Delhi District Court
Cbi vs . Ram Avtar on 12 August, 2013
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IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 217/07 RC : 9(A)/2004
PS : CBI/ACB/ND
U/s : 7,13(2) r/w 13(1) (d) of
P.C. Act
CBI Vs. Ram Avtar
S/o. Sh. Ram Phool,
R/o. B596, Pandav Nagar,
New Delhi
Date of Institution : 29.10.2004
Judgment Reserved : 23.07.2013
Judgment Delivered : 12.08.2013
J U D G M E N T
1. Mr. Ravinder Dabas a practicing Advocate lodged complaint with SP, CBI. It was to the effect that on 11.2.04 at about 3.00 pm he had visited office of SDM, Khanjawala to obtain marriage registration CC No. 217/07 CBI Vs. Ram Avtar pg 1 of 34 2 certificate for his relative one Amit S/o Sh. Chander Singh. In the office he met Ram Avtar who demanded Rs. 5000/ for getting the needful done. He further told him that in case amount is not paid, the job will not be done. Complainant sought legal action against Ram Avtar, since he did not want to pay.
2. FIR no. RC DAI2004A0009 was registered and was entrusted to Inspector Jayant Kashmiri. Two independent witnesses were arranged. Complainant was asked to make a phone call to Ram Avtar. The conversation was simultaneously recorded with the help of recording device. It was replayed and heard. The witnesses questioned the complainant and satisfied themselves about genuineness of the complaint. Trap kit was procured and phenolphthalein powder was also requisitioned from the malkhana. The GC notes of Rs. 5000/ produced by the complainant, were treated with phenolphthalein powder. Independent witness A.K. Gupta was asked to touch the treated note and wash his fingers in solution of sodium carbonate. Upon doing so, it turned pink. Independent witness Zaheerul Islam was directed to act as shadow witness and remain close to the complainant to overhear the conversation. Independent witness A.K. Gupta was to remain with the CC No. 217/07 CBI Vs. Ram Avtar pg 2 of 34 3 trap party. A Samsung digital recorder SVR 240 was arranged and ensured that it did not contain any previous recording. Specimen voices of both the witnesses was recorded. Handing over memo was prepared and a trap team left for office of Ram Avtar. Mr. Ravinder Dabas and shadow witness Mr. ZaheerulIslam were directed to contact accused in his office. They then entered room no. 6 adjoining office room of SDM. CBI team members occupied the chairs outside room of the accused. At 3.25 pm TLO alongwith inspector Ajay Kumar rushed towards room no. 6 on receipt of pre fixed signal. Accused was seen coming out of the room. He was caught from his both the arms by TLO and Ct. S.K. Tiwari. Upon being challenged regarding demand and acceptance of bribe accused became nervous. His hand washes were taken in solution of sodium carbonate which turned pink. They were separately poured in glass bottles and sealed with CBI seal and Marked RHW and LHW respectively. The bribe amount was recovered by Zaheerul Islam from the right side pant pocket of the accused. The numbers were found to be tallying with the handing over memo. Right side pocket of the pant was also dipped in similar solution after getting his pant removed. Its colour also changed to pink. The solution was poured in a bottle sealed and marked RSPP. Marriage registration application of Amit and Neetu CC No. 217/07 CBI Vs. Ram Avtar pg 3 of 34 4 alongwith enclosures was taken in possession. Video recording of room no. 6 was done by SI Prem Nath. Accused was apprehended. Data from digital recorder was transferred to two audio cassettes. One was wrapped and sealed while other was meant for investigation. Office table, almirah etc., of the accused was searched. Rough site plan was prepared. The bottles containing solutions were sent to CFSL for analysis. Specimen voice of the accused was taken vide memo dt. 6.5.04. It too was sent to CFSL for spectrographic analysis. Both Amit and Neetu had left for Canada and so statements of their fathers were recorded who identified their documents. After obtaining sanction a chargesheet was filed praying therein that accused be summoned and tried.
3. My Ld. Predecessor took cognizance of the matter and summoned the accused. After providing him with required copies, he framed the following charge:
" Firstly, you Ram Avtar being public servant employed as a Reader in the office of SDM, Kanjhawala, on 11.2.04 demanded bribe of Rs. 5000/ in your office as illegal gratification other than your legal remuneration from the complainant Shri Ravinder Dabas as motive or reward for issuance of marriage certificate in CC No. 217/07 CBI Vs. Ram Avtar pg 4 of 34 5 favour of Amit and his wife Neetu who were relatives of the complainant and in furtherance of the above said demand you demanded and accepted a bribe of Rs. 5000/ on 12.2.04 at about 3.25 p.m. in the room no. 6 which is office room of Shri Harish Kumar Ahuja, SDM, Saraswati Vihar, Kanjhawala, New Delhi and thereby you committed the offence under section 7 of the Prevention of Corruption Act, 1988 and within my cognizance.
Secondly, you Ram Avtar while working in the above said capacity on the above said time and place by corrupt or illegal means or by otherwise abusing your official position as a public servant obtained a pecuniary advantage to the tune of Rs. 5000/ from the complainant and thereby you committed an offence specified in section 13(1)(d) and punishable under section 13(2) of the Prevention of Corruption Act, 1988 and within my cognizance.
