Delhi District Court
Dewan vs . State (1988) Crl. L.J. 1005, It Was ... on 28 July, 2012
IN THE COURT OF SH. M.R. Sethi:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 12/2004(Old)
CC NO. 109/2008 (New)
ID No. 02401R5714972004
CBI
Versus
Ishwar Chand Garg,
S/o. Shri Banarasi Das
R/o. UR-5/46-47, DLG, Qutab Enclave,
Phase-III, Gurgaon (Haryana). ..Accused No. 1
Azad Singh Rathi,
S/o. Shri Rattan Singh,
R/o. H.No. C-46, Prem Nagar,
Najafgarh, Delhi-43 ...Accused No. 2
Case arising out of:
FIR No. RC-DAI-2000-A-0022
Case is more than 10 years old
Date of FIR : 01.05.2000
Date of Institution : 12.09.2001
Date of Final Arguments : 21.07.2012
Date of Judgment : 28.07.2012
CC No. 109/2008 Page1 of 56
JUDGMENT:
1 Proceedings in the present case commenced on basis of a written complaint dated 1.5.2000 made by the complainant Vijay Singh before SP, CBI, ACB. It had been claimed by the complainant that he was an Income-tax assessee and was working with Airport Authority of India. It was claimed that although Income-tax was being deducted from his salary at source, he also used to file Income-tax return. It was further mentioned in the complaint that on 29.4.2000 one Shri I.C. Garg (A-1) contacted the complainant in his office and informed that his cheque of Rs.4,658/- on account of return of excess payment of income tax for the Assessment Year 1997-98 had been collected by him (A-1) from the Income-tax Department and that A-1 was demanding Rs.1,400/- as bribe for handing over the said cheque to the complainant. Telephone numbers of A-1 which had been provided by him to the complainant were also mentioned in the complaint. The complainant had further mentioned in his complaint that on 1.5.2000 he had contacted A-1 on the telephone number provided and had requested for reduction of bribe amount to Rs.500/- but A-1 did not accept any amount less than Rs.1300/- claiming that he had to hand over Rs.900/- to the official at Income-tax Department. It was further mentioned in the complaint that A-1 had stated that he would be contacting the complainant in the After Noon and in case the complainant arranged to hand over Rs.1300/- to him, he (A-1) would hand over the cheque to him. As the complainant did not want to pay the bribe amount, he filed the complaint before CBI.
2 On basis of said complaint, FIR No. RC DA1-2000A-0022 was registered on 1.5.2000 and investigation was CC No. 109/2008 Page2 of 56 marked to Inspector D.K. Singh. The FIR was registered against Chartered Accountant Shri I.C. Garg and some unknown officials of Income-tax Department.
3 As per claim of the prosecution, two independent witnesses namely Shri Waheeduddin and Shri N.K. Yadav from the Enforcement Directorate were summoned to participate in the proceedings. Thereafter, a trap party was organized and pre-trap demonstration was conducted in office of CBI on 1.5.2000. Details thereof were noted down in a handing over memo (D-3) which during course of trial was proved as Ex.PW-3/B. The complaint (D-2) was proved during trial as Ex. PW-4/A. As per the handing over memo, the proceedings in that regard were completed by 3.20 PM. Thereafter, a remote cassette recorder, remote mike, an audio cassette alongwith a telephonic conversation recording bug were arranged. Sample voices of both independent witnesses were recorded in the cassette whereafter they signed the paper slip on the cassette. Functioning of the remote mike and cassette recorder were explained to the complainant and thereafter mike was handed over to the complainant. Proceedings in that regard were claimed to have been concluded at 3.35 PM and a memo (D-4) prepared in that regard. It was proved as Ex.PW-3/E. As per claim of prosecution, the trap team then left for the Airport Authority of India, Cargo Terminal, IGI Airport and after reaching there at about 4.00 PM, the complainant gave a telephone call to the telephone number provided by A-1 and the conversation was got recorded. The cassette thereafter was handed over to the independent witness Waheeduddin. Proceedings in that regard concluded at about 4.30 PM and were recorded in memo (D-5) which was proved as Ex.PW-3/F. It had been claimed that A-1 had asked the complainant to reach UR 5/46-47, DLF Phase-3, Gurgaon after 8.00 PM for CC No. 109/2008 Page3 of 56 making payment of the bribe amount and for receiving the cheque. It was claimed that the trap team accordingly reached the given address at about 9.00 P.M. where the complainant alongwith the shadow witness Shri N.K. Yadav were directed to proceed to house of A-1 while other members of trap team remained outside. As per case of prosecution, the bribe amount was received by A-1 from the complainant and thereafter on receipt of pre-appointed signal, remaining members of the trap team entered house of the accused from where he was apprehended. The complainant and the shadow witness disclosed the facts regarding acceptance of bribe amount by A-1. Hand washes and pant pocket wash of the accused were allegedly taken in solution of Sodium Carbonate which turned pink in all three cases. The bribe amount of Rs.1300/- was reportedly recovered from left side pant pocket of the accused and the serial numbers thereof tallied with the numbers mentioned on the Handing Over Memo.
4 It was further alleged by the prosecution that A-1 had similarly handed over Income-Tax Refund Orders to Onkar Singh, Anand Pal Singh, Lakhan Singh and Aruna Venkatesan after accepting consideration from the said persons. It was further alleged that investigation revealed that A-1 had received the Refund Orders from Azad Singh Rathi (A-2) then posted as a UDC in Income-Tax Office. It was also claimed that the amount collected by A-1 from the assesses was to be shared between A-1 & A-2 and in that regard A-1 had already paid Rs.2100/- to A-2 while balance amount of Rs. 900/- was yet to be paid. It was further claimed on behalf of the Prosecuting Agency that the refund orders were to be sent by Post to the respective assesses, but the same was not done by A-2 in violation of the prevailing procedure and rather he handed over the same to A-1 who took illegal gratification from the assesses CC No. 109/2008 Page4 of 56 concerned before handing over cheques to them and shared the proceeds with A-2. After conclusion of investigation, charge sheet was filed against both the accused persons for having committed offences punishable U/s. 120 B IPC r/w Section 8, 13 (1) (d), 13(2) of the PC Act and also substantive offence U/s. 8 PC Act against A-1 and U/s. 13 (1) (d) r/w 13 (2) PC Act against A-2. Sanction for prosecuting A-2 had also been obtained from the Competent Authority.
5 On basis of the records and in view of no contest being raised by the accused persons as regards framing of charges against them, my Ld. Predecessor Ms. Pratibha Rani, Special Judge (as her Lordship then was), vide order dated 21.07.2004, was pleased to frame charges against both the accused persons for having committed offences punishable U/s. 120 B IPC r/w Section 8 & 13 (2) r/w 13(1) (d) of PC Act AND U/s. 8 PC Act against accused I.C. Garg (A-1) and U/s. 13 (2) r/w 13 (1) (d) PC Act against accused Azad Singh (A-2).
6 In order to prove its case against the accused persons, prosecution examined as many as 30 witnesses. PW-1 Shri K.S. Chabbara had examined the washes sent to CFSL for examination. He duly proved his report Ex.PW-1/A in that regard.
During course of cross-examination, witness admitted that he had not mentioned details of his chemical examination nor had he mentioned quantity of phenolphthalein in his report Ex.PW-1/A. He claimed that the bottles containing the washes were not personally received by him. He further claimed that he himself had not conducted the chemical examination which infact was done by his Assistant but under his supervision. He admitted that CFSL CC No. 109/2008 Page5 of 56 was part of CBI but only administratively. He denied the suggestion that his report was false.
7 PW-2 Shri C.K. Jain was also from CFSL. He had prepared the transcript which was proved as Ex.PW-2/A. He also proved his report Ex.PW-2/B in that regard and also his report Ex.PW-2/C regarding comparison of voices recorded in the cassettes.
During course of his cross-examination, he admitted that he had not called any witness while preparing the transcript. He admitted that his report was based on spectographic analysis but he had not filed the Spectography Report on record. He further admitted that CBI had registered a case against him.
8 Shri Waheeruddin was one of the independent witnesses who allegedly had joined the trap team. He was examined as PW-3 by the prosecution. During course of his examination-in-chief, he claimed that on 01.05.2000, he alongwith his colleague Naresh Yadav were deputed on CBI duty and when they reached CBI Office, he saw four five persons already sitting there. He claimed that there was some person who claimed that somebody was demanding Rs. 1300/- as bribe. It was claimed that some pink colour was prepared in CBI Office and thereafter they were made to sit in a Vehicle and taken to Cargo near Palam. Witness claimed that as he was roaming here and there in Palam area, he did not know what happened there. He further claimed that from there they all had gone to Gurgaon where some searches were conducted but he did not know names of the persons whose searches were conducted. He claimed that he had been made to sit at one place while CBI people were conducting the searches.
CC No. 109/2008 Page6 of 56 After seeking permission from the Court, the witness was cross-examined by ld. PP for CBI and during course of his such cross-examination, witness denied the suggestion that on 04.05.2000, he was called to CBI Office where his statement was recorded. He also denied the suggestion that the complainant had produced Rs.1300/- before CBI Officer consisting of 13 currency notes of Rs.100/- each. He however admitted that the currency notes were treated with powder and their numbers were noted on some paper and that a practical demonstration was given by preparing a solution. He further denied the suggestion that the powder treated currency notes were kept in the left side pant pocket of the complainant with direction to give the same to I.C. Garg on his specific demand or to any other person on his direction or that N.K. Yadav was directed to act as a shadow witness and give pre- appointed signal on completion of the bribe transaction. Witness identified his signature on the Handing Over Memo Ex.PW-3/B but claimed having signed it without reading its contents. He claimed that he did not know if his specimen voice and that of Shri N.K. Yadav had been recorded in the cassette or that his signatures were obtained on the same. He further claimed that he did not know if after reaching Palam the complainant had talked to I.C. Garg over telephone or if Garg had directed the complainant to come to Gurgaon. Although he admitted that they all had reached Gurgaon at 7.30 P.M. , he claimed that he did not know if the complainant and the shadow witness were sent inside house of accused I.C. Garg. He further denied the suggestion that at 9.30 P.M. the shadow witness came out of the Basement and gave the pre-appointed signal whereupon they all entered the house. Infact, the witness claimed that he was not taken inside the house. He also denied the suggestion that washes of the accused were taken in his presence or that it was he who was directed to recover the trap money or that CC No. 109/2008 Page7 of 56 he had recovered the same from left side pant pocket of the accused. He further denied the suggestion that he was directed to tally the numbers of the recovered currency notes with the numbers already noted down. He denied the suggestion that the entire post- trap proceedings were recorded in his presence in the Recovery Memo Ex.PW-3/D. Although he identified his signature on the same, he claimed having signed it without going through contents of the same. He also identified his signatures on the Tape Recorder Handing Over Memo (Ex.PW-3/E), Telephonic Conversation Memo (Ex.PW-3/F) & the Site Plan (Ex.PW-3/G), but claimed having signed the same without going through contents of the same. He denied the suggestion that he had signed all these documents after reading the contents and taking the same to be correct. Although, he identified his signature on statement of accused I.C. Garg (Mark 'A'), he denied that the same was recorded in his presence on 04.05.2000. Witness also identified the case property i.e. the three bottles containing washes as Ex.P-1 to Ex.P-3, the cloth wrappers Ex.P-4 to Ex.P-6 & pocket of pant Ex.P-7. He claimed that he was unable to notice his signature on the cassette Q-1 and its wrappers. He further denied the suggestion that the currency notes Ex.P-8/1 to 13 were the same which were recovered by him from pocket of accused I.C. Garg. He denied the suggestion that the entire proceedings were conducted in his presence and thereafter documents were prepared and signed by him in token of correctness of contents of the same. He denied the suggestion that he had been won over by the accused and was deposing faslely.
