Delhi District Court
Cbi vs S. Rabban Alam @ S.R.Alam (Trap) on 5 June, 2024
IN THE COURT OF SHRI ATUL KRISHNA AGRAWAL,
SPECIAL JUDGE, CBI-19 (PC ACT), RADC, NEW DELHI
CC No. 240/19
FIR No. RC-DAI-2017-A-0019,
PS. CBI/ACB, New Delhi
U/s: 7 & 13(2) R/W Sec. 13(1)(d) of
PC Act, 1988
CNR No. DLCT11-001294-2019
CBI ...... Prosecution
Versus
S. Rabban Alam
S/o Late Sh. Khursheed Hussain
R/o B-14576, Ansal Sushant
City, Huda, Sector-62,
Kundli, Sonepat, Haryana. ...... Accused
CBI No. : 240/19
CNR No. : DLCT11-001294-2019
Date of institution : 11.08.2017
Date of transfer of case to this court : 04.07.2019
Date of conclusion of arguments : 30.05.2024
Date of judgment : 05.06.2024
Final Order : CONVICTED
Ld. PP for CBI:- Sh. Tajwinder Singh
Ld. Defence Counsel for accused :- Sh. Umesh Sinha
CBI Vs. S.Rabban Alam Atul Krishna Agrawal
RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC
Date of Decision: 05.06.2024 Page no. 1 of 138
JUDGMENT
1. Introductory facts 1.1 The premise of the instant case as per Central Bureau of Investigation (CBI) is on the basis of written complaint dated 15.05.2017 of PW3 Sh. Pintoo Choudhary, regarding demand of bribe from him by accused S. R. Alam, Section Officer in CSIR-TKDL. Upon receipt of the complaint, verification was got conducted by CBI, wherein the allegations levelled in the complaint were prima facie found to be correct. Hence, pursuant to verification report dated 15.05.2017, the present FIR No. RC-DAI-2017-A-0019, ACB, New Delhi was registered for the offences punishable under Section 7 of Prevention of Corruption Act, 1988 (unamended) (hereinafter to be referred as the "PC Act") on 15.05.2017, against accused Sh. S.R. Alam. After registration of FIR, a trap was set up by CBI on the same day and the accused was caught red handed after having accepted the bribe (trap money) of Rs.10,000/- from the PW3. The accused was arrested. Further investigation, such as recording of statement of witnesses, obtaining of CFSL reports qua the seized exhibits and collection of documents was conducted. Sanction for prosecution was also obtained from the competent authority and ultimately, the CBI filed charge-sheet against accused S.R. Alam, before the court of Ld. District & Sessions Judge, Rouse Avenue, Delhi, on 11.08.2017. The same was assigned to Ld. Predecessor of this court vide order dated 11.08.2017 of Ld. District & Sessions Judge, Rouse Avenue.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 2 of 138
Cognizance was taken by the court vide order dated 26.08.2017 and accused, who was already present in the court, was directed to be supplied with the copies of the charge sheet alongwith the documents u/S 207 CrPC.
1.2 Charge was framed against the accused vide order dated 08.02.2018 for the offences punishable u/S 7 and 13(2) r/w 13(1)(d) of PC Act. The accused pleaded not guilty to the charges and claimed trial. The matter was thereafter listed for prosecution evidence.
2. Detailed case of the prosecution 2.1 The case of the prosecution is that on 15.05.2017, PW3 Sh. Pintoo Choudhary s/o Sh. Bhishm Pal Singh approached the office of CBI. He made a complaint to CBI official stating that he was proprietor of M/s Jai Mata Travels, Sanjay Nagar, Ghaziabad. He had got a tender for providing services of vehicles to CSIR-TKDL in the year 2014-2015. He further alleged that an amount of Rs.12,00,000/- was due/ pending with CSIR-TKDL towards the aforesaid services provided by him. He further stated that he had met Dr. Rakesh Tiwari (Head of CSIR-TKDL, New Delhi), who told him to meet S.R. Alam (Section Officer, CSIR-TKDL). He further alleged that when he (PW3 Sh. Pintoo Choudhary) met accused S.R. Alam, the accused demanded Rs.10,000/- as bribe. Accused further told him that without payment of bribe, nothing would be done and he (PW3) had to pay Rs.10,000/- to him for getting his CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 3 of 138 bills cleared. Accused had called PW3 for giving money by making calls from his mobile no. 9810236849 on the mobile phone nos. 9868593371 and 9911237272 of the PW3. As per the complainant Sh.Pintoo Choudhary, he did not wanted to pay the bribe amount demanded by accused S.R. Alam and desired legal action to be taken against the accused, by CBI.
2.2 It is further the case of prosecution that on receipt of a written complaint on 15.05.2017 from the complainant Sh. Pintoo Choudhary, a verification was conducted by Inspector Shitanshu Sharma, CBI, ACB, in the presence of independent witness Sh. Bachiter Singh (who was posted as Head Clerk in MCD) to find out whether there was actual demand of bribe amount of Rs.10,000/- on the part of accused. Sh. Bachiter Singh was already present in CBI office as the CBI, as per its established practice, always used to have one or two officials from different departments of government at its office, so that they can be asked to join investigation in any case as and when required, on urgent basis and an advance requisition from the concerned department was already made before hand.
2.3 During the verification proceedings, the complainant was asked to make a call from his mobile phone to the mobile phone of accused, which was recorded in a memory card fitted in a DVR. The DVR and CBI seal were handed over to Sh. Bachiter Singh, independent witness, for safe custody. In the said phone call, complainant informed accused that he had arranged CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 4 of 138 Rs.10,000/- (as a bribe amount) which the accused had asked from him. The accused also agreed to meet the complainant at Rajiv Chowk Metro Station on the same day, at about 4 - 5pm. Thereafter, the instant case was registered u/S 7 of PC Act against accused and it was decided to lay a trap against him.
2.4 It is further the case of prosecution that thereafter, Inspector Harnam Singh, CBI, ACB was deputed as trap laying officer (TLO) and a trap team was constituted by him comprising of Inspector Shitanshu Sharma, Inspector Ramesh Kumar, Inspector Kamal Singh, Inspector S. S. Gill, Sub Inspector Manish Kumar and Sub Inspector T. K. Singh. Besides them, two independent witnesses i.e. Sh. Bachiter Singh and one another independent witness namely Sh. Rajesh Kumar Singhal (who was then posted as Administrative Officer with LIC, Jeevan Bharti Building, New Delhi) were also joined in the trap proceedings.
2.5 It is further the case of prosecution that the trap team gathered at CBI office on 15.05.2017, at about 2.45pm, with the object of laying a trap upon accused. The TLO Inspector Harnam Singh read out the complaint of complainant and the purpose of gathering was explained to all the trap team members. The complainant produced Rs.10,000/- (five GC notes in the denomination of Rs.2,000/- each) to be used as trap money. The currency numbers of the GC notes were noted down and made part of pre-trap memo. Thereafter, GC notes were treated with phenolphthalein powder (which was procured from the malkhana CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 5 of 138 of CBI, ACB) by Inspector Kamal Singh. A demonstration was given by Inspector Kamal Singh to all the trap team members to show the reaction of phenolphthalein powder in solution of sodium carbonate and water. He prepared a solution of sodium carbonate and water in a glass tumbler and asked independent witness Sh. Rajesh Kumar Singhal, to touch the tainted amount of Rs.10,000/- with his right hand fingers and thereafter, dip those fingers in the said colourless solution. When Sh. Rajesh Kumar Singhal, did so, the colourless solution turned into pink colour. The said pink colour solution and remaining phenolphthalein powder were thrown away.
2.6 It is further the case of prosecution that thereafter, personal search of accused was conducted by Sh. Rajesh Kumar Singhal, independent witness and the complainant was not allowed to carry anything with him, except his mobile phone. The tainted bribe amount (trap money) of Rs.10,000/- was put by Sh. Rajesh Kumar Singh, independent witness, in the left side front pocket of the jeans worn by the complainant. The complainant was directed not to touch the said tainted amount and to hand over the said tainted amount to the accused or to any other person on his specific demand. Another independent witness was directed to remain close to the complainant and he as well as complainant were further directed to give a signal by giving a missed call on the mobile phone of Inspector Harnam Singh or/ and by rubbing their both hands on their face, after the transaction of the bribe was over. Both the independent witnesses CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 6 of 138 as well as CBI team members also washed their hands thoroughly with soap and water.