And I hereby direct that you be tried by the court for the above said offences."
4. Accused pleaded not guilty and claimed trial. Prosecution in support of its case examined fifteen witnesses, while accused examined CC No. 217/07 CBI Vs. Ram Avtar pg 5 of 34 6 one witness in his defence.
5. The first witness to be examined by CBI was Dr. Rajender Singh from CFSL. He deposed that he had received two sealed parcels from CBI in the present case. He examined their contents and gave his report Ex. PW1/A, which contained his signatures and seal. He had examined the recorded voice marked Q1 and S1. He found that voice marked Q1 was voice of the same person whose specimen voice was marked S1 i.e. Ram Avtar. In his cross examination the witness claimed to have done research on forensic voice identification and published many research papers in reputed journals in India and abroad. His report in the present case would fall in category of positive identification. However he admitted that there was chance of error because of art of mimicry.
6. The second witness to be examined was complainant Ravinder Dabas. He deposed that on 11.2.04 he had prepared all the documents pertaining to registration of marriage and went to office of SDM Harish Ahuja at Khanjawala. He met dealing clerk Mr. Chugh and handed over all the documents. Shortly thereafter Mr. Chugh told him that SDM Harish Ahuja refused to register the marriage. He then made a complaint to Dy.
CC No. 217/07 CBI Vs. Ram Avtar pg 6 of 34
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Commissioner Kailash Chandra who then called Mr. Chugh and enquired. Thereafter he called SDM and directed him to register the marriage if all the formalities had been fulfilled. After about five minutes, he met SDM and requested him to register the marriage. SDM Harish Ahuja flatly refused to do so. At about 2.00 pm on the same day, he visited staff room of SDM Harish Ahuja. He met accused Ram Avtar. Upon enquiry being made Ram Avtar told him that he would get the marriage registered on the next day, but it would not be registered without payment of bribe ranging from Rs. 5000/ to Rs. 10000/. He then went to CBI office and met SP Anurag Garg. He reduced to writing his complaint and delivered it to Jayant Kashmiri. The said complaint was Ex. PW2/A. It bore his signatures and telephone number alongwith the date 12.2.04. Next day, he again went to CBI office and met inspector Jayant Kashmiri. They went to office of SP Anurag Garg and held meeting with him. He then made a telephone call to office of SDM Harish Ahuja and talked to the accused who was his reader. He told the accused that he would get all the documents prepared and accused should get the marriage registered as soon as SDM arrives. He then called his clerk to get documents pertaining to the marriage prepared from a typist sitting outside SDM's office. Upon being questioned as to whether there was any talk regarding payment of bribe over telephone for CC No. 217/07 CBI Vs. Ram Avtar pg 7 of 34 8 issuance of marriage certificate, witness replied as follows, "Yes. I told accused Ram Avtar on phone from the office of Superintendent of Police, CBI that I would give Rs. 5000/ to him as agreed, as soon as he gets the marriage certificate in question issued."
7. Inspector Jayant Kashmiri then organized a raiding team. There were two independent witnesses and 45 CBI officers. He provided Rs. 5000/ in the denomination of Rs. 1000/ and Rs. 500/. The notes were treated with some powder and their serial numbers were noted in handing over memo Ex. PW2/B. One shadow witness touched them and gave demonstration. The treated GC notes were kept in his (complainant) front pocket of the shirt. A digital recorder was concealed in his coat pocket to record the conversation and they proceeded for office of Dy. Commissioner. One shadow witness was directed to be present with him while other one was to be with the raiding team. Upon reaching the office, upon directions of inspector Jayant Kashmiri, he alongwith independent witness Islam went to the room of the accused. Remaining team members sat on chairs in the courtyard outside. He alongwith accused Ram Avtar went to court room of SDM Harish Ahuja. After the talk about the bribe money Ram Avtar told him to keep Rs. 5000/ on table of SDM. No third CC No. 217/07 CBI Vs. Ram Avtar pg 8 of 34 9 person was present at that time in the room of SDM. After keeping the money he came out. Accused remained in the room for about 2 minutes and then he came out. Upon coming out, he gave a signal to the shadow witness by hurling his hand on his face. Thereupon the CBI team rushed and caught the accused who had just come out of the room of SDM. Search of his clothes led to recovery of Rs. 5000/ from the right side pant pocket. Their numbers were tallied with the numbers mentioned in pre trap proceedings memo. Hand wash of the accused was taken and also his pant pocket was washed. Due to lapse of time, he could not recollect minute details of the trap proceedings. However each and every job was done at the spot. The GC notes recovered from the accused were Ex. P1 to P9. Recovery memo Ex. PW2/D vide which sealed bottles and the tainted cash have been taken in possession bore his signatures. The application for registration of marriage alongwith its enclosures was Ex. PW2/E1 to PW2/E9. When cassette was played he could identify few sentences and his own voice. The said cassette had not been tampered in his presence. Video recording had also been done. Video was brought to the court. But it could not be played in the Court as no arrangement was made by prosecution for playing it in the Court.
