI office and not in Vikram Hotel, per contra to version of PW 12 and of presented case of prosecution.
53. Verifying Officer PW15 in his own narration spells out of only one call conversation between PW1 and accused when PW1 made a RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 38/95 CBI vs Awadhesh Kumar Singh call from his mobile phone to mobile phone of accused on direction of PW 15 on 08/04/2009 in CBI office during verification proceedings and this conversation was held in loudspeaker mode and simultaneously recorded in DVR and transferred in audio cassette Ex. PW4/A1 (previously Ex. Q1), through mini cassette recorder by playing the DVR. PW15 got issued mini cassette recorder and four blank audio cassettes on 08/04/2009 from office of ACB CBI for which no writing work was done either by PW15 or official issuing mini cassette recorder and blank audio cassettes nor it finds mention in verification report Ex. PW 1/B (D3) nor said fact was stated by PW15 to IO in his statement Ex. PW15/DA dated 05/01/2010 u/s 161 Cr. PC to which he was confronted with on this count. PW15 also deposed in his cross examination that in the course of verification proceedings, there were five calls of conversation between PW1 and accused and call conversations of these five calls were recorded.
54. The tenor of averments of Ex. PW 1/B (D3) i.e. verification report is of there being two call conversations in verification proceedings, first call conversation is when on direction PW1 made call from his mobile phone to mobile phone of accused between 11:45 hrs to 12:40 hrs approximately on 08/04/2009 and the second call conversation is when at about 13:40 hrs on 08/04/2009 PW1 received a call on his mobile phone from mobile phone of accused. As per Ex. PW1/B (D3) the above said mobile phone conversations were simultaneously recorded RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 39/95 CBI vs Awadhesh Kumar Singh in the DVR and were transferred in the blank audio cassette marked Q1 with the help of mini cassette recorder and thereafter the said cassette marked Q1 was sealed using CBI seal.
55. It is culled out from CDRs Ex. PW2/B, as elicited in table above that there were 6 call conversations of durations specified therein interse mobile phone numbers attributed to PW 1 and accused before PW 1 along with trap team left CBI office on 08/04/2009 for Vikram Hotel for trap proceedings.
56. In report Ex. PW10/A (D21), PW10 Sh. Deepak Kumar Tanwar Senior Scientific Officer, observed that normal size audio cassette Ex Q1 had recordings of total duration 6 minutes 10 seconds on side A, whereas, as per transcription of 41 pages received from the forwarding authority i.e. SP CBI ACB on 17/04/2009 there were three telephonic recorded conversations of respective duration 26 seconds, 55 seconds and 58 seconds approximately. PW10 was of opinion in his report Ex. PW10/A that no sufficient common words/ sentences in questioned voices marked (1) exhibits Q1 (I) (A), Q1 (II)(A) and Q1 (III)(A), the sentences selected from conversations in audio cassette Ex. Q1; (2) exhibit Q2/1 (A); (3) exhibit Q2/2 (I) (A) to exhibit Q2/2 (IV) (A); (4) exhibit Q2/3 (II) (A) could be detected with respect to specimen voice recording of accused recorded in audio cassette marked 'S1' as the specimen voice was out of text with respect to the questioned voices;
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 40/95 CBI vs Awadhesh Kumar Singh hence the same could not be subjected for voice spectrographic analysis. Also as per Ex. PW10/A audio cassette Ex. Q2/1 had recording of total duration 30 minutes 40 seconds approximately on side A as well as of same duration on side B, whereas the relevant telephonically recorded conversation therein as per transcription was of duration 44 seconds. Also as per Ex. PW 10/A audio cassette Ex. Q2/2 had recording of total duration 30 minutes approximately on side A as well as of same duration on side B, whereas the three relevant telephonic conversation as per transcription were of duration 38 seconds, 41 seconds and 15 seconds approximately respectively, which were followed by direct recorded conversation of duration 5 minutes approximately. Also as per Ex. PW 10/A audio cassette Ex. Q2/3 had recording of total duration 62 minutes approximately on sides A and B, of which first recorded conversation was of total duration 56 minutes approximately marked Q2/3 (I), which was later followed by one telephonic recorded conversation of duration 49 seconds approximately marked Q2/3 (II). Also as per Ex. PW 10/A audio cassette Ex. Q2/4 had recording of total duration 7 minutes and 30 seconds approximately on side A containing relevant telephonic conversation which is same as conversation marked Q2/3 (II) of cassette Q2/3, as per transcription, of duration 49 seconds approximately.
57. TLO PW12 deposed that he had called for the DVR from the care taker of ACB CBI and had given it to PW1 for recording of his conversations with accused. No writing work for delivery of DVR to PW RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 41/95 CBI vs Awadhesh Kumar Singh 12 by concerned officials of care taking branch was done nor any acknowledgment was given by PW12. PW12 was unable to tell the make or colour of DVR so obtained and given to PW1. PW12 also deposed that data was transferred from DVR to cassette with the aid of cable, which was in trap kit though usually such cable is not part of trap kit. Said cable used for transfer of data from DVR to cassette was neither made case property, nor seized nor handed by PW12 to IO PW13. It is admitted case of prosecution that originally the alleged recordings of conversations between PW1 and accused in respect of proceedings done on 08/04/2009 including verification proceedings and trap proceedings, were recorded in Digital Voice Recorder (DVR). From DVR such recordings were transferred firstly to audio cassette Q1 before leaving CBI office on 08/04/2009 and thereafter to four audio cassettes Q2/1 to Q2/4 during the trap proceedings conducted in the room no. 202 at Hotel Vikram, Lajpat Nagar, New Delhi. As per PW4, cassette containing voice was sealed in CBI office. Further PW 4 elicited that audio cassette Ex. PW 3/J1 (previously S1) containing specimen voice of accused was sealed in Vikram Hotel after obtaining such specimen voice and regarding the same specimen voice recording memo Ex. PW 3/D (D9) was prepared. In terms of the version of PW 4, accordingly either all the cassette(s) Q2/1, Q2/2, Q2/3 and Q2/4 or any amongst them were sealed in CBI office. Trap team member PW15 elicited that in a room in Hotel Vikram during trap proceedings, conversations recorded in DVR were transferred in one audio cassette Q2. PW15 does RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 42/95 CBI vs Awadhesh Kumar Singh not speak of recorded conversation from DVR having been transferred in four cassettes Q2/1, Q2/2, Q2/3 and Q2/4. As per report Ex. PW10/A (D21), the laboratory examination of the audio cassettes revealed that some portions at the ending of the recording on B side of the cassettes marked exhibits Q2/1, Q2/2 and Q2/3 respectively were the same with the some portion of the beginning of the recording on the side A of the cassettes marked exhibits Q2/2, Q2/3 and Q2/4 respectively. In view of this elicited opinion of expert PW 10, since some portions of the audio cassettes aforesaid were same, falsity in version of PW12 regarding transfer of data from DVR to cassette with aid of cable, is apparent on face of record. Without human intervention or rewinding of the recorded conversation in the recorder, the same portions of recorded conversations cannot be copied in audio cassettes Q2/1 to Q 2/4. PW15 deposed that by playing of DVR the recorded conversations from said DVR were transferred to audio cassette Q1. PW15 stated that he had not prepared any transcript of recorded conversations per contra to version of PW1 since as per PW1 a transcript of call conversation in verification proceedings was prepared and such transcript was made simultaneously within one or two hours of recordings in his presence. If DVR was played and simultaneously mini cassette recorder was played for recording of the conversations from DVR then there is every likelihood of any sound from sources other than DVR may be reaching the mini cassette recorder in the process of preparation of audio cassette while recording the conversation by playing DVR. Such sound from RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 43/95 CBI vs Awadhesh Kumar Singh other sources may also be for muting the sound of the DVR while the recording is on and meanwhile words are spoken by some one interested to insert desirable words to make such words a part of the recorded conversation. Fact of the matter is that the original device i.e. DVR used for recordings of conversation between PW1 and accused has not been seized, sealed, sent for forensic expert opinion regarding the date and time of creation of the data of audio files recorded therein or modified therein. It is admitted fact that the DVR is the electronic storage device and once by recordings of call conversations an audio file is created, it can be subjected to any change and the date and time of modification in the audio file aforesaid can be ascertained. Such audio files are electronic records for both their latent and patent characteristics. No examined material witness could even elicit the make of DVR. From the audio cassettes Q1, Q2/1 to Q2/4 and report Ex. PW10/A, the dates and time of recordings/transfer of recordings of conversations, from DVR to said cassettes as well as of the modifications, if any therein, have not been proved on record. It is borne out of evidence of prosecution witnesses that transcript Ex. PW1/F (D17) of 40 pages dated 13/04/2010 prepared by PW13 is not the full and complete transcript of all existing voice recordings contained in audio cassettes Q1, Q2/1 to Q2/4 and is obviously different from 40 pages transcript sent with aforesaid audio cassettes on 16/04/2009 to CFSL, whose author is unknown. Transcript Ex. PW1/F (D17) also reveals of containing conversation of three telephonic calls of verification proceedings i.e. the calls between RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 44/95 CBI vs Awadhesh Kumar Singh the PW1 and accused while in terms of the CDRs Ex. PW2/B there were six call conversations between PW1 and accused before verifications were concluded at 02.15 pm on 08/04/2009 as per Ex. PW1/B and all these six call conversations should have found place in the recorded call conversations and their transcript in terms of version of PW1 as PW1 had stated that every call conversation between him and accused was recorded. On display of cassette Q2/4 during evidence of PW1 it was observed and stated by PW1 that there was ambiance sound of talks between CBI officers, after apprehension of accused but said talks were neither clear nor part of transcript Ex PW1/F. PW10 claimed to be Forensic Expert but admitted to have no knowledge of linguistic typology nor had done any Course or Diploma in Phonetic/Speech Science. PW10 elicited that he attended the one month course in Germany on subject 'Speaker Identification' and other allied areas in which he was taught about English words only. In this matter, PW10 had done the comparisons of Hindi words in the recorded conversations. PW10 also admitted that he had not done any course or diploma nor obtained any degree or certificate in respect of Hindi Phonetic language. So PW10 was not qualified to be termed as a Forensic Expert for voice examination of Hindi words spoken and recorded in questioned conversations. In view of the law laid in case of Ram Singh (supra), the tape recorded statements in cassettes Q1, Q2/1, Q2/2, Q2/3 and Q2/4 are not admissible in evidence since firstly, their accuracy has not been proved by satisfactory evidence, direct or circumstantial;
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 45/95 CBI vs Awadhesh Kumar Singh secondly, possibility of tampering with or erasure of part of tape recorded statements has not been totally excluded; thirdly, the primary evidence in form of original DVR used in recordings has been withheld which would have depicted the exact dates and times of the recordings of the audio files containing the questioned conversations and their modifications, if any. The prosecution cannot take any benefit from the corroborative evidence of tape recorded conversations accordingly.