2.7 It is further the case of prosecution that thereafter, a new memory card was arranged by CBI officials and opened in the presence of independent witnesses and complainant and was inserted in the DVR. The introductory voices of both the independent witnesses were recorded therein. All these proceedings got concluded at 4.20pm. When, the CBI team was about to leave for the spot, complainant received a call from the accused informing that he would be reaching Rajiv Chowk Metro Station at about 5.15 pm and he further asked the complainant to come at Gate No.7 of Rajiv Chowk Metro Station, where they will sit in a coffee shop and have coffee. The said conversation was got recorded in the DVR. The complainant was handed over his debit card as he may have to incur expenses in the coffee shop for himself and the accused.
2.8 It is further the case of prosecution that the trap team alongwith independent witnesses and complainant left the CBI office at about 4.35pm and reached at Gate No.7 of Rajiv Chowk Metro Station at about 4.50 pm. The complainant entered Cafe Coffee Day Shop. Thereafter, both the independent witnesses as well as three CBI officials of the trap team also entered inside the Cafe Coffee Day. The remaining three CBI officials including the TLO remained outside. Independent witness Sh. Bachiter Singh (shadow witness) occupied one table adjacent to the table on CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 7 of 138 which the complainant was sitting and Sh. Rajesh Kumar Singhal, the other independent witness, occupied another table in the said shop with other trap team members.
2.9 It is further the case of prosecution that after some time, the accused was seen coming towards Cafe Coffee Day carrying a black leather bag. The complainant approached him and took him inside the shop and they both occupied the table next to the table occupied by Sh. Bachiter Singh and started having conversation with each other. The complainant ordered eatables from the counter. Their conversation was heard by independent witness Sh. Bachiter Singh as he was sitting very close to both of them. It is alleged by the prosecution that during the conversation, the accused demanded bribe amount from complainant by way of gesture of his hand, after which the complainant took out the tainted bribe amount (trap money) of Rs.10,000/- and handed it over to the accused. After receiving the bribe amount, the accused counted the same with his both hands and kept it in his wallet and then put the wallet in the chest pocket of the shirt which he was wearing.
2.10 It is further the case of prosecution that after the transaction of bribe amount was over, the complainant gave a missed call to TLO and thereafter all the trap team members rushed to the table where complainant and accused were seated. The TLO challenged the accused for demanding and accepting bribe, on which the accused got perplexed and remained mum.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 8 of 138
Inspector Shitanshu Sharma caught hold of right hand wrist of the accused and Sub Inspector T. K. Singh caught hold of left hand wrist of the accused. All the conversation between the accused and the complainant was got recorded in the memory card of DVR, which was kept in the pocket of the complainant. The DVR was taken back from the complainant and was switched off.
2.11 It is further the case of prosecution that thereafter, washes of right hand fingers and left hand fingers of accused were taken separately, in freshly prepared separate colourless solutions of sodium carbonate and water and those solutions turned pink showing the presence of phenolphthalein powder. The pink colour washes were transferred in two separate clean glass bottles, which were then sealed with the CBI seal. Both the bottles were also got signed by both the independent witnesses and the TLO. The complainant as well as independent witness Sh. Bachiter Singh stated that during conversation, there was demand and acceptance of bribe amount by the accused. The other independent witness Sh. Ramesh Kumar Singhal recovered the tainted bribe amount of Rs.10,000/- from the wallet of the accused, which was kept in the left side chest pocket of the shirt worn by the accused. Both the independent witnesses, thereafter tallied the number of GC notes recovered from the accused with the GC numbers already mentioned in the pre trap memo. They again put their signatures on the left side of pre trap memo after tallying the numbers.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 9 of 138 2.12 It is further the case of prosecution that wallet of
accused from which tainted bribe money was recovered was smeared with a clean wet white cloth and its wash was taken in another solution of sodium carbonate and water and the said solution also turned into pink colour. The wallet wash was transferred into a separate clean glass bottle and was sealed using CBI brass seal. Both the independent witnesses and the TLO signed on the paper label pasted on the bottle as well as on the envelope, wherein the wallet was kept sealed.
2.13 It is further the case of prosecution that TLO Insp. Kamal Singh prepared a rough site plan showing the detailed location of the CBI team members, the complainant and the two independent witnesses as well as the accused, during trap proceedings. The TLO as well as both the independent witnesses put their signatures on the rough site plan as a token of correctness of location of the trap team members.
2.14 It is further the case of prosecution that since the place was congested and it was not convenient for further proceeding, therefore, CBI team along with both the independent witnesses, the complainant and the accused returned to CBI office, at CGO Complex. During investigation, the memory card which contained the conversation recorded during trap proceedings between the accused and the complainant, was sealed in a brown envelope and marked as Q2 where TLO and both the independent witnesses put their signatures. Thereafter, CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 10 of 138 the specimen voices of both the accused and the complainant i.e. S-1 and S-2 were recorded separately in two blank memory cards, in the presence of two independent witnesses. Thereafter, the introductory voices of both independent witnesses were recorded in the said blank memory cards. The memory cards were kept in separate brown envelope and sealed and were also signed by TLO and other witnesses.
2.15 It is further the case of prosecution that Insp. Kuldeep Sharma was authorised by TLO to conduct search of the office premises of the accused and he along with another independent witness namely, Suresh Kumar Kamboj (an official of LIC) conducted search at the office premises of the accused. During search proceeding, three files pertaining to bills of M/s Jai Mata Travels (firm of the complainant) were recovered and taken into police possession vide office search dated 15.05.2017.
2.16 It is further the case of prosecution that the memory cards Q-1 and Q-2, S-1 and S-2 were sent to CFSL on 22.05.2017 for preparing copies of the same and copies were provided by CFSL. The transcript of Q1 and Q-2 was prepared by Sub- Inspector T.K. Singh in the presence of both independent witnesses as well as the complainant. The complainant identified his voice as well as that of accused and accordingly, Voice identification cum Transcript memo dated 12.06.2017 was prepared.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 11 of 138 2.17 It is further the case of prosecution that three bottles
containing hand washes and wallet was sent to CFSL for chemical analysis and pursuant thereto, CFSL report was received with positive result i.e. presence of phenolphthalein in the washes. Memory cards Q-1 & Q-2 alongwith S-1 & S-2 and DVR were also sent to CFSL for voice comparison and subsequently, after filing of the chargesheet, the CFSL report qua the memory cards was filed on 04.09.2018, whereby it was confirmed that the voices in Exhibit Q-1 and Exhibit Q-2 were the probable voices of accused S.R. Alam and complainant Pintoo Chaudhary, which were in Exhibit S-1 and S-2 respectively. It was further reported that the waveform, spectographic and critical auditory examination of the audio recordings contained in the above said memory cards were continuous and no form of tampering was detected. It was further reported that the digital voice recorder mark DVR could have been used for recording the exhibits Q-1, Q-2, S-1 & S-2, when compared with audio recordings.
2.18 It is further the case of prosecution that the CAF and call detail record pertaining to mobile no. 9810236849 of accused and CAF and call detail record of mobile no. 9868593371 of the complainant, were seized from Sh. Surender Kumar, the then Nodal Officer, Bharti Airtel, New Delhi and it confirmed that the accused and complainant had made calls to each other on
12.,05.2017 and 15.05.2017.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 12 of 138 2.19 It is further the case of prosecution that Sh.
Dushyant Pratap, Data Entry Officer in CSIR-TKDL and Sh. Subhash Chandra, Under Secretary, CSIR-TKDL stated to the IO that accused S.R. Alam, Section Officer, was given additional charge of TKDL Unit vide office memorandums dated 03.05.2016 and 20.10.2016. M/s Jai Mata Travels (the firm of complainant) was awarded contract for engaging the services to provide vehicles on hire on daily/monthly basis in CSIR-TKDL unit in the year 2020 vide agreement dated 04.01.2011, for a period of two years and again in the year 2014, contract was awarded to the firm vide agreement dated 13.07.2014 for a further period of two years.