During course of his cross-examination by ld. Counsel for the accused, witness admitted that he and Shri N.K. Yadav had remained together throughout the raid and that he had signed all the papers in Office of CBI on 04.05.2000.
CC No. 109/2008 Page8 of 56
9 PW-4 Shri Vijay Singh was the complainant who during
course of his examination-in-chief reiterated allegations of
prosecution against the accused. However he claimed that some chemical had been applied on the currency notes produced by him and they were explained that if hands are washed after touching the chemical treated notes, the hands would become red. He further claimed that after reaching house of the accused in Gurgaon, he firstly complained about difficulty faced by him in locating house of the accused and thereafter took out Rs.1300/- from his pocket and handed over same to accused saying "Lao Ab Mera Cheque De Do". He gave details of the pre-trap as well as post trap proceedings. When the cassette was played, witness failed to identify the voices appearing in the cassette.
After seeking permission from the Court, witness was cross-examined by ld. PP for CBI and during course of his cross- examination, witness admitted that his statement Ex.PW-4/B had been recorded after the trap had been laid. He admitted that I.C. Garg had demanded Rs.1400/- but claimed that initial demand was of Rs.1500/-. Witness identified his signature on his complaint Ex.PW-4/A. He however could not say if the panch witnesses were Shri N.K. Yadav and Shri Waheeruddin. He admitted having told the CBI that on 01.05.2000 he had contacted I.C. Garg with a request to reduce the bribe amount to Rs.500/- but Garg agreed to accept no amount less than Rs.1300/- as he claimed that he had to hand over Rs.900/- to official at Income- Tax Department. He could not say if the recovery was made by Shri Waheeruddin or somebody else. He also could not say if both hands of the accused had been washed. He admitted that wash of pant pocket of A-1 was taken in his presence and the solution turned pink in colour. He denied the CC No. 109/2008 Page9 of 56 suggestion that he was deliberately not identifying his voice and that of I.C. Garg in the cassette played in Court. He denied the suggestion that he had been won over by the accused and was deposing falsely in order to save the accused. Although he admitted that his Income-Tax Return was not filed through I.C. Garg, he denied the suggestion that I.C. Garg had collected the cheque without instruction. Witness claimed that for earlier cheques the accused used to charge Rs.500/- but when he increased the amount, the witness stop asking him to do this job and did not ask him to collect the cheques.
During course of cross-examination by ld. Counsel for the accused, witness claimed that I.C. Garg was a frequent visitor to Airport Authority of India and used to file I.T. Returns of many employees there. He further claimed that fee of the accused was not settled and varied from person to person. Witness claimed that a CBI Officer had dictated him the complaint on 30.04.2000 when he had first visited the CBI Office. He claimed having given the complaint at 11.30 A.M. He further claimed that the trap team had reached his Office at Airport Authority of India at about 2.00 - 2.30 P.M. Although he denied that the recovery was not effected in his presence, he could not say by whom the same was effected. He further stated that it was some Inspector who informed that the numbers of the currency notes have tallied. He admitted that all the documents seen by him in Court had been signed by him in CBI Office at behest of CBI Officers without going through contents of the same. He admitted that I.C. Garg had charged Rs.1300/- from him as his fee which earlier was Rs.500/- and had been increased to Rs. 1300/- and that as the accused had increased his fee, he made a complaint with CBI.
CC No. 109/2008 Page10 of 56
10 PW-5 Shri Raju claimed that in the year 2000, he was
posted as a Peon in the DC Office in the Centralized Dispatch Section. He identified handwriting of LDC Shri Gautam on D-13 and proved the same as Ex.PW-5/A. He further stated that the Refund Cheques marked X in Column I of the said document were not handed over to him by Shri Gautam for dispatch while the remaining cheques which were handed over to him were duly dispatched.
During course of cross-examination, he claimed that he had been posted in the Centralized Dispatch Section since 1994 and that the same was for Range VIII. He could not tell the number of addressed envelopes handed over to him by Shri Gautam. He further claimed that the Mark X had not been put on the advice Ex.PW-5/A in his presence. He could not tell the numbers of the Refund Cheques kept in the envelopes nor could he tell the numbers of the cheques which were not given to him. He denied the suggestion that he was deposing falsely.
11 PW-6 Shri Subhash Varandani claimed that accused Azad Singh was working as UDC under him in the Govt. Salary Ward of Income Tax but he could not identify handwriting of Azad Singh. Witness identified his signature on Seizure Memo (D-24) which was proved as Ex.PW-6/A and claimed having handed over documents mentioned therein to the CBI. He claimed that he could not identify the person whose writing appeared on documents D-11 & D-12. He further stated that it was duty of Azad Singh to prepare the Refund Orders as well as the List and thereafter LDC used to dispatch the Refund Orders to the Central Dispatch Section for further dispatch to the party concerned. He claimed that as per procedure the Refund Order could not be handed over by hand as it is to be sent by Post.
CC No. 109/2008 Page11 of 56 After seeking permission from the Court, the witness was cross-examined by ld. PP for CBI and during course of his cross- examination, he claimed that he did not remember having made statement Mark PW-6/AX to Inspector Om Prakash on 25.07.2000. He admitted that he had been examined by CBI Officer regarding the procedure for preparation and dispatch of Refund Voucher. Witness claimed that he did not remember having stated before CBI that the Refund Order No. 416921-416926 dated 06.04.2000 had all been prepared by accused Azad Singh. He was duly confronted with his statement Mark PW-6/AX where it was so recorded. He further admitted that the Refund Orders and other documents prepared by Azad Singh used to be put up before him for signatures. He denied the suggestion that during this process he had become familiar with writing and signature of Azad Singh or was deliberately not identifying his handwriting. He denied the suggestion of having deposed falsely on the confronted portions.
During course of cross-examination by ld. Counsel for the accused, he claimed that he did not remember if there was any written rule, direction, circular or order that Refund Vouchers could be sent to the Parties only by Post and not delivered by hand. He claimed that he did not remember if he had come across any such direction during course of his service. He denied the suggestion that outsiders used to work in the Office with the staff of Income Tax Office on payment. He claimed that he did not remember if accused Azad Singh was on leave from 19.04.2000 to 03.05.2000.
12. PW-7 Shri Jaipal Singh was given up by ld. PP for CBI being unnecessary.
CC No. 109/2008 Page12 of 56
13. PW-8 Shri G.S. Vajpayee during course of his
examination-in-chief claimed that Income Tax Refund Vouchers were sent by the Central Dispatch Section to the Assesses through Registered Post and were not given to any person by hand.
During course of cross-examination, witness could not point out any circular or written order to the effect that the Refund Vouchers were only to be sent through Registered Post. However, he claimed that it was the procedure which was being followed in the Office. He further claimed that there had been no instance where any Sr. Officer had authorized the handing over of written voucher by hand to any other person. He denied the suggestion that in certain circumstances and when the Sr. Officer so willed, the Refund Vouchers could have been given dasti to the Assessee or his authorized representative.
14 PW-9 Shri K.C. Jain proved the Sanction Order Ex.PW-9/A whereby sanction for prosecution of accused Azad Singh was granted.
During course of his cross-examination, he claimed having joined as Additional Commissioner perhaps in the year 1999. He admitted that Commissioner did not include Additional Commissioner. He was not aware as to when and vide which order the Income Tax Board had authorized which Officer of the Income Tax Department to appoint Ministerial staff in the Department. He did not remember the date on which request for grant of sanction was received in the Office. He could not say if the request had been received in the Vigilance Section or directly in his Section or if it was received by a Dak or by hand. He could not give specific details of documents received from CBI and perused by him. He admitted that complete details of documents perused by him had not been CC No. 109/2008 Page13 of 56 mentioned in the Sanction Order. He did not remember if statements of witnesses received by him had been recorded in Hindi or English. He could not specifically point out instructions in writing to the effect that Refund Orders could not be given dasti. He did not recall if at the time of grant of sanction there was no evidence except statement of I.C. Garg recorded by CBI to the effect that Azad Singh had handed over Refund Orders to I.C. Garg. He denied the suggestion that he was not authorized to grant sanction for prosecution of Azad Singh.
15 PW-10 Shri Omkar Singh claimed that accused I.C. Garg used to file his Income Tax Return and also of his other colleagues. Witness claimed having paid Rs.600/- to accused I.C. Garg for filing his return and bringing the Income Tax Refund. He claimed that there had been no talk between them as to what I.C. Garg would do from the amount received by him from the witness.
After seeking permission from the Court, witness was cross-examined by ld. PP for CBI wherein he admitted that his statement Ex.PW-10/A was recorded by Inspector D.K. Singh. He admitted having stated before the CBI that accused I.C. Garg came to his Office on 28.04.2000 and handed over his cheque of Rs. 1767/- and of Shri Anand Pal Singh amounting to Rs.2199/- after taking Rs.1100/- from him. He denied the suggestion of having stated before CBI that he requested I.C. Garg to reduce the amount on which accused claimed that he had to pay Rs.350/- to Clerk of Income Tax who had prepared the cheques. Witness was duly confronted with his statement in that regard. He denied the suggestion that he was deposing falsely having been won over by the accused.