58. True that human memories are apt to blur with the passage of time, there may be minor discrepancies/errors of observation due to mental disposition, shock and horror at the time of incident, omissions, mistakes in the testimonies of the material witnesses. Also it is true that the testimonies of victim witness holds more credence, who normally would not shield real culprit or let actual assailant go unpunished, to falsely implicate the third party for the commission of an offence. Also it is true that accused are not to be acquitted solely on the account of defects in the investigation. The testimonies of witnesses on record are to be scrutinized with utmost care, caution and circumspection. To base conviction on them, they should be free from embellishments, material contradictions, severe infirmities and inherent improbabilities going to the root of matter to check and shake basic version and core of prosecution case, so as to be worthy of credence, reliable and trustworthy.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 46/95 CBI vs Awadhesh Kumar Singh VERIFICATION PROCEEDINGS ON 08/04/2009
59. Verifying Officer PW 15 deposed that complaint Ex. PW 1/A (D2) was assigned to him by the SP on 08/04/2009 for verification. Thereafter, PW 15 met PW 1 at around 10.30 or 11.00 am on 08/04/2009 for the first time. Verification proceedings were carried out by PW 15 in his Chamber situated at 2nd floor in CBI office in presence of PW1 and PW4. As per PW 15, the officers namely Inspector Rajesh Chahal and PW12 were neither present nor participated in verification proceedings. PW15 stated that the moment he met PW1 on 08/04/2009, he called PW4 independent witness and introduced PW1 and PW4, after which he explained to PW 4 about the purpose of his visit to CBI office and PW4 perused the complaint Ex. PW1/A (D2). PW15 further stated that to verify the allegations of said complaint, he directed PW1 and PW1 made call from his mobile phone to mobile phone of accused and the conversation was held in loudspeaker mode, heard by all i.e. PW4 and PW15 and simultaneously recorded in DVR, which conversation clearly expressed agreement on part of accused to accept bribe amount. The recorded conversation was transferred on 08/04/2009 itself in audio cassette Ex. PW4/A1 (Q1) through mini cassette recorder by playing the DVR and a separate copy for investigation was also prepared and thereafter Ex. PW4/A1 (Q1) was sealed with cover and inlay card Ex. PW4/A2. The proceedings of verification were incorporated in verification report Ex. PW1/B (D3), which was signed by PW15, PW1 and PW4.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 47/95 CBI vs Awadhesh Kumar Singh
60. PW1 deposed that he approached CBI on 08/04/2009 and gave application Ex. PW1/A (D2). PW1 stated that the officer incharge in CBI office was PW12 to whom he narrated the whole story and PW 1 was introduced to PW3 and PW4, the independent witnesses, who were listening the whole thing. As per PW1, in presence of all i.e. PW12, PW3 and PW4, he (PW1) had made a call from his mobile phone number 09818540236 to mobile phone number of accused, which was on speaker phone and the said conversation was recorded in the voice recorder by the officials present there. On display of audio cassette Ex. PW 4/A1 (Q
1), PW1 stated that the conversation was in his voice and voice of accused. PW1 elicited in crossexamination that he reached Delhi on 01/04/2009 but did not approach the officials senior to accused in Head Office of NHAI regarding conduct of accused nor lodged any complaint with NHAI or before any competent authority excepting CBI on 08/04/2009 regarding demand of money by accused. Initially, PW1 avoided to answer where he was in between 03.30 pm to 04.15 pm on 06/04/2009 by saying he did not remember about it but blowed hot and cold in the same breath and admitted the suggestion immediately thereafter of being in office of CBI at CGO complex in said period. PW1 hastened to add he did not give his complaint that day in CBI office as he did not meet anyone there. PW1 volunteered to state that he inquired in CBI office on 06/04/2009 from Mr. Sharan (perhaps SP Sh. Sumit Sharan) about SSP, ACB of CBI. PW1 deposed that on 08/04/2009 he RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 48/95 CBI vs Awadhesh Kumar Singh reached CBI office at 10.00 am and had taken money with him i.e. five bundles of GC notes Ex. P3/1 to 500 of denomination of Rs. 500/ each, which he had kept in his car. PW 1 elicited that he had taken with him besides complaint Ex. PW1/A (D2), all relevant files containing documents in CBI office, which he had shown to CBI officers. None amongst examined official witnesses of CBI including PW15 and PW12 whispered of having seen aforesaid relevant files containing documents brought in CBI office by PW1. In complaint Ex. PW1/A (D2) there is no mention of receipt of payment of IPC3 by PW1 and infact such payment has been concealed in Ex. PW 1/A (D2) by PW1 apparently designedly. PW 1 further elicited that at around 11.00 am or 11.30 am or 12.00 noon on 08/04/2009, the endorsement at point B was made on Ex. PW1/A by the CBI officer and thereafter from office of SSP in CBI office, he (PW1) had accompanied PW12 to his office room on the same floor of the same building. As per PW1 his mobile phone instrument was on speaker mode during conversation of the calls between him and accused and voices of every call were recorded in DVR operated by PW12 and the transcript of the calls recorded was made simultaneously within one or two hours of recording, in his presence. PW1 does not speak of the verification proceedings having been conducted by PW15 or even about presence of PW15 in the course of verification proceedings. Tenor of PW1 about verification proceedings had been that it were so conducted, while PW3 and PW4 were on his back seat and on directions of PW 12 he had made the call conversation from his mobile phone with accused on his mobile RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 49/95 CBI vs Awadhesh Kumar Singh phone. These facts are in total contradiction with the presented case of prosecution.
61. PW4 deposed that on 07/04/2009 his Director Establishment Department in BIS gave him letter to report at 10.00 am on 08/04/2009 at CBI office at CGO Complex, Lodi Road, New Delhi. On 08/04/2009 at 10.00 am PW4 reached at CBI office and went to Reception there. PW4 stated that from Reception of CBI office he was sent to Inspector Rajesh Chahal and Inspector Raj Singh (PW12). PW4 further stated that he reached to office place of PW12, who took him (PW4) to Inspector Rajesh Chahal and introduced PW4 to Inspector Rajesh Chahal, while there PW1 was already seated and Inspector Rajesh Chahal introduced PW4 with PW1 and told PW4 that PW1 was complaining for demand of bribe by accused; there Inspector Rajesh Chahal also showed and explained complaint Ex. PW1/A (D2) of PW1. As per PW4 on the asking of Inspector Rajesh Chahal at about 11.30 am or 11.45 am on 08/04/2009, PW1 made a call from his mobile phone to accused, which call conversation was recorded in a DVR and transferred in a audio cassette but PW4 did not remember the words of conversations, regarding which PW4 stated that it was about bribe demanded. As per PW4, at around 01.30 pm or 01.45 pm on 08/04/2009 a call from mobile phone of accused was received on mobile phone of PW1, which was on speaker mode and PW4 could hear that accused had called PW1 at about 05.30 pm that day in Hotel Vikram Lajpat Nagar. Said call conversation RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 50/95 CBI vs Awadhesh Kumar Singh was also recorded in a separate audio cassette. PW 4 had not stated in Ex. PW4/DA i.e. statement u/s 161 Cr. PC dated 27/05/2009 about the conversation in call made by PW1 to accused was regarding bribe money and was confronted on this count with said previous statement.
62. PW1 deposed that he had withdrawn cash around 05 th or 06th April 2009 from his current account in Indian Overseas Bank, Noida for bribe sum and more as it was salary time. PW 1 did not carry such withdrawn cash sum to CBI office on 06/04/2009. On 08/04/2009 PW1 took with him sum of Rs. 2.5 lakhs out of such withdrawn cash to CBI office and had kept it in his car and the said sum of cash was used as bribe money. The case property viz trap money viz GC notes Ex. P3/1 to 100; Ex. P3/101 to 200; Ex. P3/201 to 300; Ex. P3/401 to 500 were found wrapped with note slip having printed Indian Overseas Bank, Lok Kala Much Branch New Delhi110003 with the stamp impression of the branch of bank with date 25 MAR 2009 on Ex. P3/201 to 300; date 27 MAR 2009 on Ex. P3/101 to 200 and Ex. P3/401 to 500, on their production during the course of crossexamination of PW12 on 09/10/2013. The paper slips elicited above bring into fore every likelihood of withdrawal of the said sums on 25/03/2009 and 27/03/2009 and falsity in version of PW1 on this count, since no document of prosecution nor any statement/deposition of any prosecution witness has any other reasonable explanation regarding said paper slips.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 51/95 CBI vs Awadhesh Kumar Singh
63. In terms of the presented case of the prosecution, PW1 had visited CBI office firstly on 08/04/2009 and not before. It remains unfolded as to how then PW4 received written instructions on 07/04/2009 for reporting to CBI office to be witness in a case. Instructions communicated to offices of independent witnesses PW3 and PW4 have been neither filed nor proved. PW1 reached CBI office on 08/04/2009 and gave his complaint only on 08/04/2009. PW1 does not say of the verification proceedings having been done by PW15 but instead says Officer Incharge was PW 12 and when PW1 made call for verification to accused, behind PW1, PW3 and PW4 were seated. PW15 in his crossexamination testified that the moment he met PW1, he called PW4 and not before. If that is so then as per verification officer PW15, there was no occasion for any officer of investigating agency to have called PW4 through his office / seniors at any moment prior to meeting of PW1 with PW15 on 08/04/2009 in CBI office. PW4 was given written orders on 07/04/2009 in his office to reach CBI office on 08/04/2009 at 10.00 am. Such version of PW4 brings into fore every reasonable possibility of discussion of complaint of PW1 by PW1 either on 07/04/2009 or before on 06/04/2009 at the time of visit of PW1 to CBI office with CBI officers and CBI officers having communicated requirement of independent witness for proceedings to be conducted on 08/04/2009 to the office of PW 4 on 07/04/2009 upon which on 07/04/2009, PW4 received written instructions as aforesaid. PW15 got issued DVR on 08/04/2009 but does not elicit the make of DVR so got RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 52/95 CBI vs Awadhesh Kumar Singh issued despite being the official of CBI who allegedly used the DVR in recording the purported call conversations between PW1 and accused in verification proceedings. Said DVR was handed over by PW15 to PW12 TLO in the afternoon of 08/04/2009. No writing work was done regarding (1) issuance of DVR to PW15 by any CBI officers including issuing official or PW15 himself; (2) handing over of DVR by PW15 to PW12 in the afternoon of 08/04/2009. Per contra to version of PW1, PW 15 speaks of having not prepared any transcript of any conversation of the calls between PW 1 and accused during verification proceedings. PW15 deposed in his crossexamination that there were in all conversation of five calls between PW1 and accused in the course of verification proceedings and all these conversations of five calls were recorded. Audio cassette Ex. PW4/A1 (previously Ex. Q1) contains conversations of three calls, even in terms of report Ex. PW10/A of forensic expert, instead of conversations of five calls, which it was supposed to contain as per elicited version of PW 15. In terms of elicited facts culled out from CDRs Ex. PW2/B of service provider Bharti Airtel in respect of mobile phone number of PW 1, audio cassette Ex. PW4/A1 (previously Ex. Q1) was supposed to contain conversations of six calls between PW 1 and accused, details of which are elicited herein before in the row of serial number 1 to serial number 6 of the Table in preceding part of this Judgment.
