Delhi District Court
Cbi vs L.N Meena & Other on 24 May, 2014
CBI vs L.N Meena & Other
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 49/13
RC No. DAI2013A0001
u/s 120B IPC r/w Sec7 and Sec13 (2) r/w 13 (1) (d) PC Act 1988
Unique ID No.: 02403R0020252013
Central Bureau of Investigation
vs
(1) L.N Meena (A1) S/o Sh Takhal Ram Meena
R/o Flat No. 105, Swastik Kunj, Sector13, Rohini, Delhi
Permanant address:
Village Rajgarh, District Churu, Rajasthan.
(2) Anuj Chaudhary (A2) S/o Sh Tejpal Singh
R/o Flat No. I312, Parsavnath Society, Sector61,
Noida, Uttar Pradesh
Date of FIR : 04/01/2013
Date of filing of Chargesheet : 01/03/2013
Arguments concluded on : 30/04/2014
Date of Judgment : 24/05/2014
Appearances
For prosecution : Sh Naveen Giri, Ld. Public Prosecutor for CBI.
For accused : Sh S.P Kaushal, Ld. Counsel for A1.
Sh Ajit K. Singh and Sh Sarthak Guru, Ld. Counsels for
A2.
RC No. DAI2013A0001 CC No. 49/13 1/97
CBI vs L.N Meena & Other
JUDGMENT
FACTUAL MATRIX OF PROSECUTION CASE This case was registered by CBI on 04/01/2013 on the written complaint dated 27/12/2012 of Sh. Himmat Singh Brar, complainant (herein after referred as PW6) DirectorIris Cabs Private Limited that his company had laid claim for Abatement and Cenvat credit in the office of Deputy Commissioner of Service Tax DivisionII, New Delhi. On receipt of letters from Service Tax Office, Smt. Bimlesh (PW13), Accountant of M/s Iris Cabs Private Limited visited the service tax office so as to explain, met accused Superintendent L.N. Meena (herein after referred as A1) on 24/12/2012 and there A1 told her to meet accused Anuj Chaudhary (herein after referred as A2) Inspector of Service Tax DivisionII and understand the requirements. A2 told PW13 that if PW6 visits them, a settlement can be arrived or else they would send a notice for payment of penalty of about Rs. 18 lacs. When PW13 asked how the settlement could be arrived, A2 typed the figure 150000 on a calculator and showed the same to PW13. PW13 reported the matter to PW6. PW6 preferred the complaint Ex. PW6/A (D2) dated 27/12/2012 to CBI for necessary action. In order to verify the allegations in the complaint Ex. PW 6/A (D2) dated 27/12/2012 SI Alok Kumar (PW11) of CBI, ACB carried out the verification of the complaint in the presence of the independent witness Rajesh Kumar (PW18), Conductor DTC. Digital Voice Recorder (DVR) make Sony was arranged, its functioning was explained to PW6 and the independent witness. After RC No. DAI2013A0001 CC No. 49/13 2/97 CBI vs L.N Meena & Other ensuring blankness of DVR, introductory voice of independent witness was recorded in the said recorder. Along with PW6 and independent witness PW18, PW11 left the CBI office on foot and reached in front of Room No. 710, 7th Floor, Block11, CGO Complex, Lodhi Road, New Delhi. There DVR was handed over by PW11 to PW6 in switchedon mode. PW6 kept the same in his right side pocket of jacket. PW11 along with the independent witness remained in the lobby of the said floor, while PW6 entered into the room no. 710 to meet the accused persons. After sometime PW6 returned back to the CBI Office and the DVR was switched off. PW11 and PW18 also returned back to CBI office. PW6 informed PW11 that A1 took him to JLN Metro Station to meet A2 to settle the matter with him and at the Metro Station accused persons negotiated regarding bribe amount and agreed to lessen their demand to Rs. 1 lakh on 04/01/2013 for settlement of the matter. The recorded conversation in DVR was played by PW11 in presence of PW18. Said recorded conversation was transferred in a blank CD Q1 with the help of laptop in the presence of PW18. Said CD Q1 was signed by PW11, PW6 and PW18. Thereafter, the CD Q1, was sealed and aforesaid persons also signed on the piece of cloth used to seal CD. Seal after use was given to PW18 for safe custody. PW11 verified discreetly, found A 1 and A2 working as Superintendent and Inspector respectively in Service Tax Office and submitted report Ex PW11/A (D3) dated 04/01/2013 recommending registration of regular case leading to registration of RC aforesaid.
RC No. DAI2013A0001 CC No. 49/13 3/97
CBI vs L.N Meena & Other
2. A trap was laid. Sum of Rs. 1,00,000/ (Rs. One Lakh) was brought by PW6 on 04/01/2013 which was in form of hundred GC notes of denomination of Rs. 1000/ each which were counted and their list was prepared; Phenolpthalein Powder was applied on the GC Notes by SI A.K. Maurya and demonstration was shown to show the reaction of Phenolpthalein Powder in solution of Sodium Carbonate and water in the presence of PW6 and two independent witnesses i.e., PW18 and Amresh Kumar (PW10) both conductors of Delhi Transport Corporation (DTC). PW10 was asked to touch the tainted GC notes, which he touched with his right hand fingers and then dipped his said fingers in the freshly prepared solution of Sodium Carbonate and water, which solution then turned in pink colour. Such solution was thrown away. Personal search of PW6 was conducted and he was allowed to carry only his mobile phone. The tainted GC notes were put in right side pant pocket of PW6 by PW10. PW6 was directed to not to touch the tainted bribe amount and to hand over the same to accused on specific demand and not otherwise or on specific direction to some other person. During the pre trap proceedings, PW6 received a call on his mobile phone from mobile phone of A2, wherein A2 had asked PW6 when PW6 would be coming. PW6 told A2 that he would be coming in about 45 minutes. Mobile phone of PW6 was on loud speaker mode, which was heard by all present and aforesaid conversation also recorded in DVR. After such recording, the introductory voice of PW10 and PW18 were recorded and RC No. DAI2013A0001 CC No. 49/13 4/97 CBI vs L.N Meena & Other the DVR make Sony was handed over to PW6 with direction to switch on the same after reaching the spot in order to record the conversation which may take place between him and accused persons. All trap team members washed their hands with soap and water. PW18 was asked to act as a shadow witness and to remain close to PW6 to overhear the conversation and see the transaction of bribe amount, which may take place between PW6 and accused. PW6 and PW18 were directed to give signal by rubbing face by both hands and to give calls from their mobile phones, to TLO PW16 or PW11 in case they are not able to see them, after transaction was over. Trap team members excepting PW6 mutually searched each other. Leather bag i.e., trap kit was arranged. CD Q1 was taken into police possession. The CBI team members, PW10, PW18 and PW6 signed the Handing Over Memorandum Ex PW6/C (D4) prepared in pre trap proceedings.
3. After completion of pre trap proceedings, the CBI team members, PW18, PW10 and PW6 left for office of A1 and A2 at CGO complex by the office vehicles of CBI, where they reached at around 3 pm on 04/01/2013. After parking vehicles, DVR was given to PW6 in switch 'ON' mode. On reaching the 7 th floor at Block11, CGO Complex, Lodhi Road, New Delhi, where the Service Tax Office was situated, the CBI team members and PW10, PW18 remained in the canteen facing the office room of accused and PW6 entered Room No. 710 all alone. After sometime, PW6 along with the two accused persons came out and RC No. DAI2013A0001 CC No. 49/13 5/97 CBI vs L.N Meena & Other entered the lift to go down to the ground floor of the building. On reaching the ground floor, PW6 and A1, A2, who were with him, went towards the parking in the CGO Complex and on reaching there they entered into a white colour Mahindra Scorpio Car No. DL3CBM1469 parked there. In said car, on being directed by A1 to hand over the bribe money to A2, PW6 took out the tainted bribe money from his pant pocket and extended it to A2, which A2 accepted with his right hand and kept the money near the gear lever of the car. A2 was seated on the driver seat of the said vehicle. A1 was sitting on the front seat near to side of driver seat in the aforesaid vehicle. PW6 was sitting on the middle seat of the car. PW6 gave a missed call from his mobile phone to the mobile phone of PW11 to confirm the transaction of bribe upon which the raiding team members of CBI and PW10, PW18 rushed to the spot but since the door of the vehicle was locked, they told to open the same. Tainted bribe money was seen lying besides the gear lever of the car. Both accused persons were made to come out from the vehicle; Trap Laying Officer (TLO) Inspector Anand Sarup (PW16) challenged them for having demanded and accepting the bribe amount of Rs. 1 lakh from PW6. On this, A1 and A2 became perplexed and could not offer any explanation. Accused were apprehended by their respective wrists and instructed not to move and not to touch anything. DVR was taken back from PW6 and put in switch "OFF" mode. On directions PW10 picked up tainted GC notes of bribe money and the numbers of the GC notes were tallied with the noted numbers of the GC Notes in the Handing RC No. DAI2013A0001 CC No. 49/13 6/97 CBI vs L.N Meena & Other Over Memo. The numbers and the denomination of the GC notes recovered tallied with the numbers and denomination of the GC notes noted in the Handing Over Memo. On asking PW6 narrated sequence of events. Hand washes of both hands of A1 and A2 i.e. Right Hand Wash (RHW) and Left Hand Wash (LHW) of A1 as well as RHW and LHW of A2 were taken, filled in separate bottles and marked as RHW of A1, LHW of A1, RHW of A2 and LHW of A2, which bottles were thereafter sealed and signed by PW10 and PW18 on paper slips pasted over them. RHW of A2 and LHW of A2 had turned into pink. The surface wash of place near gear lever of the car, the place/spot where the tainted bribe money in the car was found lying, was taken, which turned in pink colour and which was transferred in a clean bottle which was sealed and marked on paper slip as "Car Wash" on which white paper slip was pasted where PW10 and PW18 also signed. Authorisation was sent to Inspector Gursevak Singh for conducting search at residence of A1. Authorisation was sent to Inspector Shri Bhagwan for conducting search at residence of A2. Vehicle DL3CBM1469 was searched and seized. Search was conducted in the office premises of both the accused, documents were seized. Rough sketches of place of occurrence were prepared and signed by PW10, PW6, PW18. Thereafter, trap team members proceeded to CBI office as it was a public place and crowd started to gather at spot. To ensure safety of case property, it was decided to carry on remaining proceedings in CBI office. In CBI office DVR was played and heard which corroborated version of PW6. Recorded RC No. DAI2013A0001 CC No. 49/13 7/97 CBI vs L.N Meena & Other conversations of trap proceedings were transferred in blank CD, which was later marked Q2 with aid of official laptop. CD Q2 was signed by PW6, PW10, PW16 and PW18. Investigation copy of said CD Q2 was prepared. CD Q2 was sealed. A1 and A2 were arrested at 1800 hours and 1810 hours respectively on 04/01/20013 vide separate arrest memos and personal search memos. Specimen voice of A1 was taken in presence of PW10 and PW18 in DVR and transferred in blank CD, then marked as S1 and it was signed by PW10, PW16 and PW18. Specimen voice of A2 was taken in presence of PW10 and PW18 in DVR and transferred in blank CD, then marked as S2 and it was signed by PW10, PW16 and PW18. Introductory voices of PW10 and PW18 were also recorded before initiating specimen voices of accused in such recordings. Before sealing of CDs S1 and S2, a copy each of such CDs was also prepared for investigation. Bottles of washes aforesaid, recovered bribe sum Rs 1,00,000/, aforesaid CDs were taken into police possession vide recovery memo Ex PW6/D (D5). Specimen of CBI brass seal was taken on white sheets in pink/lac and it was got signed by PW10 and PW18. Facsimile of CBI brass seal was taken in ink on each page of Ex PW6/D (D5). After use, CBI brass seal was handed over to PW18 for safe custody and to produce in Court. Recovery memo was read over, explained to all present, got signed by trap team members and its copies were given to A1 and A2. Trap proceedings were completed at about 2130 hours on 04/01/2013 in CBI office.
RC No. DAI2013A0001 CC No. 49/13 8/97
CBI vs L.N Meena & Other
4. Accused were produced in the Court on 05/01/2013. Accused were remanded to police custody till 07/01/2013. On 07/01/2013, the accused were sent to Judicial Custody.
5. In the course of investigation, transcripts of voice recordings were prepared. The bottles containing the exhibits, the washes were forwarded to the Director, CFSL, CBI for expert opinion. As per the result of examination of RHW of A1, LHW of A1, RHW of A2 and LHW of A2 and "Car Wash" by the forensic expert, these exhibits gave positive tests for the presence of Phenolphthalein.
6. Sanctions under Section 19 of The Prevention of Corruption Act, 1988 for prosecution of A1 and A2 for offences under Section 120B IPC; Sections 7 and 13 (2) read with Section 13 (1)(d) of The Prevention of Corruption Act, 1988 were accorded on 27/02/2013 by Sh Gautam Bhattacharya (PW1), the Commissioner Service Tax, I.P. Estate, New Delhi, being the competent authority to remove A1 and A2 from service. Such sanctions had been placed on record.
7. On completion of investigation, chargesheet was filed on 01/03/2013. Cognizance of the offences was taken on 05/03/2013. Copies were supplied to the accused persons in compliance of Section 207 of Cr. PC. Vide order dated 22/03/2013, accused were admitted to bail. In compliance of terms and conditions of bail, bonds were tendered RC No. DAI2013A0001 CC No. 49/13 9/97 CBI vs L.N Meena & Other and accepted on 25/03/2013 and on that day accused were released from Jail.
CHARGE
8. Charge for offences under Section (1) 120B IPC r/w Section 7 and 13 (2) r/w Section 13(1)(d) of Prevention of Corruption Act 1988; (2) Section 7 of Prevention of Corruption Act 1988 read with Section 120 B IPC and (3) Section 13 (2) r/w Section 13(1)(d) of Prevention of Corruption Act 1988 read with Section 120 B IPC was framed on 16/04/2013 in terms of Order dated 16/04/2013 against A1 and A2 to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
9. To connect arraigned accused with the offences charged, prosecution has examined in all 19 witnesses namely Sh Gautam Bhattacharya (PW1); Sh Vishal Gaurav (PW2); Smt Anshu Chaudhary (PW3); Sh Surinder Singh (PW4); Ms. Anju Sharma (PW5); Sh Himmat Singh Brar (PW6); Sh V.B Ramteke (PW7); Mrs Anita Singh (PW8); Smt Usha Dhawan (PW9); Sh Amresh Kumar (PW10); SI Alok Kumar Singh (PW11); Sh Chander Shekhar (PW12); Smt Bimlesh Pal (PW13); Sh Subrat Kumar Choudhary (PW14); Sh Anuj Bhatia (PW15); Inspector Anand Sarup (PW16); Sh Israr Babu (PW17); Sh Rajesh Kumar (PW18) and IO Inspector P. Shadang (PW19).
RC No. DAI2013A0001 CC No. 49/13 10/97
CBI vs L.N Meena & Other
STATEMENT OF ACCUSED
10. Thereafter A1 and A2 were examined under Section 313 Cr. P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication.