CC No. 109/2008 Page14 of 56 During cross-examination by ld. Counsel for the accused, witness claimed that he could not say as to for how many persons I.C. Garg used to file the returns. He claimed that they used to pay fee to the accused at the time of handing over of the refund and not at the time of filing the return. He identified his signature on the Power of Attorney Ex.PW-10/DA issued by him in favour of the accused. He admitted that the accused had told him that in case his presence was necessary for finalizing the tax and return of the voucher, he would have to accompany the accused to the Income Tax Office. He admitted that he had received his cheque in the Income Tax Office after he was called there by the accused.
16 PW-11 Shri Suresh Chand Gautam claimed that while he was posted in Income Tax Department, he used to receive Income Tax Returns as well as daily dak and was also doing the work of dispatch of letters. He stated that after preparation of Refund Orders, a sheet used to be prepared on which numbers of the Refund Orders were written and that the Refund Orders and sheets used to be prepared by Smt. Satya and Azad Singh, UDC. He further claimed that Peon from Office of Additional Commissioner used to collect the Refund Orders as well as the sheets from the UDC or whoever was found available. It was claimed that then the same were delivered in Office of Additional Commissioner, Central Dispatch Section. He claimed that he himself had not dispatched the Refund Orders or the sheets. He had also identified handwriting of Smt. Satya, UDC on the sheet Ex.PW-5/A. He further claimed that the sign of 'X' on the sheet in Column No. I indicated 'non-sending of Refund Voucher' mentioned therein to the Central Dispatch Section by the concerned UDC. Witness also identified writing of accused Azad Singh on the Refund Vouchers Ex.PW-11/1 to 9.
CC No. 109/2008 Page15 of 56 After seeking permission from the Court, witness was cross-examined by ld. PP for CBI wherein he admitted that the Investigating Officer did record his statement Ex.PW-11/10 on 25.07.2000. He claimed that he did not remember if he had stated to CBI that he had handed over only 13 Income Tax Refund Vouchers alongwith Memo (Ex.PW-5/A) to the Central Dispatch Section as Azad Singh gave him only 13 Refund Vouchers. He further claimed that he did not remember if Azad Singh had not delivered to him the remaining seven vouchers or that it was for this reason that he did not deliver the same for dispatch. Witness was duly confronted with his statement in this regard. He further denied having stated that the Dispatch Memo and Refund Orders prepared by others used to be kept on table of accused Azad Singh who used to give direction for dispatch of the same. He was again confronted with his statement where it was so recorded. He denied having stated that the Refund Vouchers which were not sent to the Central Dispatch Section used to be kept by accused No. 2 for hand delivery. He was again confronted with his statement where it was so recorded. He denied having stated to CBI that accused No. 1 used to come to meet accused No. 2 at his seat and used to talk to him. He was again confronted with his statement where it was so recorded. Witness further claimed that the statement made by him before the I.O. was in Hindi and that statement Ex.PW-11/10 was not the same. He denied the suggestion that I.O. had read over his statement in simple Hindi or that Ex.PW-11/10 was his statement recorded by the I.O. He further denied the suggestion that he had been influenced and impressed or won over by A-2 who was his Senior. He denied the suggestion that he was deposed falsely.
CC No. 109/2008 Page16 of 56 During course of cross-examination by ld. Counsel for the accused, witness claimed that his duty was to keep the received record in safe custody. He claimed that the Dak received used to be entered by him in a Receipt Register and that he also used to dispatch the letters sent by the Officers. He claimed that he did not remember if any such Dispatch Register had been handed over by him to CBI. He further claimed that after Refund Voucher was prepared, it used to be sent to the concerned ITO and thereafter, the forwarding sheet like Ex.PW-5/A used to be prepared and then the same were sent for dispatch to Central Dispatch Section. Witness also identified signatures of Shri Subhash Vrindani on the vouchers Ex.PW-11/1 to 7. He admitted that the Mark 'X' on Ex.PW-5/A was not put in his presence nor could he say as to when, where & by whom the same had been put. Witness claimed that 25 to 30 staff members used to sit in the Hall where he sat alongwith Azad Singh. He claimed that there was no entry pass system to regulate entry in their Office and the Hall and that public persons used to keep coming to their Office. He admitted that employees used to keep their records on the table and not under key and Almirah. He denied that he was deposing falsely .
17 PW-12 Shri Lakhan Singh during course of his examination-in-chief claimed that he was an employee at IGI Airport and used to file his annual Income Tax Return. He claimed that he did not receive any telephonic information on 10.04.2000 about his Income Tax Refund Cheque from any Mr. Garg.
After seeking permission from the court, witness was cross examined by Ld. PP for CBI. Although the witness admitted that he had been called to CBI office for recording of his statement, CC No. 109/2008 Page17 of 56 he denied the suggestion that the same was on 3.5.2000. He denied having stated to the IO that on 10.4.2000 at about 8.00 PM he had received a telephone call from one Mr. Garg of Gurgaon informing that his Income Tax refund cheque was lying with him and that similar refund cheques of other persons of his Department were also lying with Mr. Garg and that Shri Garg demanded Rs.3500/- for bringing the cheques on 25.4.2000. Witness was duly confronted with his statement in this regard. He further denied having stated to the IO that on his refusal to pay Rs.3500/-, Shri Garg handed over him the cheque directing him to deposit it after 27.4.2000 and that he would collect money subsequently. He further denied having stated to the IO that Shri Garg approached him subsequently asking for Rs. 1000/- in that regard.
18 PW-13 Anand Pal Singh claimed that he was an employee of IGI Airport Cargo and used to get prepared his Income- tax return through his friend Omkar Singh. He claimed that in May, 2000 Omkar Singh handed over to him a refund cheque of Rs.2199/- but never told him that the cheque had been given to him by Shri Garg, CA or Rs.600/- had to be paid to him.
After seeing permission from the court, witness was cross examined by Ld. PP for CBI wherein he admitted that he had been called in CBI office and his statement recorded. Witness denied having stated to the IO that Omkar Singh told him that his refund cheque had been handed over by Shri Garg who would be taking Rs.600/- for the same out of which Rs.200/- had to be paid to a Clerk in Income-tax Department. He was duly confronted with his statement Ex.PW-13/A in this regard. He denied the suggestion that he was deposing falsely having been won over by the accused.
CC No. 109/2008 Page18 of 56
19 PW-14 Shri R.D. Miglani at the relevant time was posted
as Branch Manager, State Bank of India, IGI Airport. He proved statements of account of Omkar Singh as Ex.PW-14/A and of Anand Pal Singh as Ex. PW-14/B and deposed about deposit of refund vouchers in the said account. He claimed that there were credit entries in the account but he could not say if the same were related to income tax refund orders.
During course of cross examination witness admitted that he had not brought the originals of Ex. PW-14/A & B and the copies did not bear any certificate under Bankers Books Evidence Act. He further admitted that the relevant entries did not bear the words refund voucher.
20 PW-15 Satyawati claimed that during the relevant period she was working as UDC in Income-tax Department where accused Azad Singh was also working. She claimed that she was not in a position to recognize the document which was already Ex.PW-5/A. After seeking permission from the court, witness was cross examined by Ld PP for CBI wherein she admitted that her statement had been recorded by Inspector Om Parkash. She denied having stated to the IO that the dispatch memo was prepared by her on basis of office copy of refund orders. She was duly confronted with her statement in that regard. She denied the suggestion that Ex. PW-5/A was in her handwriting. She further denied having stated to the IO that she identified handwriting of Azad Singh on the refund orders which were signed by Shri Subhash, ITO. She was again confronted with her statement in that regard. She identified signature of Shri Subhash on the refund vouchers Ex. PW-11/2 to 7. She CC No. 109/2008 Page19 of 56 denied having stated to the IO that the refund orders used to be placed on table of Azad Singh for further dispatch to Central Dispatch as per his directions. She was again confronted with her statement in that regard. She denied having stated to the IO that in case any refund orders were retained by Azad Singh, he used to claim that he was responsible for the same. She was again confronted with her statement in that regard. Witness further claimed that there was no system of issuing refund vouchers by hand but claimed that in case someone / assessee made a request to the ITO, the voucher could be given to him against due signatures. She however claimed that under no circumstances the refund vouchers could be issued to any third person. She denied having stated to the IO that the Income-tax refund orders No. 416921, 416922, 416924, 416925 & 416926 had not been dispatched by Azad Singh to the Central Dispatch Section and retained by him as he had prepared and handled the same. She was again confronted with her statement in that regard. She further specifically denied having stated to the IO that I.C. Garg (A-1) used to visit A.S. Rathi (A-2) in the office or that the refund orders were handed over to A-1 by A-2 without any receipt or specific orders. She was again confronted with her statement in that regard. She volunteered that she had never seen I.C. Garg in the office. She further claimed that her statement was not recorded by the IO and that he had not read over her statement to her. She volunteered that IO had made her sit upto 7.00 PM. She further claimed that she was never shown any file pertaining to the present case. She further claimed having told the IO that she was unable to identify handwriting of the person on the dispatch memo. She denied the suggestion that she was deliberately not identifying the signature/handwriting of Azad Singh or was deposing falsely at his instance.
CC No. 109/2008 Page20 of 56 During course of cross examination by Ld. Counsel for accused witness claimed that she had never seen any order for issuance of the refund vouchers by hand. She claimed that there was no system of making entry of the visitors in their office and that anybody could enter the office at any time during the office hours.
21 PW-16 Smt. C.S. Basantha identified her signature on seizure memo dated 22.8.2000 which was proved as Ex.PW-16/A. She claimed that vide the memo she had handed over Income-tax returns of six people to the CBI officer alongwith carbon copy of dispatch memo dated 2.5.2000 and office copies of some refund orders.
22 PW-17 Shri Ram Avtar Jain during examination in chief claimed that in the year 2001 he was posted as a Clerk with Canara Bank, Airport Authority of India, Delhi Cantt. He identified signature of Shri Harbans Lal (Manager) on letter dated 25.8.2001 (Ex. PW-17/A) which had been written by the witness. He also proved statements of accounts in respect of Arun Venkatesh and Lakhan Singh as Ex. PW-17/A1 & A2 and identified signature of Harbans Lal on the same. He deposed about some credit entries in the same but claimed that he could not say if the same related to refund vouchers Ex.PW-11/2 & 3.
During course of cross examination by Ld. Counsel for the accuseds witness could not tell name of the Inspector to whom the documents had been handed over. He admitted that the statements of accounts were not certified under the Bankers Books of Evidence Act. He denied the suggestion that he was deposing falsely.
CC No. 109/2008 Page21 of 56
23 The next witness examined in this case was Shri Naresh
Kumar Yadav. His statement was partly recorded on 12.10.2007 but due to oversight, he was mentioned as PW-14 in place of PW-18 as this witness was. The mistake was rectified during course of his subsequent examination vide order dated 16.09.2008 passed by my ld. Predecessor.