64. Was verification proceedings supposed to be confined to RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 53/95 CBI vs Awadhesh Kumar Singh making a call from mobile phone of complainant on loudspeaker mode to the number of mobile phone provided by the complainant and supposed to be of accused in the presence of an independent witness and recording the same in a recording device and transfer of the recordings in an audio cassette?
65. Action to be taken on verification report is embodied in Provision 8.24 of Chapter 8 of CBI Manual in vogue, which includes that after initial examination of a complaint the officer entrusted with the verification will submit his detailed verification report with his specific recommendations as regards its disposal. As per said provision, the Verifying Officer should invariably mention whether the subjectmatter of the complaint has already been looked into by the Department or its Vigilance Wing and the action taken thereon.
66. PW15 candidly admitted in his crossexamination of having neither made any telephonic call to Dhanbad Office or Delhi Office of NHAI to verify any pending payment of any sum of money as was claimed by PW1 in his complaint. PW15 also admitted that he had simply inquired from the complainant about the allegations contained in the complaint and from no other source he had verified such allegations. Even PW15 did not verify from any source about the mobile phone number provided by complainant alleging it to be of accused, to be of accused. Admittedly, PW15 had never heard voice of accused before RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 54/95 CBI vs Awadhesh Kumar Singh 08/04/2009 but PW15 simply believed version of PW1 that speaker on the other side was accused, in conversation on call made by PW1 from his mobile phone during the verification proceedings.
67. In his crossexamination PW1 elicited that on 08/04/2009 he had applied vide letter signed by him, through his engineer based at Dhanbad, for issuance of completion certificate, to the Supervising Consultant for which he had given signed blank letter without date and without matter to his engineer on around 25/03/2009. As per PW1, it was only on 20/04/2009 that the completion certificate of the contract was issued by the Supervising Consultant. PW1 candidly admitted that before 20/04/2009 no retention money was due to be paid in terms of the contract Ex. PW1/H (colly). PW1 deposed that he did reach Delhi on 01/04/2009 but neither approached Head Office of NHAI regarding conduct of accused nor lodged any complaint with NHAI or with any other Competent Authority before lodging complaint Ex. PW1/A (D2) with CBI on 08/04/2009. By withdrawal of GC notes Ex. P3/101 to 300; Ex. P3/401 to 500 from Indian Overseas Bank, Lok Kala Much Branch New Delhi110003, possibly on 25/03/2009 and 27/03/2009, before the alleged date of incident of 31/03/2009 of alleged demand of bribe by accused and before lodging of complaint Ex. PW1/A (D2) on 08/04/2009 with CBI, the complainant PW1 perhaps had made his preparations for laying of trap for accused. PW 1 claimed that he had taken with him all of his relevant files containing documents in CBI RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 55/95 CBI vs Awadhesh Kumar Singh office on 08/04/2009, which he had shown to CBI officers and had given complaint Ex. PW1/A (D2) on which the endorsement was made by the CBI officer at around 11.00 am or 11.30 am or 12.00 noon. Verifying Officer PW 15 in his crossexamination stated that neither he demanded from PW1 nor PW1 had shown him any documents. Verification report Ex. PW1/B (D3) finds no mention of any such alleged relevant files shown by PW 1 to any CBI officers. No examined officer of CBI testified of having seen any such alleged relevant files purportedly shown by PW 1 on 08/04/2009.
68. Verifying Officer PW15 did not inquire nor asked PW1 to show any documents for presence of PW1 in Dhanbad on 31/03/2009. PW 1 in his crossexamination on 25/02/2013 elicited that he was not asked by the investigating agency to produce such documents but he had in his accounts file in his office at Noida, the document of a hotel, where he had stayed in the night of 31/03/2009 in Dhanbad. Further cross examination of PW1 was deferred on 25/02/2013. On further cross examination of PW1 later, PW1 did not produce such documents of his alleged stay in the night of 31/03/2009 in Dhanbad.
PRE TRAP PROCEEDINGS ON 08/04/2009
69. TLO PW 12 constituted a trap team on 08/04/2009 after securing presence of independent witnesses PW 3 and PW 4. Trap team included TLO PW 12, PW 1, PW 3, PW 4, PW 15, Inspector Rajesh RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 56/95 CBI vs Awadhesh Kumar Singh Chahal, Inspector Hitender Adlakha, SI Nikhil Malhotra, SI Yogesh Kumar and Lady Ct. Navneet Kaur. Trap team members were introduced to each other and purpose of their assembly was explained to them. As per PW 12, complaint Ex. PW1/A (D2) was shown to PW 3 and PW 4, who satisfied themselves with the contents of said complaint by asking certain questions from PW 1. GC notes Ex. P3/1 to Ex. P3/500 of denomination of Rs. 500/ each in five bundles were produced by PW 1. Numbers and denominations of GC notes were mentioned in Ex. PW 1/C i.e. Handing Over Memorandum (D4). PW 12 deposed that a practical demonstration of reaction between Phenolpthalein powder and solution of sodium carbonate was given by Inspector Hitender Adlakha by teating aforesaid GC notes with Phenolpthalein powder and asking PW 4 to touch them with right hand fingers and wash the same in freshly prepared solution of sodium carbonate and water; upon which such solution turned pink and thereafter such solution was thrown away. PW 12 also stated that personal search of PW 1 was carried out and PW 1 was not allowed to carry anything incriminating with him. Black colour bag Ex. P2 of PW 1 was also searched and it was ensured that it carried nothing. PW 12 deposed that GC notes Ex. P3/1 to Ex. P3/500 were placed in bag Ex. P2 by PW 4 on directions; DVR was arranged, its functioning was explained to PW 1. PW 12 deposed that complainant was directed to put the DVR on 'ON' condition, while entering into conversations with accused. PW 12 deputed PW 3 as shadow witness and directed PW 3 to remain close with PW 1 to overhear the conversation between PW 1 and RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 57/95 CBI vs Awadhesh Kumar Singh accused and also see the transaction of bribe. PW 12 further directed PW 3 to give signal to trap team members by rubbing his face with both hands after transaction of bribe was over, as well as to give a call either to PW 12 or to Inspector Rajesh Chahal in case PW 3 is not in a position to see the trap team members. PW 12 also directed PW 1 to give a call either to him (PW 12) or to Inspector Rajesh Chahal in case PW 3 fails to do so. PW 12 arranged a trap kit interalia consisting glass bottles, glass tumbler, sodium carbonate, some stationary items and Rs. 500/ were kept in it to meet incidental expenses. PW 12 deposed that the detail of pre trap proceedings were mentioned in Ex. PW 1/C i.e. Handing Over Memorandum (D4) and pre trap proceedings were started at 03.15 pm concluded at 04.45 pm on 08/04/2009. PW 12 elicited that he met PW 1 for the first time on 08/04/2009 at about 02.45 pm in CBI office. PW 12 further elicited that he met PW 3 and PW 4 for the first time on 08/04/2009 at about 03.00 pm in CBI office. PW 12 deposed that he had not seen nor obtained any documents from PW 1. Per contra, PW 1 in crossexamination stated that everybody included PW 12 had seen his documents in CBI office. In the crossexamination PW 12 stated that he had called for the DVR and Cassette Recorder from the Care Taker of ACB, CBI and had given DVR to PW 1 but he (PW 12) had not sent any written requisition to obtain DVR nor gave any acknowledgment for receiving it and no writing work was done for calling and obtaining DVR from care taker. PW 12 could not elicit the make and colour of the DVR despite specific question in crossexamination. PW 12 deposed that Ex.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 58/95 CBI vs Awadhesh Kumar Singh PW 1/C was typed by Ct. Navneet Kaur on his dictation but said fact was not mentioned in Ex. PW 1/C. PW 12 also deposed that functioning of DVR was explained to PW 1 by demonstration by Inspector Hitender Adlakha. No documents prepared by or at instance of PW 12 find any mention of said fact.
70. Regarding the pre trap proceedings done on 08/04/2009 in CBI office, PW 1 deposed that the numbers of the GC notes Ex. P3/1 to Ex. P3/500 of Rs. 2.5 lakhs brought by him were recorded by CBI officials and said GC notes were treated with white powder and one of the official explained the whole thing and dipped his hand in water that turned red. PW 1 deposed that he was told that CBI is going to trap accused and PW 3 will be present at all times with PW 1; another phone call was made by PW 1 to accused and time of 2'O clock on 08/04/2009 had been decided to hand over the bribe money. PW 1 also deposed that in between, he also received call from accused to meet him at Vikram Hotel near Moolchand Flyover. PW 1 stated that a team was constituted and they reached Vikram Hotel around 02.00 pm. In his cross examination PW 1 elicited that the numbers of the GC notes were tallied on screen of computer by some senior official of CBI, which took 23 hours.