11. In his statement under Section 313 Cr.P.C, A1 submitted as follows. Mr. Sharad Kaushik, Superintendent was predecessor of A1 in Range 18 of Service Tax Division. Said Mr. Sharad Kaushik had started the file of scrutiny of Service Tax Returns in respect of M/s Iris Cabs Private Limited. Report Ex PW14/A of PW14 regarding questioned recordings and specimen recordings was a false report. In spite of several reminders no abatement claim statement and CENVAT Credit Invoices were filed by M/s Iris Cabs with the Service Tax Department, even after the lapse of 80 days. A1 had only requested to PW13 to deposit the service tax against the wrongly availed CENVAT Credit of Rs. 27,698/ along with interest and intimate his office in writing along with tax paid challan so that A1 could send the report of scrutiny to his higher authority. A1 admitted that PW6 came to their office on 04/01/2013 upon which A1 requested PW6 for submission of Service Tax Challans in respect of wrong CENVAT Credit availed by PW6. PW6 was involved in tax evasion, financial frauds and had cheated and defrauded the Revenue Department of Government of India besides which PW6 wanted to escape from tax liability by availing double RC No. DAI2013A0001 CC No. 49/13 11/97 CBI vs L.N Meena & Other benefit of abatement claim and CENVAT credit which were not admissible. A1 had issued two letters i.e. D3 and D4 in the interest of Revenue but M/s Iris Cabs never complied with the instructions and evaded the tax. In order to escape from prosecution and punishment, PW6 falsely implicated A1 in this case. A1 submitted that he had not demanded any bribe nor received any bribe nor asked PW6 to give any bribe to A2. A1 stated that his hand washes were never taken, infact no washes were taken as per presented case of prosecution. No money was recovered from the Scorpio car, as alleged. PW6, PW10, PW11, PW18 and SI Arjun Kumar Maurya had identified the voices in the recorded conversations on behest of CBI officials and had given false statements. IO PW19 did not conduct investigation fairly and even did not investigate Mr. Sharad Kaushik, predecessor Superintendent of A1 who had started the scrutiny of Service Tax Returns filed by M/s Iris Cabs Private Limited. Interested witnesses had deposed falsely at the instance of CBI. A1 had been granted appreciation certificate and reward incentive by his department for his best and sincere service of 27 years.
12. In his statement under Section 313 Cr.P.C, A2 submitted as follows. Report Ex PW14/A of PW14 regarding questioned recordings and specimen recordings was a false report. A2 stated that he had prepared letter Ex PW6/DA/A1 dated 18/12/2012 on instructions of his superior i.e., A1. A2 admitted that on 04/01/2013 PW6 had come to their office. A2 stated that on 04/01/2013 he had only explained the tax RC No. DAI2013A0001 CC No. 49/13 12/97 CBI vs L.N Meena & Other liabilities to PW6 in his office. A2 denied of having demanded any bribe sum or of having received the tainted GC notes Ex GCN/1 to Ex GCN/100 as bribe sum or having kept the same on gear console and stated that no such sum was recovered near gear lever of said car. A2 denied of having received any money from PW6. No hand washes of A 2 were taken. Scorpio car bearing no. DL3CBM1469 was not searched. A2 was made to speak some words but he did not knew whether his specimen voice was being taken. No washes were taken in presence of A2. PW6, PW10, PW11, PW18 and SI Arjun Kumar Maurya had identified the voices including of A2 on display of recorded conversations on the asking of CBI officials. The other sum of Rs 1 lac found in Scorpio car belonged to family member of A2 as father of A2 was hospitalized and the said sum was required for medication of father of A2 and other purposes. A2 stated that he had prepared letter D3 on the direction and dictation given by A1. A2 stated that he had only explained the tax liabilities to PW6. In terms of document D10, service tax liability of M/s Iris Cabs was Rs 1,02,475/ for financial years 2009 10 and 201011. A2 had explained the said service tax liability to PW6 on 04/01/2013 and the details of service tax liability as per calculation of A2 were furnished in his statement aforesaid.
DEFENCE EVIDENCE
13. A1 and A2 entered into their defence and examined in all five witnesses namely Sh Sanjay Gupta (DW1); Sh Sharad Kaushik RC No. DAI2013A0001 CC No. 49/13 13/97 CBI vs L.N Meena & Other (DW2); Sh Vicky (DW3); Sh Abhishek Verma (DW4) and Sh. Anurag Bharti (DW5).
ARGUMENTS
14. I have heard the arguments of Sh Naveen Giri, Ld. Public Prosecutor for CBI; Sh S.P Kaushal, Ld. Counsel for A1, Sh Ajit K. Singh, Ld. Counsel for A2; accused persons and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
15. Ld. PP for CBI argued that though three prosecution witnesses have resiled and not supported the case of prosecution but yet by the cumulative effect of the documentary evidence, evidence of call conversations, transcripts of such call conversations and deposition of prosecution witnesses when seen as a whole, the prosecution has been able to prove that there was a clear welldesigned and planned conspiracy of arraigned accused for demand of bribe from accountant PW13 as well as from PW6 to avoid penalty of Rs. 18 lacs in the claim of Abatement and Cenvat Credit of PW6, in persuance thereof the public servant accused persons being Superintendent and Inspector respectively in Service Tax DivisionII had obtained/accepted bribe sum of Rs 1 lac in the car of A2 in between 3 pm to 4 pm on 04/01/2013 when it was parked in the parking at ground floor of the premises of the office of accused persons, which sum was so received by A2 on directions/asking RC No. DAI2013A0001 CC No. 49/13 14/97 CBI vs L.N Meena & Other of his coaccused Superintendent A1 as gratification other then legal remuneration, in exercise of their official functioning, also by corrupt or illegal means. It was argued that accordingly the mandatory presumption embodied in Section 20 of The Prevention of Corruption Act 1988 is liable to be invoked. Since the accused persons had not rebutted the presumption aforesaid either from prosecution evidence or defence evidence, so prosecution has been able to prove beyond reasonable doubt of accused having committed the offences charged. It was also argued that it is not necessarily to be proved that demand for money has to be made by accused persons in absolutely clear and specific words but such demand is matter of understanding between person who demands and the person who is to pay or who proceeds to pay. It was also argued that evidence of Trap Laying Officer can be relied even without corroboration. Evidence of complainant cannot be rejected on premise of complainant being aggrieved against the bribe taker. It was also argued that the capacity or intention of the public servant to do the alleged act need not be considered. Ld. PP for CBI has prayed for conviction of the accused persons accordingly relying upon the following precedents submitting that prosecution has proved its case beyond reasonable doubt:
(1) Dattatraya Krishnaji Joshi vs State of Maharashtra, 1991 Cri.L.J 2097; (2) State of U.P. vs Zakaullah, 1998 Cri.L.J 863; (3) Hazari Lal vs State (Delhi Admn.), 1980 Cri.L.J 564; (4) M. Narsinga Rao vs State of Andhra Pradesh, 2001 Cri.L.J 515;
(5) Mubarakali vs The State, 1958 Cri.L.J 764 ;
(6) Shiv Raj Singh vs Delhi Administration, AIR 1968 SC 1419;
(7) Dhanvantrai Balwantrai Desai vs State of Maharashtra, AIR 1964 SC 575.
RC No. DAI2013A0001 CC No. 49/13 15/97
CBI vs L.N Meena & Other
16. Ld. Counsel for A1 argued as follows. The doctored, tampered tape recorded conversations cannot be taken as corroborative piece of evidence whereas admittedly incomplete transcription of such tape recorded conversation is of no help to prosecution. Cumulative effect of entire prosecution evidence is that case against the accused persons has been fabricated, entire investigation work of verification proceeding and trap proceeding has been done in the CBI office. It is beyond imagination as to when for the first time after complainant PW6 has gone to CBI office on 27/12/2012 then as to how the independent shadow witness PW18 received the direction from his office on 26/12/2012, which means that prior to 27/12/2012 some where else there was planning to fix accused persons. Shadow witness no where shadowed complainant, never remained near complainant in the verification proceedings or in trap proceedings to over hear the conversation inter se PW6 and accused or see their act and conduct. Not only on 27/12/2012 but also on 04/01/2013 no independent witness ever accompanied PW6 in his meeting and talks with accused persons.
Investigation was faulty. Sanction was bad and not granted by competent authority. Evidence of prosecution witnesses suffered from major material contradictions, improvements, severe infirmities going to the root of the matter and shake the core of prosecution case. Such material contradictions in the statements of prosecutions witnesses were regarding all facets of the matter including (1) regarding making of the complaint and handing it over for verification; (2) calling of the independent RC No. DAI2013A0001 CC No. 49/13 16/97 CBI vs L.N Meena & Other witness for the verification proceedings; (3) regarding manner and place of handing over DVR for verification on 27/12/2012; (4) about time and place of waiting on the date of verification i.e., 27/12/2012; (5) about the meeting of the witnesses, after PW6 returned to the office of CBI; (6) regarding proceedings before leaving the office of the CBI, for trap proceedings; (7) regarding preparation of the memos and treatment of the currency notes; (8) how the tainted money was handled, after the same was treated with powder; (9) the transportation and the vehicles used by the trap team; (10) the proceedings after reaching the office of service tax department. Both independent witnesses did not support the case of prosecution in any manner whatsoever. Even PW13 did not testify of any demand made by any of the accused persons. Complaint is based on erroneous information. Recording of conversations is tainted. Original device namely Digital Voice Recorder (DVR) used for recordings of questioned conversations was not produced nor proved but was withheld calling for adverse inference against prosecution. Transcript is incomplete. Complainant had tainted back ground and was liable to be prosecuted for having received dual benefits against the law. Own case of prosecution is of A1 having not even touched bribe amount. Mandate of the law has not been adhered to. It has been prayed that A1 is entitled for acquittal.
17. Ld. Counsel for A2 argued as follows. Testimonies of material witnesses embodied material contradictions and inherent RC No. DAI2013A0001 CC No. 49/13 17/97 CBI vs L.N Meena & Other improbabilities which shake the basic version of prosecution case. Doctored recorded conversations with admitted incomplete transcription are of no help to prosecution. Prosecution has failed to prove any demand of any bribe sum by any of the accused persons by any reliable or admissible evidence. PW13 did not whisper demand of bribe by any of accused persons. Complaint of PW6 is based upon hearsay version. Infact CBI helped PW6 to evade service tax. PW18 admitted that all proceedings regarding preparation of documents and sealing of bottles of washes were done in CBI office making recovery memo Ex PW6/D (D
5), seizure memo Ex PW12/A (D5 in supplementary charge sheet) redundant and the alleged recovery of GC notes Ex GCN/1 to Ex GCN/100 meaningless. Per contra to presented case of prosecution, no cited/examined independent witnesses had witnessed recovery of GC notes Ex GCN/1 to Ex GCN/100 from near gear console of Scorpio car. PW18 testified that recorded conversations in DVR on display in CBI office were neither clear nor it could be made out who was speaking and what was spoken. Prosecution witnesses deposed that bottles of washes were sealed in CBI office which incorporates every possibility of tampering, manipulations in washes leaving no sanctity to such washes or their sealing process. Even PW6 did not say of phenolphthalein powder after smearing GC notes in pretrap proceeding was sent to Malkhana. No car was searched in presence of PW18. Sample of voice of PW18 was taken on return in CBI office after trap proceedings but pasted in the beginning in CD Q2. No verification proceedings or pre RC No. DAI2013A0001 CC No. 49/13 18/97 CBI vs L.N Meena & Other trap proceedings were done on given dates. 29 pages transcription was sent to CFSL but 16 pages transcription of recorded conversation was filed in Court. Provisions 17.34 and 14.16 of CBI Manual were not followed. Sufficient time of one week was with the investigating agency but no officer of investigating agency gave prior information to the head of department/office concerned of accused persons. No explanation has been placed on record nor proved regarding existence of any circumstances not permitting giving of such information to the head of department/office of accused persons. It is not the case of prosecution that such head of the department/office of accused persons was in any manner connected/involved with any criminal activities of arraigned accused. Neither photography nor videography of the crime scene, pre trap and post trap proceedings, search proceedings was done nor justifiable explanation has been placed on record for not doing so. DVR containing original recorded conversations has been withheld. Since prosecution has not proved any demand of bribe sum on part of any of accused, presumption embodied in Section 20 of The Prevention of Corruption Act 1988 cannot be invoked. Material contradictory versions embodying inherent improbabilities, severe infirmities make such witnesses unreliable and cast doubt over the prosecution case. As per settled law, existence of all doubts in the case of prosecution should go in favour of accused. Ld. Counsel for A2 has relied upon the followings precedents, praying for acquittal of A2 since the prosecution has failed to prove its case against him beyond reasonable doubt: RC No. DAI2013A0001 CC No. 49/13 19/97 CBI vs L.N Meena & Other (1) V. Venkata Subbarao vs State, Appeal (Crl.) 970 of 2000 decided on 12/12/2006 by Hon'ble Mr. Justice S.B Sinha of Apex Court; (2) Pyare Lal vs State, MANU/DE/0965/2008;
(3) T.M. Shanmughavelu and N. Dhandapani vs State, MANU/TN/2107/ 2011;
(4) C.M. Girish Babu vs CBI, MANU/SC/0274/2009;
(5) State of Maharashtra vs Dnyaneshwar Laxman Rao Wankhede, MANU/ SC/1339/ 2009;
(6) Suraj Mal vs State (Delhi Administration), MANU/SC/0268/1979; (7) Prem Raj Meena vs CBI, MANU/DE/0664/2011;
(8) Nilesh Dinkar Paradkar vs State of Maharashtra, MANU/SC/0293/2011; (9) Vishal Chand Jain @ V.C. Jain vs CBI, MANU/DE/3542/2010;' (10) Subhash Chand Chauhan vs CBI, MANU/DE/0060/2005; (11) Ram Singh and Ors. vs Ram Singh, MANU/SC/0176/1985; (12) Mahabir Prasad Verma vs Dr Surinder Kaur, AIR 1982 SC 1043.
RELEVANT LAW
18. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an RC No. DAI2013A0001 CC No. 49/13 20/97 CBI vs L.N Meena & Other accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express or partly implied. Even Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co conspirators. Reliance placed upon (1) Shivanarayan v. State of Maharashtra, AIR 1980 SC 439; (2) State (NCT of Delhi) vs. Navjot Sandhu, AIR 2005 SC 3820; (3) State of Maharashtra and Others vs Som Nath Thapa and Others, (1996) 4 SCC 659.
19. 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.
20. 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 RC No. DAI2013A0001 CC No. 49/13 21/97 CBI vs L.N Meena & Other pecuniary advantage for himself or for any other person.
21. In the case of Dattatraya Krishnaji Joshi (supra), it was held that demand for money or any valuable thing is not necessarily to be proved to have been made in absolutely clear and specific words. Making of demand is matter of understanding between person who demands and person who proceeds to pay or who is to pay.
22. In the case of Zakaullah (supra), wherein complainant's evidence was jettisoned on the mere ground that since he has a grouse against the delinquent public servant, he might falsely have implicated the latter; such a premise was held to be fraught with the consequence that no bribe giver can get away from such stigma in any graft case. It was also held that even evidence of the trap laying officer can be acted upon without the help of any corroboration.
23. In the case of Hazari Lal (supra), it was held that where the evidence of police officer who laid the trap was found entirely trustworthy, there was no need to seek any corroboration. It was further held that there is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act RC No. DAI2013A0001 CC No. 49/13 22/97 CBI vs L.N Meena & Other upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an Officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance.
24. 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.
25. In the case of Mubarakali (supra), it was held that a mere demand or solicitation of gratification by public servant amounts to an offence under Section 161 of the Indian Penal Code.
26. In the case of Shiv Raj Singh (supra), it was held that it is not necessary for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or RC No. DAI2013A0001 CC No. 49/13 23/97 CBI vs L.N Meena & Other disfavour but if accused had used his official position to extract illegal gratification, the requirement of law for offence under Section 161 of IPC is satisfied.
27. In the case of Dhanvantrai Balwantrai Desai (supra), it was held that when it is shown that accused had received a certain sum of money which was not a legal remuneration, then the condition prescribed by Section 4 (1) of The Prevention of Corruption Act 1947 is satisfied and the mandatory presumption therein must be raised.
28. In the case of V. Venkata Subbarao (supra), it was inter alia held that in the absence of proof of demand of bribe, the question of raising the presumption under Section 20 of The Prevention of Corruption Act 1988 would not arise and such presumption can only be raised if demand of bribe is proved. Also was held that, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution.
29. In the case of Pyare Lal (supra), it was held that the facts in the matter pointed to every possibility of tainted currency notes having been kept by complainant in diary when accused had gone out from room to fetch water for complainant as was requested by him, which made prosecution version doubtful and false implication of accused could not be ruled out.
RC No. DAI2013A0001 CC No. 49/13 24/97
CBI vs L.N Meena & Other
30. In the case of T.M. Shanmughavelu (supra), it was held that since entire trap proceedings were bristled with suspicious circumstances, in the absence of proof of demand of bribe and on existence of doubts and improbabilities in prosecution version as to trap proceedings, accused was entitled to acquittal for offences charged under The Prevention of Corruption Act 1988.
31. 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.