CC No. 217/07 CBI Vs. Ram Avtar pg 9 of 34
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8. Upon being cross examined, he claimed that he was a practicing advocate. On 11.2.04 he met accused at about 11.00 am. He admitted that no power of attorney had been filed alongwith the application for registration. He was aware of all the requirements for registration of marriage. He admitted that he had lodged complaint with CBI on 11.2.04 regarding malpractices of SDM Khanjawala namely Harish Ahuja. He volunteered that he had been told by CBI that they would arrest SDM from his house. On 11.2.04 he had gone to office of the SDM with complete documents for registration of marriage, but the marriage was not registered as demand was not met. He had orally complained to the Dy. Commissioner. The refusal for registration was due to non fulfillment of demand of bribe. He denied the suggestion that Rs. 5000/ was given to him by CBI as they were to trap the SDM. As he had been told on 11.2.04 to come on 12.2.04 he had gone to CBI office. He had talked to accused telephonically from the room of SP and till then he had not been introduced to raiding party. He wrote complaint after telephonic conversation and about 1½ hours later he was introduced to the raiding party. He admitted that there was no settlement between him and Ram Avtar for payment of bribe. He claimed that he was not aware if the application submitted in the office for registration was complete or CC No. 217/07 CBI Vs. Ram Avtar pg 10 of 34 11 incomplete. However he had moved a fresh application on the basis of which marriage was registered on 19.2.04. He denied the suggestion that money was not recovered from the person of the accused.
9. The third witness to be examined was Mr. O.P. Pawar father of Neetu. He claimed that he knew complainant Ravinder Dabas who was related to him. His (PW3 O.P. Pawar's) daughter got married on 7.2.04 and complainant was contacted for getting the marriage registered. On 11.2.04 he alongwith his daughter, soninlaw and Samdhi Chander Sen went alongwith complainant to office of SDM. Deficiency of affidavit was disclosed which was got prepared. On 12.02.04 they went to enquire and came to know that CBI had raided and taken away the documents. On 19.02.04 they deposited fresh documents and got the marriage certificate. The documents so submitted were Ex. PW2/E1 to PW2/E7. The couple at present was settled in Canada.
10. The next witness to be examined was Sh. Chand Ram. He deposed that he was posted as peon in the office of SDM Kanjhawala in 2004. Accused Ram Avtar was posted as Reader to SDM. On 11 or 12 February, 2004 accused was posted for purpose of issuing marriage registration CC No. 217/07 CBI Vs. Ram Avtar pg 11 of 34 12 certificate. On 12.2.2004 complainant Ravinder Dabas had come to office of SDM. Thereafter, witness claimed that he does not know what had happened, but 1520 people entered inside the room of SDM and caught Ram Avtar by wrists. Later on he came to know that they were from CBI. Witness further claimed that Ex.PW4/A which was office search cum seizure memo contained his signatures at point A. The witness was cross examined by Ld. PP wherein he claimed that he did not remember if any cash was recovered from pant pocket of the accused. He also did not remember if the numbers of GC notes which were recovered were tallied with memo, but he admitted that drawer of the table of the accused was searched.
11. The next witness who entered the witness box was Mr. Gopi Nath. He testified that in 2004 he was posted as Reader in the office of SDM, Sarawati Vihar/Kanjhawla. Harish Ahuja was the SDM. Letters Ex.PW6/A and Ex.PW6/B contained signatures of Harish Ahuja. The documents handed over to CBI had been attested by Harish Ahuja. Ex.PW6/C was application for issuance of marriage certificate along with its enclosures. Accused Ram Avtar was Reader to SDM in February 2004.
CC No. 217/07 CBI Vs. Ram Avtar pg 12 of 34
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12. The next witness to be examined was Ramesh Chugh, again from Office of SDM. He deposed that in 2004 Harish Ahuja was SDM Saraswati Vihar, while he was posted as UDC. Upto 04.02.2004 he (PW Ramesh Chugh) was looking after the seat of issue of marriage registration certificate. On 04,.02.2004 he relinquished the charge on orders of SDM Harish Ahuja and handed over the charge to accused Ram Avtar. Order Ex.PW7/A bore signatures of Harish Ahuja, while letter Ex.PW7/B was issued by Arun Goyal Chief Electoral Officer. It also contained attesting signatures of Harish Ahuja SDM. Order Ex.PW7/A had been issued in pursuance of order Ex.PW7/B. The witness then deposed about the procedure followed for obtaining marriage registration certificate. Along with the application, document qua residence proof, date of birth etc and joint photograph had to be filed. After processing the documents, statement of gazetted officer is recorded and thereafter marriage certificate is issued. In event of deficiency, the parties are directed to make good the deficiency. The marriage certificate is issued on the same day if documents are complete. In his crossexamination he claimed that he did not have any personal knowledge regarding the application moved for registration of marriage in the present case. If there was no entry in the marriage register, it would mean that no application had been moved. He CC No. 217/07 CBI Vs. Ram Avtar pg 13 of 34 14 expressed his ignorance of any quarrel between complainant Ravinder Dabas and SDM Harish Ahuja.