71. PW 3 deposed that at 10.30 am on 08/04/2009 his Assistant Commissioner in Service Tax Department directed him to go to CBI RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 59/95 CBI vs Awadhesh Kumar Singh office, where he reached at about 10.45 am. As per PW 3, at outside office of SP, some person standing there told PW 3 to meet PW 12 and Inspector Rajesh Chahal upon which PW 3 met Inspector Rajesh Chahal in his cabin, PW 3 was seated there and briefed and asked to act as a shadow witness in a case where there was demand of bribe. PW 3 further stated that he also met PW 1 there to whom he was introduced. PW 3 stated that Inspector Rajesh Chahal told him (PW 3) the particulars of the case and PW 3 had read the complaint and seen the FIR. PW 3 also stated that PW 1 had produced a sum of Rs. 2.5 lakhs i.e. GC notes Ex. P3/1 to Ex. P3/500, which were in denomination of Rs. 500/ each to be given to the accused. As per PW 3, after demonstration of Phenolpthalein powder on aforesaid GC notes, these GC notes were kept in bag Ex. P2 by PW 4 and Inspector Rajesh Chahal gave DVR to PW 1 with instructions that whenever PW 1 had conversations with accused then he (PW 1) should put DVR on "ON" mode. PW 3 deposed that Inspector Rajesh Chahal instructed him (PW 3) that PW 3 had to be a shadow witness and to remain close to PW 1 and whatever is the conversation, PW 3 has to hear it carefully and whenever there is transaction of cash then PW 3 has to signal CBI team by either moving his hand on his face or to make a gesture or to make a call from his mobile. As per PW 3, they left CBI office at about 04.45 pm. In his crossexamination PW 3 elicited that after waiting for two or two and a half hours in CBI office after reaching there, then he had met PW 4 in the room of Inspector Rajesh Chahal but he (PW 3) did not meet PW 4 before that in CBI RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 60/95 CBI vs Awadhesh Kumar Singh office. In terms of version of PW 3, he did not see PW 4 in CBI office before 12.45 pm / 01.15 pm on 08/04/2009 and PW 3 had seen PW 4 for the first time in CBI office in the room of Inspector Rajesh Chahal. PW 3 also elicited that he only had a small talk with PW 1 and had seen complaint Ex. PW 1/A (D2) but had not read it and in his (PW 3) presence no documents were shown by PW 1 to CBI officers nor PW 4 had inquired about Ex. PW 1/A (D2) from PW 1 nor PW 3 had made any query to PW 1 for his satisfaction. PW 3 elicited that in his presence, PW 1 was not directed by anybody to make any call to accused. Further PW 3 stated that he saw from a distance PW 1 talking on telephone to someone but PW 3 could not specify whether PW 1 was talking on landline phone or mobile phone and was not able to hear what PW 1 spoke. As per PW 3, Inspector Rajesh Chahal told him (PW 3) that PW 1 was in conversation with accused but PW 3 was not knowing of any recording of conversation. It is also the version of PW 3 that number of GC notes Ex. P3/1 to Ex. P3/500 were noted down in his (PW3) presence in the room of Inspector Rajesh Chahal. PW 3 also stated that after he had waited for about two or two and a half hours on reaching CBI office, when he entered cabin of Inspector Rajesh Chahal, he found PW 1 seated there. PW 3 stated that he had not got any chance to handle DVR, so was unable to tell the make of DVR nor could PW 3 elicit whether any proceedings were conducted to verify blankness / emptiness of DVR or as to whether there existed any previous recordings in DVR. PW 3 stated that no transcript was prepared before they left for Hotel RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 61/95 CBI vs Awadhesh Kumar Singh Vikram. PW 3 deposed that before leaving CBI office mobile phone numbers of each other were exchanged for the purpose to inform each other. Ex. PW 1/C (D4) finds no mention of said fact.
72. PW 4 deposed that at around 02.00 pm or 02.30 pm on 08/04/2009 PW 1 and Inspector Rajesh Chahal showed him the cash amount totaling Rs. 2.5 lakhs i.e. GC notes Ex. P3/1 to Ex. P3/500 in denomination of Rs. 500/ each, which were of PW 1 and at that time PW 3 was also present and had seen said cash. PW 4 stated that Inspector Rajesh Chahal gave them a demonstration by sprinkling powder over said GC notes and on directions he (PW 4) touched the tainted currency notes with his fingers and dipped said fingers in a glass of water, which water turned pink and thereafter said water was thrown away. As per PW 4, after aforesaid demonstration, counting of said cash was done and cash was returned to PW 1 along with a recording system. PW 4 stated that before return to PW 1, said cash was put in a black colour bag by PW 4, on directions and the voice recorder was given by Inspector Rajesh Chahal to PW 1 and Inspector Rajesh Chahal instructed PW 1 that the said tainted currency notes were to be given only to accused when he (accused) demands the money and said money is not be given to anyone else even on the asking of accused. PW 4 deposed that instructions also included that when PW 1 reaches the place, DVR should be put on 'ON' mode. As per PW 4, instructions were given to PW 3 that he would act as shadow witness with PW 1 and was to remain with PW 1 and when the RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 62/95 CBI vs Awadhesh Kumar Singh transaction of bribe is completed then PW 3 was to either make a call from his mobile phone or give a missed call. As per PW 3, CBI officers conducted search of other members of raiding party and also amongst themselves so that none of the member of the raiding party has any incriminating articles. PW 4 deposed that they left CBI office at around 04.45 pm approximately on 08/04/2009.
TRAP PROCEEDINGS ON 08/04/2009
73. PW 1 deposed that he along with PW 3 reached Vikram Hotel around 02.00 pm on 08/04/2009 and another team including TLO PW 12, some lady official, PW 4 and other officials of CBI remained at a distance there. PW 1 further stated that he with PW 3 reached at the Restaurant of Vikram Hotel and sat on a table and the other team was there in the same Restaurant 5 or 6 tables away from them. As per PW 1, a voice recorder had been handed over to him by CBI officials which he had kept in the front pocket of his shirt. PW 1 narrated that he had called accused 2 or 3 times from his mobile phone and accused told him (PW 1) that he (accused) was getting late and was somewhere in Connaught Place area and reaching the hotel in another one or two hours, finally PW 1 got a call from accused at around 06.00 pm that he (accused) was already sitting in the hotel lobby or Reception area upon which PW 1 with PW 3 met accused in the lobby area at around 06.00 pm, where they had discussion for around one hour on various topics. PW 1 stated that he told accused that he had brought Rs. 2.5 lakhs which amount he could RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 63/95 CBI vs Awadhesh Kumar Singh only arrange and balance amount he (PW 1) will pay to accused shortly. PW 1 deposed that he was carrying the money i.e. GC notes Ex. P3/1 to Ex. P3/500 treated with powder, in the old computer laptop bag Ex. P2 and he handed over said bag Ex. P2 to accused. As per PW 1, accused asked for the polythene from him (PW 1) and they went outside also in car of PW 1 and since PW 1 could not find any polythene so he (PW 1) requested accused to take the money along with aforesaid bag Ex. P2 and the accused may return the bag Ex. P2 later. PW 1 further deposed that after handing over the bag Ex. P2, he (PW 1) concluded the discussion with accused by handshake and thereafter, he (PW 1) left the hotel but few minutes later PW 1 got a call on his mobile phone from accused to know his (PW 1) location, upon which PW 1 told accused that he (PW 1) had left the hotel but was in the parking area. As per PW 1, after few minutes he (PW 1) was called by CBI officials, that accused had been caught by them and he (PW 1) could only see the glass of red water on the table and the Inspector and officials of CBI took out voice recorder from his pocket or asked him (PW 1) of the voice recorder, which PW 1 handed over to them. PW 1 stated that all the documents, the seizure reports, the money and the bottle in which said red liquid was being poured were also signed by him and other officials. PW 1 could not say whether bottle Ex. P1 was the same which was seized from hotel or not. On display of audio cassette Q2/3 during the evidence of PW 1 on 01/10/2012, PW 1 stated that he had conversation with PW 12 as he had made a call from his mobile phone to PW 12, while he (PW 1) had RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 64/95 CBI vs Awadhesh Kumar Singh left the lobby and reached the parking area and had taken instructions from PW 12 and said conversation is related to portion X14 at page 36 of transcript Ex. PW 1/F but the transcript of said conversation of PW 1 with PW 12 was not prepared and was not part of transcript Ex. PW 1/F. On further display of audio cassette Q2/3, PW 1 stated that conversations recorded were between him and PW 3 in the parking area where they had reached from the lobby area of the hotel and said conversations were not part of transcript Ex. PW 1/F. On display of audio cassette Q2/4, PW 1 stated that the recorded conversation is of the time when he had reached the lobby area and there is ambiance sound of talks between CBI officers, after apprehension of accused, while accused was there but the said talks were not clear nor part of transcript Ex. PW 1/F. PW 1 further stated that CBI officials had taken one room in Vikram Hotel and all trap team members including him as well as accused sat in said room and there the recordings of the DVR were copied and transferred to the audio cassettes by help of audio recorder which was with CBI but he did not knew how many audio cassettes were prepared and in how many audio cassettes voices from DVR were copied and transferred. In his crossexamination PW 1 elicited that on 08/04/2009 he was carrying two mobile phone instruments having one SIM each and the moment he entered Vikram Hotel, he (PW 1) had put the DVR on 'ON' mode. As per PW 1 in Restaurant of Vikram Hotel he also spoke to PW 12 and PW 3 also spoke to PW 12 on phone and even otherwise also. PW 1 also elicited that lobby was at a distance of 20 feet from Reception of RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 65/95 CBI vs Awadhesh Kumar Singh Vikram Hotel and the persons standing in the Reception was able to see the persons seated in the lobby. As per PW 1 the distance between him (PW 1) and PW 3 was hardly two or three feet while they were seated on the seats of sofa along with the accused in the lobby of Vikram Hotel and between him (PW 1) and PW 3 there was only a table; other members of the trap team including PW 12, a lady officer were also there at that time in the lobby at a distance of about 20 feet from them and these persons were moving here and there. PW 1 further elicited that when he moved out with PW 3 from lobby after accused had asked for polythene, he had talk with PW 12 by making call from his mobile phone and conversation lasted for about two minutes. PW 1 stated that after handing over bag containing money to accused, he had left the area so he was not in the knowledge as to what all happened at said place in his absence. In his crossexamination PW 1 further stated that tallying of the currency was done in the hotel room and documents were also prepared there. PW 1 stated that he did not know whether any micro chip from DVR was preserved or not or whether DVR was sealed nor could he elicit which member of CBI team had sealed what articles or what was the description of the seal used.