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 Suraj Mal (supra), it was held that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive RC No. DAI2013A0001 CC No. 49/13 25/97 CBI vs L.N Meena & Other 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.
34. 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.
35. 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.
36. In the case of Subhash Chand Chauhan (supra), it was held that each of three material prosecution witnesses gave different RC No. DAI2013A0001 CC No. 49/13 26/97 CBI vs L.N Meena & Other 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 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. 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.
37. The core question that needs to be seen is as to whether there is sufficient admissible legal evidence on record for the prosecution to prove its case beyond reasonable doubt against arraigned accused for the offences charged.
APPRECIATION OF EVIDENCE
38. PW1 deposed that being Commissioner Service Tax, New Delhi, he was competent and had authority to remove A1 and A2 from service, they being the Officers of level of GroupB which included RC No. DAI2013A0001 CC No. 49/13 27/97 CBI vs L.N Meena & Other Superintendents and Inspectors of Central Excise and Service Tax. IO PW19 had sent CBI report with list of documents and list of witnesses and copies of statements of witnesses recorded in investigation and the copies of documents to the competent authority for according of sanctions for prosecution of A1 and A2. PW1 testified that he had brought the office records during the course of his testimony which included the copies of documents produced before him for according of sanctions. PW1 further deposed that on 22/02/2013 he received complete report from CBI including the incident report, copy of FIR and the copies of statements and had gone through them as well as the verification by the CBI officers of the persons as well as premises, search memo, seizure documents, test reports of the hand washes, posting orders of the charged officers, FIR, recommendation of CBI, etc. PW1 testified that after appraisal of the documents and on his satisfaction, he had accorded the sanctions under section 19 of The Prevention of Corruption Act 1988 for prosecution of (1) A1 being Superintendent in Service Tax Department vide order Ex PW1/A (D23) dated 27/02/2013; (2) A2 being Inspector in Service Tax Department vide order Ex PW1/B (D24) dated 27/02/2013; for offences punishable under Section 120 B IPC and Section 7 & 13 (2) read with 13 (1) (d) of The Prevention of Corruption Act, 1988.
39. Hon'ble Mr. Justice Deepak Mishra held in case of State of Maharashtra through C.B.I. v. Mahesh G. Jain, 2013 CRI L.J. 3092 as RC No. DAI2013A0001 CC No. 49/13 28/97 CBI vs L.N Meena & Other follows:
"13. From the aforesaid authorities the following principles can be culled out:
(a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
(b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.
(c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
(d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
(e) The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
(f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
(g) The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity".
40. In view of afore elicited deposition of PW1, mere non mention of details of documents perused by PW1 in the sanction orders Ex PW1/A and Ex PW1/B would not make the accorded sanctions bad in law since entire material perused by PW1 was even produced in the Court during his deposition. Neither any suggestion was given to PW1 by any of the accused through their Counsels in his cross examination RC No. DAI2013A0001 CC No. 49/13 29/97 CBI vs L.N Meena & Other nor any defence evidence was led so as to prove that PW1 was in any manner not competent to accord sanction Ex PW1/A or Ex PW1/B. Adequacy of material placed before sanctioning authority cannot be gone into by this Court as this Court is not sitting in appeal over the sanction orders Ex PW1/A and Ex PW1/B. In his deposition PW1 has given vivid details of all documents perused by him for according aforesaid sanctions, as elicited above. In this fact of the matter, there is no material on record proved by defence that the aforesaid orders of sanction were vitiated in any manner or they were bad in law or not granted by competent authority. PW1 testified that he was competent to remove A1 as well as A2 from service and even no suggestion to contrary was given to PW1 on this count by any of the arraigned accused through their Counsels. It is proved on record that accorded sanctions Ex PW1/A and Ex PW1/B were valid and granted by competent authority PW1.
41. PW2 Nodal Officer in Bharti Airtel Limited proved his generated Call Detail Records (CDRs) of mobile no. 9910510500 for the period from 27/12/2012 to 04/01/2013 which were certified by him and submitted to PW19 with certificate u/s 65B of Evidence Act and covering letter dated 25/01/2013, all collectively Ex PW2/A (colly) (D
13).
42. PW3 is the wife of A2 and registered owner of Mahindra Scorpio car number DL3CBM1469 vide certificate Ex PW3/A (D20) RC No. DAI2013A0001 CC No. 49/13 30/97 CBI vs L.N Meena & Other which she received vide document "Zimanama" Ex PW3/D post seizure of said vehicle and had also handed over declaration Ex PW3/B (part of D19) to PW19 for release of said vehicle on superdari.
43. PW5 Administrative Officer in the office of Assistant Commissioner Service Tax DivisionII proved the office order Ex PW5/A (D11) dated 21/08/2012 of Assistant Commissioner Sh Govind Kumar Garg in terms of which A1 was posted as Superintendent in Range 18, Service Tax Department, New Delhi. PW5 also proved office order Ex PW5/B (D12) dated 21/06/2012 in terms of which A2 was posted as Inspector in Range 18, Service Tax Department, New Delhi. As per PW5, only A1 and A2 had dealt with file Ex PW10/A (D10).
44. PW7 Senior Scientific OfficerI, Chemistry Division, CFSL, CBI, New Delhi had examined the contents of the five bottles Ex PW6/W1 to Ex PW6/W5, previously Marked RHW of A1, LHW of A1, RHW of A2, LHW of A2 and Car Wash received on 15/01/2013 with forwarding letter dated 11/01/2013 of SP ACB CBI. Contents of these five marked bottles were analysed by physicochemical methods, chemical test and thin layer chromatographic technique upon which the contents of such marked bottles gave positive test for the presence of phenolpthalein for which PW7 prepared and submitted his report Ex. PW 7/A (D17) dated 18/01/2013 to PW19.
RC No. DAI2013A0001 CC No. 49/13 31/97
CBI vs L.N Meena & Other
45. PW8, other Director of M/s Iris Cabs Private Limited testified that she had applied and received mobile number 9910510500 vide Ex. PW 8/A (D6 of Supplementary Chargesheet) i.e. Subscriber Enrollment Form of Bharti Televenture Limited and on obtaining said mobile connection number 9910510500 she gave it for use to PW6, also Director of M/s Iris Cabs Private Limited.
46. PW9 deposed that though in prepaid application form Mark P9/1 (D8 of Supplementary charge sheet) of mobile connection number 9953290485, address K442, Dakshin Puri, New Delhi, of house purchased by her husband, was mentioned but the person whose photograph was affixed at portion X on said application form had never occupied said premises in any capacity like tenant or licencee.
47. PW12 Nodal Officer in Bharti Airtel Limited proved Subscriber Enrollment Form Ex PW8/A (D6 of supplementary charge sheet) of mobile number 9910510500 of Bharti Televenture Limited in the name of PW8 along with copy of driving licence of PW8 which he had handed over to IO PW19 vide seizure memo Ex. PW 12/A (D5 of supplementary charge sheet) dated 14/05/2013 from his office records.
48. PW 15 Nodal Officer Vodafone proved Call Detail Records (CDRs) Ex PW15/C (part of D14) generated by him from computer system of his company with certificate Ex PW15/B (part of D14) under RC No. DAI2013A0001 CC No. 49/13 32/97 CBI vs L.N Meena & Other Section 65(B) (4)(c) of Evidence Act of mobile number 9953290485 of the period from 27/12/2012 to 04/01/2013. PW15 also proved Call Detail Records (CDRs) Ex PW15/E (part of D14) generated by him from computer system of his company with certificate Ex PW15/D (part of D14) under Section 65(B) (4)(c) of Evidence Act of mobile number 9999131717 of the period from 27/12/2012 to 04/01/2013.
49. PW17 Nodal Officer Vodafone Mobile Service Limited proved pre paid application form and copies of documents of identity of Devender Kumar, collectively Ex PW17/B (colly) (D8 of supplementary charge sheet) in respect of mobile phone connection number 9953290485 in the name of Devender Kumar which were seized vide seizure memo Ex. PW17/A (D7 of supplementary chargesheet).
TAPE RECORDED CONVERSATIONS
50. 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.
51. Conditions for admissibility of tape recorded statement have been laid by the Apex Court in the case of Ram Singh (supra) as RC No. DAI2013A0001 CC No. 49/13 33/97 CBI vs L.N Meena & Other "(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."
52. 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).
53. The tape recorded statements of questioned conversations, in the case in hand are contained in CD Ex PW11/C3 (Ex Q1) and CD Ex PW14/B3 (Ex Q2). In terms of afore elicited law laid in cases cited above, the tape recorded statements contained in the conversations recorded in aforesaid Compact Disks are to be tested on the anvil of RC No. DAI2013A0001 CC No. 49/13 34/97 CBI vs L.N Meena & Other preconditions laid aforesaid for their admissibility in evidence.
54. PW14 Senior Scientific Officer GradeII (Physics), CFSL, CBI, New Delhi deposed that on 14/01/2013 a forwarding letter was received from SP CBI ACB New Delhi along with four sealed parcels containing CD Ex PW11/C3 (previously Ex Q1), CD Ex PW14/B3 (previously Ex Q2), CD Ex PW14/C3 (previously Ex S1), CD Ex PW14/D3 (previously Ex S2); specimen seal impression, certificate of authority and transcription of questioned conversations. PW14 carried out spectrographic and auditory examination of the questioned recordings and specimen recordings and prepared his detailed report Ex PW14/A (D1 of supplementary charge sheet) dated 04/04/2013. As per report Ex PW14/A (1) the voices marked exhibits Q1 (02) (M), Q2 (01) (M) & Q2 (05) (M) in the said report were the probable voices of A1; (2) the voices marked exhibits Q1 (02) (A) & Q2 (05) (A) in the said report were the probable voices of A2.
55. Verification memo Ex PW6/B (part of D3) incorporates the fact that such proceedings started at 11.30 am on 27/12/2012 and concluded at 1.30 pm on that day. PW6 deposed that in between 2.30 pm to 3.30 pm on 27/12/2012 they entered the building of Service Tax office of the arraigned accused and at ground floor of said building a DVR was given to PW6. Ex PW6/B incorporates the fact that DVR make Sony was arranged by PW11 Verifying Officer who explained its RC No. DAI2013A0001 CC No. 49/13 35/97 CBI vs L.N Meena & Other functioning to PW6 and PW18, wherein after ensuring blankness of DVR, introductory voice of independent witness was recorded. As per Ex PW6/B, aforesaid DVR was handed over by PW11 to PW6 in switch "ON" mode in front of room number 710 at 7 th floor of the office building of arraigned accused where PW6, PW8 and PW11 reached on foot from CBI office. PW6 testified that DVR was handed back to PW11 at 4 pm on 27/12/2012 in CBI office in "ON" mode but thereafter it was not sealed. PW6 deposed that contents of DVR were copied to CD Ex PW11/C3 (Ex Q1) by use of laptop, which CD was sealed, signed by PW6 and PW18. PW6 testified that it took five minutes in such process of copying of contents of DVR to aforesaid CD Ex PW11/C3 (Ex Q1). Per contra to prosecution version, PW6 narrated that he had heard the recorded conversation in small bits and pieces whereas above referred verification memo Ex PW6/B incorporates the fact that recorded conversation in DVR was played by PW11 in presence of PW6 and PW18. PW6 elicited that transcript aforesaid of recorded conversation was not made on 27/12/2012. During the period wherein the DVR remained with PW6 and while receiving the DVR and handing it back neither PW6 had switched said DVR on "ON" mode nor had switched it on "OFF" mode. In his statement Ex PW6/DC under Section 161 Cr.P.C PW6 did not say to IO PW19 that PW11 had shown that DVR was empty and tested with recording of voice of PW18, which facts PW6 testified for the Court for the first time. Also PW6 made addition to his statement Ex PW6/DC when in the course of his deposition he stated of having RC No. DAI2013A0001 CC No. 49/13 36/97 CBI vs L.N Meena & Other received the DVR at ground floor of the building of the office of accused persons wherein in the statement to IO no place of receipt of DVR was mentioned nor it was stated that PW11 had put DVR in jacket pocket of PW6 as was stated by PW6 in his testimony. PW6 further elicited that he had heard the conversations recorded in DVR, laptop and CD Ex PW11/C3 (Ex Q1), each for 34 minutes. As per PW6, in conversation recorded in DVR, clarity was not there but the recorded conversation in laptop and CD Ex PW11/C3 (Ex Q1) had clarity. It is beyond comprehension that when the original recording device i.e., DVR had conversation recorded without clarity then how the copy of the same conversation in CD Ex PW11/C3 (Ex Q1) can be having clarity? PW6 further elicited that he had read transcript Ex PW6/F (D15) but had not compared it with the recorded conversation. Regarding conversation recorded in CD Ex PW14/B3 (Ex Q2), PW6 stated that he had heard it in tit bits but not in complete and even had not compared its recording with the transcript Ex PW6/F (D15).
56. PW11 did not say in his deposition that CD Ex PW11/C3 (Ex Q1) and the piece of cloth used to seal were signed by PW6, PW11 and PW18. In entire deposition PW11 did not say of handing over DVR to PW16 TLO. Verification memo Ex PW6/B finds no mention of what was done to the DVR after transfer of recording of the conversation there from to CD Ex PW11/C3 (Ex Q1). Neither such DVR was sealed nor returned to the official from where PW11 had procured it.
RC No. DAI2013A0001 CC No. 49/13 37/97
CBI vs L.N Meena & Other
57. PW18 did not whisper of recording of his introductory
voice in said DVR after ensuring of blankness of DVR or the said DVR being handed over by PW11 to PW6 in switch "ON" mode. PW18 testified that DVR was kept in pant pocket of PW6 at 5 th or 6th floor of office building of accused but he did not knew whether it was "ON" or "OFF".
58. In the course of final arguments when CD Ex PW11/C3 (Ex Q1) was displayed, it was found containing two audio files namely Track 01 and Track 02 of size 44 bytes each and size on disc as 2.00 kb (2048 bytes) each having date of creation and date of modification to be 01 January 1995 and the time 05:30:00. TLO PW16 testified that on 04/01/2013 DVR was arranged and at about 2.20 pm a call was received on mobile phone of PW6 from A2 which was heard by all trap team members as mobile phone of PW6 was put in loudspeaker mode and said conversation was simultaneously recorded in DVR.
59. In terms of Ex PW6/C (D4) i.e., Handing Over Memorandum, after call conversation of call received from A2 on mobile phone of PW6 was recorded, thereafter the introductory voice of PW10 and PW18 were recorded in the blank DVR and the said DVR make Sony was handed over by PW16 to PW6 in CBI office with direction to switch "ON" the same after reaching the spot in order to record the conversation which may take place between him and the RC No. DAI2013A0001 CC No. 49/13 38/97 CBI vs L.N Meena & Other accused persons. Per contra to aforesaid version, recovery memo Ex PW6/D (D5) incorporates that after trap team departed from CBI office and reached near office building of accused the vehicles were parked at some safer distance from office building of accused, it was at that place where the DVR was given to PW6 on switch "ON" mode. Accordingly, in documents Ex PW6/C and Ex PW6/D there are contradictory versions as to when and where the DVR was handed over to PW6 on 04/01/2013 and whether it was in switch "ON" mode or in switch "OFF" mode. Even TLO PW16 did not whisper of recording of introductory voices of PW10 and PW18 and handing over of DVR to PW6 before leaving CBI office for trap on 04/01/2013. PW16 testified that on reaching office of A1, A2 at 7th Floor on 04/01/2013, DVR was given to PW6 in switch "OFF" mode before entering room number 710, the place where accused used to sit in their office. Such given DVR was taken back by PW16 allegedly after recovery of tainted GC notes Ex GCN/1 to Ex GCN/100 by PW10 from Scorpio car and then said DVR was put on switch "OFF" mode.
60. In his deposition PW10 categorically denied of recording of his introductory voice or introductory voice of PW18 before leaving CBI office for trap on 04/01/2013 despite being cross examined by Ld. PP for CBI. Per contra to prosecution version, PW10 testified that at around 9 pm or 9.30 pm on 04/01/2013 when they came back to CBI office then his voice as well as voice of PW18 were recorded in the recording RC No. DAI2013A0001 CC No. 49/13 39/97 CBI vs L.N Meena & Other device. PW10 did not whisper of recording of any call conversation of call received by PW6 on his mobile phone from mobile phone of A2 in pretrap proceedings in CBI office. PW10 also did not testify of CD Ex PW11/C3 (Ex Q1) having been taken into police possession vide Ex PW6/C.