24 PW-18 Shri Naresh Kumar Yadav like PW-3 Wahirduddin was a member of trap team. During course of his examination-in- chief, he stated about the pre-trap proceedings and the trap laid in this case. However, he claimed that during pre-trap demonstration he was told that in case any person accepted the tainted currency notes and his hands were dipped in simple water, the hands would become red. He had further stated that Wahirduddin had touched the currency notes and then his hands were washed in the Washbasin whereupon, his hands turned red. He further claimed that a tape recording equipment was given to him which he kept in his pant pocket and that he had been asked to remain close to the complainant and switch on the Mike as and when some conversation takes place between complainant and the person who was demanding money. He further claimed that after they waited at the Cargo Terminal, IGI Airport, the person who was demanding money did not come and thereafter, the tape recording equipment was taken back from him. He claimed that some conversation between complainant and accused I.C. Garg was recorded but he could not see the manner of recording as only two persons were permitted to enter the room. He claimed that he did not peruse the recording and thereafter, they all returned back to CGO Complex Office where they remained till 6.30 P.M. and then went to DLF, Gurgaon. He claimed that after reaching there, he alognwith complainant Vijay Singh went inside where the complainant made some conversation with the CC No. 109/2008 Page22 of 56 accused. He claimed that the complainant Vijay Singh asked him to go outside and give signal to CBI by scratching his head with both his hands. He claimed that he did not know as to what had happened for giving such a signal as he did not see anybody demanding or accepting bribe. He could not identify the accused despite having taken a round of the Court Room.
After seeking permission from the Court, witness was cross-examined by ld. PP for CBI wherein he admitted that his statement was recorded by the I.O. He claimed that after the trap he had been called by the I.O. in CBI Office where he was shown a statement as being his statement and that his signatures were obtained on the same. He identified the said statement as being Ex.PW-14/A. He claimed that he could not say if the purpose of keeping him as a shadow witness was to see the transaction of passing of the bribe amount between complainant and the accused. He claimed that he only kept obeying the directions given by Shri D.K. Singh. He claimed that Shri D.K. Singh had directed him to obey when the complainant Vijay Singh would tell him to give a signal. He denied the suggestion that he had seen the transaction of passing of bribe amount between the complainant and the accused or had given signal subsequently. He denied having stated to the I.O. that he had seen the accused I.C. Garg demanding, accepting, counting or keeping Rs.1300/- and handing over cheque to the complainant. He was duly confronted with his statement in this regard. When the accused I.C. Garg was pointed out to the witness by ld. PP, witness claimed that he could not say if he was the person who had been arrested at the spot. He denied the suggestion that he was deliberately not identifying the accused. He claimed that he could not say if CBI had arrested the right person or not. He further claimed having signed the documents as his Senior CC No. 109/2008 Page23 of 56 Shri Wahirduddin had signed the same. He claimed that he could not say whether or not the tainted notes of Rs.1300/- had been recovered from accused I.C. Garg. He also could not say if the powder applied on the currency notes during pre-trap proceedings was Phenolphthalein powder or if the hand wash had been taken in solution of Sodium Carbonate. He also pleaded his ignorance regarding the handwashes and pocket wash being taken or the same being converted in two separate bottles. He denied the suggestion that he had been directed by the CBI Officer that in case transaction of money takes place, he should give a signal to the trap party. He claimed that infact he had been directed to do whatever was asked to be done by Vijay Singh. He claimed that he did not know for what purpose the signal was to be given. He claimed that he did not know if I.C. Garg had been caught from the spot but claimed that one person had been apprehended. He could not say if the person apprehended was the person who demanded bribe. He denied the suggestion that washes of both hands of accused were taken or that tainted money of Rs.1300/- was recovered by Shri Wahirduddin from left pant pocket of A-1. He claimed that he was not aware if the washes had turned pink or not. He denied the suggestion that the recorded conversation had been played at the spot or that it revealed and confirmed demand and acceptance of bribe by A-1. Witness identified his signatures on the documents and the bottles. He further denied the suggestion that the bribe amount, cheque produced by complainant, the three pink solutions, pant of accused and the sealed cassette had all been seized by CBI Officer in his presence. Although, he identified his signature on the Recovery Memo Ex.PW-3/D, witness denied the suggestion of having signed it after reading the same and claimed having signed it without reading. He also identified his signature on Search cum Seizure Memo Ex.PW-18/X-1 but claimed that the proceedings CC No. 109/2008 Page24 of 56 mentioned therein did not take place in his presence. He claimed that search of the house of the accused did not take place in his presence. Similar was his reply in respect of Disclosure Memo Ex.PW-18/X-2. He claimed that it was not prepared in his presence. He specifically claimed that the currency notes Ex.P-8/1 to 13 were not recovered from accused I.C. Garg in his presence.
During cross-examination by ld. Counsel for accused witness claimed that the cassette had not been played in court before him. He further claimed that he alongwith Wahiruddin had been directed to attend CBI office on 31.4.2000 and report to D.K. Singh and accordingly they went and contacted D.K. Singh at about 4.00 or 4.30 PM on 31.4.2000. He claimed that when they started to come back from the CBI office at about 5.00 PM, they were introduced to the complainant Vijay Singh by D.K. Singh. He could not say whether the complainant had brought written complaint or had written the complaint there itself. He claimed that the handing over memo was neither read over to him nor had he read it. He claimed that after returning back to CBI office from IGI Airport, they again left at about 7.30 PM and had reached Gurgaon at about 8.30 PM. He claimed that he had gone inside the premises but only remained in the gallery of the premises. He claimed that only Vijay Singh had gone inside where he remained for about 15 minutes. Witness stated that he did not hear the conversation between the complainant and the other person present in the house. He specifically claimed that the accused I.C. Garg did not raise any demand of money from the complainant in his presence. He further admitted having signed all the papers in CBI office about 3-4 days after the date of incident. He further stated that the documents were neither read over to him nor did he read the same nor was he permitted to read the same. He could not say if his statement U/s CC No. 109/2008 Page25 of 56 161 Cr. P.C was also recorded on 2.1.2001. He admitted that A-1 did not demand money in his presence nor did he accept any money in his presence.
After seeking permission from the court, the witness was re-examined by Ld. PP for CBI and during course of his such re- examination witness identified his initials on all pages of the files (D-33 & 34) which were exhibited as Ex. PW-18/B & C. He claimed having signed Ex. PW-18/X1 on 4.5.2000 and stated having put the date as 1.5.2000. He claimed that CBI officer might have asked him to put the said date.
During cross examination by Ld. Counsel for accuseds witness claimed that the files Ex. PW-18/B & C were not seized in his presence and that he saw the same for the first time in office of CBI. He claimed that he had no personal knowledge about documents in the said files and had put his initials only on asking of CBI officer.
25 PW-19 Shri Devinder Dahiya identified his signature on seizure memo dated 29.8.2000 which was proved as Ex. PW-18/A and claimed having handed over refund vouchers, photocopy of demand and collection register and of the dispatch memo to the IO.
During course of cross examination by Ld. Counsel for the accused witness admitted that he had no personal knowledge about contents of the said memo.
26 PW-20 Shri Ranglal Mahto claimed that in December, 1999 he was posted as Tax Assistant in GSW 8 (3). He claimed that it was part of his duty to prepare income tax refund vouchers after calculating the actual leviable tax. He also identified the accused CC No. 109/2008 Page26 of 56 A.S. Rathi in court. He claimed that the refund vouchers Ex. PW-11/2 to 7 appeared to be in handwriting of A.S. Rathi but claimed that he was not sure. He claimed that vide the dispatch memo Ex. PW-5/A, 13 refund vouchers had been shown acknowledged by the Central Section. He further stated that dispatch of Dak / letters / refund vouchers etc. in the office used to be made by Smt. Satyawati, UDC, A.S. Rathi, UDC and Suresh Chand Gautam, LDC and sometimes he too used to do the said work. Witness claimed that Ex. PW-5/A appeared to be in handwriting of Satyawati, UDC. Witness further stated that accused I.C. Garg present in court used to come to their office to meet him and other employees including A.S Rathi.
During course of cross examination by Ld counsel for the accused witness claimed that he used to sit in a big hall in the office where 28-30 staff members used to sit. He claimed that none of the employees sitting in the hall had been allotted an almirah. He claimed that the refund vouchers Ex. PW-11/2 to 7 were not written by A.S. Rathi in his presence. He further claimed that the cross signs at points 1 to 7 on Ex. PW-5/A were not so made in his presence and he could not say who had put the same. Regarding the procedure, witness admitted that after preparation of refund vouchers the same are sent to ITO for his signature and then go to the staff who prepares dispatch memos and thereafter the refund vouchers are sent to Central Dispatch Section. He claimed that it was not in his knowledge that any office order had been issued prohibiting the staff members from engaging outsiders for their assessments. He further claimed that during the relevant period there was no necessity of obtaining any entry pass. He could not tell the exact date when he saw accused I.C. Garg for the first time in the office nor could he tell name of the official whom he met for the CC No. 109/2008 Page27 of 56 first time. To a specific question witness claimed that accused I.C. Garg used to come to their office but had never met him. Witness claimed that I.C. Garg used to come to the office to meet the concerned staff with whom he had work. Witness further stated that during course of his tenure he had never seen I.C. Garg meeting A.S. Rathi in the office.
A court question was put to the witness regarding the discrepancy which had appeared during course of deposition of the witness regarding his having seen I.C. Garg meeting A.S. Rathi. The witness replied that his statement that he had never seen the accused I.C. Garg meeting A.S. Rathi was correct.
27 PW-21 Aruna Venkatesh claimed that the Income Tax Return Ex.PW-21/1 had been filed by her for the assessment year 1998-99 and Ex.PW-21/4 for the assessment year 1997-98. She also identified the accused I.C. Garg who, it was claimed used to file Income Tax Return of various staff members of Airport Authority of India. She claimed having handed over her return Ex.PW-21/1 to I.C. Garg before she was transferred to Mumbai. He further claimed that accused I.C. Garg had contacted her friend Nalini and had asked for Rs.1600/- to hand over her Income Tax Refund Cheque of Rs. 5700/-. She further claimed that after telephonic talks with her, Nalini handed over sum of Rs.1300/- to I.C. Garg and thereafter the Income Tax Refund stood delivered to Nalini through Courier after two or three days. She claimed that she had never authorized I.C. Garg to receive the aforesaid Refund Cheque.