74. PW 3 deposed that the trap team members reached outside Vikram Hotel in between 05.30 pm to 06.00 pm on 08/04/2009 and he and PW 1 entered said hotel, went to the Restaurant and sat there, while three other persons in the raiding team including Inspector Rajesh RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 66/95 CBI vs Awadhesh Kumar Singh Chahal, a lady Constable also came to the Restaurant and remained in the Restaurant at a distance from them. PW 3 deposed that PW 1 had made a call from his mobile to accused and then PW 1 told PW 3 that he was told by accused to wait for one hour and thereafter they waited but accused did not turn up, so PW 3 informed Inspector Rajesh Chahal of accused having told PW 1 to wait for an hour. As per PW 3, after about 70 or 75 minutes of their reaching the Restaurant, PW 1 again made call from his mobile phone to mobile phone of accused and thereafter PW 1 again told PW 3 that he was told by accused to wait again for one hour more, which fact was told by PW 3 to Inspector Rajesh Chahal. PW 3 further stated that after waiting again further for 10/15 minutes exceeding an hour, PW 1 received a call on his mobile phone from accused and PW 1 told PW 3 that accused had told that he will meet after sometime at main door of hotel. PW 3 further stated that further after 1015 minutes, PW 1 again received call on his mobile from accused and PW 1 told PW 3 that they have to go to lobby, which fact was also told by PW 3 to Inspector Rajesh Chahal and PW 3 as well as PW 1 went towards side of lobby, where on sofa in the lobby, accused was seated. PW 3 deposed that PW 1 introduced him as his cousin to accused and for sometime had talks with accused regarding project, while sitting on sofa in the lobby. As per PW 3, accused told PW 1 that money be given to him in a polythene or bag, upon which PW 1 told that he was having no arrangements for polythene or bag and PW 1 then told that he will give the money in the bag in which it was brought and the bag Ex. P2 RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 67/95 CBI vs Awadhesh Kumar Singh containing money i.e. GC notes Ex. P3/1 to Ex. P3/500 was kept near the sofa, where accused was sitting and PW3 and PW1 moved outside the lobby towards parking; from the parking PW 3 made call from his mobile phone to Inspector Rajesh Chahal that they had come outside after giving money to accused. In the course of crossexamination, PW 3 elicited that he could only hear the words "polythene me de do" spoken by accused and what else accused spoke was not audible to him in the course of conversation. PW 3 categorically admitted that no demand of bribe money was made by accused from PW 1 in his presence. Such version of PW 3 is in material contraction with earlier and afore elicted own version of PW3. There is a shift of stand in the version of PW 3, the shadow witness accordingly regarding alleged demand of bribe. Though not admitted by defence, the recorded conversation in audio cassette Ex. Q2/3 of spot conversation or its transcript Ex. PW 1/F (D17) even do not contain any dialogue attributed to accused for having told PW 1 that the money be given to him in a polythene or a bag, as had been the initial version of PW 3 in his deposition elicited above. PW 1 deposed more than once of having handed bag Ex. P2 containing GC notes Ex. P3/1 to Ex. P3/500 to accused not whispering of having kept such bag with GC notes on or near sofa where accused was seated in the lobby of Hotel Vikram. Per contra to version of PW 1, the shadow witness PW 3 did not whisper of PW 1 having handed bag Ex. P2 containing GC notes Ex. P 3/1 to Ex. P3/500 to accused but has deposed of all together different version of the bag Ex. P2 containing GC notes Ex. P3/1 to Ex. P3/500 RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 68/95 CBI vs Awadhesh Kumar Singh having been kept near sofa where accused was sitting.
75. PW3 also stated that he and PW 1 again went inside the lobby and saw Inspector Rajesh Chahal holding accused by his arms and all members of raiding team had gathered there thereafter; accused was handed to some other official of CBI and Inspector Rajesh Chahal with PW 4 went by stairs upwards and bag Ex. P2 was lying on stairs. As per PW 3 when they had returned from outside to lobby on hearing noise inside, PW 1 had handed over the DVR to some CBI official. PW 3 deposed that hand washes of accused were taken separately in sodium carbonate and water, which was with some CBI official and the right hand wash of accused had turned pink and said solution was put in a bottle Ex. P1 and the bottle was sealed with seal of brass, which was retained by some CBI official. PW 3 brought on record seal Ex. PW 3/A on 25/03/2013 stating that it was handed over to him by CBI officials after the proceedings were completed after 5/6 hours at Hotel Vikram.
76. PW3 deposed that after the bag was lifted from the stairs they had come down and many persons had gathered there and persons of Hotel Management expressed their problem faced by such gathering and they were given room no. 202 on second floor of said hotel, where accused was taken and was searched and the cash aforesaid i.e. GC notes Ex. P3/1 to Ex. P3/500 were checked and their numbers were tallied with earlier prepared memo i.e. Ex. PW 1/C (D4) and the numbers of the RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 69/95 CBI vs Awadhesh Kumar Singh notes recovered tallied with numbers of GC notes mentioned in Ex. PW 1/C (D4). As per PW 3 paper work was also done by CBI officials in room no. 202 and some CBI officials had also gone to check the room where family of accused were staying. PW 3 further stated that Recovery Memo Ex. PW 1/D (D5) was prepared and signed by all and accused was arrested vide Memo Ex. PW 3/B (D7) besides which Rough Site Plan Ex. PW 1/G (D6) and Personal Search Memo Ex. PW 3/C (D8) and Specimen Voice Recording Memo Ex. PW 3/D (D9) were prepared. PW 3 elicited that in the period between their reaching Vikram Hotel and accused reaching Vikram Hotel, he (PW 3) had a talk on his mobile phone to the mobile phone of Inspector Rajesh Chahal for two or three times while PW 1 was by his side seated on chair adjacent to his (PW 3) chair, whereas he (PW 3) as well as Inspector Rajesh Chahal were in Vikram Hotel and in said period there was no talk of PW 1 with Inspector Rajesh Chahal. PW 3 elicited that before they had met accused in Vikram Hotel, he and PW 1 were together and had not separated. PW 3 specified that after the bag was left near sofa, he (PW 3) had again seen the bag on the stairs and in his presence accused did not take the bag from near sofa to the stairs.
77. PW 12 deposed that the trap team members reached near Hotel Vikram at about 05.30 pm, where he briefed again their respective roles, after which PW 1 and PW 3 entered the hotel premises and sat on a table in the Restaurant while PW 12, Inspector Rajesh Chahal and Ct.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 70/95 CBI vs Awadhesh Kumar Singh Navneet Kaur followed them in discreet manner and also sat on a table in said Restaurant. PW 12 further stated that after sometime PW 1 made a call from his mobile phone to mobile phone of accused in order to know his location regarding which PW 3 informed PW 12 that accused had directed PW 1 to wait for an hour as he (accused) was at Connaught Place at that time due to which the trap team kept on waiting. As per PW 12, after one hour of aforesaid telephone call PW 1 again contacted accused and PW 3 informed to PW 12 that accused had informed PW 1 that it will take another one hour for him to reach said place, further after some time PW 3 had further informed PW 12 of accused having made call to PW 1 informing him that he will be meeting PW 1 at the main gate of said hotel, subsequent to which again PW 3 informed PW 12 that accused had again called PW 1 informing him that accused will be waiting in the lobby of the said hotel. PW 12 further deposed that thereafter, PW 1 and PW 3 moved towards lobby, met accused there, while PW 12, Inspector Rajesh Chahal and Lady Ct. Navneet Kaur took positions from where they could see accused, PW 1 and PW 3 seated on sofa in the lobby and then PW 1 and accused were seen talking to each other. As per PW 12, after sometime PW 1, PW 3 and accused went outside from the lobby to near parking place and accused and PW 1 were seen talking to each other for sometime, after sometime PW 1, PW 3 and accused again came to the lobby of the hotel and sat on the place on the sofa, where they were earlier seated. PW 12 further stated that after sometime PW 1 and PW 3 came outside lobby of said hotel and bag Ex.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 71/95 CBI vs Awadhesh Kumar Singh P2 of PW 1 was left lying on said sofa near accused, in the lobby of said hotel; after sometime, PW 3 gave a call to Inspector Rajesh Chahal confirming completion of transaction of bribe held between PW 1 and accused but since accused had not touched the bag Ex. P2 of PW 1 containing bribe money, it was decided by them to wait for sometime. As per PW 12, after sometime accused took the bag Ex. P2 of PW 1 and opened the same and after checking the GC notes Ex. P3/1 to Ex. P 3/500 with his right hand moved upstairs with bag Ex. P2 towards upper floors of said hotel. PW 12 stated that he, Inspector Rajesh Chahal and lady Ct. Navneet Kaur also rushed towards the stairs and after disclosing the identity of the trap team members, accused was challenged of having demanded and accepted the bribe amount from PW 1 upon which accused threw bag Ex. P2 on the staircase and tried to escape from the spot but was overpowered, right wrist of accused was held by PW 12 and left wrist of accused was held by Inspector Rajesh Chahal and accused was brought to the sofa, where he was earlier sitting; custody of accused was handed to Inspector Hitender Adlakha and PW 15. PW 12 stated that along with PW 3 and PW 4, he went to staircase and asked PW 4 to lift bag Ex. P2 thrown by accused and they then returned to the place where accused was sitting in the lobby. PW 12 further deposed that a solution of sodium carbonate and water was prepared in the lobby of the said hotel; on asking, accused washed his right hand finger in said solution, which turned pink and was transferred in a neat and clean glass bottle, which was marked as RHW. Further PW 12 stated that PW 3 and PW 4 RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 72/95 CBI vs Awadhesh Kumar Singh were asked to tally recovered GC notes in bag Ex. P2 from staircase with details of GC notes mentioned in Ex. PW 1/C (D4) i.e. Handing Over Memo and in the lobby itself PW 3 and PW 4 so tallied the GC notes recovered, which so tallied with the description of the GC notes mentioned in Ex. PW 1/C (D4). As per PW 12, in the lobby itself, PW 3 narrated the incident on asking of PW12 and PW1 corroborated the version of PW3. PW12 also stated that when accused was apprehended, then the DVR which was with PW1 was taken and put on 'OFF' mode. As per PW 12 since huge crowd gathered in the lobby, he (PW 12) requested hotel staff to provide safe place for further proceedings and they were provided room no. 202 in said hotel. PW 12 stated that when they went upstairs accused told that his wife and daughter were in room no. 205 of said hotel and in order to secure the premises, Lady Ct. Navneet Kaur and another Constable were deputed. Also PW 12 stated that in room no. 202 of the said hotel the voice recorded in DVR was transferred in four cassettes Q2/1, Q2/2, Q2/3 and Q2/4 with the aid of cable in trap kit after recorded conversation was played. As per PW 12, it took one or one and a half hours in the process of transfer of data from DVR to cassettes; after preparing a copy of these four cassettes for investigation, the four cassettes Q2/1, Q2/2, Q2/3 and Q2/4 were sealed with the CBI seal and thereafter voice sample of accused was also taken in the presence of PW 3 and PW 4 with the aid of DVR from which earlier recorded voices were previously transferred and such voice sample was transferred in blank audio cassette and marked S1 and RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 73/95 CBI vs Awadhesh Kumar Singh sealed with CBI seal. As per PW 12 search of room no. 205 of said hotel was conducted and a separate search cum seizure memo was prepared. No such separate search cum seizure memo regarding search of room no. 205 has been placed along with the chargesheet nor proved in prosecution evidence as per law. As per PW 12, at about 10.00 pm accused was arrested vide arrest memo Ex. PW 3/B (D7) and personal search of accused was conducted vide memo Ex. PW 3/C (D8); during proceedings rough site plan Ex. PW 1/G (D6), specimen voice recording memo Ex. PW 3/D (D9) for taking of voice sample of accused were prepared. PW 12 stated that all exhibits were seized, recovery memo Ex. PW 1/D (D5) was prepared in room no. 202 of said hotel incorporating all proceedings and proceedings were completed at around 01.30 am on 09/04/2009 after which they brought accused to CBI office.