13. PW8 was Sh. A.K. Gupta Asstt. Engineer DDA. He was independent witness. He deposed that on 12.2.04 he went to CBI office on instructions of his Superintendent Engineer. He met inspector Jayant Kashmiri and one JE Sh. Islam from DDA. Complainant was also present over there. Complainant talked to accused on telephone and accused had demanded money for issuance of marriage certificate. Complainant produced Rs.5000/ on which some powder was applied. He (A.K. Gupta) touched the GC notes and the solution turned pink. It was then thrown away. His and Mr. Islam's voice were recorded in digital recorder. Complainant was directed to switch it on after reaching the spot. Tainted money was handed over to complainant who kept it in his pocket. He was instructed to hand over the money on specific demand of the complainant. All the team members reached SDM office, Kanjhawla at about 3 p.m. Complainant and Islam went to room No. 6 while they remained outside. After receiving signal from complainant and independent witness, CBI team rushed to the spot. Accused was met while coming out of the room. He was apprehended from his wrists. Complainant informed that he had CC No. 217/07 CBI Vs. Ram Avtar pg 14 of 34 15 given bribe of Rs.5000/ while accused was saying that he was taken loan of Rs.5000/. The tainted money was recovered from pocket of the pant of accused. His hand washes were taken turn by turn and the solution turned pink. His pant was got removed. Pocket was washed. The solution again turned pink. Digital recorder was taken back and played. Conversation was transferred in another cassettes. The solutions were poured into bottles and sealed. Complaint Ex.PW2/A was the same which was shown to him in CBI office. Handing over memo Ex.PW2/B, recovery memo, personal search memo, pant seizure memo, office search memo, all contained his signatures. The bottles containing solutions were Ex.P11, P12 & P13 while GC notes were Ex.P1 to P9. Audio cassette Q1 bore his signatures. On 06.05.04 specimen voice of the accused was recorded in his presence in cassette Ex.P21. The seal used in the case was Ex.P23. In his crossexamination by Ld counsel, he claimed that he was not told by senior officer the purpose of his visit to CBI office. After waiting at reception of CBI office for 1 ½ hours he was asked to meet inspector Jayant Kashmiri. At that time complainant, another witness and staff members were present over there. The demonstration regarding colourless solution was done in the room of Jayant Kashmiri. He admitted that conversation recorded in the audio cassette were not played in the Court CC No. 217/07 CBI Vs. Ram Avtar pg 15 of 34 16 during his testimony. He claimed that after reaching the office of accused he stood outside room of the accused alongwith other team members while complainant and Mr. Islam went to the room of the accused at about 3.00 pm. At the time of raid he was following the raiding party and he heard raiding party say out that accused had taken bribe. He denied the suggestion that GC notes were recovered from office table of the accused. The CBI team had prepared documents at the spot. Towards end he claimed that he never witnessed any other CBI case and was not aware about existence of any circular regarding departmental action against employees who do not support CBI during trial.
14. The next witness to be examined was Mr. ZahirulIslam, DDA Engineer. His testimony is almost identical to testimony of other independent witness Sh. A.K. Gupta. He deposed that he had gone to office of CBI where he met Jayant Kashmiri and A.K. Gupta. They were introduced to the complainant, who informed that accused had demanded bribe of Rs. 5000/ for issuance of marriage certificate. Complainant was directed to make a call to the accused. The call was simultaneously recorded. After recording it was replayed and heard by them. Rs. 5000/ produced by the complainant was treated with powder and A.K. Gupta CC No. 217/07 CBI Vs. Ram Avtar pg 16 of 34 17 gave demonstration. Digital recorder was also provided to the complainant. He (ZahirulIslam) was directed to remain present with the complainant and overhear the conversation. Upon reaching office of the accused, complainant had conversation with the accused. Both of them then left the room and went into room of SDM. They closed the door from inside, while he stood outside the room. After a short while, they came out and complainant gave signal to him and he inturn gave signal to trap team which apprehended the accused. His handwashes were taken and he recovered tainted money of RS. 5000/ from pant pocket of the accused. He then tallied number of GC notes with the number recorded in handing over memo. The numbers tallied. Pant of the accused was got removed. Its wash was taken which too turned pink. The solution was transferred in bottle and sealed. On 6.5.04 he visited CBI office where voice sample of accused was taken in his presence. The witness was cross examined but absolutely nothing emerged which could shake his testimony. He claimed that he had gone to CBI office for the first time in the present case.
15. The next witness to be examined was Kailash Chandra. He deposed that he was posted as Dy. Commissioner ,North West in 2004. He was competent to appoint and remove an employee of UDC cadre. CBI CC No. 217/07 CBI Vs. Ram Avtar pg 17 of 34 18 requested for sanction for prosecution of the accused. Alongwith their request, statement of witnesses and documents were sent to him. After perusing the documents, he accorded sanction which was Ex. PW10/A. In his cross examination, he denied the suggestion that he was not competent to appoint and dismiss UDCs. He had no idea whether any case for registration of marriage was pending on the day bribe was demanded. He denied the suggestion that CBI had prepared draft sanction order and that he had not applied his mind and had issued sanction in a casual manner.
16. Mr. C.L. Bansal thereafter entered the witness box. Inadvertently he was also given serial no. 10 instead of 11. The error was detected and corrected lateron. He deposed that on 21.4.04 he was working as Sr. Scientific officer in head of the department in CFSL. On 21.4.04 three sealed bottles alongwith forwarding letter in the present case were received in the office. All three bottles contained liquid. Two bottles contained pink liquid while the third bottle marked RSPP contained colourless solution. All three exhibits gave positive test for presence of phenolphthalein and sodium carbonate. He gave his report which was Ex. PW10/A. In his cross examination he claimed that he had conducted the examination with the help of his assistant.