61. PW11 testified that on 04/01/2013 on reaching 7 th floor of building of office of accused, the DVR was given to PW6 in switch "ON" mode for recording after which PW6 entered the office of accused. As per version of PW11, the introductory voices of PW10 and PW18 were recorded in DVR in CBI office before departing for trap, after ensuring the blankness of DVR. Meaning thereby that by then such DVR did not contain any prerecorded conversation of verification proceedings of this case. None amongst the examined prosecution witnesses could elicit whether DVR used in the verification proceedings and the DVR used in the trap proceedings were one and the same or were different. On this count PW6 elaborated that DVR given to him on 04/01/2013 looked similar to DVR given to him on 27/12/2012.
62. PW10 categorically denied of display of voice recording on 06/02/2013 or their comparison/matching with Ex PW6/F by him. Even PW10 did not whisper of the facts (1)DVR being given to PW6 in switch "ON" mode after parking of vehicles on reaching near office building of accused; (2) taking back of DVR from PW6 and it being put in switch RC No. DAI2013A0001 CC No. 49/13 40/97 CBI vs L.N Meena & Other "OFF" mode; (3) playing of DVR in CBI office, transfer of the recorded conversation of trap proceeding in CD Ex PW14/B3 (Ex Q2) with the aid of official laptop; (4) CD Ex PW14/B3 (Ex Q2) having been signed by PW6, PW16 and PW18; (5) preparation of any investigation copy of CD Ex PW14/B3 (Ex Q2) and (6) sealing of CD Ex PW14/B3 (Ex Q2).
63. TLO PW16 stated that before challenging A1, A2 at spot, DVR was switched "OFF". In terms of the version of PW11, PW10 had picked up tainted GC notes Ex GCN/1 to Ex GCN/100 from near gear lever of Scorpio car and thereafter DVR was taken back from PW6. In terms of elicited version of PW11 words spoken by TLO PW16 to challenge A1, A2 should have found mentioned in the recording in CD Ex PW14/B3 (Ex Q2) and transcript Ex PW6/F relating to Q2, but none amongst them finds any mention of any such words so spoken by TLO PW16 for challenging any or both accused. Even recovery memo Ex PW6/D (D5) does not find mention of the words spoken by PW16 to challenge accused persons and there is simple mention of the fact "TLO challenged accused L.N Meena and Anuj Kumar for demanding and accepting a bribe amount of Rs 1,00,000/ from the complainant for settling the matter of Service Tax in favour of complainant." Non mention of such words spoken to challenge A1 and A2 in the recorded conversation in CD Ex PW14/B3 (Ex Q2) simply reflect that either PW11 deposed incorrectly/falsely or every possibility existing for RC No. DAI2013A0001 CC No. 49/13 41/97 CBI vs L.N Meena & Other tampering/manipulations of recordings of DVR projected to be transferred to CD Ex PW14/B3 (Ex Q2). As per PW11, perhaps Arjun Maurya had given DVR to PW6 on reaching 7 th floor of office premises of accused on 04/01/2013 but PW11 did not knew who had put the DVR on "ON" mode or later on "OFF" mode but PW11 had neither put DVR on "ON" mode nor had given it to PW6. Even PW11 was unable to tell that after recording of introductory voices of PW10, PW18 in CBI office, the DVR was kept on "OFF" or on "ON" mode. PW11 had heard entire conversation of DVR containing trap proceedings but had only heard part of conversation of CD Ex PW14/B3 (Ex Q2). PW11 elicited that someone else had transferred recorded conversation from DVR to CD Ex PW14/B3 (Ex Q2) but it was not done in his presence and he (PW11) was preparing the memo.
64. PW11 was also unable to say whether transcript of CD Ex PW14/B3 (Ex Q2), part of Ex PW6/F was complete or incomplete transcript of recorded conversation but PW11 admitted that transcript Q1 part of Ex PW6/F (D15) in end portion had no transcript of any conversation between PW11 and PW6 on call made by PW6 to PW11 on reaching of PW6 in CBI office. PW11 deposed that he had prepared the transcript of whatever conversation he found relevant. As per PW11, PW10 and PW18 were present when recorded conversation was transferred from DVR to CD. Both PW10 and PW18 did not so testify. PW11 elicited that Log Book in respect of DVRs was maintained and the RC No. DAI2013A0001 CC No. 49/13 42/97 CBI vs L.N Meena & Other Caretaker was the custodian of DVRs. The experienced officers of premier investigating agency conducting and supervising the investigation were in the knowledge of the fact that they were under bounden duty to prove accuracy, genuineness of tape recorded evidence and to take necessary precautions to remove all possibility of tampering or manipulation in the tape recorded conversation/evidence. Yet, neither original recording device(s) i.e., DVR(s) were produced nor any records pertaining to issuance, use and return of such DVRs to its custodian were placed on record nor proved.
65. It is the version of PW18 that conversation between PW6 and A2 on mobile phone was not done in his presence and only on his return in CBI office from spot on 04/01/2013 his voice sample was taken in CBI office thrice. Also PW18 elicited that he had signed on CDs Ex PW11/C3 (Ex Q1) and Ex PW14/B3 (Ex Q2) on his return back to CBI office. PW18 categorically denied that on 06/02/2013 investigation copy of CD of IO was played by IO PW19 on computer or in his presence PW6 had identified any voices of conversations of dates 27/12/2012 and 04/01/2013. PW18 stated that he only signed Ex PW6/G (D16) i.e., Voice Identification cum Transcription memo in CBI office on 06/02/2013.
66. PW16 TLO also elicited in his cross examination that blankness of DVR before use was checked by him in presence of PW10 RC No. DAI2013A0001 CC No. 49/13 43/97 CBI vs L.N Meena & Other and PW18. No such fact was elicited by PW10 or PW18. Such version of PW16 projects that there were no prerecorded voices of verification proceedings in DVR before its use for trap proceedings.
67. PW10 elicited that the documents on which he had signed were neither read over to him nor he was permitted to read them.
68. PW11 also elicited that within 1520 days later to 04/01/2013 transcript of recorded voices during verification were prepared by him (PW11) in rough and later on he got typed the transcript after correction regarding Q1, part of Ex PW6/F. PW11 stated that he helped IO PW19 in preparation of transcript Ex PW6/F relating to Q2 and the transcript Ex PW6/F was prepared in the presence of PW6, PW10 and PW18. None amongst PW6, PW10 and PW18 testified of transcript Ex PW6/F being so prepared in their presence, with their assistance.
69. PW11 elicited that he had transferred recorded conversation of verification proceedings from DVR to CD Ex PW11/C3 (Ex Q1). No examined prosecution witness whispered as to which official of CBI had transferred recorded conversation from DVR to CD Ex PW14/B3 (Ex Q2). It is admitted case of IO PW19 that the transcript Ex PW6/F (D15) was not containing all dialogues of conversations contained in CDs Ex PW11/C3 (Ex Q1) and Ex PW14/B3 (Ex Q2). Dialogues in RC No. DAI2013A0001 CC No. 49/13 44/97 CBI vs L.N Meena & Other recorded conversations in aforesaid CDs were picked and chosen by officers of investigating agency as per own convenience. Transcript Ex PW6/F (D15) should have been prepared containing each and every dialogue contained in aforesaid CDs.
70. In the course of arguments, Ld. PP for CBI argued that the dates of creation as well as dates of modification i.e., 01 January 1995 of the two audio files in CD Ex PW11/C3 (Ex Q1) could be due to such dates and time being then present, existing in the laptop at the time when such laptop was used for transfer of recorded conversations from DVR to said CD. If that is so then the date of creation i.e., 04 January 2013 also in respect of the four audio files contained in folder 02 of CD Ex PW14/B3 (Ex Q2) may be so because of such date and time then existing in the laptop when it was used for transfer of recorded conversation from DVR to CD Ex PW14/B3 (Ex Q2). For non production of used DVR(s), primary recording device(s), accuracy of the tape recorded statements have not been proved by the prosecution from the maker of such records by satisfactory evidence direct or circumstantial. Instead there exists every possibility of tampering with or erasure of any part of the tape recorded statements in question, in view of entire afore discussion, which includes severe infirmities regarding all material facts in respect of obtainment of DVR, use of DVR, handing over of DVR to PW6, receiving back of DVR from PW6 in the course of verification proceedings, trap proceedings, preparation of the CDs (1) Ex RC No. DAI2013A0001 CC No. 49/13 45/97 CBI vs L.N Meena & Other PW11/C3 (Ex Q1) and (2) Ex PW14/B3 (Ex Q2), the time and manner of preparation of such CDs, keeping in back drop the admitted fact that all the relevant CDs (1) Ex PW11/C3 (Ex Q1) and (2) Ex PW14/B3 (Ex Q2); (3) Ex PW14/C3 (Ex S1) and (4) Ex PW14/D3 (Ex S2) were prepared in CBI Office regarding which examined prosecution witnesses have testified in material contradiction with each other as elicited in detail above. Report Ex PW14/A finds mention of receipt of photocopy of two sets of transcription of questioned conversations comprising of total 29 pages on 14/01/2013 whereas the transcription Ex PW6/F (D15) dated 06/02/2013 placed on record runs into 17 pages. Neither original nor copy of transcription sent to CFSL by investigating agency had been placed on record nor proved. Forwarding letter Ex PW16/B dated 11/01/2013 of SP, ACB, CBI finds no mention of sending of aforesaid transcription of questioned conversation comprising of total 29 pages nor any separate forwarding letter for such transcription was prepared nor sent.
71. Cumulative effect of foregoing discussion is of there being every reasonable possibility of tampering, manipulations, insertions, deletions in the tape recorded conversations contained in CDs Ex PW11/C3 (Ex Q1) and Ex PW14/B3 (Ex Q2). Neither original DVR(s) used for recording of tape recorded statements of verification proceedings and trap proceedings have been produced in Court nor proved in accordance with law nor demonstrated about their contents to RC No. DAI2013A0001 CC No. 49/13 46/97 CBI vs L.N Meena & Other depict the date, time of creation and date, time of modification of the audio files created in the DVR or in the memory card of DVR in the process of verification proceedings or trap proceedings to vouch safe for the accuracy of such tape recorded statements and to rule out possibility of tampering it or erasure of any part or whole of the tape recorded statements. Accuracy of tape recorded statements stands not proved by the maker of the records by satisfactory evidence, direct or circumstantial. Accordingly, prosecution cannot take any benefit from the corroborative evidence of tape recorded conversations.
DEMAND OF BRIBE
72. Complaint Ex PW6/A (D2) dated 27/12/2012 of PW6 embodied facts inter alia of visit of his Accountant PW13 on 24/12/2012 in office of arraigned accused wherein allegedly A1 seemed upset on arrival of Junior Accountant PW13 and asked PW13 to sit with A2 and understand the requirement, after which A2 told PW13 that if PW6 visits them, the settlement can be arrived or else they would send notice for penalty of about Rs 18 lacs. In Ex PW6/A, there is also mention of the fact that when PW13 asked A2 how would the settlement be arrived at, then A2 typed 150000/ on a calculator and showed the same to her. PW6 had deposed that when PW13 shared aforesaid fact with him on return to office then he believed that arraigned accused were asking for an illegal gratification of Rs 1,50,000/.
RC No. DAI2013A0001 CC No. 49/13 47/97
CBI vs L.N Meena & Other
73. Edifice raised by prosecution regarding afore elicited demand of bribe reported by PW13 to PW6 crumbled on ground when PW13 did not whisper of happening of any such event on her visit to the office of arraigned accused. Per contra, PW13 testified that on her visit to the office of Service Tax Department she met A1 who told PW13 that one copy of each of Service Tax Returns of Iris Cabs were required by them. As per PW13, 15 or 20 days later to the aforesaid visit, when she went to the office of A1, she gave him copies of Service Tax Returns of financial years 200910, 201011 and 201112 of Iris Cabs which were checked by A1 and then A1 told PW13 that the tax deposited by them was not fully deposited and was incomplete. A1 told PW13 about Cenvat Credit and Service Tax which aspects PW13 could not properly understand, so A1 told PW13 to send her senior to talk regarding the Service Tax. Despite having been cross examined at length by Ld. PP for CBI, PW13 did not support the case of prosecution in any manner regarding fact of alleged demand of bribe sum of Rs 1.5 lacs by A2. PW13 stated that she did not meet A2 in Service Tax office on any occasion.
74. Admittedly, PW6 had no other source of alleged demand of bribe by arraigned accused except the version of PW13. When PW6 went to office of CBI and gave his complaint Ex PW6/A (D2) on 27/12/2012 then PW6 did not take PW13 along with him nor any officer concerned of CBI insisted for enquiry from PW13 regarding alleged RC No. DAI2013A0001 CC No. 49/13 48/97 CBI vs L.N Meena & Other demand of bribe by arraigned accused.
75. Verification memo Ex PW6/B (part of D3) inter alia embodies the averments that after PW6 returned back to CBI office on 27/12/2012, he informed Verifying Officer PW11 that from his office A1 took him to JLN Metro Station to meet A2 to settle the matter with him; at Metro Station during negotiation, the suspect officers i.e., A1 and A2 agreed to lessen their demand to Rs. 1,00,000/ for settlement of the matter besides which A1 and A2 insisted for settling the matter and told that the delay in settlement would cause harassment to PW6, after which leaving arraigned accused at said Metro Station, PW6 had returned back to CBI office. Ex PW6/B also finds mention that the verification proceedings started at 11.30 am on 27/12/2012 and were concluded at about 1.30 pm that day and it was signed by PW6, PW11 and PW18. In terms thereof aforesaid meeting of PW6 with A1 and A2 on 27/12/2012 took place in the period between 11.30 am to 1.30 pm.
76. In the course of his cross examination on 17/01/2014, PW6 elicited that in between 2.30 pm and 3.30 pm on 27/12/2012 they had entered the building of office of accused and after DVR was given to him he had entered the office of accused at 7 th floor. Before aforesaid time, there had been no occasion nor PW6 had ever met any of the two accused previously i.e., prior to 27/12/2012. PW6 had also elicited that after he met A1, PW6 was made to sit and A1 had a look at the file of RC No. DAI2013A0001 CC No. 49/13 49/97 CBI vs L.N Meena & Other their case; after half an hour or 45 minutes, A1 asked PW6 to accompany him to the Metro Station to meet A2 where A2 joined them in five minutes. As per PW6, A1 then asked A2 to explain the case and the settlement to PW6 and that PW6 was not interested in pursuing with the case and would prefer a settlement. PW6 had also deposed that on their way from office to Metro Station, A1 kept hampering on the point that if they do not settle the case, there could be huge penalties to the extent of Rs. 18 lacs and number of litigation and notices will be started. As per PW6, then A2 mentioned that the case had been pending for a long time and PW13 has not been able to understand the seriousness of the matter whereas A2 was under a lot of pressure from his seniors to issue notice around Diwali but A2 had already delayed, so he cannot delay it any further. As per PW6, then A2 asked him (PW6) if PW13 had communicated the requirement to PW6 upon which PW6 told A2 that PW13 mentioned Rs. 1,50,000/ but this was a very high amount since their error was only Rs. 25,000/ but then A2 kept saying that "you are looking at the figure as Rs. 25,000/ but the Department looks at the figure as Rs. 18 lacs, Rs. 9 lacs and Rs. 2.5 lacs". PW6 further stated that the final negotiation amount between A2 and PW6 was decided at a bribe of Rs. 1 lac to be paid on 4 th or 5th of January 2013. Also was testified by PW6 that during negotiation, A1 also kept putting pressure every now and then saying please decide quickly because he had to proceed for another meeting. All these elicited facts in deposition of PW6 accordingly are material improvements, additions as well as in RC No. DAI2013A0001 CC No. 49/13 50/97 CBI vs L.N Meena & Other contradiction with the facts embodied in verification memo Ex PW6/B dated 27/12/2012. Even in statement Ex PW6/DC under Section 161 Cr.P.C dated 18/01/2013 PW6 had narrated to IO that he (PW6) had negotiated with A2 telling about their financial problem. In deposition in Court PW6 stated that he negotiated with the plea that their error was only of Rs. 25,000/ but did not say of the plea for negotiation to be of any kind of financial problem while rest of the facts in deposition elicited above do not form part of statement Ex PW6/DC and verification memo Ex PW6/B. Verification memo Ex PW6/B embodies the fact that it was during negotiation with A1 and A2, both the accused A1 and A2 had agreed to lessen their demand to Rs. 1 lac for settlement of the matter whereas in his deposition PW6 no where testified of any participation of A1 in any negotiation of bribe sum. PW6 had also testified that he had returned back to CBI office on 27/12/2012 at 4 pm after which he had handed over the DVR containing recordings of the conversations of verification proceedings which were later transferred to CD Ex PW11/C3 (Ex Q1). As per Ex PW6/B, entire verification proceeding concluded at about 1.30 pm on 27/12/2012 and it included handing back of DVR by PW6 on return in CBI office on 27/12/2012 and subsequent playing of DVR containing recorded conversations and thereafter preparation of aforesaid CD Ex PW11/C3 (Ex Q1). If PW6 is to be believed regarding such version of demand, its time then serious doubts arise regarding entire sequence of events contained in Ex PW6/B including conversations inter se PW6 and RC No. DAI2013A0001 CC No. 49/13 51/97 CBI vs L.N Meena & Other accused on 27/12/2012 and later preparation of CD Ex PW11/C3 (Ex Q
1). If verification memo Ex PW6/B is to be believed then the element of falsehood in evidence of PW6 surfaces regarding entire version of demand on part of accused from PW6, the time when such demand of bribe was so made and the manner of such demand of bribe and the negotiation of such demand of bribe. All aforesaid cumulatively casts serious doubts about truthfulness of PW6.