During course of cross-examination by ld. Counsel for the accused, witness denied the suggestion that her Income Tax Returns had been filed through accused I.C. Garg. She claimed that CC No. 109/2008 Page28 of 56 he had only filed her return for assessment year 1998-99. Witness admitted that talks between Nalini and the accused regarding demand of Rs.1600/- did not take place in her presence and she only came to know about it from Nalini. She also admitted that the amount of Rs.1300/- was not paid by Nalini in her presence. She denied the suggestion that she had told Nalini to pay Rs.1300/- to accused I.C. Garg towards his fee for filing the Income Tax Return. She denied the suggestion that she was deposing falsely.
28 PW-22 Ms. Nalini claimed that she knew Ms. Aruna Venkatesan who had asked her to collect Income Tax Refund Cheque on her behalf from I.C. Garg. She claimed that I.C. Garg approached her and told her that she would have to pay him Rs. 1300/- for obtaining the said cheque and after taking approval from Aruna, she handed over Rs.1300/- to I.C. Garg. She claimed that accused I.C. Garg had told her that some money had to be paid to Income Tax officials also. She further claimed having received the said Cheque through courier after two or three days.
During course of cross-examination by ld. Counsel for the accused witness could not tell the date or month when Aruna had asked her to collect the Refund Cheque on her behalf. She also did not remember the date, month or year when I.C. Garg had met her for the first time. She did not remember if the said Refund Cheque was deposited by her or by Aruna. She denied the suggestion that the money paid by her to the accused at instance of Aruna was not for obtaining Income Tax Refund Cheque but was towards his fee for filing of Income Tax Return of Aruna. She denied the suggestion that she was deposing falsely.
CC No. 109/2008 Page29 of 56
29 PW-23 Shri Harbans Lal produced records from Canara
Bank regarding Statement of Account of Aruna and Lakhan Singh and identified his signatures on the said Statements Ex.PW-17/A-1 & A-2.
During cross-examination by ld. Counsel for the accused, witness claimed that he had no personal knowledge regarding entries in the two Statements of Accounts.
30 PW-24 Shri K.R. Koundan was a witness to recording of sample voice of accused I.C. Garg and stated about recording of the sample specimen voice of I.C. Garg in his presence on 27.08.2001 in CBI Office. He proved the Memo prepared in that regard as Ex.PW-24/1 and also identified his signature on the cassette S-1 and the envelope.
During course of cross-examination by ld. Counsel for the accused, witness admitted that he had a PhD in Plant Bio- Chemistry and that Spectography was never his subject. He did not remember the Room No. or the Block No. where he had gone for the recording. He claimed that no written consent of the person whose voice had been recorded was taken in his presence. He claimed that the person whose specimen voice had been recorded was not made to speak on the telephone nor had he been handed over any general reading material like Magazine, Newspaper, etc. He claimed that no transcription of the recorded conversation was made in his presence nor any duplicate copy prepared.
31 PW-25 ASI Chanderkanta claimed having gone to house of accused Azad Singh alongwith accused I.C. Garg & CBI team on 04.05.2000. She identified her signature on the Arrest cum Personal CC No. 109/2008 Page30 of 56 Search Memo Ex.PW-25/1. She also identified accused Azad Singh. During course of her examination-in-chief, witness had claimed that accused I.C. Garg had informed that accused Azad Singh had given him five cheques in respect of which I.C. Garg had already given him Rs.2100/- and Rs.900/- was the balance. (This portion of deposition was objected to by ld. Counsel for accused being inadmissible).
During course of cross-examination by ld. Counsel for the accused, witness claimed that there were three or four members in the CBI team and that she had been permitted by Inspector Anand Prakash, SHO, P.S. Najafgarh to accompany the CBI team but no separate order was given to her in that regard. She claimed that the distance between house of accused and P.S. Najafgarh was about 1.5 to 2 Kms. She claimed that there were other residential houses nearby but she did not remember if any effort was made by CBI team to join inhabitants from nearby houses. She admitted that I.C. Garg was already in CBI custody and that she did not remember if at the time of preparation of Ex.PW-25/1 any separate statement of I.C. Garg had been recorded. She also did not remember whether or not signature of I.C. Garg had been obtained on the said document. After seeing the document witness admitted that it did not bear his signature. She denied the suggestion that she was deposing falsely on asking of CBI.
32 PW-26 Inspector Alok Kumar was partly examined in chief when his testimony was deferred. The witness was never produced again by the prosecution for recording of his further testimony. As such, part of his testimony which has not been tested on touch stone of cross examination cannot be taken into consideration for any purpose whatsoever. Testimony of PW-26 has to be excluded from consideration.
CC No. 109/2008 Page31 of 56
33 PW-27 Inspector D.K. Singh was the person to whom
complaint of Vijay Singh had been marked for further proceedings. During course of his examination-in-chief, he deposed about constitution of the trap team, the pre-trap demonstration and also the trap proceedings including recovery of tainted money from the accused and reiterated allegations of prosecution against the accused. He claimed that accused I.C. Garg had been called to CBI Office on 02.05.2000 and arrested vide Memo Ex.PW-27/1. He further claimed that the accused I.C. Garg made a disclosure statement to the effect that accused Azad Singh Rathi had handed over Income Tax Refund Cheque to him vide disclosure statement Ex.PW-18/X-2.
During course of cross-examination by ld. Counsel for the accused, witness claimed that on 01.05.2000, he had been called by the S.P. during noon time but he could not tell the exact time. He claimed that it was not in his knowledge that Vijay Singh had also come to CBI Office on 30.04.2000 at 10.00 A.M. He denied the suggestion that the complaint Ex.PW-4/A was dictated to the complainant by a CBI Officer on 30.04.2000. He claimed that it was also not in his knowledge that two independent witnesses were also sitting with the Dy. S.P. at the time when the complaint was dictated by the Dy. S.P. Witness claimed that he had not recorded statement of any official of Airport Authority of India to confirm statement of complainant about accused I.C. Garg having visited him in the Office and having talked to him on 29.04.2000. He claimed that he had not obtained print outs of talks between the complainant and the accused. Witness admitted that before the pre-raid proceedings, Vijay Singh had not told him name of officials of Income Tax Department with whom money was to be shared. He admitted that CC No. 109/2008 Page32 of 56 name of Azad Singh had not come to his knowledge prior to 04.05.2000. He did not remember whether he got information about accused I.C. Garg habitually demanding money for return of cheques of Income Tax Refunds from the Income Tax Department or from CBI Office or some outside source. He claimed that the said information had been supplied by staff of Office of the complainant but he could not tell their names or the amounts of money paid by them. Witness could neither deny nor affirm the suggestion that for giving consultations and for filling up the forms, accused I.C. Garg used to charge professional fee from said staff members. He did not know as to who had called the independent witnesses and when they had been called. He could not say if the requisition in that regard had been sent in writing or had been sent orally. He also did not know if any vehicle had been sent to fetch the said witnesses to CBI Office. He denied the suggestion that complaint of the complainant had not been given to the two independent witnesses. He did not remember name of the CBI Inspector who had given the pre-trap demonstration. He did not remember details of the demonstration either. He denied the suggestion that N.K. Yadav was not directed to give signal after the transaction or had been merely asked to obey directions of Vijay Singh. He could not tell make of Remote Cassette Recorder, Remote Mike or the Telephonic Recording Bug. He also did not remember if any departure entry was made by the trap team before departing from CBI Office. Witness admitted that he never had any prior telephonic conversation with I.C. Garg and had never met him earlier. He claimed that he did not remember the exact duration of time during which they remained in Office of Airport Authority of India and that from there, they had gone to residence of accused I.C. Garg in DLF, Gurgaon and it took them 30 to 40 minutes in reaching there. He denied the suggestion that from the office of Airport Authority of CC No. 109/2008 Page33 of 56 India, the trap team came to Office of CBI or remained there till evening. Witness admitted that no effort was made to call any independent witness from nearby houses to watch the post trap proceedings. He denied the suggestion that Shri N.K. Yadav had not witnesses handing over of bribe amount by complainant to A-1. He further claimed that one Mohd. Iftikar was working on Computer in Office of accused at the relevant time but he did not remember if his signatures were obtained on the documents. Witness denied the suggestion that accused I.C. Garg was arrested immediately after recovery on 01.05.2000. He claimed that accused was arrested on 2.5.2000 after he was called to Office of CBI and interrogated. Witness admitted that he had prepared the Case Diary dated 01.05.2000 on computer and portions of relevant statements were copied and pasted while preparing statements U/s. 161 Cr.P.C. He admitted that the copy and paste technique was adopted while recording statements of Vijay Singh, Wahiduddin and N.K. Yadav. He claimed having recorded statements of Wahiduddin and N.K. Yadav on 04.05.2000 and could not give any reason for not recording their statements on 02nd or 03rd May, 2000. Witness has admitted that on 4.5.2000 he had not recorded supplementary statements of Wahiduddin and N.K. Yadav. He denied the suggestion that till 3.5.2000 there was no evidence on record against A-2 Azad Singh. Witness claimed that after arrest of I.C. Garg, he had been interrogated on 2.5.2000 and during his interrogation involvement of Azad Singh stood disclosed. He however admitted that factum of said interrogation was not available on judicial file. Witness claimed that from house of the accused I.C. Garg he had returned back to CBI office but did not remember if the accused had been brought by him to CBI office or if the accused himself came there on 2.5.2000. Witness admitted that I.C. Garg had not been apprehended immediately on conclusion of the trap proceedings on CC No. 109/2008 Page34 of 56 1.5.2000. He did not remember if any written instruction had been given to I.C. Garg to attend the CBI office on 2.5.2000. Witness admitted that after arrest of the accused I.C. Garg and till recording of his disclosure statement Ex. PW-18/X2 , the accused had remained in custody of CBI officers. Witness could not tell the time of recording of the disclosure statement. He also could not say if the attesting witnesses Wahiduddin and Naresh Kumar had been specifically summoned or were already available in CBI office in connection with some other case when the disclosure statement was recorded. He denied the suggestion that their statements Ex. PW-3/A and Ex.PW-18/A had been recorded by him of his own. He admitted that their statements did not mention about recording of the disclosure statement. He further admitted that he had not recorded their supplementary statements on that day regarding the disclosure statement of I.C. Garg. Witness admitted that no corroborative evidence had been collected by him in support of facts mentioned in Ex. PW-18/X2. Witness claimed that he did not remember names of the police officials of PS Najafgarh who had been taken along by him while going to house of Azad Singh. He could not tell address of house of Azad Singh. He claimed that there were residential houses around house of Azad Singh and effort was made to call the residents but none agreed. Witness claimed that one Vimla Devi had signed the arrest memo of accused Azad Singh but he could not say as to who she was. He claimed that she might be some police official of PS Najafgarh or wife of accused Azad Singh. He claimed that he had not recorded her statement U/s 161 Cr. P.C. Witness admitted that at the time of arrest of accused Azad Singh, he had no evidence against Azad Singh except for disclosure statement of accused I.C. Garg. He claimed that investigation stood transferred from him to Inspector Om Parkash about a week or 7 days after recording of disclosure statement Ex. pw-18X. He denied the CC No. 109/2008 Page35 of 56 suggestion that I.C. Garg had not made any disclosure statement against Azad Singh or that Azad Singh had been arrested without any evidence. He denied the suggestion that the accused were falsely implicated in the case or that he was deposing falsely.