CC No. 217/07 CBI Vs. Ram Avtar pg 18 of 34
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17. The next witness to be examined by CBI was Mr. Randhir Singh. He deposed that he was posted as cashier in accounts branch in the office of Dy. Commissioner, Khanjhawala. On 12.2.04 CBI team conducted search in the office of accused Ram Avtar who was Reader to SDM Saraswati Vihar, Kanjhawala. The search was conducted in his presence and he signed the memo Ex. PW4/A.
18. The next witness to be examined by CBI was SDM Harish Ahuja. He deposed that he was posted as SDM Saraswati Vihar from June 2003 to March 2005. He also worked as Marriage Registration Officer. Letters Ex. PW7/A and PW7/B contained his signatures in token of attestation. Vide letter Ex. PW6/A he had provided attested photocopies of blank forms as required, to CBI. Vide letter Ex. PW6/B he provided attested copies of few documents as required by CBI. Thereafter he deposed about the procedure to be followed for getting marriage registered. Upon being cross examined he claimed that he was not personally aware of the case. He could not recollect if on 11.2.04 on complaint of Ravinder Dabas adv. he was called by the Dy. Commissioner. He also could not recollect that Ravinder Dabas had submitted an application to him on 11.2.04 and he had refused to CC No. 217/07 CBI Vs. Ram Avtar pg 19 of 34 20 register the marriage. No marriage certificate had been issued between 05.02.04 and 12.02.04. He claimed that prior to 19.2.04, Amit Narwal and Neetu Phogat did not appear before him for registration of marriage.
19. The next witness to be examined was Lalit Kaushik from CBI. He deposed that in February 2004, he was directed by Anurag Garg SP to take over investigation of the present RC. He took over investigation from Jayant Kashmiri. He sent the washes to CFSL for chemical analysis, collected specimen voice sample of Ram Avtar in presence of independent witnesses on 6.5.04. Transcription was prepared on his directions. A video recording had been done during trap., Its copy was got prepared from CFSL. The audio cassettes were also sent to CFSL for comparison of voice. He collected documents during course of investigation and examined witnesses. Amit and Neetu could not be examined as they had shifted to Canada, but their fathers were examined. He had obtained sanction for prosecution of the accused and filed the chargesheet Ex.PW14/B. He denied the suggestion in cross examination by Ld. Counsel that specimen voice of the accused was not obtained voluntarily. He was not aware if complainant had made complaint against the SDM, to Dy. Commissioner. He denied the suggestion that the investigation was CC No. 217/07 CBI Vs. Ram Avtar pg 20 of 34 21 not fair and proper.
20. The last witness to be examined was Mr. Jayant Kashmiri. He deposed that on 12.02.04 SP Anurag Garg called him to his room and introduced to complainant Ravinder Dabas who had made a complaint alleging that accused who was reader to SDM had demanded bribe for issuance of marriage certificate. The FIR Ex. PW15/A was lodged. Complainant was asked to make a telephone call to the accused. Complainant told the accused that he had made arrangement of Rs. 5000/. Accused did not express any surprise. The conversation was heard by them. Independent witnesses A.K. Gupta and ZahirulIslam had been arranged. They questioned complainant and satisfied themselves. Complainant produced Rs. 5000/. The notes were then treated with phenolphthalein powder. Demonstration was given by A.K. Gupta. Upon washing his fingers in colourless solution of sodium carbonate, the solution turned pink. The tainted GC notes were kept in upper side left shirt pocket of the complainant and he was directed to hand them over on specific demand. Team members washed their hands with soap and water. Zahirul Islam was directed to act as shadow witness and remain close to the complainant and try to overhear the conversation. Both were directed to CC No. 217/07 CBI Vs. Ram Avtar pg 21 of 34 22 give signal by wiping their faces. A Samsung Digital recorder SVR 240 was arranged and played to ensure that it did not contain any pre recorded voices. Thereafter specimen voices of both the independent witnesses were recorded. Recorder was concealed in right inner side pocket of the coat of the complainant. They left CBI office and reached near office of Dy. Commissioner, Khanjawala at 3.15 pm. Complainant and shadow witness moved towards room no. 6 of the accused, while they took position outside. At 3.25 pm ZahirulIslam and Ravinder Dabas came out of the room and gave pre fixed signal. Upon it, he (Jayant Kashmiri) and Inspector Ajay Kumar apprehended Ram Avtar who was coming out of the room. He was caught from his arms and challenged. Complainant informed them that accused had received the money and had kept it in the right side pant pocket. Accused then claimed that it was a loan received by him. ZahirulIslam recovered the GC notes from the right side pant pocket of the accused and tallied the number. Hand washes and pant wash in clean separate solutions of sodium carbonate turned the solution pink. A register containing few marriage registration certificate applications was found. During recovery proceedings SI Prem Nath did video recording of the room. The digital voice recorder was taken back from the complainant and was played and data was transferred to two audio cassettes. One was sealed CC No. 217/07 CBI Vs. Ram Avtar pg 22 of 34 23 with CBI seal, while other one was retained for investigation. Office table and almirah of accused was searched in presence of Peon Chand Ram. Sealed bottles and cash was taken in possession. After conclusion of proceedings accused was taken to CBI office in custody. SI Prem Nath had prepared rough site plan Ex. PW15/B. The witness was cross examined by Ld. Counsel for the accused wherein he claimed that pre trap conversation was not recorded by them. He had also not verified antecidants of the complainant as there was no time to do so. Complaint was not written in his presence. He was simply handed over the same by the SP. He had also not talked to parents of the bride and the groom before laying the trap. The witnesses had been requisitioned by the duty officer. He claimed that he had seized only the application and not the register in which entries used to be made for registration of marriage. He admitted that in the transcription Ex. PW2/F the words "do aur lo" were not mentioned but he volunteered that according to the transcription, complainant said "gin lijiye" and accused replied "theek hai". He denied the suggestion that all the proceedings purported to be done at the spot, were actually done in the CBI office. He denied the suggestion that accused had been falsely implicated.