77. In this matter PW18 has been given the tag of shadow witness. PW18 was neither directed by Verifying Officer nor permitted by Verifying Officer PW11 or PW6 to infact shadow PW6 to see PW6 meet any or both accused or hear conversation of PW6 with any or both accused. It is admitted case of prosecution that except PW6 no other witness of prosecution is the witness of alleged demand of bribe by any of the accused from PW6.
78. No CCTV footage from outside/near/inside JLN Metro Station was got retrieved/obtained/filed/proved by officers of investigating agency for any meeting of PW6 with arraigned accused there.
VERIFICATION PROCEEDINGS
79. Verification memo Ex PW6/B inter alia incorporates arrival of PW6 on 27/12/2012 in CBI office and reporting of the matter to SP RC No. DAI2013A0001 CC No. 49/13 52/97 CBI vs L.N Meena & Other CBI. PW11 testified that his SP Sh. Ghanshyam Upadhayay introduced him on 27/12/2012 with PW6 and marked Ex PW6/A to him for verification. PW6 testified that after he met SP in CBI office on 27/12/2012 then SP heard his case and directed him to the DSP and said DSP then called PW11 to his office and introduced PW6 with PW11 and it was thereafter that PW6 narrated the facts to PW11. Whether SP introduced PW6 with PW11 or DSP introduced PW6 with PW11, fact remains that complaint Ex PW6/A (D2) incorporated hear say version of PW6 regarding alleged demand of bribe by arraigned accused for settlement of the matter. Neither PW6 had taken PW13 with him on 27/12/2012 in CBI office nor he was called upon by any concerned officer of CBI to procure presence of PW13 to verify alleged demand of bribe by arraigned accused in the manner narrated in complaint Ex PW6/A (D2). No CBI officer cared to enquire PW13 about hear say facts told to them by PW6 regarding alleged demand of bribe.
80. It is own case of the prosecution that before 27/12/2012 PW6 did not meet any of the CBI officers/officials. It still remains a mystery as to how the officers of ACB of CBI requisitioned services of two employees of Delhi Transport Corporation, I.P Estate on 26/12/2012 or before. PW18 brought on record Ex PW18/A containing written directions of his Manager (Personnel) bearing order number PLD II/CBIDuty/2012/4026 dated 26/12/12 wherein PW18 as well as machinist Sh. Mahender Kumar of DTC, I.P Estate were directed to RC No. DAI2013A0001 CC No. 49/13 53/97 CBI vs L.N Meena & Other attend the office of SP CBI , ACB, New Delhi on 27/12/2012 at 10 am, which was with the approval of the competent authority. PW18 had received such written direction on 26/12/2012 at 5 pm from his Manager (Personnel). PW11 Verifying Officer had only asked the Duty Officer in CBI for arranging independent witness subsequent to receipt of orders of SP on 27/12/2012 for verification. In the afternoon/evening of 26/12/2012, how could officials of ACB CBI, New Delhi perceive before hand the arrival of PW6 in CBI office on 27/12/2012 as none of them were astrologers proven to fore tell events correctly. It depicts that before lodging the complaint Ex PW6/A by PW6 on 27/12/2012, there were some meetings of minds between PW6 and officials concerned of ACB/CBI, which facts stand concealed. As per PW18, vide endorsement at portion A on Ex PW18/A, PW11 had certified that PW18 as well as machinist Mahinder Kumar attended CBI office on 27/12/2012 and remained there till 5.30 pm with the direction that both these officials i.e., PW18 and machinist Mahinder Kumar were also required to attend office of ACB CBI on 04/01/2013 at 10 am for further proceeding in a secret matter. If the proceedings of verification concluded at 1.30 pm as per verification memo Ex PW6/B then there appeared to be no reason for Verifying Officer PW11 to keep PW18 and his fellow employee machinist Mahinder Kumar in attendance in CBI office till 5.30 pm for four more hours.
81. PW18 has been termed as shadow witness in this RC No. DAI2013A0001 CC No. 49/13 54/97 CBI vs L.N Meena & Other prosecution case for name sake. There appeared no intent of Verifying Officer PW11 for actually getting PW6 shadowed by PW18. There was no dearth of pretexts to be made by PW6 to introduce PW18 as his relative/friend/well wisher and want of any such effort on part of concerned officers of investigating agency and PW6 bring the element of suspicion in the process of verification conducted. PW6 had not met any of the arraigned accused prior to his alleged meeting with them on 27/12/2012 in the course of verification proceedings. There appeared to be no reasonable ground for PW6 to suspect that accused would not talk about bribe money in presence of any stranger.
82. In cross examination PW11 admitted that PW6 had shown him a copy of letter issued by Service Tax Department but neither PW11 annexed such copy of letter with verification report nor mentioned it in the report.
83. In the cross examination PW6 admitted of having replied to letter dated 16/10/2012 of Service Tax Department referred in para 1 of complaint Ex PW6/A. PW6 also stated that time was sought in writing from Service Tax Department but no such letter was given to IO PW19 whereas even in examination PW6 stated his inability to produce such letter submitting that they did not maintain such record.
84. PW18 was categorical in his submissions that no paper was RC No. DAI2013A0001 CC No. 49/13 55/97 CBI vs L.N Meena & Other prepared on 27/12/2012. PW18 had accompanied PW11 and PW6 to 7 th floor of office premises of arraigned accused wherein PW6 had entered the office of accused while PW18 with PW11 had kept on waiting. PW11 deposed that he with PW18 had waited in the lift lobby of 7 th floor on 27/12/2012. PW18 stated that they had so waited for about one or one and half hours on 27/12/2012 in the cabin built up at 5 th or 6th floor of the building where office of accused was at 7 th floor. Had PW11 waited in the lift lobby of 7 th floor on 27/12/2012 as aforesaid, then there was no reason for PW11 to have not seen PW6 coming out with A 1 from office room of accused at 7 th floor. PW18 also elicited that he had signed CD Ex PW11/C3 (Ex Q1) on 04/01/2013 on return back from spot to CBI office.
PRETRAP PROCEEDINGS:
85. TLO PW16 deposed that PW6 met him at 11.30 am on 04/01/2013, then he (PW16) with PW6, PW11 met his SP and discussed the matter where it was decided to lay a trap to catch A1 and A2 red handed while demanding and accepting the bribe. As per PW16, then presence of PW10 and PW18 was secured.
86. Ex PW18/A at portion A contained the endorsement of PW11 of 27/12/2012 in terms of which PW18 and machinist Mahender Kumar of DTC were directed being required to attend office of ACB, CBI, New Delhi at 10 am on 04/01/2013 for further proceedings in a RC No. DAI2013A0001 CC No. 49/13 56/97 CBI vs L.N Meena & Other secret matter, as has been elicited previously in this judgment also.
87. Both PW10 and PW18 testified that they had reached CBI office on 04/01/2013 at around 10 am. PW18 stated that on reaching CBI office at around 10 am he went to office of PW11 on 04/01/2013 where he (PW18) and PW10 were asked to sit and have tea, so they sat in another cabin. PW18 as well as PW10 deposed that at around 1 pm PW6 came, had talks with PW11.
88. Handing over memorandum Ex PW6/C (D4) incorporated of start of pretrap proceeding on 04/01/2013 at 11.45 am which concluded at 2.45 pm that day.
89. As per PW16, he constituted trap team, showed them complaint, copy of FIR, verification report and explained purpose of assembly. PW11 did not say that complaint, copy of FIR were shown to trap team members. Even PW10 denied of having been shown or read over the complaint. As per PW6, on 04/01/2013 he went to CBI office in morning and met PW11 and then PW10 and PW18 were with PW11 where case was explained to PW10 and PW18 in which process some more officers of CBI had joined them. Neither PW10 nor PW18 deposed so or of such facts in any other way.
90. PW6 deposed that in between 12 noon to 1 pm on RC No. DAI2013A0001 CC No. 49/13 57/97 CBI vs L.N Meena & Other 04/01/2014 he had gone from CBI office to HDFC Bank, Sunder Nagar Branch, New Delhi for withdrawal of cash for trap money and in said period he also returned back. As per PW18, when around 1 pm on 04/01/13 PW6 came and had talks with PW11 then PW6 took out Rs 20,000/ and 2/3 cheques from his pocket but then PW11 told that these cheques will not serve the purpose upon which PW6 went out of CBI office and returned after 1 or 1¼ hours in CBI office and showed brought 100 GC notes of Rs 1,000/ each to PW11 whose summary PW11 made on computer by writing numbers of such GC notes brought.
PW10 asserted that PW6 was having Rs 20,000/ only with him and though later PW6 brought more cash but PW10 categorically denied of PW6 having brought and given Rs 1 lac to any trap team member of CBI to be used as bribe money. PW16 and PW11 categorically denied of PW6 having gone away from CBI office in pretrap proceedings for any purpose including bringing of trap money.
91. As per PW16, PW6 produced GC notes Ex GCN/1 to Ex GCN/100 whose numbers were recorded in Ex PW6/C (D4).
92. Whereas TLO PW16 and PW11 deposed of demonstration given by SI A.K Maurya regarding application of phenolpthalein powder on GC notes and reaction of said powder in solution of sodium carbonate and water making said solution pink, after that PW10 had touched tainted notes on direction and had dipped his finger in the solution of sodium RC No. DAI2013A0001 CC No. 49/13 58/97 CBI vs L.N Meena & Other carbonate and water. PW6 testified that another officer (not A.K Maurya) gave demonstration regarding such application of phenolpthalein powder. PW18 as well as PW10 all together denied of any such demonstration having been given by SI A.K Maurya regarding such application of phenolpthalein powder on GC notes or its reaction in solution of sodium carbonate and water. PW10 stated that he did not touch tainted GC notes nor dipped his fingers in any freshly prepared solution of sodium carbonate and water or such water having turned pink.
93. TLO PW16 deposed that personal search of PW6 was conducted and he was allowed to carry only his mobile phone and that tainted GC notes Ex GCN/1 to Ex GCN/100 were put in right side pant pocket of PW6 by PW10. None amongst PW6 and PW18 narrated such fact. Per contra, PW6 testified that when the trap team members including himself left CBI office towards Service Tax office of accused, then at that time tainted GC notes Ex GCN/1 to Ex GCN/100 were with one of CBI officers.
94. As per PW6, CBI Officer namely Mr. Maurya had prepared the list of serial number of GC notes with PW10, which fact is per contra to afore elicited version of TLO PW16 and averments of Ex PW6/C (D4).
RC No. DAI2013A0001 CC No. 49/13 59/97
CBI vs L.N Meena & Other
95. Ex PW6/C (D4) embodied the fact of direction given to PW6 to not to touch the tainted bribe amount after they were kept in right side pant pocket of PW6 by PW10. None amongst PW10, PW16 and PW18 deposed of said fact.
96. PW16 deposed that during pre trap proceeding, PW6 received a call on his mobile phone from mobile phone of A2 where A 2 had asked PW6 when PW6 would be coming which call conversation was heard by all present as mobile phone of PW6 was on loudspeaker mode and was recorded in the DVR. PW10 did not whisper of any such call received by PW6 from mobile phone of A2 during pre trap proceeding or having heard any such conversation inter se PW6 and A2 or it being recorded in DVR in his presence. Even TLO PW16 did not say that in the said call conversation PW6 told A2 that he would be coming in about 45 minutes.
97. PW11 testified that introductory voices of PW10 and PW18 were taken in the DVR after ensuring its blankness. As per handing over memorandum Ex PW6/C (D4) such introductory voices of PW10 and PW18 were so recorded after the call conversation of PW6 and A2 in respect of call received by PW6 on his mobile phone from mobile phone of A2 at about 2.20 pm. Even Ex PW6/C (D4) finds mention that the introductory voices were recorded in the blank DVR make Sony. As per testimonies of PW16, PW11 and averments in Ex PW6/C (D4), before RC No. DAI2013A0001 CC No. 49/13 60/97 CBI vs L.N Meena & Other introductory voices of PW10 and PW18 were recorded in DVR, the recording of afore said call conversation between PW6 and A2 was not transferred from DVR to any CD/other device. So necessary corollary of such version of PW16, PW11 and Ex PW6/C (D4) is that at the time of recording of introductory voices of PW10 and PW18 in DVR there existed no other prerecorded conversation in said DVR including the herein before elicited earlier recordings of call conversation of PW6 and A2 and/or of verification proceedings. If that is so then the existence of audio file at serial number 1 bearing number 130104_001 containing alleged recordings of aforesaid call conversation inter se PW6 and A2 in the CD Ex PW14/B3 (Ex Q2) becomes suspicious reflecting all reasonable possibility of addition of said audio file therein from some where else since only on return back from trap later in the evening/night of 04/01/2013 from recordings in DVR allegedly CD Ex PW14/B3 (Ex Q2) was prepared.
98. Per contra to version of Ex PW6/C (D4), PW16 did not testify of handing over of DVR to PW6 after recording of introductory voices of PW10 and PW18 with direction to switch "ON" the same after reaching the spot to record likely conversation between him and accused, which all facts find place in Ex PW6/C (D4). Even PW6, PW10 and PW18 did not testify of handing over of the DVR to PW6 in CBI office before leaving for trap with aforesaid directions later to recording of introductory voices of PW10 and PW18.
RC No. DAI2013A0001 CC No. 49/13 61/97
CBI vs L.N Meena & Other
99. PW6 deposed that remnants of phenolpthalein powder were kept in its container after collection but could not specify who retained it. PW6 could not specify whether he signed any paper in CBI office before leaving for trap.
100. Ex PW6/C (D4) inter alia finds mention that trap team members excepting PW6 mutually searched each other before leaving for trap. Per contra to such version of Ex PW6/C (D4), PW16, PW10 and PW18 did not testify of any such mutual search conducted by trap team members before leaving for trap. No list of articles taken or received from PW10, PW18 and PW6 on account of their search, if any, taken before leaving CBI office was prepared by either PW16 or any other trap team member.
101. PW16 elicited that approximately 5 to 10 grams phenolpthalein powder was requisitioned and 2 to 3 grams of phenolpthalein powder was sent back but no document was prepared for such issuance/deposit back of phenolpthalein powder from/in Malkhana, ACB, CBI. Even though DVR was allegedly arranged from Caretaker CBI, ACB, New Delhi but neither any requisition was sent for getting DVR issued nor any writing work was done by the issuing official nor was relied upon nor was proved in prosecution evidence.