34 PW-28 Om Parkash claimed that investigation of this case stood marked to him in May-June, 2000. He claimed having collected documents from Inspector D.K Singh and others and also claimed having recorded statements of witnesses. He identified his signatures on documents. Letter dated 14.07.2000 addressed by the complainant to the witness was claimed to have been seized vide Memo Ex.PW-28/1. He claimed that the said letter was accompanied by advise of refund. He also claimed having sent the questioned audio cassette Q-1 and the specimen voice cassette S-1 to CFSL for opinion. He also claimed having seized File containing admitted handwriting of Azad Singh and also claimed having obtained his specimen handwriting/signature. He claimed having sent the questioned and the specimen handwriting to CFSL for opinion. He further claimed having filed the Charge Sheet after obtaining sanction for prosecution against accused Azad Singh.
During cross-examination by ld. Counsel for the accused, witness claimed that he could not say as to when and by whom copy of FIR had been delivered to ld. Special Judge. He could not remember as to when the Washes of the case had been sent to CFSL and did not remember as to where the same had been kept since 01.05.2000. Witness admitted that an entry has to be made in CBI, Mallkhana Register whenever Case Property is deposited there. He claimed that he had not checked the relevant entry with regard to deposit or taking out of the Washes in this case. He admitted that he did not seize copy of relevant pages of the CC No. 109/2008 Page36 of 56 Mallkhana Register in this regard nor had he recorded statement of the Mallkhana Moharar. He could not say as to when the Washes had been taken out from the Mallkhana for being sent to CFSL. Same was his reply in respect of the audio cassettes kept in the Mallkhana. Witness admitted that he did not obtain opinion of Handwriting Expert to ascertain if the writings on page No. 51, 52, 56 & 66 in Register Ex.PW-28/37 were of I.C. Garg or not and had not even recorded statement of any witness in that regard. He claimed that he was heading a team which had conducted search of house of I.C. Garg. He claimed that premises searched were a Basement and on Ground Floor and may be also on First Floor. He did not remember number of main entrances of the said house. He admitted that he did not collect the original of Ex.PW-5/A and claimed that the same had been handed over to Speed Post Section (Center) by the Income Tax Department. He claimed that he could not say as to who had put 'X' Mark in Column I of Ex.PW-5/A. To a specific question in this regard, witness claimed that during investigation some witnesses informed him that I.C. Garg used to file their Income Tax Return and had handed over to them Income Tax Refund Vouchers after obtaining certain percentage of the amount mentioned therein. Witness admitted that he had recorded supplementary statements U/s. 161 Cr.P.C. of N.K. Yadav on 02.01.2001 wherein for the first time reference was made to the disclosure statement dated 04.05.2000 made by I.C. Garg. He admitted that he had not recorded any supplementary statement of Wahiduddin. He denied the suggestion that he had not fairly investigated the case.
35 PW-29 Shri Ramashanker Yadav claimed that in the year 2000, he had accompanied CBI team to some house in Gurgaon where some paper work was done in his presence and his signature obtained. Witness identified his signature on the Memo (D-23) CC No. 109/2008 Page37 of 56 Ex.PW-18/X-1. He further claimed having signed the documents which had been seized during house search, but claimed that he could not remember details of those documents.
36 PW-30 Shri Sarmesh Kumar identified his signature on document Ex.PW-28/5 (D-46) and claimed having handed over file containing admitted handwriting of accused Azad Singh to the CBI vide the same. He claimed that documents contained in the File Ex.PW-28/6 used to be received in the Office during normal course of duty of the accused.
During course of cross-examination by ld. Counsel for the accused, witness claimed that none of the documents contained in the File had been written by Azad Singh in his presence. He claimed that Azad Singh had never claimed in his presence that those documents were written by him.
37 No other witness was examined on behalf of the prosecution and the remaining witnesses were given by ld. PP for CBI on the ground of their being repetitive in nature. Prosecution evidence was accordingly closed.
38 Thereafter, statements of the accused persons were recorded U/s. 313 Cr.P.C. without Oath.
39 During course of his statement recorded U/s. 313 Cr.P.C. accused I.C. Garg denied having entered into any conspiracy with his co-accused Azad Singh. He specifically denied all the allegations as had been alleged against him. He denied having demanded any sum of money from any person for handing over of Income Tax Refund Cheques to the said person in an CC No. 109/2008 Page38 of 56 unlawful manner. He specifically denied having handed over any cheque to Vijay Singh and claimed that Vijay Singh had only paid him sum of Rs.1300/- towards his professional fees and that it was this amount which had been shown to have been recovered from his possession. He further claimed that there had been some differences between him and the complainant Vijay Singh in connection with his professional work as a Chartered Accountant. He claimed that he used to file Income Tax Returns of many persons from Office of complainant including that of the complainant and that complainant had threatened him that complainant would not permit him to work in the Office and would spoil his career and profession. He claimed that he was innocent and had been falsely implicated and wanted to lead defence evidence.
40 On similar lines, accused Azad Singh also denied having entered into any conspiracy with accused I.C. Garg as had been alleged against him. He denied that he used to hand over refund cheques to I.C. Garg for consideration or that he and I.C. Garg used to share the amount illegally received by I.C. Garg by way of handing over Income Tax Refund Orders to the respective assessees. Accused denied all the allegations as had been alleged against him by the prosecution. He further claimed that he had a working table in the Hall of his Office where about 60 employees used to work. He stated that even outsiders i.e. non-employees of Income Tax Department used to come there and work with and for the employees. He further stated that they did not have any Almirah etc. to keep the records and every document used to remain in open on the tables. He further claimed that he was on leave from 19.04.2000 to 02.05.2000 and that after the Refund Orders were prepared by him, the same were sent for signature of the respective Income Tax Officer and then were directly sent from there to the Central Dispatch CC No. 109/2008 Page39 of 56 Cell. He claimed that he had not handed over any Refund Voucher to co-accused I.C. Garg. He also sought to lead defence evidence.
41 Four witnesses were examined in defence by the accused persons.
42 DW-1 Shri Atul Grover produced the Service Book in respect of accused Azad Singh and placed on record relevant copy thereof as Ex.DW-1/A. He claimed that as per record, Azad Singh had been granted 10 days earned leave w.e.f. 24.04.2000 to 03.05.2000.
During cross-examination by ld. PP for CBI, witness admitted that the entry in respect of leave of Azad Singh was not in his handwriting nor could he say as to who had written the same. He claimed that he had no personal knowledge of the facts stated by him and was only deposing as per records. He admitted that he had not brought any other record including the leave application or the joining report.
43 Summon had also been issued to DDO, CIT-14 in respect of joining report of Azad Singh, but on his behalf once again DW-1 Shri Atul Grover appeared and claimed that joining report was not available in the Office.
44 DW-2 Shri Ritesh Kumar claimed that he had not brought the summoned record as the same was not traceable.
45 The next witness examined was Shri Subhash Chand. Due to oversight, even he was mentioned in the evidence sheet as DW-2 while he ought to be termed as DW-3. Witness claimed that CC No. 109/2008 Page40 of 56 originals in respect of Office Order No. 2270 & 8857 dated 08.01.2003 and 28/29.01.2003 respectively were not available in the Office. (The said documents were already Mark PW-6/DA & DB).
46 DW-3 (should be DW-4) Shri Sanjay Kumar proved the aforesaid Mark PW-6/DA & DB as Ex.DW-3/A & B and identified his signatures on the same. He claimed that something must have cropped up during course of weekly meetings of the Chief Commissioners of Income Tax which lead to issuance of the said Office Orders. He further claimed that it was not an established practice for the outsiders to work with employees of Income Tax Department.
During course of cross-examination by ld. APP for CBI, witness admitted that the orders had been issued to prevent the employees from taking help of outsiders in doing the official work. He admitted that Advocates and Chartered Accountants do visit their Office as authorized representatives of their clients/assessees and used to meet the Officers and with their permission some officials for official work.
47 After conclusion of prosecution evidence and defence evidence, arguments advanced from both the sides were heard.
48 During course of his submissions, it was submitted by ld. PP for CBI that prosecution had duly proved its allegations against both the accused persons. It was pointed out that accused Azad Singh had admitted that the Refund Vouchers were in his handwriting. It was further submitted that the Dispatch Memo Ex.PW-5/A depicted that the Voucher in question in respect of Vijay Singh and the other Vouchers in respect of which the 'X' sign had CC No. 109/2008 Page41 of 56 been put, were never sent for dispatch to the Central Dispatch Section. It was submitted that it was so as both the accused persons had entered into a conspiracy whereunder accused Azad Singh used to take the Refund Vouchers/Cheques from the Office and hand over the same to accused I.C. Garg who in turn, used to receive money from the respective assessees for handing over the Refund Cheques to them and which amount used to be shared between the two accused persons. It was submitted that as a matter of practice & procedure in the Income Tax Department, the Refund Cheques were not handed over to the parties in the Office but rather were sent by Speed Post/Registered AD at the addresses of the respective Assessees. It was submitted that in this case, a sum of Rs.1300/- had been received by I.C. Garg from the complainant Vijay Singh for himself and also for Azad Singh as gratification or reward for inducing by corrupt and illegal means the public servant Azad Singh to forbear to do official act by showing favour to Vijay Singh by hand delivering his Refund Voucher. While referring to Dewan Vs. State (1988) Crl. L.J. 1005, it was submitted that it was not even necessary that I.C. Garg should infact have attempted to induce Azad Singh as mere receipt of gratification by him for the purpose of inducing Azad Singh by corrupt or illegal means completed the offence. It was further submitted that it is very difficult to get concrete evidence in respect of conspiracy and conspiracy can be inferred from circumstantial evidence which has been duly proved on record by the prosecution. While referring to statements of witnesses recorded in Court, it was submitted that I.C. Garg was in the habit of taking money from the Assessees in lieu of handing over to them the Refund Cheques. As per ld. PP, I.C. Garg was in constant touch with Azad Singh and had been able to procure the cheque in question.