21. After closing of PE, statement of the accused was recorded, u/s 313 CC No. 217/07 CBI Vs. Ram Avtar pg 23 of 34 24 Cr.P.C. wherein he admitted that he was posted for purpose of issuing marriage registration certificates on 11/12.02.04. He admitted that Harish Ahuja was working as SDM Saraswati Vihar and was looking after work of marriage officer. Upon being asked that Ramesh Chugh had relinquished the charge on 4.02.04 on orders of Harish Ahuja and handed over the charge to him (accused Ram Avtar), accused claimed that it was matter of record. He claimed that complainant had never met him. However he did not deny that he was working as Reader to SDM. He claimed to be innocent and had nothing to do with demand, acceptance and recovery of bribe money.
22. He examined one Dharamvir in his defence. The witness claimed that marriage register could not be traced out in their office and SDM Kishan Lal had written a letter in this regard which was Ex. DW1/A.
23. I have heard Ld. Counsel for accused Sh. Amit Goel and also Sh. Praneet Sharma, Senior PP very extensively. I have also gone through written submissions filed by the accused. I have also gone through the following judgments which were cited by Ld. Counsel for the accused:
CC No. 217/07 CBI Vs. Ram Avtar pg 24 of 34
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1. L.K. Jain Vs. The State through CBI : 2005 (3) JCC 1677
2.C.M. Girish Babu Vs. CBI : (2009) 3 Supreme Court Cases 779
3. Prem Singh Yadav Vs. CBI : 2011(2) JCC 1059
24. In L.K. Jain's case it was held that mere recovery of money was not sufficient to convict the accused. In C.M. Girish Babu's case it was held that mere recovery of tainted money was not sufficient in absence of evidence to prove that accused had voluntarily accepted the money knowing it to be bribe and in the last judgment cited by Ld. Counsel, again similar stand was taken that recovery of tainted money alone was not sufficient to record conviction.
25. Now coming back to the facts of the case in hand, PW3 Sh.Om Prakash Pawar proved that his daughter Neetu had got married to Amit Narwal on 7.2.04. He further had deposed that complainant Advocate Mr. Ravinder Dabas was related to father of his soninlaw Amit. He had also deposed that Ravinder Dabas was contacted to get the marriage registered as Amit was to obtain Visa to shift to Canada where Neetu was already settled. So it is obvious that Ravinder Dabas would have visited office of CC No. 217/07 CBI Vs. Ram Avtar pg 25 of 34 26 the SDM Harish Ahuja for getting the marriage registered. Harish Ahuja who was examined by the prosecution as PW13 had deposed that he also functioned as Marriage Registration Officer. In the office of Harish Ahuja he had met the accused who was working as his reader. It was the accused who informed complainant that marriage would not be registered unless bribe is paid. Ld. Counsel for the accused submitted that entry in the register before date of trap i.e. 12.02.04 has not been proved. To my mind, it is not relevant at all. The application moved for getting the marriage registered was seized on 12.02.04 from the office of SDM. The said application was Ex. PW2/E1, while its enclosures were Ex.PW2/E2 to PW2/E9. They were seized vide recovery memo Ex.PW2/D. Making of entry in the register of office was not in the hands of complainant or litigants. It was internal procedure to be followed by the staff of SDM. So, prosecution cannot be faulted for not proving the entry in the register maintained for accepting marriage registration applications.
26. Ld. Counsel for the accused further referred to testimony of PW1 Dr. Rajinder Singh and claimed that there was always a chance of error in voice identification because of art of mimicry. Dr. Rajinder Singh was an expert who was posted in CFSL and had given his report Ex.PW1/A by CC No. 217/07 CBI Vs. Ram Avtar pg 26 of 34 27 comparing voices recorded in Q1 and S1. It is true that there might be possibility of element of error but the apprehension expressed by Ld. Counsel is too far fetched. If accused had any such real doubt he could have examined an expert witness in his defence. Moreover, in his entire statement u/s. 313 Cr.P.C. he did not take any defence that his voice had been mimicked. Rather Question No. 12 put to the accused in his statement u/s. 313 Cr.P.C. was regarding examining of two cassettes and giving of report Ex.PW1/A. Q. No. 21 put to the accused in his statement u/s. 313 Cr.P.C was to the effect that complainant had made a call to him over telephone from CBI office and Q. No. 23 was to the effect that complainant had told him over telephone that he would pay him Rs.5000/. Accused simply denied them as incorrect. He did not even take up the plea that his voice has been mimicked.