2.20 It is further the case of prosecution that accused S.R. Alam was dealing with the firm of M/s Jai Mata Travels for the period 01.11.2015 till 31.01.2016 and he had processed the bills and payments of Rs.2,35,743/- i.e. 75% of the pending bill amount of Rs.3,14,324/-, which was paid to the complainant after deduction of TDS. The investigation revealed that the complainant had claimed that his bills for the amount of Rs.9.,12,301/- for the period 15.10.15 to 27.10.2016 were pending with CSIR-TKDL, however, bills for the amount of Rs.3,41,749/- had already been cleared. Further, bills for an amount of Rs.1,06,487/- was pending with the office of CVO, CSIR, as the departmental enquiry against the previous head of CSIR-TKDL was going on. However, the bills of amount of Rs.3,67,299/- were neither available with the CSIR-TKDL nor CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 13 of 138 with the office of CVO CSIR. The complainant gave several reminders for release of payment of pending bills, however, accused S.R. Alam did not put up the matter with higher authorities and kept them pending with him. The prosecution alleges that the conversation between the accused and complainant during the verification as well as trap proceedings, clearly indicated the motive of accused that he would process the pending bills of the complainant, only after accepting the bribe amount of Rs.10,000/- from the complainant.
2.21 It is further the case of prosecution that efforts were made to collect the video footage from Cafe Coffee Shop, Rajiv Chowk Metro Station, but it was informed by Sh. Ram Sharma, Area Manager, Cafe Coffee Day, New Delhi, vide his letter dated 19.06.2017, that the video footage of the said date was not available because of internal audit, CCTV was not functioning at the Cafe. It was further informed that the CCTV camera was installed just above the counter facing towards the interior part of the counter, as the purpose of installation of CCTV camera was only to observe the activities of the staff at the counter and not for the customers, so even if CCTV footage was available on the said date, only the footage of staff would show. Even Sh. Shailender Rai, Manager Cafe Coffee Day, Gate no. 7, Rajiv Chowk Metro Station, New Delhi, also corroborated this fact.
2.22 It is further the case of prosecution that the aforesaid facts and circumstances establishes that the accused S.R. Alam CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 14 of 138 had demanded and accepted a bribe amount of Rs.10,000/- from the complainant Sh. Pintoo Chaudhary and the said bribe amount was recovered from the accused by independent witness Sh. Rajesh Kumar Singhal. Sanction for prosecution of accused was accorded by his disciplinary authority. Accordingly, after conclusion of investigation, the accused was charge sheeted for the offences punishable u/s 7 and 13(2) r/w S. 13(1)(d) of Prevention of Corruption Act.
3. Prosecution Evidence 3.1 Prosecution has examined 18 witnesses in order to prove its case. PW1 is Sh. K. R. Vaidheewaran, the Joint Secretary (Administration) of Council of Scientific & Industrial Research (CSIR) and he granted sanction to prosecute accused S.R. Alam, who was the then Section Officer in the office of CSIR-TKDL, Satsang Vihar Marg, New Delhi.
3.2 PW2 is Inspector Shitanshu Sharma, who was posted at CBI, ACB and the present complaint, made by complainant Sh. Pintoo Choudhary, was marked to him by SP Abhishek Dular, for verification. Upon receipt of complaint, Ex.PW2/A, he conducted the verification proceedings and also joined one independent witness namely Sh. Bachitar Singh, Head Clerk, SDMC in the said proceedings. He also recommended the registration of present FIR vide RC No. 19/2017 u/S 7 of PC Act. He had also participated in trap proceedings.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 15 of 138 3.3 PW3 is the complainant Sh. Pintoo Choudhary, who
alleged that he was doing business of supplying vehicles in the department of CSIR-TKDL, whose one of the offices, was also in Ghaziabad then. An amount of Rs. Twelve Lacs was due against the said office towards payment of his bills for supplying vehicles to the said office. Accused S.R. Alam, who was Section Officer at the relevant time in the office of TKDL, assured PW3 that he will take steps for payment of his pending bills. The accused asked him to make payment of Rs.Ten Thousand as bribe. As he did not want to make payment to the accused, he went to CBI office and gave a written complaint, on which the present FIR was registered after verification. He participated in the verification proceedings as well as the trap proceedings.
3.4 PW4 is Sh. Surender Kumar, Nodal Officer from Bharti Airtel, who brought on record and proved the Customer Application Form (CAF) of mobile no.9810236849, in the name of accused S.R. Alam. He further proved the call detail records (CDR) of the aforesaid number for the period between 10.05.17 to 15.05.17. He also brought the covering letter, Certificate u/S 65B of Indian Evidence Act on record and all the above documents were exhibited as Ex.PW4/A (colly.). Similarly, he proved the CAF of mobile no.9868593371, in the name of complainant Sh. Pintoo Choudhary, its CDR for the period between 10.05.17 to 15.05.17 alongwith Certificate u/S 65 B of Indian Evidence Act as well as the covering letter, which are Ex.PW4/B (colly.) and these documents were handed over to IO CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 16 of 138 D.P. Shadang.
3.5 PW5 is Inspector Kuldeep Sharma, who was posted in CBI, ACB, New Delhi on deputation between 22.02.17 to 14.02.20. On 15.05.17, Inspector Harnam Singh, CBI-ACB, authorised him u/S 165 Cr.PC for office search of accused S.R. Alam. He alongwith independent witness Sh. Suresh Kumar Kamboj from LIC, SI Sanjeev Kumar from CBI and other staff of CBI conducted the search at the office of accused. He also recovered three files of Jai Mata Tour & Travels, which was related to the present case.
3.6 PW6 is Sh. Suresh Kumar Kamboj, who was posted as Administrative Officer in Estate Department of LIC of India, Jeevan Bharti Building, Connaught Place, New Delhi, in the year 2017. On 14.05.17, he joined the search proceedings conducted at the office of accused at CSIR-TKDL in Qutub Institutional Area, on the directions of his officers in the department. The seizure of files were done in his presence.
3.7 PW7 is Sh. Dushyant Pratap, who was posted as Office Assistant in CSIR-TKDL at Qutub Institutional Area, in the year 2017. He deposed that in May 2017, he received a call on his mobile from some CBI official and he was asked to come to his aforesaid office for the purpose of some investigation. When he reached office, he showed the concerned files of M/s Jai Mata Travels to the CBI officers, which was seized by CBI.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 17 of 138 3.8 PW8 is Inspector Harnam Singh, who was posted in
CBI, ACB in the year 2017. On 15.05.17, at about 2.20 pm, he was called by SP Abhishek Dular, CBI, ACB and handed over copy of FIR of the present case. The FIR was marked to him for the purpose of investigation i.e. to lay a trap against accused S.R. Alam. He constituted a trap team comprising CBI officials and two independent witnesses namely Sh. Bachitar Singh and Sh. Rajesh Kumar Singhal. During trap proceedings, all the team members went to Rajiv Chowk Metro Station, near gate no.7. At Cafe Coffee Day shop, the accused and complainant met and after some conversation, the complainant handed over the trap money/ bribe amount of Rs.Ten Thousand to the accused and the accused counted the same and kept it in a purse in the front pocket of his shirt. Thereafter, the accused was apprehended on signal being given by the complainant and recovery of tainted money/bribe amount was effected from the accused. He also detailed about the trap proceedings conducted by him.
3.9 PW9 is Sh. Subhash Chander, who was working as Under Secretary/ Administrative Officer, CSIR-TKDL, Unit-14, Satsang Vihar Marg, New Delhi. He received a phone call from CBI team in May 2017, asking him to reach his office at Satsang Vihar. When he reached there at about 7.30/8.30 pm, he was informed that accused S. R. Alam had been caught red handed taking bribe of Rs.Ten Thousand. He also handed over documents to CBI as were demanded by them, which related to the present case.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 18 of 138 3.10 PW10 is Sh. Bachitar Singh, independent witness,
who was posted as Head Clerk in MCD in the year 2017. On the directions of Administrative Officer, MCD, he visited CBI office on 15.05.17 and participated in verification proceedings and trap proceedings, wherein the accused was allegedly caught red handed accepting bribe from the complainant. He was present with complainant Sh. Pintoo Choudhary at Cafe Coffee shop at Rajiv Chowk Metro Station and the conversation between complainant and accused and handing over of tainted money/ bribe money took place in his presence.
3.11 PW11 is Chhering Tobden, who was working as Deputy Secretary in the vigilance department of CSIR Head Quarter. He had furnished the attested copy of bills pertaining to Jai Mata Travels, for the period October, 2015 to July, 2016, along with covering letter dated 07.07.2017, after receiving a letter from CBI directing to furnish the bills. The attested/ certified copy of bills had been attested by Sh. Subhash Chander, the then Admn. Officer/Under Secretary.