RC No. DAI2013A0001 CC No. 49/13 62/97
CBI vs L.N Meena & Other
102. PW16 blowed hot and cold in the same breath when
initially he stated that mobile numbers given to PW10 and PW18 were mentioned in recovery memo Ex PW6/D (D5) but immediately thereafter PW16 again said it were mentioned in the handing over memorandum Ex PW6/C (D4) but they found no mention in either handing over memorandum Ex PW6/C (D4) or in recovery memo Ex PW6/D (D5).
103. PW18 testified that in the pretrap proceedings after he had seen giving of brought GC notes by PW6 to PW11 whose summary was made by PW11 on computer then PW18 sat in another cabin since he had undergone surgery previously and PW18 did not whisper of (1) any demonstration of reaction of phenolpthalein powder; (2) personal search of PW6; (3) putting of tainted GC notes in pant pocket of PW6 by PW10; (4) any direction given to PW6; (5) recording of call conversation between PW6 and A2 of call received from mobile phone of A2 on mobile phone of PW6, in DVR; (6) recording of introductory voices of PW10 and PW18; (7) washing of hands by trap team members; (8) directions to PW18 to act as shadow witness; (9) directions to PW6 and PW18 to give signal by rubbing face by both hands and/or to give calls from their mobile phone to TLO PW16 or PW11 after transaction was over; (10) mutual search by trap team members; (11) arrangement of trap kit i.e., leather bag, as well as (12) signing on Ex PW6/C (D4) in pretrap proceedings. PW18 stated that he did sign Ex PW6/C (D4) but RC No. DAI2013A0001 CC No. 49/13 63/97 CBI vs L.N Meena & Other it was on return back to CBI office later to trap on 04/01/2013 but yet he was not explained of the contents of the same.
104. PW18 was unable to say whether GC notes Ex GCN/1 to Ex GCN/100 were the same GC notes which were brought by PW6. PW18 elicited that conversation between PW6 and A2 on mobile phone done in pretrap proceeding on 04/01/2013 was not done in his presence. PW18 all together denied of having given statements Ex PW18/PA dated 15/01/2013 and Ex PW18/PB dated 06/02/2013, both under Section 161 Cr.P.C to IO. PW18 elicited that no typing work was done in his presence on 04/01/2013 in the cabin of CBI office where he was seated.
105. PW10 testified that he did not knew what pretrap proceedings were done by PW11 but their signatures were obtained on several papers which were prepared by PW11 after working on computer. PW10 elicited that voice samples were taken on return to CBI office from trap later and not before leaving CBI office for trap. PW10 also denied of having given any statement to any CBI officer but stated that he was only enquired. PW10 categorically denied of giving of any directions to PW6 and PW18 by TLO PW16 or by any other trap team members, in the course of pretrap proceedings.
RC No. DAI2013A0001 CC No. 49/13 64/97
CBI vs L.N Meena & Other
TRAP PROCEEDINGS
106. Recovery memo Ex PW6/D (D5) inter alia finds mention that after the trap team reached at around 3 pm on 04/01/2013 near building of office of accused located at 7th floor, Block No. 11, CGO Complex, Lodi Road, New Delhi, at ground floor vehicles were parked at some distance and then the DVR was given to PW6 in switch "ON" mode. Per contra to such averment, PW16 TLO testified that the said DVR was given to PW6 in switch "OFF" mode before entering room number 710 where A1 and A2 used to sit. Per contra to presented case of prosecution, PW16 stated that PW18 remained present in corridor while PW6 entered office room of accused at 7 th floor whereas other trap team members took position in canteen which was opposite to office room number 710 of arraigned accused. Also per contra to case of prosecution, PW16 did not say that on coming out of room number 710, PW6 with A1 and A2 entered lift to go down to ground floor of the building but instead deposed that PW6 with A1 and A2 seen coming out of room number 710, upon which CBI team followed them and they walked towards parking area of CGO Complex and PW6 sat on middle seat of Scorpio car whereas A1 and A2 sat on front seat of Scorpio car.
107. PW6 had different version to narrate. PW6 testified that when they reached CGO Complex at 3 pm, which was at distance of 200 metres from CBI office, then PW6 was dropped outside there and GC notes Ex GCN/1 to Ex GCN/100 were put in left pocket of worn jacket of RC No. DAI2013A0001 CC No. 49/13 65/97 CBI vs L.N Meena & Other PW6 by one of the CBI officer. Also PW6 testified that one CBI official kept voice recorder in "ON" mode in right pocket of his (PW6) jacket at said place, from where he (PW6) first proceeded to Metro Station and from the Metro Station PW6 made call from his mobile phone to A2 asking him if he (PW6) should come to office of A2 or wait at Metro Station outside CGO Complex. As per PW6, in said call conversation A 2 asked PW6 to come to his office. All such narration of facts by PW6, elicited above, are introduction of new facts which are not only in material contradiction with the presented facts of prosecution case but at complete variance from sequence of events narrated by other material witnesses on this count.
108. PW6 further deposed that from Metro Station, outside CGO Complex, he went to office of accused with CBI team and PW10, PW18 accompanied him till office door of A1 and A2. PW6 stated that he entered the office of A1, A2 in between 3 pm to 3.15 pm on 04/01/2013 and sat with A1, A2 for half an hour, had talks with arraigned accused which were not official after which A1 and A2 got up and asked PW6 to accompany them. PW6 elicited in the cross examination of Ld. Counsel for accused that while he was sitting with A2 in his office for about half an hour then A2 opened the file and explained to PW6 the amount of tax liability but during said period A2 had not demanded any money from PW6 including any amount due as tax liability from PW6. Again, such version is per contra to version of RC No. DAI2013A0001 CC No. 49/13 66/97 CBI vs L.N Meena & Other PW6 testified in his examination in chief wherein he says that talks between him and arraigned accused which took place in said half an hour in office room of arraigned accused on 04/01/2013 were not official.
109. PW6 testified that after sometime he with A1, A2 came out, boarded lift and besides them some officials of CBI also boarded the lift and they went to ground floor from 7 th floor and there A1, A2 led PW6 to parking and then to white coloured Scorpio car having number DL3....1469. As per PW6, in said car after about 5 minutes, A1 asked PW6 to hand over the cash to A2, which PW6 complied and handed over tainted GC notes Ex GCN/1 to Ex GCN/100 with his right hand to A2 which A2 accepted with his right hand and kept them on the gear console of Scorpio car. PW6 elicited that at that time A2 was on driver seat and A1 was on the front seat next to driver seat and PW6 was on the rear middle seat of the Scorpio car.
110. In this entire sequence of events, PW18 termed as the shadow witness of prosecution, was kept at bay from visualizing or hearing the sequence of events happening inside the office of arraigned accused A1 and A2, by not being permitted to accompany PW6 in lift from 7th floor to ground floor and thereon to the parking and in the parking inside the Scorpio car. Why then PW18 has been termed by investigating agency/prosecution as shadow witness? Infact PW18 did RC No. DAI2013A0001 CC No. 49/13 67/97 CBI vs L.N Meena & Other not shadow PW6 during verification proceeding or during trap proceeding in entirety. It so appears that for merely completing the name sake formality PW18 has been termed as shadow witness. PW18 testified that when they reached at around 3.30 pm on 04/01/2013 all trap team members went to 7th floor of office of Income Tax/Sales Tax where he (PW18), PW10 and other CBI officials sat in canteen on 7 th floor but PW18 did not knew where PW6 had gone. After PW18 had been sitting in canteen for 4045 minutes, as per PW18, one CBI official made gesture of calling upon, after which PW18 saw that PW6, PW11, 5/6 other CBI officials and perhaps A1 entered lift at 7 th floor, there was no space left in the lift. PW18 further narrated that he (PW18), PW10 and 1/2 other CBI officials came down from stairs and downstairs they all collected but A1 was not amongst the collected persons there. PW18 stated that he saw PW6, A1 and A2 proceeding ahead towards parking. PW18 deposed that after 10/15 minutes, CBI officials called "Aao Aao Phone aaya hai aao" upon which they proceeded towards parking while PW18 was at the back of all and saw A1, A2 having been apprehended by the CBI officials in the parking and crowd had collected. Feeling pain in back, PW18 got seated nearside pump of the Fire Brigade nearside and did not witness any proceedings thereafter while A1, A2 were taken in a vehicle by CBI officials to CBI office.
111. In cross examination by Ld. PP for CBI, PW18 flatly denied RC No. DAI2013A0001 CC No. 49/13 68/97 CBI vs L.N Meena & Other of any direction given in his presence to PW6 to give tainted GC notes as bribe to A1 and A2 only on demand. PW18 also categorically denied of recovery of any tainted GC notes i.e., bribe sum from car of A 2 or any seizure of tainted GC notes i.e., bribe money in his presence there from. PW18 even could not identify GC notes Ex GCN/1 to Ex GCN/100 to be the same which were brought by PW6. The cited shadow witness PW18 did not saw (1) arraigned accused or PW6 seated in Scorpio car before apprehension or (2) GC notes Ex GCN/1 to Ex GCN/100 lying near gear lever of said car or (3) such GC notes being picked up by PW10 on directions or (4) tallying of such alleged GC notes with noted the numbers of GC notes in the handing over memorandum Ex PW6/C (D4) or (5) accused persons having made to come out from Scorpio car or (6) TLO PW16 having challenged accused in any manner or (7) DVR being taken back from PW6 or (8) taking of any hand wash of arraigned accused or (9) any car wash of Scorpio car having been taken or (10) the Scorpio car having been searched.
112. By his deposition even other arraigned independent witness PW10 gave a big jolt to prosecution case. PW10 testified that after they reached within 1520 minutes of proceeding from CBI Office at around 03.00 pm 03.15 pm on 04/01/2013, accompanied by CBI officials, he (PW10) stood in canteen at 7 th floor in the office premises of accused. As per PW10, they remained in canteen for about 20 minutes and had tea, from where PW11 and other CBI officials sent PW6 to room at 7 th RC No. DAI2013A0001 CC No. 49/13 69/97 CBI vs L.N Meena & Other floor which was at a distance of less than 10 feet from said canteen. PW10 deposed that after 20 minutes, PW6, A1 and A2 entered lift, some CBI officials also entered the lift and they all went down by said lift. PW10 further stated that he (PW10), PW18 and two other CBI officials went running down stairs, came out of building, went towards parking and stood there whereas PW6, A1 and A2 were far ahead of them and PW10 could not see them from downstairs onward. As per PW10, in the parking there were large number of vehicles, at which place PW11 received a call on his mobile phone and then PW11 told them that he received a call of PW6 and asked all of them to rush in parking, upon which they all went running to parking. PW10 elicited that by the time they reached there in the parking, he (PW10) saw A1, A2 apprehended by two CBI officials and at that time then accused were in parking, where vehicles were parked. As per PW10, PW11 was seen calling other CBI officials of rank higher to PW11, saying two persons have been apprehended. It is pertinent to mention that even PW10 did not see PW6, A1 and A2 seated in Scorpio car or accused being challenged in any manner by TLO PW16 or accused being apprehended by their wrist or accused having become perplexed or any DVR being taken back from PW6 and put in switch "OFF" mode. Most importantly, PW10 categorically denied of having picked tainted GC notes Ex GCN/1 to Ex GCN/100, totalling Rs 1 lac i.e., bribe money or having tallied them with the noted numbers of GC notes in the handing over memorandum. Per contra, PW10 testified that CBI officials gave him RC No. DAI2013A0001 CC No. 49/13 70/97 CBI vs L.N Meena & Other money, asking him to count but PW10 did not knew from where CBI officials had procured said money and after counting the such given money, PW10 observed that it was totalling Rs 100000/ in form of 100 GC notes of denomination of Rs 1,000/ each. As per PW10 from said place of parking A1 and A2 were sent to CBI office.
113. In cross examination by Ld. PP for CBI on resiling of PW10, PW10 denied of having came down to ground floor from 7 th floor of office premises of accused, in lift wherein PW6, A1 and A2 had came down. Also PW10 elicited that when they were at main gate of office of accused, accused were ahead of them at distance of 25/30 feet and they maintained such distance by following accused but from there neither PW6 nor A1, A2 were visible. PW10 did not knew where PW6, A1 and A2 went in parking. PW10 categorically stated that accused were near water tank under tree at a distance of 10 feet from parked vehicles in the parking when PW10 reached there after PW11 had told of receipt of call and they went running to parking. PW10 also denied of any hand washes of accused persons and car wash of Scorpio car being taken. In cross examination by Ld. Counsel for A2, PW10 elicited that two minutes later to his reaching place of apprehension of accused, PW11 made call to other officer of CBI, then crowd had collected, two minutes later thereafter other officer of CBI reached at said place.
RC No. DAI2013A0001 CC No. 49/13 71/97
CBI vs L.N Meena & Other
114. PW11 has a different version, saying on reaching 7 th floor of office premises of accused at around 3 pm on 04/01/2013 DVR was given to PW6 on "ON" mode. As per PW11, at about 3.44/3.45 pm on 04/01/2013 he received missed call on his mobile phone from mobile phone of PW6 confirming transaction of bribe money, upon which PW11 alerted other team members and rushed towards car. Now PW11 had introduced another new facet to the matter deposing that he (PW11) and SI A.K Maurya reached first and directed A2 to open Scorpio car, upon which A2 unlocked car and by that time other trap team members thereafter also reached there and after that TLO PW16 challenged accused persons of taking bribe from PW6 after which A1 and A2 did not offer any explanation. Reaching of PW11 and SI A.K Maurya together but before other trap team members near Scorpio car and giving of any aforesaid directions by PW11 to A2 to open car and A2 unlocking the car are facts which find no place in recovery memo Ex PW6/D (D5) or any other document of prosecution or testimony of TLO PW16 or of PW6, PW10 and PW18.
115. As per PW11, after arraigned accused were caught by their hands then PW10 was asked to recover bribe money lying near gear lever of car and it was thereafter that DVR was taken back from PW6 and switched "OFF" after which PW10 was asked to tally recovered GC notes from number of GC notes noted in the handing over memorandum Ex PW6/C (D4). PW16 deposed that PW10 was directed to pick up GC RC No. DAI2013A0001 CC No. 49/13 72/97 CBI vs L.N Meena & Other notes from the car which PW10 picked up and while such notes were tallied, in the meantime DVR was taken back from PW6 and was put to "OFF' mode. Even PW16 did not whisper of A1, A2 having become perplexed nor offered any explanation after he had challenged them for demanding and accepting bribe of Rs 1 lac from PW6. So in terms of version of PW11 all conversations regarding apprehension of accused, asking PW10 to recover bribe money lying near gear lever of car as well as earlier challenge by TLO PW16 of accused of taking bribe from PW6 before apprehension are such facts which should all find place in the recorded conversations, copy of which is in CD Ex PW14/B3 (Q2). Strangely enough all these elicited facts find no place in the recorded conversation in CD Ex PW14/B3 (Q2). PW6 in his entire testimony did not whisper of any challenge to arraigned accused by TLO PW16 for demand and acceptance of bribe of Rs 1 lac from him (PW6) nor of any reaction of A1, A2 to have become perplexed nor of the fact of inability of A1 and A2 to offer any explanation, per contra to presented case of prosecution. It opens up two possibilities. First that tamperings, manipulations, additions and deletions were made in the original recordings of DVR and facts supposed to be contained in CD Ex PW14/B3 (Q2) in terms of elicited version of PW11 find no place in said CD. Second possibility is falsehood in the version of PW11. In any of the events, it is the credibility or truthfulness of prosecution case which is put at stake.
RC No. DAI2013A0001 CC No. 49/13 73/97
CBI vs L.N Meena & Other
116. PW6 did not elicit that in the parking i.e., the place of
occurrence he had narrated any sequence of events to TLO PW16 or other trap team members. PW6 was also silent regarding sending of any authorisation for search at residences of A1 and A2, per contra to presented case of prosecution.