27. Ld. Counsel for the accused then tried to point out few variations in the complaint Ex.PW2/A and oral testimony of the complainant. In his cross examination complainant claimed that there was no settlement between him and the accused for payment of bribe. Examination in chief was conducted on 28.3.06. Cross examination was done on 17.3.11 i.e. after five years. During long gap of five years, it seems that complainant CC No. 217/07 CBI Vs. Ram Avtar pg 27 of 34 28 had some change of heart but it would not affect case of prosecution in any manner. In Inder Singh Vs. State: 1996 JCC 262 a witness had supported prosecution in examination in chief but during course of cross examination turned hostile. Hon'ble Delhi High court held that it was evident that gap of one year had brought about change in testimony. Here gap is of five years. The circumstances clearly go to show that there indeed was settlement of bribe. He claimed that prosecution had been unsuccessful in proving demand of bribe. In the citations filed by Ld. Counsel it had been held that mere acceptance without proving of demand would not help in conviction. Now if we take a look at testimony of the complainant, on page no. 2 complainant had stated that accused had told him that he would get marriage registered after arrival of SDM on the next day but it would not be registered without payment of bribe ranging from Rs. 5,000/ to Rs. 10,000/. On page no. 4 of the testimony Ld. P.P. put a question to the accused. I would reproduce question and answer as follows:
"Q. Did any talk take place between you and accused on telephone regarding payment of any bribe for issuance of marriage certificate in question?
Ans: Yes. I told accused Ram Avtar on phone from the office of CC No. 217/07 CBI Vs. Ram Avtar pg 28 of 34 29 superintendent of Police, CBI that I would give Rs. 5000/ to him as agreed as soon as he gets the marriage certificate in question issued."
(Empasis Added)
28. It was not as if complainant was offering from his own side allurement to the accused. The word "agreed" would clearly indicate that there had been prior meeting of minds, prior understanding and prior demand. Otherwise there was no occasion for the complainant to have said that he would pay Rs. 5000/ as agreed. Had there been no demand of Rs. 5000/, complainant would not have used the word "as agreed". Moreover independent witness Mr. ZahirulIslam had clearly deposed that from the CBI office complainant was directed to make a telephone call to the accused. The call was simultaneously recorded and thereafter it was replayed and heard by them. Complainant had told the accused that he would be going to him with the bribe amount.
29. The element of demand thus gets clearly established that indeed there was a demand and complainant had agreed to pay Rs. 5000/ to the accused. Certainly accused was not doing social service for the SDM CC No. 217/07 CBI Vs. Ram Avtar pg 29 of 34 30 without getting his own share in the booty.
30. Ld. Counsel for the accused also claimed that acceptance of the bribe has not been proved. Complainant deposed that accused told him that though his work had not concluded, he should keep Rs. 5000/ on the table of SDM near which he was standing. Independent witness ZahirurIslam who was from DDA and had been deputed to act as shadow witness had testified that after complainant had conversation with the accused, both of them left the room and went inside room of the SDM. They shut the door from inside. Soon thereafter complainant came out and gave signal. CBI officers then rushed and apprehended the accused who was coming out of room of the SDM. His search revealed Rs. 5000/ which were tainted GC notes and had been kept inside pant pocket of the accused.
31. SDM was not present in his room at that time when complainant and accused went inside the room of SDM. Soon they came out and the tainted GC notes which were in possession of complainant, were found in the pant pocket of the accused. Upon washing his fingers and pant pocket separately one by one in solution of sodium carbonate, the solutions turned pink. The inference is obvious. It gives credibility to the story of the CC No. 217/07 CBI Vs. Ram Avtar pg 30 of 34 31 complainant that accused had told him to keep money on the table instead of accepting the money with his own hands. After the money was kept, accused picked up the money from the table and put it in his own pocket from where it got recovered. Though there is no eye witness to acceptance but this above chain of events is more than enough to show that accused had accepted the tainted GC notes. The things are crystal clear.
32. Regarding contention of Ld. Counsel that oral testimony of the complainant is at variance with the complaint. It is correct that at few places there are small variations but they do not go to the roots of the matter.
33. In case titled as Virender Vs. State, NCT of Delhi : 2013 III AD decided on 10.5.13 Hon'ble Delhi High Court held:
" Minor contradictions, discrepancies and improvements highlighted by the counsel for the appellants are inconsequential. They are not of such magnitude to materially affect the trial. These deviations on trivial matters without effecting the core of the prosecution case are not enough to reject her testimony in its entirety."
CC No. 217/07 CBI Vs. Ram Avtar pg 31 of 34
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34. Earlier Hon'ble Supreme Court in case titled as Rammi @ Rameshwar Vs. State of M.P.: AIR 1999 SC 3544 held:
" When eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non discrepant.."
So small variations here and there would not matter.
35. Hon'ble Delhi High Court in Ram Chander Vs. State : 2009 Cri. L. J. 4058 had laid down certain points for appreciation of evidence in such cases. According to it, demand could be proved from testimony of the complainant as well as from the complaint. Presumption of demand can also be drawn if tainted money was recovered from the accused.