3.12 PW12 is Deepti Bhargava, Sr. Scientific Officer, Grade-II (Chemistry), CFSL, Block-4, CGO Complex, Lodhi Road, New Delhi. She deposed that CBI had sent a letter to CFSL requesting for chemical analysis and expert opinion of the solutions sent in three sealed glass bottles. The said letter was received in chemistry division on the direction of Director CFSL and was allotted to her by HOD, Chemistry. She proved her CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 19 of 138 chemical examination report dated 30.06.2017, which she had prepared after examination of sealed glass bottles. She further deposed that the result of her examination was that the right hand wash (RHW), left hand wash (LHW) and the wash of purse of accused, gave positive test for the presence of phenolphthalein.
3.13 PW13 is Rajesh Kumar Singhal, another independent witness, who was working as Administration Officer with Life Insurance Corporation (LIC) at Jeewan Bharti Building, Connaught Place, New Delhi. He also joined in the trap proceedings against the accused. He was the one, who had put the tainted GC notes in an envelope and put the same in front left hand pocket of trouser of the complainant, to be used as the trap money. He was also the person, who took out the purse from the pocket of accused and recovered the tainted money from the said purse.
3.14 PW14 is Shailender Rai, who was working as Cafe Manager at Cafe Coffee Day shop, Rajiv Chowk Metro Station, Gate no. 7 & 8. As per him, on 15.05.2017, he was asked by Insp. Harnam Singh to preserve the CCTV footage of the period i.e. 5.00 p.m. to 6.00 p.m. upon which he told Harnam Singh that CCTV footage can only be arranged by backend maintenance team. He further informed Harnam Singh that CCTV camera installed at the shop was for surveillance of Cafe Coffee Day staff only and not for the customers visiting the shop and the focus of CCTV was towards the employees.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 20 of 138 3.15 PW15 is DSP P. Shadang, the IO of this case. He
deposed that after laying of the trap by Insp. Harnam Singh on 15.05.2017, the present case was marked to him for conducting further investigation. The TLO Inspector Harnam Singh handed over the custody of accused (already arrested by CBI) and all the exhibits collected during the trap laying proceedings which he sent to CFSL, after making copy of the same for investigation. He also examined various witnesses and also collected several documents through different seizure memos, which he identified during his deposition. He also obtained the sanction order u/s 19 of PC Act for prosecution of accused. After collection of all documents/ articles and completion of investigation, he filed the present charge sheet against the accused before this court on 08.08.2017.
3.16 PW16 is A.K. Sharma, Sr. Technical Officer in CSIR-TKDL, Satsang Vihar and he was monitoring the bills of different agencies. He identified the bills of Jai Mata Travels from 01.09.2014 till 25.03.2015, as well as the relevant note sheets regarding processing/payment of bills after checking the availability of the funds for clearance of bills.
3.17 PW17 is Sh. Pawan Singh, Nodal Officer from Vodafone Idea Ltd. He proved the original Customer Application Form (CAF), CDR for the period 10.05.2017 to 15.05.2017 of mobile no. 9911237272, which was in the name of complainant Pintoo Chaudhary, along with his Certificate u/s 65B of Indian CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 21 of 138 Evidence Act. The said documents were produced by him on written request received from CBI and was seized by the then IO Dy. SP P. Shadang.
3.18 PW18 is Sh. Amitosh Kumar, who was posted as Sr. Scientific Officer-II (Physics) at CFSL, New Delhi. A request letter from SP CBI along with five sealed parcels containing memory card and DVR along with copy of transcription and specimen seal impression, for voice examination, was received at CFSL and the said case was alloted to him for examination by Head of the Physics Department, Sh. Deepak Kumar Tanwar. After comparing and identifying the questioned voice with specimen voice, he opined on the basis of auditory and spectrographic examination that the questioned voice and specimen voice were similar and were of the same persons i.e. accused S.R. Alam and complainant Pintoo Chaudhary. He also found that no kind of tampering was detected in the questioned and specimen voice. He proved his detailed report dated 21.06.2018.
3.19 All the witnesses were duly cross-examined by Ld. Defence counsel for accused.
3.20 List of Exhibited/Marked Documents Note : The sorting of the below mentioned documents is in the order as they were produced/referred and marked or exhibited in the testimony of a particular witness for the first time, even though many of those documents have been referred and proved CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 22 of 138 during testimony of other witnesses as well.
S.N Witness Exhibits Nature of Documents
1. K.R. Ex.PW1/A Sanction order dated 03/04.08.2017
Vaidheewaran
Ex. PW1/D-A Contents of complaint
Ex.PW1/D-B Photocopy of draft Sanction Order.
(OSR) (These two documents were put to
the witness in cross-examination)
2. Shitanshu Ex. PW-2/A Handwritten complaint made by
Sharma Pintoo Chaudhary to CBI dated
15.05.2017
Ex. PW-2/B Verification memo dated 15.05.2017
Ex. PW-2/C Transcription of conversation
between complainant and accused
during verification dated 15.05.2017
Ex. PW-2/D Pre-Trap Memorandum
Ex. PW-2/E Recovery Memo dated
15/16.07.2017
Ex. PW-2/F Brown colour envelope containing
memory card
Ex. PW-2/G Original Cover of memory card
Ex. PW-2/H Plastic cover of memory card
Ex. PW-2/I Memory card "Sandisk 8GB Micro
SD" containing telephonic
conversation between accused and
complainant dated 15.05.2017
during verification proceedings and
other voices.
Mark PW-2/D- Statement of witness u/s 161 Cr.PC 1 of Shitanshu Sharma PW2 (witness was confronted with his entire statement u/s 161 Cr.PC)
3. Pintoo Mark PW-3/A Summary of pending bills Chaudhary (Colly) Ex. PW-3/A Sample voice memo dated 15.05.2017 CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 23 of 138 Ex. PW-3/B Voice Identification cum (Colly) Transcription memo dated 12.06.2017 Mark PW-3/B Attested copy of agreement for (Colly) transport arrangement for HRDC/TKDL Unit Mark PW-3/C Attested copy of contract agreement/ (Colly) Empanelment of agencies to provide vehicles on hire dated 13.07.2015 Ex. PW-3/C Certified copy of reminder to the (Colly) office of CSIR-TKDL with photocopies of bill summary and envelopes (The document is undated) Ex. PW-3/D Further reminders to the office of (Colly) CSIR-TKDL with photocopies of bill summary and envelopes Mark PW-3/D Certified copy of Award of work for providing services of vehicles in TKDL Letter dated 10.07.2014 Ex. PW-3/E Duty voucher/ duty slip of M/s Jai (Colly) Mata Travels Mark PW3/E Folder containing photocopies of bills/duty slips of Jai Mata Travels Mark PW3/F Rough Site Plan of cafeteria where accused was trapped (This document is shown marked in the testimony of PW3 but "mark"
has not been put on the document)
Mark PW3/G Photocopy of Aadhar Card of
complainant submitted along with
Customer Application form for his
mobile number
(Document has not been marked at
the time of examination, but is
referred in testimony of witness)
Ex. PW-3/F Brown colour envelope in open
condition containing memory card
Ex.PW3/I
Ex. PW-3/G Plastic cover packing of above
CBI Vs. S.Rabban Alam Atul Krishna Agrawal
RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC
Date of Decision: 05.06.2024 Page no. 24 of 138
memory card
Ex. PW-3/H Another plastic cover of above
memory card
Ex. PW-3/I Memory card containing
introductory voices of independent
witnesses as well as conversation
between complainant and accused
during trap proceedings
Ex. PW-3/J DVR through which voices were
recorded in the memory card
Ex. PW-3/K A bottle containing right hand wash
of accused in pink colour water
Ex. PW-3/L A bottle containing left hand wash of
accused in pink colour water
Ex. PW-3/M A bottle containing wash of purse of
accused
Ex. PW-3/N Currency notes used for trap
Colly proceedings
Ex. PW-3/O Mobile phone make Nokia of
accused
Ex. PW-3/P Brown colour purse of accused
Ex. PW-3/Q Mobile phone make Xiaomi of
complainant/PW3
Mark Statements u/s 161 Cr.P.C. of
PW3/DX & complainant
Mark
PW3/DX1
Ex. Alleged photographs of the Cafe,
PW-3/DX2 & where the trap proceedings were
PW-3/DX3 conducted
(These photographs were taken
lateron by accused)
4. Surender Ex.PW-4/A Covering letter, CAF, KYC
Kumar (Colly) documents, Certificate u/s 65-B of
Indian Evidence Act and CDR of
mobile no. 9810236849 belonging to
accused
Ex. PW-4/B Covering letter, CAF, KYC
(Colly) documents, Certificate u/s 65-B of
Indian Evidence Act and CDR of
CBI Vs. S.Rabban Alam Atul Krishna Agrawal
RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC
Date of Decision: 05.06.2024 Page no. 25 of 138
mobile no.986859337 belonging to
complainant
5. Kuldeep Ex. PW-5/A Search List qua those documents
Sharma (Colly) recovered from the office of accused
Mark PW-5/A Documents seized during the search (Colly) of office of accused Mark Statement u/s 161 Cr.P.C. of PW5 PW5/DA (The document has not been marked during evidence of PW5 but is referred in his testimony.)