117. In terms of Ex PW6/D (D5), the arrest of the A1 and A2 at 18:00 hours and 18:10 hours in CBI office took place after play of recorded conversation in DVR which was heard by all present and preparation of CD Ex PW14/B3 (Ex Q2), obtaining of signatures of PW10 and PW18 on said CD and sealing of said CD. Per contra, TLO PW16 testified that on reaching CBI office on 04/01/2013 after the trap, A1 and A2 were arrested at 1800 hours and 1810 hours respectively vide separate arrest memos Ex. PW 16/D (D9 of supplementary charge sheet) and Ex. PW 16/E (D10 of supplementary chargesheet) and personal search of A1 and A2 was conducted vide Mark P10/6 (D11 of supplementary chargesheet) and Mark P10/7 (D12 of supplementary chargesheet); thereafter DVR containing recording of trap proceeding was played and heard, recording there from were transferred in CD Ex PW14/B3 (Ex Q2) with aid of laptop, such CD was signed by PW6, PW10, PW16 and PW18 and after preparation of investigation copy of CD Ex PW14/B3 (Ex Q2), said CD was sealed. As per PW16, beside that specimen voices of A1 and A2 were recorded in separate CDs Ex PW14/C3 (Ex S1) and Ex PW14/D3 (Ex RC No. DAI2013A0001 CC No. 49/13 74/97 CBI vs L.N Meena & Other S2) after recording of introductory voices of PW10 and PW18 after which one copy of each such CD for investigation was prepared and these CDs were sealed.
118. TLO PW16 neither mentioned in Ex PW6/D (D5) words spoken in course of challenge of A1 and A2 before their apprehension in the course of trap nor could elicit them in the course of his examination but could simply say he mentioned the gist of such words spoken in Ex PW6/D (D5). In the recorded conversations in CD Ex PW14/B3 (Ex Q2) there is no such recording of any such words spoken by TLO PW16 challenging A1 or A2.
119. TLO PW16 also testified that A1 and A2 accepted bribe of Rs 1 lac from PW6 for favouring him in official act i.e., by that act PW6 could have evaded payment of penalty of Rs 18 lacs payable in terms of complaint. PW16 was evasive and did not reply about any role of A2 in such aforesaid official act nor could specify what official act was to be done by arraigned accused against bribe of Rs 1 lac.
120. PW16 admitted that from outside canteen or inside canteen at 7th floor of office premises of accused nothing inside of office room of A1, A2 was visible and that independent witness could not see the happening inside the said office room of A1 and A2. No rough site plan depicting location of canteen and office room of A1 and A2 at 7 th RC No. DAI2013A0001 CC No. 49/13 75/97 CBI vs L.N Meena & Other floor of office premises of A1 and A2 was prepared, for reasons best known to TLO PW16 and IO PW19 for which no reasonable explanation was tendered.
121. PW6 deposed that half the CBI team with A1 and A2 went to CBI office, whereas few CBI officials, PW10, PW18 and PW6 went to office of accused persons and in said office, search was conducted by CBI officers and a file Ex PW10/A (D10) of their department pertaining to his company and one or two mobile phones were recovered and seized. PW4 Superintendent in Service Tax office is witness to aforesaid search and seizure. PW6 further stated that thereafter they went to CBI office where a document Ex PW6/D (D5) regarding trap proceedings etc. was prepared and recorded conversation from DVR was copied to CD Ex PW14/B3 (Ex Q2) with laptop. As per PW6, he, PW11 and 2/3 CBI officers and one independent witness had reached back to CBI office at around 6 pm. PW6 then got seated in one cubicle in CBI office with PW10 and PW18 till 10 pm and CBI officials were roaming around.
122. As per PW18 from the parking place he (PW18), PW10, PW11 and 1/2 CBI officials went to office of A1 and A2 where on search a file Ex PW10/A (D10) was searched and seized and every page of said file was signed by PW10 and PW18. As per PW18, thereafter they went to CBI office where he had found four bottles wrapped in the cloth on which he signed in CBI office while sitting in cabin and PW18 RC No. DAI2013A0001 CC No. 49/13 76/97 CBI vs L.N Meena & Other saw these bottles being sealed in CBI office from distance of 15/20 feet.
123. On resiling, PW18 was cross examined at length by Ld. PP for CBI. Not only PW18 denied of having given statements under Section 161 Cr.P.C Ex PW18/PA dated 15/01/2013 and Ex PW18/PB dated 06/02/2013 to IO of CBI but also denied of facts of searching of Scorpio car at the parking below office premises of accused as well as of any recovery of bribe money of Rs 1 lac and mobile phone from such car search. PW18 elicited that on return from spot to CBI office on 04/01/2013 he signed Ex PW6/D (D5), Ex PW16/A (D6) i.e., car search cum seizure memo as well as rough site plan Ex PW6/E (D8) which documents were prepared in CBI office on return back from spot. PW18 testified that in his presence neither recorded conversation was heard nor transcript Ex PW6/F (D15) was prepared but he simply signed the documents on asking of CBI officials. PW18 denied of the fact of play of investigation copy of CD Ex PW14/B3 (Ex Q2) by IO PW19 on computer on 06/02/2013 as well as of fact of identification of his voice and voices of A1, A2 by PW6 confirming conversations of 27/12/2012 and 04/01/2013 qua transcript Ex PW6/F (D15) and Voice Identification cum Transcription memo Ex PW6/G (D16). PW18 elicited that bottles Ex PW6/W1 to Ex PW6/W5 were sealed in CBI office where PW18 signed on the paper slips as well as wrappers Ex PW16/F1 to Ex PW16/F5 on return back from spot in CBI office. Also PW18 testified that he signed on cloth pieces Ex PW14/B1, Ex RC No. DAI2013A0001 CC No. 49/13 77/97 CBI vs L.N Meena & Other PW11/C1; inlay cards/covers Ex PW14/B2, Ex PW11/C2 as well as CDs Ex PW14/B3 (Ex Q2) and Ex PW11/C3 (Ex Q1) only on return in CBI office post trap on 04/01/2013. PW18 stated that he was not permitted to read transcript Ex PW6/F (D15). No conversation between A2 and PW6 on 04/01/2013 took place in presence of PW18. On return from spot on 04/01/2013 in CBI office voice sample of PW18 was taken thrice in CBI office, as per PW18. PW18 also testified that no typing work was done on 04/01/2013 in his presence in a cabin where he was got seated. Also PW18 stated that on being shown documents written in English, he (PW18) was not able to say their purpose etc., meaning thereby that PW18 was not well conversant in English.
124. Regarding reaching in CBI office post trap and proceedings conducted there, PW10 has altogether different version. PW10 stated that they all trap team members came back to CBI office and reached there at around 9 pm or 9.30 pm on 04/01/2013, where on several papers/bottles signatures of PW10 and PW18 were obtained by CBI officers and said bottles were containing red water and found kept in CBI office but PW10 was not knowing from where said bottles came from. PW10 stated that on return to CBI office his voice as well as voice of PW18 was recorded in recording device and he (PW10) left CBI office at about 10.40 pm. PW10 also denied of display of voice recording on 06/02/2013 or such voice recording being compared and matched with transcript Ex PW6/F by PW10. PW10 denied of having given any of the statements Mark P RC No. DAI2013A0001 CC No. 49/13 78/97 CBI vs L.N Meena & Other 10/1 dated 16/01/2013 and Mark P10/2 dated 06/02/2013 to IO PW19. PW10 feigned ignorance of contents of Ex PW6/C (D4), Ex PW6/D (D
5), Mark P10/3 (D6) and Ex PW4/A (D7). PW10 stated that neither documents were read over to him nor he was permitted to read documents on which his signatures were obtained. PW10 testified that rough site plan Ex PW6/E (D8) was prepared in CBI office.
125. PW11 claimed that he prepared Ex PW4/A (D7) i.e., office search cum seizure memo. In cross examination by Ld. Counsel for A1, PW11 elicited that perhaps SI Arjun Maurya had given DVR to PW6 on reaching 7th floor of office premises of accused on 04/01/2013 and since PW11 had not given such DVR to PW6 then nor he had put it in "ON" mode, so PW11 did not knew who had put DVR in "ON" or "OFF" mode or whether DVR was "ON" after recording of introductory voices of witnesses in CBI office on 04/01/2013. PW11 stated that PW10 was in gallery while other trap team members were in canteen when PW6, A1 and A2 moved out from their office room on 04/01/2013 after which six trap team members including PW6, besides A1, A2 came down by lift on 04/01/2013. Per contra to version of PW18, PW11 deposed that PW18 was also in lift then whereas 12 other persons were also in lift. In cross examination by Ld. Counsel for A1, PW11 elicited that when he (PW11) and SI Arjun Maurya reached in parking after received missed call then PW10 was at distance of 3040 metres from PW11 whereas PW18 was at distance of 100 metres from PW11 while RC No. DAI2013A0001 CC No. 49/13 79/97 CBI vs L.N Meena & Other Inspector M.P Singh and Inspector Shitanshu were at distance of 1015 metres from PW11. As per PW11, it was SI Arjun Maurya who pointed out tainted money i.e., GC notes Ex GCN/1 to Ex GCN/100 in Scorpio car at that time while PW6 had told by signal to SI Arjun Maurya about it. PW11 admitted that at no point of time after they reached near car of accused they had seen bribe money in hand(s) of either of accused.
126. In cross examination PW11 elicited that DVR having recorded conversation Ex PW14/B3 (Ex Q2) was displayed in his presence before said conversation was transferred into CD Ex PW14/B3 (Ex Q2) but said CD Ex PW14/B3 (Ex Q2) was not displayed in his presence. PW11 further elicited that PW10 and PW18 were present when recorded conversation was transferred from DVR to CD Ex PW14/B3 (Ex Q2). PW6 did not whisper of playing of DVR in CBI office on return after trap to CBI office.
127. It is admitted case of PW16 and prosecution that recovery memo Ex PW6/D (D5) and arrest memos Ex. PW 16/D (D9 of supplementary chargesheet) and Ex. PW 16/E (D10 of supplementary chargesheet) of A1 and A2 were prepared in CBI office and the recordings in DVR were transferred in CD Ex PW14/B3 (Ex Q2), on return from trap. In terms of version of independent witnesses PW10 and PW18 not only aforesaid documents including Ex PW6/D (D5) were prepared in CBI office but bottles Ex PW6/W1 to Ex PW6/W5, of RC No. DAI2013A0001 CC No. 49/13 80/97 CBI vs L.N Meena & Other hand washes of A1, A2 and car wash were sealed in CBI office and besides that car search cum seizure memo Ex PW16/A (D6) was prepared in CBI office on reaching back on 04/01/2013. In case of 'Mustkeen @ Sirajudeen vs. State of Rajasthan' reported in (2011) 11 SCC 724 it was reiterated by the Apex Court that if the recovery memos were prepared at the police station itself then the same would loose their sanctity, as was held by the Apex Court in case of 'Varun Chaudhary vs State of Rajasthan,' reported in (2011) 12 SCC 545.
128. In terms of presented case of prosecution if the search of office of A1 and A2 could be conducted from 4.25 pm to 5.15 pm on 04/01/2013 in a cordial manner in terms of Ex PW4/A (D7) i.e., office search cum seizure memo and said memo having been prepared there then there was no impediment for conducting remaining trap proceedings including preparation of recovery memo Ex PW6/D (D5) and transferring recorded conversation from DVR to CD Ex PW14/B3 (Ex Q2) etc. in the office premises of arraigned accused in a cordial manner commensurate to proceedings of aforesaid office search, even if the crowd had started to gather at the place of apprehension of arraigned accused. Instead of concluding the trap proceedings in a fair manner/cordial manner, in the office of arraigned accused, before even office search of arraigned accused A1 and A2, these accused A1 and A2 were sent to CBI office and preparation of vital documents including RC No. DAI2013A0001 CC No. 49/13 81/97 CBI vs L.N Meena & Other recovery memo Ex PW6/D (D5) and vital proceedings of transfer of recordings from DVR to CD Ex PW14/B3 (Ex Q2) were done in the office of CBI. Totality of the elicited facts suffice to put shadow over fairness of concerned officers of investigating agency making recovery memo Ex PW6/D (D5) loose its sanctity, in terms of law laid in the case of Mustkeen @ Sirajudeen (supra) and Varun Chaudhary (supra).
129. PW6 testified that he had received the information of receipt of letters Ex PW5/DB dated 28/02/2012 and Ex PW5/DC dated 04/04/2012 in his company regarding which PW13 had gone to Service Tax Department and deposited the documents required vide said letters but PW6 was unable to produce or show any acknowledgment or receipt of deposit of such documents in response to Ex PW5/DB and Ex PW5/DC, despite opportunity. PW6 admitted that letter PW6/DA/A1 dated 18/12/2012 was received in registered office of his company. PW6 also elicited in cross examination that he had paid the service tax liability to the tune of about Rs 33,000/ in the month of January 2013 but no document to that effect was shown by PW6. PW6 denied to have lodged the false complaint Ex. PW6/A (D2) in order to evade service tax liability.
130. DW1, Additional Commissioner in Chief Commissioner Office of Central Excise & Service Tax deposed that he had dispatched RC No. DAI2013A0001 CC No. 49/13 82/97 CBI vs L.N Meena & Other the letter dated 21/03/2014, copy Ex DW1/A based upon the report of Service Tax Commissionerate to Sh Jagdish Ram, who had lodged a complaint against alleged evasion of Service Tax by M/s Iris Cabs Private Limited in the service tax department. Ex DW1/A finds mention that the enquiry/investigation had revealed short payment of service tax of Rs 11,73,141/ by M/s Iris Cabs Private Limited for which show cause notice was under preparation.
131. DW2 was Superintendent in Range18 of DivisionII, Service Tax, Delhi from January 2012 to August 2012 and testified that finding discrepancies in the service tax returns of M/s Iris Cabs Private Limited, he had issued letters Ex PW5/DB and Ex PW5/DC.
132. DW4, Assistant Commissioner, Delhi Service Tax Commissionerate testified that they were in the process of quantifying and investigating the exact service tax liability of M/s Iris Cabs Private Limited in respect of five financial years i.e., from 200809 till 201213. DW4 also stated that as per their records, M/s Iris Cabs Private Limited had made certain infractions with respect to the Finance Act 1994 and they had finalized demand cum show cause notice, copy Ex DW4/A which was signed by competent authority namely Additional Commissioner Service Tax and it was dispatched to M/s Iris Cabs Private Limited on 07/04/2014. As per Ex DW4/A, the demand cum show cause notice embodied opportunity to addressee M/s Iris Cabs Private Limited, RC No. DAI2013A0001 CC No. 49/13 83/97 CBI vs L.N Meena & Other concern of PW6, as to why the Service Tax payable amounting to Rs 13,01,975/ including Education cess and Secondary and Higher Education cess for financial years 200809 to 201213 should not be demanded and recovered from them under the stated provisions therein embodying in detail how it was found payable.
133. DW3 testified that he was daily wager and posted in the office of Ranges14,16 and 18 of Service Tax Department at 7 th Floor in CGO Complex, Lodi Road, New Delhi having duty to provide tea, do photocopy, to fetch and deliver files from one place to other in service tax department. On 04/01/2013 DW3 was having tea at about 4.15 or 4.20 pm at outside canteen at 7th Floor of Service Tax office and on asking of A1, he provided tea to A1 and one or two other persons seated near him; after 15/20 minutes later DW3 went to washroom and then to downstairs by lift for posting some letter and while coming out of the post office saw 3/4 persons pushing A1 and A2 who had their hands at their back. As per DW3, those 3/4 persons pushed A1 and A2 in a Jeep; DW3 went upstairs to inform other officers of the department, then 3/4 persons came in the office at 7 th floor and informed that they were from CBI.
134. DW5 deposed that he used to supply work force in offices on daily wages and on 04/01/2013 he had gone to Service Tax RC No. DAI2013A0001 CC No. 49/13 84/97 CBI vs L.N Meena & Other Department at about 03.45 pm for giving salary to his employees. DW5 parked his motorcycle in the parking of CGO Complex opposite Post Office, found crowd collected there and on going there saw 6 or 7 persons forcibly pushing A1 and A2 towards a Gypsy and then A1 and A2 were at distance of 500 metres from building in which Service Tax office was situated and DW5 had seen them from gate number 1. As soon as crowd dispersed, DW5 went upstairs to 7 th floor of Service Tax Office, he was told by cashier Sh. Rajesh Kumar that CBI officials had come there asking DW5 to come some day later.