CC No. 109/2008 Page42 of 56
49 Ld. Counsel for the accused persons on the other hand
submitted that prosecution had miserably failed to prove on record existence of any type of conspiracy between the two accused persons. While referring to statements of witnesses, it was submitted that there was nothing on record against Azad Singh (A-2) except for the alleged disclosure statement (Ex.PW-18/X-2) said to have been made by A-1 I.C. Garg three days after alleged incident. It was submitted that it was admitted case of prosecution that A-2 had never made any demand of money from the complainant, A-2 had never received a penny from the complainant and there had been no recovery of the bribe amount from A-2. Ld. Counsel submitted that there could be no presumption of conspiracy as existence of an agreement between the conspirators was necessary. Ld. Counsel further submitted that prosecution had failed to prove on record any rule/regulation or procedure to the effect that a Refund Cheque could not be handed over to the Assessee or his nominee. While referring to statements of witnesses from the Income Tax Department, it was sought to be submitted that after preparing the Refund Vouchers, A-2 had no control over the same as the Refund Cheques were taken for signature before the concerned Income Tax Officer and then were sent for dispatch to the Dispatch Section. It was claimed that A-2 did not come into picture at all after having prepared the voucher/cheque. As regards Ex.PW-5/A, it was submitted that no evidence whatsoever had been led on record as to who had put the 'X' mark on the said list at various places and as to what was meant by the said mark. As per ld. Counsel, mere possession of the Refund Order by a private person was no offence and what was received by A-1 from the complainant was his professional fees for filing the Income Tax Return and handing over the Refund Cheque to the complainant. It was submitted that as there was no explicit or implicit agreement between A-1 & A-2 and in CC No. 109/2008 Page43 of 56 absence of any evidence regarding A-2 having delivered the cheques to A-1 and in absence of any evidence to the effect that A-2 had received any money from A-1, there was no conspiracy proved between A-1 & A-2. As regards accused I.C. Garg, it was submitted that neither the two independent trap witnesses nor the complainant himself had supported case of the prosecution regarding A-1 having received any bribe amount from the complainant in lieu of handing over to him his Refund Cheque. It was claimed that what had been received by A-1 was his professional fees and as the complainant was agreed because A-1 had increased his fee, A-1 was falsely implicated in this case. It was further submitted that as A-1 was a private person, he alone could not have been implicated in the present case under PC Act by the CBI and hence, A-2 was made a scapegoat by falsely implicating him also in this case.
50 Ld. Counsel for the accused, during course of his submissions had placed reliance on the following judicial pronouncements:-(1) Vijayan @ Rajan etc. V/s. State of Kerala 1999(1)JCC (SC)177 (2) KR. Purushothaman Vs. State of Kerala 2005(3)JCC (SC) 1847 (3) R. Natrajan & others. Vs. State 2006(2)JCC 650 (4) Banarasi Dass Vs. State of Haryana 2010(3) JCC 1842 (5) Sahebe Alam Vs. State 2002(62) DRJ 791 (6) Sushil Kumar Sharma Vs. State M.P. IV(1995) CCR 182 (7) Suresh Budharmal Kalani Vs. State of Maharashtra 1998 SCC (Cri) 1625 (8) Amit Pratap & Anr. Vs. State 2012 (1) JCC 86 (9) Harvinder Pal Saini Vs. State 2012 (1) JCC 321 (10) State of Karnatka Vs. Ameer Jan -http://JUDIS.NIC.IN Appeal (Crl) 766 of 2001 (11) Kartongen KEMI OCH FORVALTING AB Vs. State through CBI 2004 (1) JCC 218 (12) Mahmood & Anr. Vs. State of Uttar Pradesh (2009) 1 SCC (Cri) 763 (13) Davender @ Kallu Vs. State 2011(2) JCC 1453 (14) Rajesh Kumar Vs. State 2011(4) CC No. 109/2008 Page44 of 56 JCC 2522 DB DLI (15) C. Mangesh & Ors. Vs. State of Karnatka (2010) 2 SCC (Cri) 1318 (16) C.M. Girish Babu Vs. CBI Indian Kannoon -http://Indian Kanoon org/doc/1654606 (17) Prem Singh Yadav Vs. CBI 2011(2) JCC 1059 (18) State (Govt. of NCT of Delhi) Vs. Girdhari Lal Verma 2011(3) JCC 1744 (19) Union of India through Inspector CBI Vs. Purnandu Biswas 2005 (3) JCC 1832 (SC) (20) Devesh Kumar Vs. State 2010 (1) JCC 762 (21) R.M. Malkani Vs. State of Maharashtra 1973 Cr.L.J. 228 (SC) (22) Savita @ Babbal Vs. State of Delhi 2011 (3) JCC 1687 (23) Extract from 'Forensic Voice Identification' by Harry Hollien (24) Haji Mohammad Ekramul Huq. Vs. The State of West Bengal AIR 1959 SC 488 51 Yet another line of argument advanced by ld. Counsel for accused was towards challenging the Sanction Order whereunder sanction was accorded for prosecution of A-2 Azad Singh. It was claimed that the Sanction Order had left much to be desired and that the Sanctioning Authority, as per records, had not considered any of the relevant documents nor could remember having considered any relevant document. While on this, ld. Counsel drew attention of this Court to the testimony of the Sanctioning Authority. The judicial pronouncements relied upon were in support of submissions made by ld. Counsel regarding there being non-existence of any conspiracy between the two accused persons and regarding in- admissibility of the disclosure statement of A-1 as regards A-2 and also towards challenging the Sanction Order and regarding violation of the codified law of Section 157 Cr.P.C. Various contradictions in testimonies of prosecution witness had also been pointed out by ld. Counsel for accuseds during course of his arguments. Ld. Counsel further submitted about the missing link evidence in this case in as much as there was no evidence regarding safe custody of the audio CC No. 109/2008 Page45 of 56 cassette and its safe transmission to CFSL for examination. Ld. Counsel pointed out from records that while the alleged trap proceedings took place on 01.05.2000, on which date the alleged cassette Q-1 was prepared, it came to be sent alongwith the alleged sample voice cassette to CFSL for examination only on 29.08.2001. It was submitted that there was nothing on record as to in whose custody the cassettes had remained during the intervening period. It was prayed that as the two independent witnesses and also the complainant had not supported case of the prosecution, the accused persons were entitled to an order of acquittal.
52 This Court has given thoughtful consideration to arguments advanced and has also gone through the records including the evidence recorded, arguments advanced and has perused the judicial pronouncements relied upon at the bar.
53 It is not in dispute that conspiracy is often hatched in secrecy and executed in darkness. The agreement between the conspirators is seldom a written agreement and as such, it is often quite difficult to find direct evidence regarding the conspirators having entered into a conspiracy. The said agreement is often proved by way of circumstantial evidence as it is difficult to obtain direct evidence in respect of conspiracy. As was observed in Vijayan's Case (Supra) to bring home the charge of conspiracy within the ambit of Section 120B of IPC, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It was further observed that although it is difficult to establish conspiracy by direct evidence, therefore, from established facts inference can be drawn, but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to said conspiracy.
CC No. 109/2008 Page46 of 56
54 Coming back to facts of the present case, as regards the
alleged conspiracy between accused I.C. Garg and Azad Singh what has to be looked into is as to whether or not there had been any agreement between the two for doing the alleged acts. It has also to be looked into as to whether or not there exists any evidence on record to the effect that it was A-2 who handed over the Refund Vouchers to A-1 and if A-2 had received any money as consideration for the same. The acts or conduct of A-1 & A-2 must be conscious and clear enough to infer their concurrence as to the common design and its execution.
55 It is settled principle of law that there cannot be presumption of criminal conspiracy and that for purpose of conspiracy between two persons, there has to be an agreement to do an unlawful act or a lawful act by illegal means. Mere knowledge of a person about someone else having done some illegal act would not amount to be a conspiracy between the two.
56 As regards accused No.2 Azad Sigh, perusal of record reveals that there is no allegation against him regarding his having demanded any money from the complainant or anyone else. There also does not appear any material on record regarding accused No. 2 having received any amount of money whatsoever from Accused No.1 or any other person. Admittedly, no tainted money was ever recovered from A-2. The only allegation that appears on record against accused Azad Singh is regarding his having handed over the refund voucher/cheque to A-1 and having received consideration from him for the same. Now during course of entire evidence on record prosecution has failed to show any circumstance which might lead this court to draw an inference about A-2 having handed over the refund cheque to A-1. Much was sought to be made out of CC No. 109/2008 Page47 of 56 document D-13 (Ex. PW-5/A) in this regard. Perusal of the said document reveals that it was a carbon copy out of which some portion was in black carbon while some in blue carbon. Investigating Officers (PW-27 & 28) admittedly never seized the original. It was sought to be made out by the prosecution that some of the refund vouchers mentioned therein had been sent to assesses by post while the vouchers in respect of which " X " mark had been put were never sent by post. Now, nothing has been brought out on record as to who had put the " X " mark on the list or what was its significance. It has also not been proved as to who was author of the same. While PW-11 claimed it to be in handwriting of UDC Satya, the said witness when examined as PW-15 denied the document to be in her writing. Author of this memo has remained in hiding. Prosecution has also not brought on record any evidence in the form of any rule, regulation or order to the effect that a refund voucher could not be handed over to any assessee/representative by hand or was necessarily to be sent by post. There is contradiction in testimony of witnesses as to whether it had to be sent by speed post or by Regd. AD. Be that as it may, there is nothing on record to show that possession of a refund voucher by a private persons was an offence. It has also appeared on record during course of evidence that the refund vouchers filled in by A-2 has to be sent for being signed by Income-tax Officer and thereafter were taken by some other person to the Dispatch Section where the same were supposed to be dispatched. It has not been brought on record as to how or in what manner or at what stage A-2 would regain control over the vouchers after having prepared the same and having sent the same for being signed by Income-tax Officer concerned.
57 While on this, it would be pertinent to mention that A-1 as per allegations had accepted the tainted amount on 1.5.2000.