6. Suresh Kumar Ex. PW-6/A Documents seized during the search Kamboj (Colly) of office of accused (These documents are the same documents as Mark PW5/A) Mark PW6/DA Statement u/s 161 CrPC of PW6
7. Sh. Dushyant - (No document exhibited or marked in Pratap his testimony)-
8. Sh. Harnam Ex. PW-8/A1 Another copy of FIR marked to PW8 Singh for investigation Ex. PW-8/A2, Cloth wrappers used during Ex. PW-8/A3 & investigation and marked as Ex. Ex. PW-8/A4 RHW, Ex.LHW and Wash Purse Ex. PW-8/A5 Rough sketch of site plan of the Cafe (This document is the same document as mark PW3/F) Ex. PW-8/A6 Brown colour envelope containing Purse of accused Ex. PW-8/A7 Arrest cum Personal Search Memo Ex. PW8/A8 Yellow colour envelope Ex. Q2 Colly containing another yellow colour envelope, brown colour envelope and 8 GB memory card in its plastic cover and original packing cover.
This memory card contain voices of complainant, accused and both independent witnesses.
Ex. PW8/A9 Yellow colour envelope Ex. S1 Colly containing another yellow colour envelope, brown colour envelope and 8 GB memory card in its plastic CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 26 of 138 cover and original paper packing cover. This memory card contains voices of witnesses and the specimen voice of accused.
Ex. PW8/A10 Yellow colour envelope Ex. S2 Colly containing another yellow colour envelope, brown colour envelope and 8 GB memory card in its plastic cover and original paper packing cover. This memory card contains voices of witnesses and the specimen voice of complainant.
Ex. PW8/A11 Yellow colour envelope Ex. DVR Colly containing another brown colour envelope containing DVR make Sony Ex. PW8/D1 Brown colour envelope which contained the mobile phone make Mi (Xiaomi) Mark PW8/DX1 Statement of witness u/s 161 CrPC of Harnam Singh/ PW8
9. Sh. Subhash Ex. PW-9/A1 to Documents mentioned in search list Chander Ex.PW-9/A3 Ex.PW5/A which were seized by (colly) CBI.
Ex. PW-9/A4 Seizure Memo dated 08.06.2017 vide
(Colly) which the documents were handed
over by PW9 to CBI.
Ex. PW-9/A5 Office Memorandum dated
03.05.2016 vide which accused was
given additional charge by CSIR
TKDL.
Ex. PW-9/A6 Office Memorandum dated
20.10.2016 vide which accused was
regularly posted in CSIR TKDL.
Ex. PW-9/A7 Certified copy of agreement for
transport arrangement of HRDC
TKDL Unit dated 04.01.2011.
Ex. PW-9/A8 D-20 Certified copy of agreement for
transport arrangement of HRDC
TKDL Unit dated 13.07.2015
(This document is already marked as
Mark PW3/C)
CBI Vs. S.Rabban Alam Atul Krishna Agrawal
RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC
Date of Decision: 05.06.2024 Page no. 27 of 138
Ex. PW-9/A9 Certified copy of Contract Award
Letter dated 10.07.2014 for providing
services of vehicles to TKDL.
(This document is already marked as
Mark PW3/D)
Ex. PW-9/A10 Certified copy of served reminder (Colly) dated 12.05.2017 of Jai Mata Travels.
(This document is already
Ex.PW3/C)
Ex. PW-9/A11 Seizure memo of attested copy of (Colly) passbook of Canara Bank dated 10.07.2017 Ex. PW-9/A12 Attested copy of Passbook of Canara Bank Ex. PW-9/A13 Attested copy of relevant pages of Cash Book of CSIR TKDL.
Ex. PW9/D-1 Statement of witness u/s 161 CrPC of Subhash Chander/PW9.
10. Sh. Bachitar Ex. PW10/A-1 Two yellow colour envelopes with Singh to Ex.PW10/A2 court seal marked as Q1 containing memory card.
Ex. PW10/A-3 Yellow colour unsealed envelope in another envelope with court seal mark Ex.Q2.
Ex. PW10/A-4 Yellow colour unsealed envelope in another envelope with court seal mark Ex.S1.
Ex. PW10/A-5 Brown colour unsealed envelope kept in yellow envelope Ex.PW10/A4.
Ex. PW10/A-6 8GB Sandisk memory card in above envelope Ex.PW10/A5.
Ex. PW10/A-7 Original paper packing containing above memory card Ex.PW10/A6.
Ex. PW10/A-8 Yellow colour unsealed envelope kept in another yellow colour unsealed envelope with court seal mark Ex.S2.
Ex. PW10/A-9 Brown colour unsealed envelope kept in envelope Ex.PW10/A8.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal
RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC
Date of Decision: 05.06.2024 Page no. 28 of 138
Ex. PW10/A-10 8GB memory card kept in above
envelope Ex.PW10/A9.
Ex. PW10/A-11 Original paper packing which contained 8GB memory card in plastic cover Ex.PW10/A10.
Ex. PW10/A-12 Brown colour unsealed envelope containing DVR kept in another yellow colour envelope with court seal.
11. Sh. Chhering Ex. PW-11/A Letter from CVO to CBI alongwith Tobden (Colly) certified copies of pending bills of M/s Jai Mata Travels.
12. Ms. Deepti Ex. PW-12/A1 Letter dated 22.05.2017 sent by CBI Bhargava to CFSL for chemical analysis of three sealed glass bottles.
Ex. PW-12/A2 Chemical Examination Report dated 30.06.2017 of the above glass bottles.
Ex. PW-12/A3 CFSL letter dated 04.07.2017 sent to CBI for collection of report.
Ex. PW-12/A4 White colour envelope containing three clothes wrappers which were removed from the mouth of above glass bottles Ex.LHW, Ex.RHW and Wash of purse.
13. Sh. Rajesh Ex. PW13/A Brass seal used during CBI Kumar Singhal proceedings after the trap.
(This seal was handed over to the witness after CBI proceedings with direction to produce it as and when directed by the court.) Ex. PW-13/D-1 Copy of Authorisation letter dated 15.05.2017 in favour of PW13.
Mark Statement u/s 161 CrPC of Rajesh PW13/DX1 Kumar Singhal /PW13.
Ex. PW-13/D-1 Original reminder letter dated 12.12.2016 of complainant.
(Inadvertently same Ex.PW13/D-1 has been put on two documents.) Mark PW13/D- Copy of Reminder Letter dated Nil of 2 complainant.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal
RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC
Date of Decision: 05.06.2024 Page no. 29 of 138
14. Sh. Sahilender Ex. PW14/A Letter dated 19.06.2017 sent by
Rai Maintenance Department of Cafe
Coffee Day to CBI.
Mark PW14/D1 Statement u/s 161 CrPC of Sh.
Shailender Rai/PW14.
15. Sh. P. Shadang Ex. PW15/A Intimation of arrest memo dated
15.05.2017
Ex. PW15/A1 Forwarding letter dated 22.05.2017
vide which articles/ exhibits
mentioned in it were forwarded to
PW15 by then SP Abhishek Gular.
Ex. PW15/A2 Fowarding letter dated 12.06.2017
vide which articles/exhibits were sent
to CFSL for voice comparison and
for expert opinion.
16. Sh. A.K. Ex. PW16/D Statement u/s 161 CrPC of Sh. A.K.
Sharma Sharma/ PW16.
17. Sh. Pawan Ex. PW17/A Production cum seizure memo dated
Singh 01.06.2017
Ex. PW17/A1 Certificate u/s 65B of Indian
Evidence Act dated 26.05.2017 of
behalf of Idea Celluar regarding of
CDR of mobile no. 9911237272.
Ex. PW17/A2 Certified copy of call details record
of above number.
Ex. PW17/A3 Original CAF of mobile no.