135. Testimony of PW6 not only embodied material improvements, additions, deletions of facts as they are contained in his complaint Ex PW6/A (D2) and statement Ex PW6/DC under Section 161 Cr.P.C but is also at variance and in material contradiction with presented case of prosecution regarding material facts in issue inter alia including alleged demand of bribe money, sequence of events and manner of such demand and negotiation of demand of bribe by A1 and A2, outstanding payments as well as payments made regarding Service Tax payable by his concern M/s Iris Cabs Private Limited. Testimonies of material witnesses PW6, PW10, PW11, PW16 and PW18 embody in them entirely different versions of manner and sequence of occurrence of the (1) verification proceedings conducted on 27/12/2012; (2) pretrap proceedings conducted on 04/01/2013; (3) trap proceedings conducted on 04/01/2013 including alleged handing of bribe money by PW6 to A2 RC No. DAI2013A0001 CC No. 49/13 85/97 CBI vs L.N Meena & Other and alleged acceptance of bribe money by A2, manner and place of recovery of bribe money, manner and sequence of apprehension of accused persons, procurement of DVR, handing over of DVR to PW6, manner and sequence of receipt of DVR back from PW6, which all relevant facts in issue had been so testified by these material witnesses in material contradictions, as well as at variance, with material improvements, additions, deletions, embodying inherent improbabilities and severe infirmities, elicited above in detail in preceding paras of this judgment. PW13 had somersaulted from her previous statement and all together denied having met A2 and testified that no demand of bribe in any manner, as per presented case of prosecution, having been made by A1. Similarly both cited independent witnesses PW10 and PW18 did not support the case of prosecution in any manner, denied of any recovery of bribe sum from the car of A2 in their presence and infact majority of the trap proceedings in their presence, elicited above in detail herein above in preceding paras of this judgment. PW18 was termed as shadow witness for name sake. No where in verification proceedings or trap proceedings he shadowed complainant PW6 nor saw nor heard any demand of bribe by any of arraigned accused from PW6 nor saw nor heard of obtainment/receiving of bribe sum by A2 with or without directions of A1 from PW6. Conflicting testimonies of witnesses when examined as a whole has made the case of prosecution suffer from glaring infirmities and these material infirmities have corroded the credibility and reliability of these witnesses which also casts a serious RC No. DAI2013A0001 CC No. 49/13 86/97 CBI vs L.N Meena & Other doubt on the case of prosecution since these facets go to the root of the matter to check and shake basic version and core of prosecution case. Recovery memo Ex PW6/D (D5) lost its sanctity on being prepared in CBI office on return back from trap in view of elicited law laid in the cases of Mustkeen @ Sirajudeen (supra) and Varun Chaudhary (supra). Independent witnesses PW10 and PW18 had seen bottles Ex PW6/W1 to Ex PW6/W5 alleged to be containing hand washes of A1, A2 and gear console wash being sealed in CBI office on return back from trap. Such sealing of said washes in CBI office make such washes loose their sanctity and it became probable of use of remaining phenolpthalein powder for turning some of these washes in pink colour while neither any record was maintained nor shown of issuance, use or deposit back of phenolpthalein powder in/from Malkhana. Neither original DVR(s) used for recording of tape recorded statements of verification proceedings and trap proceedings have been produced in Court nor proved in accordance with law nor demonstrated about their contents to depict the date, time of creation and date, time of modification of the audio files created in the DVR or in the memory card of DVR in the process of verification proceedings or trap proceedings to vouch safe for the accuracy of such tape recorded statements and to rule out possibility of tampering it or erasure of any part or whole of the tape recorded statements. Tape recorded statements contained in CDs Ex PW11/C3 (Q1) and Ex PW14/B3 (Q2) for lack of accuracy, genuineness of recordings with the existence of every reasonable RC No. DAI2013A0001 CC No. 49/13 87/97 CBI vs L.N Meena & Other possibility of their tampering, manipulations, insertions, deletions have been held to be of no aid as corroborative evidence to ocular/primary evidence. The substratum of the prosecution case has several holes which cannot be plugged. Suspicion howsoever grave it may be cannot be a substitute of proof beyond reasonable doubt. Material testimonies of PW6, PW11 and PW16 do not inspire confidence and their evidence is found to be in conflict and in material contradiction with other evidence on record. When read as a whole, on careful assessment and evaluation, it is found that testimonies of PW6, PW11 and PW16 are neither wholly reliable nor wholly unreliable as classified in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. Finally, putting probative value of the evidence into scales for a cumulative evaluation, I find that material contradictions, additions, improvements, major discrepancies in evidence of PW6, PW11 and PW16 are in themselves a ground for disbelieving and discrediting their evidence. It would be travesty of justice to place implicit reliance upon such tainted, neither wholly reliable nor wholly unreliable testimonies of PW6, PW11 and PW16 to convict the accused in the back drop of no support to case of prosecution by cited and examined independent witnesses PW10 and PW18, who per contra to case of prosecution, have demolished the presented version of prosecution case. Reliance placed upon the case of Sunil Kumar Sambhudayal Gupta (Dr) vs. State of Maharashtra, (2010) 13 SCC 657. There accordingly exists no ground to raise the RC No. DAI2013A0001 CC No. 49/13 88/97 CBI vs L.N Meena & Other presumption embodied in Section 20 of The Prevention of Corruption Act 1988 against the accused persons. Accordingly, precedents relied by prosecution, which 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, are of no help to prosecution to secure conviction of the accused. Infact version of examined aforesaid material witnesses have brought into light new cases, exceeding one, made vivid herein before with respect to alleged demand of bribe, manner and sequence of negotiation of bribe and arriving at negotiated sum of bribe, manner and sequence of trap proceedings, manner and sequence of handing over bribe money to A2, manner and sequence of recovery of bribe sum, manner and sequence of apprehension of accused persons, manner and sequence of taking and sealing of washes, manner and sequence of recordings in primary device DVR and transfer of recorded conversation to CDs Ex PW11/C3 (Q1) and Ex PW14/B3 (Q2). No new case(s) can be reconstructed/carved out by divorcing essential details presented by the prosecution completely from the context and the background against which they are made. In terms of provision 17.34 of Chapter 17 of CBI Manual, no officer of investigating agency gave prior information about the prospective trap to the head of Department/Office concerned of A1, A2 despite availability of sufficient time of one week from 27/12/2012 till 04/01/2013 before trap nor any explanation has been brought to light regarding existing of any circumstance not permitting giving of such information to the head of Department/Office RC No. DAI2013A0001 CC No. 49/13 89/97 CBI vs L.N Meena & Other of A1 and A2. It is not the case of prosecution that any such head of the Department/Office of A1, A2 was coconspirator of A1 and A2 or in any manner involved/connected with any criminal activities of A1, A2. No video recordings or photography were done nor produced in respect of pretrap proceedings, post trap proceedings, search proceedings, crime scene, prior to or later to apprehension of accused, 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 and provision 17.34 in Chapter 17 of CBI Manual, required to be followed as an act of fair investigation in terms of MOTTO, MISSION & VISION of Central Bureau of Investigation embodied in the CBI Manual. There was no impediment in the way of concerned officers of investigating agency for following the mandate so laid in the afore elicited provision 14.16 in Chapter 14 and provision 17.34 in Chapter 17 of CBI Manual but by not following such mandate dimensions are added to shadow of doubt casted over presented RC No. DAI2013A0001 CC No. 49/13 90/97 CBI vs L.N Meena & Other prosecution case. DW4 and DW1 proved on record the pendency of the proceedings in the Service Tax Department for recovery of arrears of service tax from M/s Iris Cabs Private Limited, concern of PW6 and have falsified the claim of PW6 for having paid the service tax liability to the tune of about Rs 33,000/ in the month of January 2013, for which payment no document could be shown by PW6 despite opportunity. Reasonable possibility of false implication of accused persons at behest of complainant PW6 is available on the face of record. Dimensions to such reasonable possibility of false implication of accused are added when PW13 categorically stated of no demand of bribe made by accused persons from her on her visit to Service Tax Department making edifice raised by prosecution crumble to ground since only on account of alleged demand in conspiracy made by A1 and A2 from PW13, PW6 had got the case registered for which on 27/12/2012 even PW6 did not take PW13 along with him to CBI office while lodging his complaint bearing hearsay version. DW3 and DW5 strengthen the version of defence that immediately after alleged apprehension of accused from the parking at ground floor of premises of Service Tax Department in CGO Complex, Lodi Road, New Delhi, A1 and A2 were removed from said spot to the office of CBI. Even PW10 and PW18 testified said fact. The elicited intrinsic circumstances speak volumes against the prosecution case and raise considerable amount of suspicion in mind regarding the complicity of the accused in the commission of offences charged.
RC No. DAI2013A0001 CC No. 49/13 91/97
CBI vs L.N Meena & Other
136. Cumulative effect of entire discussions aforesaid is that to hold arraigned accused persons guilty for offences charged on these varying, material contradictory stands which are not only natural to go to the root of the issue, would not only be unsafe but would amount to travesty of justice, in the back ground of reasonable possibility of false implication of accused persons. It renders prosecution version, not proved beyond reasonable doubt. Accused L.N Meena (A1) and accused Anuj Chaudhary (A2) are given benefit of doubt and acquitted for the offences charged. Their bail bonds are cancelled. Sureties are discharged.
137. Mrs Santosh Meena, wife of A1 and Mrs. Bhawna Meena, daughter of A1 had moved applications on 19/08/2013 for permission for defreezing of their bank account numbers (1) 15651000003403 of Mrs. Santosh Meena in HDFC Bank, Pitampura Branch, New Delhi; (2) 4166000100132572 of Mrs. Bhawna Meena with PNB, Prashant Vihar Branch, New Delhi.
138. Mrs. Anshu Chaudhary, wife of A2 had moved application on 10/03/2014 for defreezing of bank account numbers (1) 03941930007637 of her; (2) 03941460005351 in name of Master Anav Chaudhary, her minor son; (3) 03941460005368 in name of Master Siddhant Chaudhary, her minor son, all accounts in HDFC Bank, Sector 62 Branch, Noida, UP.
RC No. DAI2013A0001 CC No. 49/13 92/97
CBI vs L.N Meena & Other
139. In the filed replies IO PW19 through Ld. PP for CBI opposed the aforesaid applications of Mrs. Santosh Meena, Mrs. Bhawna Meena and Mrs. Anshu Chaudhary on the premise that the aspect of possession of assets by A1 and A2 disproportionate to their known sources of income which they cannot satisfactorily account for, was being looked into and complete details of salary etc., of A1 and A2 had been sought from their employer and these applicants were not entitled to seek defreezing of their bank accounts as there was every likelihood of the bank accounts containing the proceeds of such aforesaid disproportionate assets amassed by A1 and A2.
140. In the course of the submissions IO PW19 has placed on record along with his submissions dated 19/04/2014, a copy of his letter dated 01/03/2013 addressed to Assistant Commissioner, Service Tax seeking production of documents detailed therein and a letter dated 12/03/2014, request of IO PW19 to Assistant Commissioner, Service Tax to furnish complete salary details of A1 and A2.
141. It reflects that in the period in between 01/03/2013 and 12/03/2014, that is for about one year, no further written directions/steps had been taken for seeking production of aforesaid salary details from employer of A1 and A2. As per reply of IO, after registration of this case and pursuant to trap, aforesaid accounts were frozen as a pre RC No. DAI2013A0001 CC No. 49/13 93/97 CBI vs L.N Meena & Other emptive measure to disallow any transactions which may hamper the investigation of this case. Not only the investigation but even the trial of this matter has been concluded and judgment is being delivered. Time and again in the course of trial it had been inquired whether any regular case had been registered or any preliminary enquiry even has been initiated for ascertaining the aspect of possession of assets by A1 and A2 disproportionate to their known sources of income which they cannot satisfactorily account for. IO PW19 and Ld. PP for CBI submitted that neither any regular case has been registered nor any preliminary enquiry had been initiated for ascertaining the aspect of possession of assets by A1 and A2 disproportionate to their known sources of income which they cannot satisfactorily account for. Bank accounts of the applicants cannot be frozen till infinity. Frozen bank accounts not only make its holders loose interest and incur wrongful loss but also results in gain of interest to the bankers concerned, who otherwise are not legally entitled of it and in the process such account holders are not only deprived of money frozen in their accounts but also of loss of interest and/or loss of money value. It is admitted case of prosecution that aforesaid bank accounts of Mrs. Santosh Meena, Mrs Bhawna Meena, Mrs. Anshu Chaudhary, Master Anav Chaudhary and Master Siddhant Chaudhary were not having any proceeds, in part or full, of the bribe money, the subject matter of this trial. Enough reasonable period of more than one year has been consumed by premier investigating agency to ascertain the prima facie aspect of possession of assets by A1 and A2 RC No. DAI2013A0001 CC No. 49/13 94/97 CBI vs L.N Meena & Other disproportionate to their known sources of income which they cannot satisfactorily account for and in case within period of six months from today's date the investigating agency is not able to register any preliminary enquiry or any regular case on the aspect of possession of assets by A1 and A2 disproportionate to their known sources of income which they cannot satisfactorily account for, then the aforesaid account numbers (1) 15651000003403 of Mrs. Santosh Meena in HDFC Bank, Pitampura Branch, New Delhi; (2) 4166000100132572 of Mrs. Bhawna Meena with PNB, Prashant Vihar Branch, New Delhi; (3) 03941930007637 of Mrs. Anshu Chaudhary in HDFC Bank, Sector 62 Branch, Noida, UP; (4) 03941460005351 in name of Master Anav Chaudhary in HDFC Bank, Sector 62 Branch, Noida, UP and (5) 03941460005368 in name of Master Siddhant Chaudhary in HDFC Bank, Sector 62 Branch, Noida, UP; shall stand defreezed unless otherwise ordered by any Superior Court of this Court or the Appellate Court. In case any or all of the applicants Mrs. Santosh Meena, Mrs Bhawna Meena and Mrs. Anshu Chaudhary want immediate use of funds in aforesaid accounts by defreezing of aforesaid bank accounts, then they can furnish bank guarantee(s) valid for period of atleast six months from today, to the tune of the amount in credit of such bank account(s) as on today's date, in this Court, upon which aforesaid bank account(s) shall be directed to be defreezed by the concerned officials of the bank concerned. In case these applicants do not want to use such funds in aforesaid accounts for aforesaid period of six months from today, these RC No. DAI2013A0001 CC No. 49/13 95/97 CBI vs L.N Meena & Other applicants/account holders are permitted to comply necessary formalities and concerned bank procedures and can get the sums in credit in aforesaid accounts to be deposited in fixed deposits for period of six months from today in the name of same account holders in same banks with the condition that such sums in such fixed deposits shall not be released without permission of this Court, of course further subject to conditions herein before laid.
142. Complainant PW6 is sole claimant of GC notes Ex GCN/1 to Ex GCN/100 totalling Rs 1,00,000/. It is directed that 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 (1) the GC notes Ex GCN/1 to Ex GCN/100 totalling Rs 1,00,000/ be released to complainant PW6 by the Central Bureau of Investigation; (2) case properties viz. CDs Ex PW11/C3 (Ex Q1), Ex PW14/B3 (Ex Q2), Ex PW14/C3 (Ex S1) and Ex PW14/D3 (Ex S2) be confiscated to State and (3) case property viz. file Ex PW10/A (D10) be released to the office of Assistant Commissioner concerned of Service Tax Department, New Delhi by Incharge Record Room concerned, after retaining their certified copies, for proceeding in accordance with law since said file was seized vide Ex PW4/A (D7) i.e., office search cum seizure memo prepared in the office premises of A1 and A2 on 04/01/2013.
RC No. DAI2013A0001 CC No. 49/13 96/97
CBI vs L.N Meena & Other
143. A copy of judgment be given to the Central Bureau of Investigation.
144. Ahlmad is directed to page and bookmark the file so as to enable digitization of the entire record.
145. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 24/05/2014 Patiala House Court, New Delhi.
Deepika RC No. DAI2013A0001 CC No. 49/13 97/97