CC No. 109/2008 Page48 of 56 Admittedly, he was not arrested by CBI on the said date and rather had been called upon to appear in CBI office on 2.5.2000 when he reportedly was arrested in this case. Name of Azad Singh had not appeared till that stage. His name appears for the first time only during course of alleged disclosure statement of A-1 which, as per prosecution came to be recorded on 4.5.2000. IO PW-27 Inspector D.K. Singh during course of his testimony had specifically claimed that name of Azad Singh had not come to his knowledge prior to 4.5.2000 when Azad Sigh was named in disclosure statement of co- accused I.C. Garg. He further went on to state that after arrest of I.C. Garg, he had been interrogated on 2.5.2000 and during his interrogation involvement of Azad Singh stood disclosed. He admitted that factum of said interrogation was not available on judicial file. He further admitted that no corroborative evidence could be collected by him in support of facts mentioned in the said disclosure statement Ex. PW-18/X2. A perusal of records has revealed that the two independent witnesses i.e. PW-3 Wahiuddin and PW-18 Naresh Kumar Yadav had not mentioned about recording of disclosure statement of accused during course of their statements U/s 161 Cr. P.C. recorded on 4.5.2000 and rather mentioned about it for the first time during course of their statements recorded on 2.1.2001. It had been admitted by PW-28 Inspector Om Parkash that it was during supplementary statements recorded on 2.1.2001 wherein reference was made to disclosure statement dated 4.5.2000 made by I.C. Garg for the first time. This court, on perusal of the entire judicial record finds that there is nothing on record except the alleged disclosure statement of I.C. Garg which might implicate A-2 Azad Singh in this case. The said disclosure statement had admittedly been made by I.C. Garg while he was in custody of CBI police. It was observed in Harvinder Pali's case (Supra) that disclosure statement of a co-accused made during investigation CC No. 109/2008 Page49 of 56 could not be used against another co-accused.
58 Out of 30 prosecution witnesses examined in this case, the material witnesses are PW-3, PW-4, PW-18 & PW-27. PW-4 was the complainant while PW-3 & 18 were the independent public witnesses who had joined the trap team and PW-27 was IO (TLO). As already mentioned herein-above, during course of testimony in court, PW-3,4 & 18 have not fully supported case of the prosecution as was sought to be made out against the accused persons. There are material contradictions in their testimonies which go to root of prosecution story and shake it from its very foundation.
59 All these four witnesses admitted that after conduct of pre-trap proceedings in CBI office, they had gone to Palam Airport (Cargo Terminal). It was claimed by PW-4 & 18 that thereafter they had gone to CBI office from Airport and it was thereafter that they went to Gurgaon office of the accused where proceedings were conducted in this regard. PW-3 & PW-27 claimed that from the Airport they had straightaway gone to Gurgaon office of the accused and had not gone to CBI office.
60 PW-3 during course of his examination in chief had claimed that some pink solution was prepared in CBI office and then all went to Palam from where they had gone to Gurgaon but he did not know what proceedings took place at the two places. He further claimed having signed the documents without reading the contents. During course of his cross examination by Ld. PP for CBI he denied the prosecution story regarding N.K. Yadav having acted as a shadow witness or having witnessed the complainant having offered the tainted money to accused I.C. Garg or about his having recovered the money from left side pant pocket of the accused. He CC No. 109/2008 Page50 of 56 had further gone to mention that statement of I.C. Garg was not recorded in his presence on 4.5.2000.
61 The other independent witness PW-18 too during course of his testimony has disowned story of the prosecution. As regards pre-trap proceedings, as already mentioned, witness claimed that hand of Wahiduddin was washed in wash-basin whereupon his hands turned red. During course of his examination in chief, despite taking a round of the court room, witness could not identify the accused present in court. He specifically claimed that he did not see anybody demanding or accepting the bribe. He could not even say if accused I.C. Garg had been arrested at the spot. However, he admitted his signature on the search cum seizure memo Ex. PW-18/X1. He specifically claimed that the proceedings mentioned therein did not take place in his presence. To the same effect was his reply in respect of the disclosure memo Ex. PW-18/X2. He specifically claimed that the tainted currency notes were not recovered from accused I.C. Garg in his presence. During course of his cross examination by Ld. counsel for the accused, witness had put up a story regarding his having gone to CBI office on 31.4.2000 during evening time and about the entire subsequent proceedings having taken place on the same day evening. It would not be out of place to mention herein that as per case of prosecution the entire proceedings had taken place on 1.5.2000 and not on 31.4.2000. As per prosecution story, PW-18 was the shadow witness who had accompanied the complainant and had witnessed the handing over of the bribe and over heard the conversation in that regard. Surprisingly, the witness during court statement claimed that he had remained out and only the complainant Vijay Singh had gone inside the office and that he did not hear the conversation between the complainant and the other person and specifically claimed that in his CC No. 109/2008 Page51 of 56 presence accused I.C. Garg had not raised any demand of money from the complainant. As regards the documents bearing his signatures, witness claimed that the same were signed by him in CBI office after 3-4 days of the incident.
62 It was not only the two independent witnesses who had disowned the prosecution story, even the complainant did not support it in totality. This court agrees with submission made by Ld. PP for CBI that testimony of a hostile witness cannot be thrown out in totality and that the portion of his testimony wherein a hostile witness supports case of the prosecution can be looked into. However, in this case, the said analogy even if applied, does not come to rescue of the prosecution. While disowning case of the prosecution, the complainant himself has torn the prosecution story in shreds and it would not be possible to rely upon the prosecution story even if part testimony of complainant wherein he supports the prosecution is taken into consideration. The witness during course of his examination in chief itself had claimed that accused had repeated his demand of Rs.1500/- claiming it to be his fee. He had further claimed about having lodged complaint with CBI on 30.4.2000 which infact was against story put forward by the prosecution. But that is not all. Witness during course of his testimony could not identify the voices in the cassette which reportedly contained conversation between him and the accused. During course of cross examination by Ld. counsel for the accused witness claimed about having first visited CBI office on 30.4.2000 and about some CBI officials having dictated complaint to him on that day. Significantly as per case of prosecution, witness had reported at CBI office on 1.5.2000 itself when he filed the complaint. Moreover, towards end of his cross examination witness agreed that the accused had charged Rs.1300/- from him as his fee which earlier CC No. 109/2008 Page52 of 56 was Rs.500/- but had been increased to Rs.1300/-. He further agreed that as the accused had increased his fee, he made a complaint with CBI against the accused. As such, testimonies of PW-3,4 & 18 by themselves are enough to throw out case of the prosecution.
63 But that is not all. There are some other aspects of the case which require to be mentioned while disposing of this case. As per case of prosecution, accused I.C. Garg accepted the tainted amount with his right hand and then had put the money in left side pant pocket. The right hand wash and the left side pant pocket wash gave positive test for presence of sodium carbonate and phenolphthalein powder. Surprisingly, the left hand wash gave positive test only of sodium carbonate and not phenolphthalein. It defies imagination as to how and why a person accepting money with his right hand would put the same in the left side pant pocket without using the left hand.
64 Let us now have a look at the recorded conversation. As per case of prosecution conversation was made between accused and the complainant on 1.5.2000 and was recorded. Specimen of voice sample of the accused I.C. Garg, as per record was taken on 27.8.2001 and the specimen and the questioned recording were sent to CFSL for comparison on 29.8.2001. There is no explanation whatsoever as to why there was inordinate delay of more than one year in recording sample voice of the accused who came to be in custody of CBI on 2.5.2000 itself. Moreover, as per record, much of the conversation between the complainant and the accused I.C. Garg took place over the telephone. As per CFSL report, two lines were taken for comparison i.e. "Haan Vijay Bolo" and "Kya chaeto ho aap". Now both these sentences appear during telephonic CC No. 109/2008 Page53 of 56 conversation between accused and the complainant. The sample voice of the accused was not taken over telephone but was taken by making the accused sit in front of the recording instrument. No explanation has come on record in this regard. It would not be out of place to mention herein that none of the voices had been identified by the complainant during course of his examination in court. Also, the link evidence regarding safety of the cassette is missing. None has been examined from the malkhana to vouch about safe custody of the questioned cassette nor the malkhana register has been produced on record. It is left to imagination only as to who kept the cassettes in safe custody or who had taken it to CFSL for examination. There is nothing on record as to with whom or where the cassettes had been kept during the period 1.5.2000 to 29.8.2001.
65 A perusal of transcript Ex. PW-2/A goes to show that there is no demand of bribe as such which has been recorded. Although the complainant had claimed that after handing over the bribe amount he had asked accused I.C. Garg to return his cheque (Lao ab mera cheque de do), nothing to that effect appears in the recorded conversation nor in the transcript which had been placed on record. All this supports defence of the accused that what was being asked by him and what had been received was his fee and not any bribe amount to be shared with anyone-else.
66 It was observed in Surajmal Vs. State [1979 (4) SCC 725] that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when substantive evidence in the case is not reliable. Mere recovery cannot by itself prove charge of prosecution against the accused in absence of any evidence to prove payment of bribe or to CC No. 109/2008 Page54 of 56 show that the accused voluntarily accepted the money knowing it to be bribe. In C.M. Girish Babu Vs. CBI reported as [(2009) 3 SCC 799] it had been observed that mere recovery of money from accused by itself is not enough, in absence of substantive evidence of demand and acceptance. In the present case accused had claimed that what was received by him and what had been recovered was infact his professional fee. His this averment, in considered opinion of this court finds adequate support from testimony of the complainant (PW-4) himself. It is settled principle of law that court is required to consider explanation offered by accused only on the touch stone of preponderance of probabilities and not on touch stone of proof beyond all reasonable doubt.
67 There is yet another aspect which needs consideration. Conversation between complainant and the accused I.C. Garg reveals about presence of some other person in office of the accused. It has also come on record during course of evidence in court that one Mohd. Iftikar Khan, an employee of I.C. Garg was very much present in the room at the time of alleged bribe transaction. Apparently, he was a very material witness who ought to have been examined by the prosecution. Whether or not he would have supported case of the prosecution or would have supported I.C. Garg is a altogether different matter. Fact remains that he was not even joined during course of investigation nor was he cited as a witness. Non examination of this material witness whose presence at the spot is admitted by the prosecution, leads this court to draw an inference against genuineness of case of the prosecution. Manner in which investigation has been carried out as stated by IO leaves much to be desired. He specifically claimed about having used Cut- Copy-Paste technique while preparing statement of witnesses U/s 161 Cr. P.C. So much for a true version of statement of witnesses CC No. 109/2008 Page55 of 56 during investigation and qua the confronted portion of their statements. It is a settled canon of criminal jurisprudence that conviction of an accused cannot be founded on basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or by circumstantial evidence wherein each link of chain of events is established pointing towards guilt of the accused. Prosecution has to lead cogent evidence in that regard and has to prove its story of its own on basis of legally admissible evidence.
68 In light of the aforesaid discussion, it is observed by this court that in view of testimonies of the witnesses and other facts and circumstances enumerated herein above, no order of conviction can possibly be passed against the accused persons. The facts mentioned rend the case from foundation to cornice.
69 Consequently, both accused persons are ordered to be acquitted.
Announced in the open court (M.R. SETHI)
on 28.07.2012 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
CC No. 109/2008 Page56 of 56