9911237272 of complainant
18. Sh. Amitosh Ex. PW18/A Forensic Voice Examination report
Kumar dated 21.06.2018 regarding voice
examination of accused and
complainant.
Ex. Office copy of letter dated
PW18/A1(OSR) 28.06.2018 of Director CFSL to CBI for collection of reports.
Ex. PW18/A2 Yellow colour envelope marked as Colly parcel 1 Ex.Q1 containing various exhibits.
Ex. PW18/A3 Yellow colour envelope marked as Colly parcel 2 Ex. Q2 containing various exhibits.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal
RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC
Date of Decision: 05.06.2024 Page no. 30 of 138
Ex. PW18/A4 8 GB Memory card examined by
PW18.
Ex. PW18/A5 Another 8 GB Memory card
examined by PW18.
EX. PW18/D1 Copy of certificate of NABL given to
CFSL Lab.
EX. PW18/D2 Spectrograms of some words.
Colly
EX. PW18/D3 Spectrograms of some other words.
Colly
Mark PW18/D4 Copy of relevant page of
transcription sent to CFSL
Mark PW18/D5 Copy of relevant page of
transcription sent to CFSL
3.21 Thereafter, prosecution evidence was closed.
4. Statement of accused u/s 313 Cr.P.C.
4.1 The statement of accused u/s 313 Cr.P.C. was
recorded on 06.11.2023 and 10.11.2023. The accused submitted that he was working as Section officer at CSIR-TKDL but denied the allegations of taking bribe from the complainant. He further admitted that on 15.05./2017, he had met the complainant at Cafe Coffee Day, but also claimed that he had not demanded any bribe from the complainant. As per the accused, the complainant had met him in his office and he told the complainant that when money was received from Govt., the complainant will get his payment. He further stated that the custodian of the file of the complainant regarding his dues was Chief Vigilance Officer of CSIR as vigilance enquiry was going on against M/s Jai Mata Travels at that time. Further, there was no official communication CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 31 of 138 between him and the complainant and all the letters were addressed to Head of CSIR-TKDL. He was not the final authority/sanctioning authority for passing any claim of Jai Mata Travels. He further admitted that there was some conversation between him and complainant but denied having demanded Rs.10,000/- from the complainant.
4.2 Accused further claimed that he had met the complainant at Cafe Coffee Day at Rajiv Chowk Metro Station, as they had family terms. He further claimed that when the complainant took out the money at the Cafe Coffee Day, he told the complainant "ise wapas lo" (take it back) and this fact was corroborated from the DVR and he had also told the complainant that he will not do his work. The accused further claimed that the complainant had put the money in his (accused's) purse lying on the table and thereafter, thrusted the purse in his shirt pocket and falsely implicated him by showing a trap. He also claimed that true facts and figures were not mentioned in the CDRs and even the probability of interpolation of audio recordings could not be ruled out.
4.3 The accused further stated that the complainant had falsely implicated him in this case as he wrongly alleged that he (accused) was responsible for non-clearance of his pending bills and due to this, difference of opinion took place between them which ultimately led to this false case. He also claimed that all the witnesses were interested/ stock witnesses of CBI. Further CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 32 of 138 complainant had annexed various forged bills of hiring of vehicle and due to which, departmental vigilance enquiry was pending against those bills of complainant. In order to take revenge from CSIR officials, complainant lodged a false complainant to CBI regarding demand of Rs.10,000/- by him. He further claimed that there was no proper application of mind by the sanctioning authority while granting sanctioning.
4.4 The accused sought to lead defence evidence and so, opportunity was granted to accused to lead DE. At the request of accused, two witnesses were summoned i.e. Sh. Vijay Kumar and Sh. Mukesh Kumar. However, only one witness Sh. Mukesh Kumar appeared for defence evidence on 30.01.2024. However after discussion with the said witness, who expressed his ignorance about the present case, the accused chose not to examine him and eventually closed his defence evidence without examining any witness on his behalf.
5. Final Arguments 5.1 Ld. PP for CBI has argued that the case against accused S.R. Alam stands proved beyond reasonable doubt. He has specifically relied upon the testimony of PW3/ complainant Pintoo Chaudhary, PW2 Insp. Shitanshu Sharma (verification officer) and PW8 Insp. Harnam Singh (Trap Laying Officer) along with supporting testimonies of independent witnesses as well as other witnesses. He argued that it is an admitted fact that PW3 was supplying vehicles in the department of CSIR-TKDL at CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 33 of 138 its then office at Ghaziabad. The aforesaid department had not paid him dues towards supply of vehicles for a few months and he was being harassed despite making repeated requests. The complainant was asked by then head of concerned TKDL unit namely Dr. Rakesh Tiwari to meet the accused S.R. Alam, who initially demanded a bribe of Rs.20,000/-, but later agreed to accept Rs.10,000/- as bribe. Since, the complainant did not want to pay the bribe, he went to CBI office to made a complaint against the accused.
5.2 Thereafter, the complaint of PW3 was marked to PW2 for verification of the complaint. In order to ensure the fairness of verification proceedings, PW3 also joined one public witness namely, PW10 Bachitter Singh. PW3 accordingly made a call to the accused wherein the accused asked PW3 to meet him at Rajiv Chowk Metro Station, for the purpose of receiving the bribe amount. This conversation was recorded in a blank memory card through DVR. Subsequent to the verification being successful, the instant FIR was registered against the accused.
5.3 Ld. PP for CBI has further argued that PW8 thereafter conducted the trap laying proceedings. Several CBI officers and independent public witnesses PW10 Bachiter Singh and PW13 Rajesh Kumar Singhal were also joined in the trap laying proceedings, so as to ensure the sanctity of the proceedings. In the evening on the same day, PW3 met the accused at Cafe Coffee Day shop near gate no. 7 of Rajiv Chowk CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 34 of 138 Metro Station. The accused and PW3 had conversation between them while taking snacks and coffee at Cafe Coffee Day and subsequently, PW3 handed over the bribe amount to accused, which was duly received by him after counting the same and kept in his pocket. Thereafter, PW3 gave pre-decided signal and TLO and other witnesses rushed towards the spot. When the purse of accused was checked, it was found containing the bribe money. All these facts clearly prove the involvement of accused in the aforesaid offence.
5.4 He further argued that there are audio recordings of all the conversations which took place between PW3 and accused on 15.05.2017, after he had reached the CBI office to make complaint against the accused. Those conversations clearly prove that the accused not only demanded bribe from PW3, but even accepted the same. He further argued that the bribe money was treated with phenolphthalein powder, before it was handed over by PW3 to the accused and the hand washes of accused and the purse wash of the accused shows the presence of phenolphthalein powder, when it was treated with solution of sodium carbonate and water, which is confirmed from the FSL report prepared by PW12. He further argued that the sanctioning authority i.e. PW1 also gave sanction to prosecute the accused in view of the material collected by CBI and after applying his mind to the same. He also argued that the accused has admitted the recovery of tainted Rs.10,000/- from his purse, so the statutory presumption that he had accepted illegal gratification/ tainted CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 35 of 138 money had to be raised against him as per Section 20 of PC Act and so, the accused was required to rebut the presumption, which he has failed to do. Accordingly, he has prayed for conviction of the accused in view of the evidence led by the prosecution and the documentary evidence on record.
5.5 On the other hand, Ld. Counsel for accused has vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. He argued that the accused had been falsely implicated by the complainant in order to settle his personal grudge against the accused and due to the reason that his pending bills were not being cleared by the department, in view of vigilance enquiry pending against those bills. He further argued that the accused was working merely as Section Officer, whose role was to process the bills, if there was availability of funds with the department and to send the files to higher officials of CSIR-TKDL, who had the financial authority to process and sanction the bills, if they were in order. The accused had no role in sanctioning of the bills or approval from higher authorities. He further relied upon the testimony of PW9, who had stated that the payments of bills were not released to PW3 due to irregularities in the bills and the matter was pending before the Sr. Officials of CSIR. PW9, further deposed that it was Ms. Archana Sharma and Sh. Rakesh Tiwari, who were the final Administration and Financial Authority for release of funds. Under such circumstances, the accused could not have demanded any money from PW3, since he was aware that the bills of TKDL were CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 36 of 138 supposed to be passed/ approved by higher officials and also there was paucity of funds. So, the prosecution has failed to prove motive on the part of accused.