36. Hon'ble Mr. Justice K.T. Thomas, Mr. Justice U.C. Banerjee and Mr. Justice R.P. Sethi of Hon'ble Apex Court dealt a case titled as M. Narsingha Rao Vs. State of Andhra Pradesh: AIR 2001 SC 318. In the CC No. 217/07 CBI Vs. Ram Avtar pg 32 of 34 33 said case accused was arrested with bribe money in his pocket. Complainant and shadow witness both turned hostile during trial and claimed that bribe was never demanded. Complainant rather claimed that accused had been falsely implicated at instance of Dr.Krishna Rao.Accused had claimed that tainted GC notes were forcibly thrust in his pocket. He also examined two witnesses in his defence. Ld. Trial Court convicted the accused. Conviction was upheld by Hon'ble High Court and ultimately by Hon'ble Supreme Court. Hon'ble Supreme Court had held that Sec. 20 does not say that acceptance of bribe should be proved by direct evidence only. The only thing which has to be proved is that accused had accepted or agreed to accept gratification. I have already discussed above that there was prior meeting of mind of complainant and accused and complainant had agreed to pay Rs. 5000/ as agreed. Independent witness Zahirul Islam also corroborated this version of complainant. ZahirulIslam had no axe to grind and had come from DDA. So element of demand was amply established. Recovery of money from pocket of the accused while he was coming out of room of SDM establishes acceptance of the bribe.
37. Chand Ram a colleague of the accused thoroughly supported the accused in his testimony but his testimony reveals that CBI officials had CC No. 217/07 CBI Vs. Ram Avtar pg 33 of 34 34 carried out due process of law and had not framed the accused. He had deposed that CBI officers had caught hold of accused from his wrists. It means that fingers of accused were smeared with phenolphthalein powder only because he handled tainted GC notes and not otherwise. Even independent witness A.K. Gupta had spoken about demonstration given by him in the CBI office. If CBI wanted to simply implicate the accused, they would not have followed these pre trap procedures with seriousness. There is no reason to doubt testimony of independent witnesses. PW Zahirul Islam in his cross examination had claimed that he had gone to CBI office for the first time.
38. I thus hold that prosecution has been successful in making out its case against the accused beyond all shadows of doubt that he had sought bribe of Rs. 5000/ for issuance of marriage certificate and had accepted the same. He stands convicted U/s 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act.
Announced in open Court
on August 12 , 2013 ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No. 217/07 CBI Vs. Ram Avtar pg 34 of 34
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IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 217/07 RC : 9(A)/2004
PS : CBI/ACB/ND
U/s : 7,13(2) r/w 13(1) (d) of
P.C. Act
CBI Vs. Ram Avtar
S/o. Sh. Ram Phool,
R/o. B596, Pandav Nagar,
New Delhi
ORDER ON SENTENCE
1. This Court had vide its judgment dated 12.08.13 found the convict guilty U/s. 7 and 13(2) r/w 13(1) (d) of PC Act.
2. I have heard Sh. Praneet Sharma, Ld. Sr. PP for CBI and Sh. Amit Goel, Ld. Counsel for convict at length.
3. Sh. Praneet Sharma, Ld. Sr. PP prayed for taking of strict view CC No. 217/07 CBI Vs. Ram Avtar pg 35 of 34 36 of the matter and granting of exemplary punishment to the convict. He further prayed that sentences which should be awarded to the convict should run consecutively. On the other hand, Ld. Counsel for the convict prayed for taking of lenient view. He claimed that convict is young man.His wife is sick suffering from many ailments. He has one son and three daughters. All of them are studying at present.
4. The allegations proved against the convict are quite serious in nature. While working as Reader to SDM, he sought bribe of Rs.5000/ from the complainant for issuance of marriage registration certificate of his relatives.
5. Hon'ble Supreme Court in Raman Lal Vs. State of Bombay :AIR 1960 SC 961 had held:
" For a public servant to be guilty of corruption is a very serious CC No. 217/07 CBI Vs. Ram Avtar pg 36 of 34 37 matter and the Courts would not look upon it with undue leniency."
6. I have given my considered thought. Convict is a young man. HE definitely has few liabilities of his children and wife to take care of. But at the same time court cannot and should not shut it eyes to the rampant graft prevailing in Government offices and undertakings. Convict had sought bribe and also accepted it for doing a job for which he was already being paid by the Government. Court must make an effort to strike balance between interest of society and age and related circumstances of the convict. Not a single sheet of paper moves until and unless the palms are greased.
7. Keeping in mind his age and back ground, I sentence convict Ram Avtar to undergo three years R.I. U/s 7 of P.C. Act . In addition, he shall be paying fine of Rs. 50,000/ and in default of payment of fine, he CC No. 217/07 CBI Vs. Ram Avtar pg 37 of 34 38 shall be undergoing S.I. for three months. I also sentence him to undergo RI for three years U/s 13(2) r/w. 13(1)(d) of P.C. Act. In addition, he shall be paying fine of Rs. 50,000/ and in default of payment of fine, he shall be undergoing S.I. for three months.
8. The request made by Learned Sr. PP to the effect that sentences be ordered to run consecutively is declined. Both the sentences of the convict shall run concurrently. He shall also be given benefits of period undergone as under trial (if any).
Announced in open Court
on August 13 , 2013 ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No. 217/07 CBI Vs. Ram Avtar pg 38 of 34