78. PW 4 deposed that the trap team members reached Vikram Hotel at about 05.30 pm on 08/04/2009 and PW 1, PW 3, PW 12, Inspector Rajesh Chahal and another lady officer of CBI went inside Vikram Hotel while for 3 or 4 hours PW 4 remained outside the hotel at a distance of 100 meters and was accompanied by 4/5 CBI officials. As per PW 4 at around 09.00 pm, they were called inside Vikram Hotel and one of CBI officials had received such directions to reach the hotel lobby; upon reaching hotel lobby with CBI officials, PW 4 saw Inspector Rajesh Chahal and PW 12 having apprehended accused by his wrists and then PW 1 and PW 3 also reached there. PW 4 stated that some officer of the RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 74/95 CBI vs Awadhesh Kumar Singh CBI took the recording system from PW 1 and some CBI officer had put the right hand of accused in glass of water and the water turned pink, said solution was put in a glass bottle and sealed with the seal of CBI. PW 4 stated that along with PW 12 and 2/3 other officers of CBI, he went towards stairs of Hotel Vikram and found bag Ex. P2 lying on stairs after leaving 5 or 6 stairs from the bottom. As per PW 4, on directions of PW 12, he picked up bag Ex. P2 from stairs and they returned back to lobby of Hotel Vikram but since crowd had collected in the lobby, the hotel officials / Manager told them to shift in a room and it was not looking nice in the lobby, so they went to room no. 202, where on directions of PW 12, he opened bag Ex. P2, found it containing GC notes of denomination of Rs. 500/, which were counted by PW 3 and PW 4 and found totaling Rs. 2.5 lakhs and numbers of recovered GC notes were tallied with numbers of the GC notes of the list prepared in CBI office and found to be same, which were given to PW 1 in CBI office to be given to accused as bribe money. As per PW 4, CBI officers continued proceedings on their two laptops in room no. 202 of Vikram Hotel and with the aid of printer with them they took out print outs. PW 4 stated that search of accused was conducted and they left around 01.00 am or 01.30 am on 09/04/2009 for CBI office, where they reached within 1520 minutes. As per PW 4, cassette containing voice was sealed in CBI office. Further PW 4 elicited that audio cassette Ex. PW 3/J1 (previously S1) containing specimen voice of accused was sealed in Vikram Hotel after obtaining such specimen voice and regarding the same specimen RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 75/95 CBI vs Awadhesh Kumar Singh voice recording memo Ex. PW 3/D (D9) was prepared. In terms of the version of PW 4, accordingly either all the cassette(s) Q2/1, Q2/2, Q 2/3 and Q2/4 or any amongst them were sealed in CBI office.
79. PW 15 deposed that at around 05.30 pm on 08/04/2009 CBI team reached at Vikram Hotel, vehicles were parked at safe distance, PW 12 again explained that he shall be entering hotel premises in disguised manner with Ct. Navneet and directed PW 1 that after accused accepts bribe amount proper signal should be given to CBI officers, if visible, either through rubbing the face and if not visible then through giving call through his mobile phone, whereas PW 3 was directed to accompany PW 1 and PW 3 was also explained about the signal which was to be given after completion of the transaction. PW 15 stated that as directed, he remained outside the hotel premises where after about 3 hours Ct. Navneet came from hotel and informed him (PW 15) that PW 12 was calling him inside the hotel. PW 15 deposed that he entered the hotel with PW 4, found accused apprehended by CBI officials and PW 12 asked him (PW 15) to catch hold of accused. On asking of PW 12, PW 3 explained the sequence of events, which were corroborated by PW 1 after which right hand wash of accused was taken, bribe amount was recovered by PW 4 and tallied with denominations mentioned in Ex. PW 1/C (D4) Handing Over Memo. PW 15 further narrated that since the situation was not conducive to carry out further trap proceedings, the Manager of the hotel was requested to open a separate room for RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 76/95 CBI vs Awadhesh Kumar Singh completion of trap proceedings in a smooth way and in accordance thereof the Manager opened a room in the hotel, where they shifted with the accused and DVR given to PW 1 was taken back from him, conversations recorded were transferred in another audio cassette Q2 through cassette recorder after ensuring blankness of the audio cassette and such audio cassette was sealed after preparing separate copy for investigation. As per PW 15, accused was arrested at around 10.00 pm on 08/04/2009. PW 15 stated that sealed hand wash, sealed audio cassette Q2, bag Ex. P2 containing bribe sum were seized vide Ex. PW 1/D (D
5) Recovery Memo which incorporated the trap proceedings and on completion of trap proceedings with accused CBI team returned to CBI office. PW 15 has accordingly put forth his version of transfer of data from DVR containing recordings of conversations between PW 1 and accused in one audio cassette Q2 in room no. 202 of Vikram Hotel. PW 15 did not whisper of transfer of data from DVR containing recordings of conversations between PW 1 and accused in four audio cassettes Q2/1, Q2/2, Q2/3 and Q2/4 or sealing of such cassettes in terms of presented prosecution case.
80. Tenor of Ex. PW 1/D (D5) i.e. Recovery Memo and the averments therein had been that accused was formally arrested at about 22:00 hours on 08/04/2009 but before that the entire proceedings incorporated in first four pages of Ex. PW 1/D (D5) took place, which included reaching of trap team members in Vikram Hotel, moving of PW RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 77/95 CBI vs Awadhesh Kumar Singh 1, PW 3, PW 12, Inspector Rajesh Chahal, Ct. Navneet Kaur in the hotel, proceedings prior to arrival of accused, proceedings subsequent to arrival of accused, talks between PW 1 and accused, leaving of bag Ex. P2 containing bribe amount of Rs. 2.5 lakhs by PW 1 adjacent to accused on sofa where he was seated, subsequent opening of bag Ex. P2 by accused and handling bribe amount and climbing stairs with bag Ex. P2 containing bribe sum and interception and challenging of accused by PW 12, accused pushing PW 12, Inspector Rajesh Chahal trying to escape but being overpowered and caught in lobby in front of Reception of hotel, accused being taken to same sofa where he allegedly accepted bribe, taking back of DVR from PW 1, recovery of bag Ex. P2 from stairs, taking of right hand wash of accused and then subsequently gathering of crowd in lobby upon which request was made to Duty Manager Sh. Rev Sharma who provided room no. 202 of the hotel, tallying of recovered GC notes with description of GC notes in Ex. PW 1/C (D4), narration of versions by PW 3 and PW 1, playing of DVR containing recorded conversations and hearing of the same in the presence of witnesses, transfer of recorded conversations from DVR to cassettes Q2/1 to Q2/4, preparation of their copies, sealing of the audio cassettes. All aforesaid acts were purportedly done before 10.00 pm i.e. before formal arrest of accused, in terms of Ex. PW 1/D (D5) i.e. Recovery Memo. CDRs Ex. PW 2/B of mobile phone of PW 1 contain data of 13 calls between PW 1 and accused on 08/04/2009 before accused was intercepted, challenged and allegedly apprehended in RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 78/95 CBI vs Awadhesh Kumar Singh Vikram Hotel on 08/04/2009. The details / particulars of said calls are elicited herein before in table in preceding part of this judgment. In terms thereof, the last call made by PW 1 from his mobile phone to mobile phone of accused was at 09.28 pm on 08/04/2009. The total duration of recordings in audio cassettes Q2/1, Q2/2, Q2/3 and Q2/4 in terms of Forensic Voice Examination Report Ex. PW 10/A (D21) is 3 hours 10 minutes and 50 seconds. It is impossible to fathom of happening of sequence of all events with effect from 928 pm of 08/04/2009 in terms of first four pages of Ex. PW 1/D (D5) i.e. Recovery Memo elicited above including of playing of DVR containing recorded conversations between PW1 and accused and hearing of these conversations for the duration of 3 hours 10 minutes and 50 seconds before the formal arrest of accused at 10.00 pm on 08/04/2009. It simply reflects improbability per se embedded in the prosecution version in terms of Ex. PW 1/D (D5) i.e. Recovery Memo. Version contained in Ex. PW 1/D (D5) interalia embodies that PW 3 conveyed in respect of gist of call conversations between PW 1 and accused of the tenure of the waiting period of PW 1 with PW 3 in the lobby of hotel awaiting accused, before arrival of accused, to PW 12 twice in washroom in the basement of the lobby of Hotel Vikram after short meetings were managed. As per Ex. PW 1/D (D5), even for the third time PW 1 and PW 3 conveyed to PW 12 and Inspector Rajesh Chahal in respect of the text of the conversations of the calls received on mobile phone of PW 1 from mobile phone of accused, in the same manner as earlier call conversations were conveyed.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 79/95 CBI vs Awadhesh Kumar Singh Examined material witnesses of trap proceedings have deposed per contra to herein before elicited version contained in Ex. PW 1/D (D5) and none amongst them whispered of PW 3 having conveyed to PW 12 about text of such call conversations interse accused and PW 1 on their respective mobile phones, in the basement of lobby of hotel or managing of any short meetings between PW 3 and PW 12. PW 3 did not whisper of the fact that after conversations between PW 1 and PW 3 while they were seated on sofa in the lobby, he (PW 3) along with PW 1 and PW 3 had gone outside main gate of hotel where PW 1 and accused had a talk or after few minutes on return PW 1, PW 3 and accused had taken same seats on such sofa in the hotel lobby; which version finds so mention in Ex. PW 1/D (D5) in trap proceedings. PW 3 deposed of the fact that bag Ex. P2 containing GC notes Ex. P3/1 to Ex. P3/500 was kept by PW 1 near sofa where accused was sitting, meaning thereby that the bag Ex. P 2 containing such GC notes was kept on the floor near sofa where accused was so sitting in the hotel lobby. PW 1 asserted more than once in his deposition that he had handed over bag Ex. P2 to accused and had not whispered of having left the bag Ex. P2 containing GC notes either on the sofa near seated accused or on the floor near sofa where accused was seated. Ex. PW 1/D (D5) incorporates interalia the fact that PW 1 left bag Ex. P2 adjacent to accused on the sofa. Material contradictory versions about the place where bag Ex. P2 was kept by PW 1 or was handed over to accused are apparent on face of record. None amongst the examined witnesses of trap proceedings testified of accused having RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 80/95 CBI vs Awadhesh Kumar Singh pushed PW 12 and Inspector Rajesh Chahal after throwing bag Ex. P2 in stairs. There is also discrepant version in the testimony of the examined material witnesses of trap proceedings regarding the place where on stairs allegedly accused threw bag Ex. P2 containing bribe money and the place where on stairs such bag was so recovered, as elicited herein before. Rough site plan Ex. PW 1/G (D6) depicts at serial no. 1, 2 and 3, the locations of PW 12, Inspector Rajesh Chahal and Ct. Navneet respectively near side Reception Counter of Vikram Hotel making it ample clear of their ability to watch the seated accused, PW 3 and PW 1 at positions depicted at serial no. 7, 8 and 9 respectively. In terms of presented case of prosecution, when accused opened bag Ex. P2 and checked GC notes Ex. P3/1 to Ex. P3/500 while being seated at position depicted at serial no. 7 in Ex. PW 1/G (D6) and stood up holding the bag Ex. P2, at that very moment either all three viz. PW 12, Inspector Rajesh Chahal and Ct. Navneet or any of them had ample opportunities to then and there nab / apprehend accused before he could actually move on to the other side of the lobby and climb stairs and reach nearing first floor. For reasons best known to PW 12, Inspector Rajesh Chahal and Ct. Navneet, elicited steps were not taken to apprehend accused at the first opportune time to catch a culprit with alacrity in normal human conduct. It was highly unhuman conduct on the part of PW 12, Inspector Rajesh Chahal and Ct. Navneet not to pounce immediately on accused and apprehend him before he could move handling bag Ex. P2 from near the sofa where he was seated and then to RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 81/95 CBI vs Awadhesh Kumar Singh climb on the stairs and succeed reaching near first floor.