5.6 He further argued that PW2 had carried out a faulty verification of complaint, while sitting in CBI office. The telephonic conversation between complainant and accused clearly proves that accused did not demand any money from PW3. The verification officer also did not bother to verify from CSIR-TKDL regarding the due amount of Rs.12 Lacs, as was claimed by PW3 and there is no evidence to that effect. Further, there is no demand of Rs.10,000/- made by accused during the alleged verification proceedings. He further argued that PW2 despite being verification officer, also participated in trap proceedings, which was illegal and unjustified and also against the Principles of Law. He also pointed towards the discrepancies and contradictions in his testimonies with respect to the trap proceedings.
5.7 Ld. Defence counsel has further argued that the alleged independent witnesses were already present in the CBI office even prior to complaint or conducting of verification proceedings. He also pointed towards the difference in date mentioned by the independent witnesses, regarding the day on which they were supposed to appear at the CBI office. This shows that the public witnesses PW10 and PW13 were not independent witnesses but rather planted witnesses.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 37 of 138 5.8 He further argued that installation of CCTV cameras
in all restaurants, banks and hotels etc. is normal, but in the present case, the CBI had not brought on record any such CCTV footage of CCD, which can show the alleged bribe amount being received by the accused from PW3. PW14 had categorically stated that the DVR in which the CCTV footage data was recorded, was in the store of Cafe Coffee Day shop but despite that PW8 did not ask for the DVR and seized the same. In fact, PW14 was himself not sure as to how many CCTV cameras were installed in the Cafe Coffee Day shop. He alleged that the CCTV footage was deliberately withheld by CBI as it would have brought the true picture of incident.
5.9 Ld. Defence counsel further argued that as per PW3 he had recorded the conversation which took place between him and accused on 13.05.2017 and 14.05.2017, when the accused had demanded bribe from him. During the said conversation, the bribe amount of Rs.20,000/- which was being demanded by the accused, was reduced to Rs.10,000/-. Even PW2 admitted that he had heard the said recording at the time of verification proceedings. However, PW2 did not seize the said recordings nor got its transcript prepared. The IO i.e. PW15 also deposed that he had not seized any conversation between the accused and complainant, prior to lodging of FIR. Under such circumstances, it was clear that prosecution had deliberately not sent the said mobile phone recordings to CFSL or got prepared its transcripts, as it would have exposed the lacunae in the verification and pre CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 38 of 138 and post trap proceedings. Under such circumstances and an adverse inference u/s 14 (g) of Indian Evidence Act had to be drawn against the prosecution.
5.10 He further argued that the sanctioning authority had granted sanction without application of mind and had merely signed the draft sanction order submitted to it, by CBI. He further argued that in the trap conversation recorded in memory card Ex.PW3/I, the accused can be heard speaking "ise wapas lo"
when the complainant told the accused "bus itne me hi jo tum mera kaam khatam karva ke alag karo no", but the said utterance of accused was deliberately omitted by CBI for reasons best known to them. Further the accused had specifically stated that "main ye kaam nahi karunga" in reply to the complainant's offer of alleged bribe to him.
5.11 He further argued that there were material contradictions in the deposition of witnesses and many witnesses have made material improvements before this court as compared to their statements recorded by IO u/s 161 Cr.PC, which also proves that the present case is a false case. He specifically pointed towards the fact that the demand by way of gesture by accused, is not mentioned in statement u/S 161 CrPC of PW2 or in the statement of recovery witness PW13.
5.12 He further argued that the shirt of the accused was not seized by the prosecution. All the original bills of the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 39 of 138 complainant totalling Rs. Twelve Lacs were also not seized. There was no attempt made by any of the witnesses to video record the trap proceedings even though they were carrying multimedia mobile phones. Furthermore, the CFSL was under the administrative control of CBI at that point of time and so, the possibility of concoction with the exhibits cannot be ruled out. There was delay in recording statement of witnesses and the explanation for the same was not legally tenable. Furthermore, there were various contradictions and discrepancies in the testimony of PW3, as compared to the audio recordings of the conversation between him and the accused, both at the time of verification proceeding as well as trap proceedings. The accused nowhere told the complainant that he would do any work of the complainant and rather, he had denied doing the work of complainant. He also pointed out towards other infirmities and contradictions not only in the testimony of PW3 but also other witnesses.
5.13 He further argued that though the accused was not denying the recovery of Rs.10,000/- from his wallet however, the said money was neither demanded by the accused nor given to him by the complainant and rather, the complainant had thrusted the said amount in the purse of the accused, which was lying there, so as to falsely implicate the accused. He also alleged that the audio recording of that period was tampered or altered by the CBI, so as to suit its case.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 40 of 138 5.14 Lastly, Ld. Defence Counsel argued that the case
suffered from faulty investigation for which the benefit has to be given to the accused as per law. The IO did not collect the original documents from CSIR-TKDL. He did not verify the reasons for non-clearance of bills of complainant, he did not check the DVR of the CCTV footage at Cafe Coffee Day. IO further stated that he was not conversant in Hindi language and this has impaired his ability to conduct investigation in this case. He also did not investigate about the irregularities in the bills of the complainant and the fact that a vigilance enquiry was pending against M/s Jai Mata Travels, the firm of the complainant. Accordingly, he prayed that the accused deserves to be acquitted from the charges framed against him.
5.15 In the rebuttal arguments, Ld. PP, CBI has argued that the Ld. defence counsel has failed to show any material discrepancy or contradiction in the testimony of witnesses. It is settled law that minor discrepancies in the testimony of witnesses do not affect the credibility of the prosecution case. He further argued that the prosecution was relying on its own material collected during the verification, trap and investigation stage. Even if, the recording as made by the complainant through his mobile, prior to coming to the office of CBI, is not made part of prosecution evidence, still the prosecution case stands proved. He further argued that the court may on its own hear the recordings made by the complainant through his mobile as his mobile is lying seized in the court custody.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 41 of 138 5.16 He further argued that it is a normal practice in CBI
that certain number of independent witnesses from various govt. departments are always available at CBI office pursuant to requisition made to their department, so that they can be asked to join investigation on an urgent basis, if and when need arises. He further argued that even if, the IO had obtained the CCTV footage from Cafe Coffee Day, it would have been a futile exercise since, the staff personnel from Cafe Coffee Day had already clarified that no CCTV camera was pointing towards the area where the customers sit. He further argued that there was no willful withholdment of any part of the recorded conversation between the accused and the complainant and any such words, which are found missing from the transcript, is due to the reason that the voices were hardly audible at some points. He further argued that the words "isse wapis lo" was not addressed by the accused to the complainant but rather, the accused appeared to be asking the CCD staff to take back the eatables as the accused was not inclined to eat vegetarian food. He also argued that since, the accused has admitted the recovery of Rs. 10,000/- from his purse, it was for the accused to prove for what purpose he had taken the money from complainant. Ld. PP, CBI further denied that there was any thrusting of money in the purse of accused as this allegation was not supported by any portion of the conversation between the accused and complainant at Cafe Coffee Day. All other arguments on behalf of Ld. Defence Counsel was duly rebutted by the Ld. PP, CBI and he once again pressed for the conviction of the accused.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 42 of 138 5.17 Following are the judgments which are relied upon by Prosecution in support of its case:- S.N Judgment Name On the Point of o.
1. Syed Ahmed Vs. State of In view of Explanation (d) to Section 7 of Karnataka 2012 (8) SCC the Act, a public servant, who is not in a 527 position to do any favour to a person could also be deemed to commit an offence under the Act, if he demands and accept illegal gratification.
2. Mahesh Pal Singh Vs. Once it is proved that there was actual State of NCT of Delhi in demand and acceptance of illegal CRL.A. No.645 of 2010, gratification by the accused, the question Delhi High Court. as to whether he was in a position to actually help the student in the compartmental exam or not becomes altogether irrelevant in view of explanation (d) of Section 7 of PC Act. It would also amount to criminal misconduct.
3. State of UP. Vs. M.K. Minor contradictions/ discrepancies.
Anthony AIR 1985 SC 48
4. Gogni Bhai Vs. State of Overmuch importance cannot be attached Gujarat AIR 1983 SC 759 to minor discrepancies.
5. Vidhya Rani & Madan Lal Overmuch importance cannot be attached Vs. State (Delhi Admn) to minor discrepancies. Crl. Appeal no. 186 and 385/1997.
6. Faquira Vs. State of UP Minor discrepancies guarantee that the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 43 of 138 AIR 1976 SC witnesses are not tutored.