81. In terms of Ex. PW 1/D (D5) in the hotel lobby right hand wash of accused was taken and further trap proceedings including taking out of GC notes Ex. P3/1 to Ex. P3/500 from bag Ex. P2 and tallying number of such recovered GC notes with description of GC notes mentioned in Ex. PW 1/C (D4), narration of versions by PW 3 and its corroboration by PW 1 were all done in room no. 202 whereas per contra to such version, PW 12 deposed that all such proceedings were done in the hotel lobby itself and not in room no. 202 and accordingly version of PW 12 is in contradiction with averments in Ex. PW 1/D (D5).
82. PW 5 Sh. Awadhesh Kumar, Project Director and PW 7 Sh. Ajay Kumar Singh, Manager (Technical), both of NHAI, PIU, Dhanbad testified that it was the Supervision Consultant who interacted with NHAI and submitted the bills, for which purpose neither the contractor nor any of his employees had any role to play. Interim Payment Certificate (IPC)3 and its proceedings in respect of the contract in question are in Ex. PW 1/J (colly) (D20) from pages 129 to 199. Page 139 of Ex. PW 1/J (colly) reveals that said IPC3 was forwarded by Sh. R.M. Singh, Acting Team Leader of Supervision Consultant namely RITESHALCROW JV on 31/03/2009 addressed to the Project Director, NHAI, PIU, Dhanbad i.e. the accused which was marked by accused to PW 7, who was Manager (Technical) and to the Manager (Finance and RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 82/95 CBI vs Awadhesh Kumar Singh Audit). PW 7 in his note with detailed comments at page no. 129 of Ex. PW 1/J (colly) and the Manager (Finance and Audit) in his note with detailed comments at page no. 130 of Ex. PW 1/J (colly) had recommended payment of 75 per cent of IPC3 along with deduction of retention money @ 20 per cent of the IPC as deducted by the Supervision Consultant as per contractual provisions besides other statutory deductions like Income Tax, Sales Tax etc on 31/03/2009 itself. Such recommendations were accepted by accused as Project Director, NHAI, PIU, Dhanbad on 31/03/2009 itself and net payment of sum of Rs. 26,34,112/ was released accordingly vide cheque no. 615004 dated 31/03/2009 of Syndicate Bank, Dhanbad against part payment of IPC3 vide receipt of M/s Savitri Consultants & Engineering Works dated 03/04/2009 as at page no. 136 of Ex. PW 1/J (colly), which sum was credited in the bank account number CC 618 of M/s Savitri Consultants & Engineering Works in Indian Overseas Bank, Sector1, Noida Branch on 06/04/2009 as per payment details as depicted at page no. 138 of Ex. PW 1/J (colly) vide RTGS after letter dated 06/04/2009, as at page 137 of Ex PW1/J (colly) was written by Junior Accounts Officer PIU Dhanbad to Senior Branch Manager, Syndicate Bank, Dhanbad, the banker of NHAI. In his crossexamination, PW 1 candidly admitted of receipt of such payment of IPC3 but in his lodged complaint Ex. PW 1/A (D2) PW 1 did not mention of any receipt of any sum as payment towards IPC3 and in fact had concealed it and instead mentioned as "The IPCIII of amount of Rs. 49.0 lac, along with the updated Extension RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 83/95 CBI vs Awadhesh Kumar Singh of Time proposal by the consultants RitesHalcrow JV were submitted, to the Project Director's office on 31/03/2009". PW 7 in his note with detailed comments at page no. 129 of Ex. PW 1/J (colly) had interalia mentioned that the updated EOT proposal submitted by Engineer was under scrutiny and onward submission to NHAI, HQ i.e. the Head Quarters of NHAI at Delhi. PW 7 processed the EOT proposal and had put up note Ex. DW 2/A with his several observations to PW 5 only on 24/04/2009. As per PW 7, aforesaid proposal of EOT submitted by Supervision Consultant was an incomplete proposal. Vide letter Ex. DW 2/B dated 25/04/2008 (correct year 2009) NHAI, PIU, Dhanbad wrote to Supervision Consultants RITESHALCROW JV with certain observations on EOT proposal received earlier and requested the Supervision Consultant to submit the test report so that the proposal may be forwarded to NHAI, HQ for necessary approval. Vide letter dated 20/07/2009, part of DW 2/C (colly), the Supervision Consultant submitted some of the test reports to NHAI, PIU, Dhanbad. The Supervision Consultant took almost 90 days to submit the pre test report, which was supposed to be in the custody of Supervision Consultants. Fact of the matter is also that contractor M/s Savitri Consultants & Engineering Works, Proprietor PW 1 had applied to Engineer for issue of completion certificate vide letter dated 08/04/2009 part of Ex. DW 2/P (colly) and the completion certificate was issued by the said Supervision Consultant vide letter dated 20/04/2009 also part of Ex. DW 2/P (colly) and communicated to said contractor vide letter dated 20/04/2009. The RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 84/95 CBI vs Awadhesh Kumar Singh covenants of the contract Ex. PW 1/H (colly) interalia included submission of certificate of completion issued by Supervision Consultant by the contractor to be entitled for release of retention money. Submission of test reports were the pre requisites for processing of EOT proposal. Due to non submission of the test reports by the contractor M/s Savitri Consultants & Engineering Works, Proprietor PW 1, EOT proposal was not forwarded to Head Quarters of NHAI in Delhi accordingly. PW 1 was bound by the terms of the Contract Ex. PW 1/H (colly). For release of the retention amounts of IPC1, IPC2 and IPC3 and for getting approved the updated EOT proposal, necessary acts required to be done by the contractor M/s Savitri Consultants & Engineering Works, Proprietor PW 1 i.e. submission of the test reports with EOT proposal, obtaining the completion certificate from Supervision Consultant had not been done as on 31/03/2009 and even on 08/04/2009, when PW 1 lodged complaint Ex. PW 1/A (D2) with SP CBI ACB. No man can take advantage of his own wrong in terms of the legal maxim "Nullus Commodum Capere Potest De Injuria Sua Propria". Yet, instead of performing his part of the contract Ex. PW 1/H (colly), PW 1 put forth his grievance in Ex. PW 1/A (D2) concealing fact of receipt of elicited part payment of Rs. 26,34,112/ on 03/04/2009 by cheque, amount credited in his bank account on 06/04/2009 by RTGS, alleging demand of bribe on part of accused on visiw45t of PW 1 in office of accused at PIU, Dhanbad on 31/03/2009. Neither in the course of verification proceedings nor in the course of the investigation, any RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 85/95 CBI vs Awadhesh Kumar Singh amongst concerned officers of investigating agency took any steps to verify presence of PW 1 in the office of NHAI PIU Dhanbad or even in Dhanbad on 31/03/2009. PW 1 failed to show any document of his presence in Dhanbad on 31/03/2009 despite opportunities though he claimed to have stayed in a hotel in Dhanbad in the night of 31/03/2009. No scientific investigation was carried out by ascertaining and proving presence of PW 1 on 31/03/2009 in Dhanbad inter alia from his call detail records and the cell ID tower locations since in the course of investigation the call detail records of mobile phone number of PW1 of date 31/03/2009 were not procured nor filed nor proved. Documentary evidence on record demonstrates of no sum being outstanding and payable by NHAI, PIU, Dhanbad towards IPC1, IPC2 and IPC3 to the contractor M/s Savitri Consultants & Engineering Works, Proprietor PW1 in respect to Contract Ex. PW 1/H (colly) as on 31/03/2009 as well as on 08/04/2009. Scheme of the work in NHAI, PIU, Dhanbad was that contractor was not supposed to directly meet any officials of NHAI, PIU, Dhanbad with respect to aspects of payments of contracts but the correspondence for payments of contracts was to be done by the contractor through Supervision Consultant. Where was the occasion for PW 1 to have met accused on 31/03/2009 in office of accused as Project Director, NHAI, PIU, Dhanbad? More so, when it was PW 1 who was yet to submit the test reports for EOT proposal and completion certificate from Supervision Consultant was also not obtained by PW1 as on 31/03/2009, so there was absolutely no occasion for PW1 to get the RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 86/95 CBI vs Awadhesh Kumar Singh sanction of EOT proposal expedited and seek release of retention amounts of IPC1, IPC2 and IPC3. As per Ex PW2/DA, the tower location chart of Bharti Airtel Limited describing the locations of Cell 1 and Cell 2 depicted in CDRs Ex PW2/B, the site address of Cell ID 371 and 372 is Dr. K.G Rao Mr Negi, 2425, Lodi Institutional Area, New Delhi3. CDRs Ex PW2/B inter alia embody the calls/SMS made from/received at mobile phone number 9818540236, of PW1 on 06/04/2009 at 15:24:51; 15:33:37; 16:10:37 and 16:10:45 at Cell ID tower location 371/372; meaning thereby that in duration from 3.24 pm on 06/04/2009 to 4.10 pm on 06/04/2009 the mobile phone number in power and possession of PW1 was in use in vicinity of Lodi Institutional Area, New Delhi and in all probability in or around office of CBI at Lodi Road since even PW1 admitted in the course of his cross examination of having visited CBI office on 06/04/2009 about which he had not mentioned in his lodged complaint Ex PW1/A (D2) nor was so mentioned in any document of presented case of prosecution. PW 1 had accordingly materially concealed his visit in CBI office on 06/04/2009. Cumulative effect of all aforesaid effaces credibility and trustworthiness of PW 1, so he cannot be relied upon in absence of corroboration from material particulars, nor can he be trusted nor believed upon even on the count of fact of alleged demand of bribe by accused from him on 31/03/2009 in his office at NHAI, PIU, Dhanbad. Alleged verification proceedings simply were of making call by PW 1 on directions of Verifying Officer of CBI on number provided by PW 1 purported to be RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 87/95 CBI vs Awadhesh Kumar Singh of accused and the recordings of such call conversations contained no dialogue attributed to accused containing fact of demand of any sum as bribe for doing or forbearing to do any official act, or showing or forbearing to show any favour or disfavour or for rendering or attempting to render any service or disservice, in exercise of his official function, to PW 1 or his Proprietorship concern M/s Savitri Consultants & Engineering Works. Verification was a name sake in this matter and could also be said to be lip service only since the subject matter of the complaint was not looked into by the addressee of the complaint or the assignee of the complaint in any material particulars nor even the requisite and concerned documents including copies of (i) contract Ex. PW 1/H (colly); (ii) IPCs 1, 2 and 3; (iii) completion certificate were looked into but bald assertions of PW 1 in Ex. PW 1/A (D2) were believed as gospel truth. PW 1 was not asked at any stage of verification or investigation to show any documents concerning his presence atleast on 31/03/2009 in Dhanbad or in the office of NHAI, PIU, Dhanbad. Per se, conducted verification proceedings were a farce.
83. Trap Laying Officer PW 12 was conscious of the fact that trap was being laid at Hotel Vikram, Lajpat Nagar, New Delhi and the trap team members including PW 12 were in said hotel for several hours before reaching of accused there in the lobby of the hotel. What prevented the TLO PW 12, the officer in command of the trap to ascertain as to whether or not in the area of Reception, lobby and RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 88/95 CBI vs Awadhesh Kumar Singh Restaurant of Hotel Vikram, any CCTV equipment were installed or even after alleged apprehension of accused to inquire said aspect from the management of the hotel or Reception Manager or issue notice under section 91 of Code of Criminal Procedure to any amongst them to provide the CCTV footage to strengthen the case of prosecution? Nothing of the sort was done either by TLO PW 12 or by IO PW 13 to ascertain and collect any CCTV footage regarding trap proceedings done in Hotel Vikram to corroborate prosecution case in material particulars. Trained, experienced and seasoned officers of premier investigating agency were engaged in laying of trap and investigation. Yet, no video recordings or photography were done nor produced in respect of pre trap proceedings, post trap proceedings, search proceedings, crime scene, prior to or later to apprehension of accused persons, which were feasible, keeping in view the provision 14.16 of Chapter 14 of CBI Manual containing General Instructions Regarding Investigation & Enquiries. In the event of any such digital still photography and videography done for such proceeding as aforesaid, the images were required to be downloaded/transferred, in the presence of witnesses, to a 'write only' compack disk (CD) or 'write only' digital video disk (DVD) for preservation in terms of aforesaid provision 14.16 in Chapter 14 of CBI Manual. There is no explanation by any officers of investigating agency or prosecution for non compliance of the afore elicited provision 14.16 in Chapter 14 of CBI Manual, required to be followed as an act of fair investigation in terms of MOTTO, MISSION & VISION of Central RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 89/95 CBI vs Awadhesh Kumar Singh Bureau of Investigation embodied in the CBI Manual. There was no impediment for premier investigating agency CBI to spend few thousand rupees on one DVR to be used as primary evidence in a trap case like present case to fortify its presented case with production of primary recording device containing corroborative piece of evidence in form of tape recorded statements to show its fairness in investigation. Primary evidence of DVR containing original recordings of conversations in voices purportedly of PW1 and accused was withheld. Instead of using compact disks (CDs) to receive voice files on transfer from DVR used for recordings, primitive audio cassettes Q1, Q2/1 to Q2/4 and S1 were used. From CDs one could ascertain, when such audio files were created/transferred or modified but from such audio cassettes it cannot be so ascertained to vouchsafe accuracy, genuineness of recordings and to rule out tamperings/modifications therefrom. Shadow witness PW 3 in crossexamination in clear terms elicited that no demand of bribe was made by accused from PW 1 in his presence in the lobby of Vikram Hotel at the place where PW 3 was seated along with PW 1 and accused, despite the fact that PW 1 and accused were engaged in conversation for about an hour and what precisely PW 3 could hear in such talks was "Polythene me de do". Suspicion, howsoever grave, cannot be a substitute of a proof beyond reasonable doubt. Dialogue "Polythene me de do" attributed to accused by PW 3, in absence of narration of previous or subsequent dialogues of accused or PW 1 by PW 3 does not lead to any inference of demand of any bribe sum on part of accused RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 90/95 CBI vs Awadhesh Kumar Singh from PW 1 for doing or forbearing to do any official act, or showing or forbearing to show any favour or disfavour or for rendering or attempting to render any service or disservice, in exercise of his official function, to PW1 or his Proprietorship concern M/s Savitri Consultants & Engineering Works. For the facts of alleged opening of bag Ex. P2, checking GC notes Ex. P3/1 to Ex. P3/500 by accused and thereafter accused moving from lobby having in hand, bag Ex. P2 containing said GC notes and then climbing stairs, Inspector Rajesh Chahal and Ct. Navneet Kaur were the two material witnesses besides TLO PW 12. Elicited material contradictory versions are on record about either handing over of bag Ex. P2 containing bribe sum to accused or keeping said bag containing bribe sum on sofa adjacent to where accused was seated on sofa or keeping said bag containing bribe sum on floor near sofa where accused was seated. Alleged obtainment of bribe or receipt of bribe sum by accused or delivery of bribe sum by PW 1 to accused accordingly comes under shadow of doubt. Dimensions are added to such shadow of doubt by non examination of cited prosecution witness Inspector Rajesh Chahal by prosecution and instead Ld. PP for CBI gave statement on 06/01/2014 interalia for not wanting to examine Inspector Rajesh Chahal as prosecution witness and closing prosecution evidence whereas the signatures of the material witness Ct. Navneet Kaur, trap team member were neither obtained on Recovery Memo Ex. PW 1/D (D
5) regarding trap proceedings nor on Handing over Memorandum Ex PW1/C (D4) alleged to be typed by her nor her statement was recorded RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 91/95 CBI vs Awadhesh Kumar Singh in the course of investigation by IO PW 13 nor she was cited nor examined as a prosecution witness. Even no employee/Manager of Hotel Vikram was cited nor examined as prosecution witness despite presence of several of them at alleged scene of crime. For non collection and non proving of CCTV footage from Hotel Vikram; non use of CDs for transfer of data from DVR and for non examination of Inspector Rajesh Chahal and Ct. Navneet Kaur there is no option but to presume as per illustration (g) of Section 114 of Indian Evidence Act that if such evidence was led it would have been unfavorable to prosecution, who withheld it. It is own version of PW 1 that along with PW 3, he came in his own car from CBI office to Vikram Hotel and finally he left the company of accused from lobby of Vikram Hotel after having the handshake with accused and in between such period, bag Ex. P2 containing tainted GC notes Ex. P3/1 to Ex. P3/500 smeared with Phenolpthalein powder was in his (PW1) power and possession which he had also taken in between to parking place to search for a polythene and in such process, while accused was not at his side, PW 1 had also made a call to PW12 regarding which recorded conversation revealed of voice attributed to PW1 conveying that accused had not touched the bag containing bribe money. There was every possibility of PW 1 having touched his hand with the tainted GC notes smeared with Phenolpthalein powder at any moment of time and particles of such powder having got transferred from PW 1 in his handshake to accused, with a result of hand wash of accused turning pink. No scientific investigation was carried out RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 92/95 CBI vs Awadhesh Kumar Singh by TLO PW12 or any of trap team members on any direction by TLO to lift finger prints from bag Ex P2 since it is the version of PW12 and case of prosecution that accused opened bag Ex P2, checked tainted GC notes i.e., bribe money and holding bag accused moved and climbed stairs. Such finger prints could have been clinching evidence for prosecution to secure conviction of accused in case the concerned expert opined these finger prints to be of accused.
84. Testimonies of PW1, PW3, PW4, PW12 and PW15 embody entirely different versions of manner and sequence of occurrence of the (1) verification proceedings conducted on 08/04/2009; (2) pretrap proceedings conducted on 08/04/2009; (3) trap proceedings conducted on 08/04/2009 including alleged acceptance of bribe money by accused, which all facts have been testified by these material witnesses in material contradictions, at variance with material improvements, additions, deletions embodying inherent improbabilities, elicited above, which go to the root of the matter to check and shake basic version and core of prosecution case in the backdrop of existence of embellishments, severe infirmities embodied in the prosecution case, elicited in detail in preceding paras of this judgment. When read as a whole, elicited testimonies of PW1, PW3, PW12 and PW15 accordingly are neither wholly reliable nor wholly unreliable as classified in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. It would be extremely hazardous to place implicit reliance upon testimony of RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 93/95 CBI vs Awadhesh Kumar Singh shadow witness PW3 blowing hot and cold, oblivious of any demand of bribe on part of accused and tainted testimonies of complainant PW1, TLO PW12 and Verifying Officer PW15 to convict accused accordingly. Versions of examined material witnesses of trap proceedings bring into light, new cases, more than one, elicited herein before and in material contradiction of presented case of prosecution in terms of Recovery Memo Ex. PW 1/D (D5). No new case can be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made. The only available course to be made is discard the prosecution evidence in toto. (See Zwieolae Areal vs. State of Madhya Pradesh, AIR 1954 SC 15 and Balaka Singh and Others vs The State of Punjab, AIR 1975 SC 1962). Precedents relied by prosecution are embodying sets of facts and circumstances which are entirely different from the set of facts and circumstances of the case in hand, as elicited herein before, so are of no help to prosecution to secure conviction of accused.
85. Accordingly, I am of the considered opinion that the prosecution has failed to prove its case against accused Awadhesh Kumar Singh beyond reasonable doubt. Accused is given benefit of doubt and acquitted for the offences charged. His bail bond is cancelled. Surety is discharged.
RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 94/95 CBI vs Awadhesh Kumar Singh
86. Complainant PW1 is sole claimant to bag Ex P2 and GC notes Ex P3/1 to Ex P3/500 totalling Rs 2.5 lacs. After expiry of period of appeal, if no appeal is preferred or in case if appeal is preferred, then subject to decision of the appeal, the bag Ex P2 and GC notes Ex P3/1 to Ex P3/500 totalling Rs 2.5 lacs be released to complainant PW1 by the Central Bureau of Investigation. Other case properties viz. the audio cassettes Q1, Q2/1 to Q2/4 and S1 be confiscated to State after expiry of period of appeal, if no appeal is preferred or in case if appeal is preferred, then subject to decision of the appeal.
87. A copy of judgment be given to the Central Bureau of Investigation.
88. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.
89. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e. 27/03/2014 Patiala House Court, New Delhi. Deepika RC No. DAI/2009/A0021/CBI/ACB/ND CC No. 02/12 95/95