7. State of Rajasthan Vs. Normal discrepancies.
Smt. Kalki & another (1981) 2 SCC 752 (FB)
8. M. Narsinga Rao Vs. State Presumption under Section 20 of PC Act.
of AP SC 2001 Crl. L.J. 515
9. Madhukar Bhaskar Rao Presumption under Section 20 of PC Act.
Joshi Vs. State of
Maharastra, 2000 AIR
SCW 4018.
10. Vinod Kumar Vs. State of Presumption under Section 20 of PC Act.
Punjab 2015 Crl. J. 1442 (SC)
11. Hari Shanker Sharma Vs. Sanction order/Draft Sanction order.
CBI (2014) 4 HCC (Del) 577
12. Indu Bhushan Chatterjee Sanction order/Draft Sanction order.
Vs. State of WB, AiR 1958 SC 1482.
13 State of Bihar Vs. PP Sanction order.
Sharma, 1992 Supp (1) SCC 222, AIR 1991 SC 1260
14. Neera Yadav Vs. CBI Draft Sanction order.
(Bharat Sangh) Crl. Rev.
No. 2282 of 2004,
Allahabad HC.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal
RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC
Date of Decision: 05.06.2024 Page no. 44 of 138
5.18 On the other hand, Ld. Defence Counsel has relied
upon the following judgments in support of his arguments :-
S.N Judgment Name On the point of
1. Pithani Chinna Veeraiah vs a). Witnesses made inconsistent Spl. PP ACB, High Court of statement and had resiled from Andhra Pradesh , Crl. M.L. statement u/s 161 Cr.P.C. Not Appl. No.574 of 2016 trustworthy.
b). Complainant was interested and partition witness.
2. P. Satyanaraya`n Murthy vs a) Accused presume to be innocent The District Insp of Police, until proper demand and acceptance SC, Crl. M. L. Appl. No.31 of is proved.
2009 b) Suspicion however strong cannot
place of truth.
3 V. Sejappa vs The State by a).Proof of demand is sine qua non.
Police Inspector Lokayukta, b) Delay in lodging the complaint. Chitradurga, Crl. Appeal No.747 of 2008 of Supreme Court 4 Mukhtiar Singh vs State of Stray query about money by accused Punjab, SC, Crl.A.1163 of does not constitute demand.
20175 Kishan Chand Verma vs State Discrepancies u/s 161 Cr.P.C. and Through CBI, Delhi High cross-examination/ deposition before Court, Crl. A. 788/2000 court is fatal.
6. State of NCT of Delhi vs a). Delay in claiming the payment Devender Singh, Delhi High and lodging the report remained Court, Crl. A. 760/2012 unexplained.
b) Obligatory for the court to consider the explanation offered by the accused u/s 20 of PC Act, on the anvil of preponderance of probability.
7. Neeraj Dutta vs State NCT of Presumption u/s 20 of PC Act does Delhi, SC, Crl.A.1669 of 2009 not apply when demand is not proved.
8. Suraj Mal vs State, SC, AIR Inconsistences in the statement of 1979SC1408 witnesses makes it unreliable.
9. CBI vs R. K. Sharma, High Trap/independent witnesses reaching Court of Delhi, Crl. L.P.No.67 CBI office prior to the complaint of of 2013 complainant, is fatal.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 45 of 138 10. Raj Kishore Lenka vs When two versions are before the
Republic of India, High Court court, the version in favour of of Orissa, CRA. No. 123 of accused needs to be accepted.
200011. Mangat Ram Sharma vs State Improvement in statement of of Jammu & Kashmir, High witnesses makes them untrustworthy. Court of Jammu and Kashmir and Ladakh, CRA No.53/2015
12. Darshan Singh vs State of Discrepancies in statement u/s 161 Punjab, SC, Crl. A. No.163 of Cr.P.C. and deposition in court and 2010 material contradictions and evidence of witnesses regarding improved facts, is of no significance.
13 CBI vs Dr. A. S. Narayan Rao, Tape recorded conversation does not High Court of Delhi, Crl. A. reveal demand of bribe.
382/201714. S. K. Bhatia vs CBI, High Material contradiction in the Court of Delhi, Crl. M. A. prosecution case and no videography 13992/2014 of the trap proceedings.
15 T. K. Ramesh Kumar vs State Sanction being initiated due to non TH Police Insp Banglore, SC, application of mind.
Crl.A. No. 331 of 201516. K. Shanthamma vs State of Improvement in the statement of Telangana, SC, Crl. A. No.261 witnesses.
of 2022.
6. Legal Position 6.1 As far as the legal position on the subject in hand is concerned, it would be appropriate to firstly set out the relevant provisions of Section 7 and Section 13 (1) (d) read with Section 13 (2) P.C. Act 1988.
Section 7 of The Prevention of Corruption Act, 1988 reads as under :
"7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 46 of 138 motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but may extend to seven years and shall also be liable to fine.
(Explanations) --(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."
6.2 Hence in order to prove its case herein, qua offence punishable under Section 7 of PC Act 1988, prosecution is required to prove that :-
1) the accused is a public servant, CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 47 of 138
2) he had accepted, any gratification other than legal remuneration, from complainant;
3) for himself or for any other person ;
4) as a motive or reward for clearing the pending bills of the complainant ;
6.3 Now, Section 13 of The Prevention of Corruption Act, 1988 reads as under :-
"13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,-- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thin g or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 48 of 138
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine."
6.4 Hence, for seeking conviction of the accused for offence punishable under Section 13 (1) (d) PC Act, besides the fact that accused is a public servant, the prosecution also needs to prove that the accused by corrupt or illegal means, obtained for himself or for any other person, any pecuniary advantage or while holding office as public servant, obtained for any person, any valuable thing or pecuniary advantage, without any public interest. Further it is also clear that in order to make out an offence U/s 13 (1) (d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward. Lastly, the prosecution must also prove the actual receipt of pecuniary advantage by the accused from the complainant.
6.5 There are catenas of judgment on the aspect that proof of demand of illegal gratification is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 49 of 138
Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. So, the prosecution is also required to prove both the demand as well as the acceptance to bring home the guilt of accused. (Refer:- P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh (2015) 10 SCC 152) 6.6 In the case titled as A. Subair v. State of Ker- ala (2009) 6 SCC 587, while dwelling on the purport of the statu- tory prescription of Sections 7 and 13(1) (d) of the Act, it was ruled that the prosecution has to prove the charge thereunder be- yond reasonable doubt, like any other criminal offence and that the accused should be considered to be innocent till it is estab- lished otherwise by proper proof of demand and acceptance of il- legal gratification, which are vital ingredients necessary to be proved to record a conviction.
6.7 Further in State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450, the Hon'ble Supreme Court, while re- iterating its earlier dictum, vis-a -vis the same offences, held that CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 50 of 138 mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
6.8 Very recently, the Hon'ble Constitutional bench of Hon'ble Supreme Court of India, clarifying the law on the aspect of Sec 7 and Sec 13 (1) (d) of PC Act, held in Neeraj Dutta Vs State (Government of GCT of Delhi) 2022 SCC Online SC 1724 that :
"74. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1) (d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 51 of 138 received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)
(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 52 of 138 rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption."
6.9 Having enunciated the law on the aspect, I shall now proceed to evaluate and appreciate the evidence brought on record by the prosecution.
7. Appreciation of Evidence 7.1 As far as the present case is concerned, the following points arise for consideration of this court :-
A. Whether the accused being a public servant, had demanded bribe of Rs.10,000/- from the complainant for clearing his pending bills or not?
B. Whether the accused had accepted the bribe of Rs.10,000/- from the complainant at Cafe Coffee Day or not?
C. Whether the statutory presumption u/s 20 of PC Act is applicable in the present case against accused and its implications thereof?
D. Whether the sanction for prosecution of accused is legally defective as draft sanction was provided to the Sanctioning Authority by CBI?
E. Whether there was willful withholdment by CBI of certain parts of conversations between accused and complainant, in the written transcript as well as in the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 53 of 138 memory card containing the conversations, so as to falsely implicate the accused ?
F. Whether the prosecution has been able to prove its case beyond reasonable doubt or not, while considering the inconsistencies contradictions and infirmities, cited by Ld. Defence counsel?
7.2 Coming to the evidence led by the prosecution, as submitted by Ld. PP, CBI, the prosecution is heavily relying upon the testimony of PW3 complainant Sh. Pintoo Choudhary, PW2 Inspector Shitanshu Sharma, the verification officer, PW8 Inspector Harnam Singh, the trap laying officer and the independent witnesses PW10 Sh. Bachittar Singh and PW13 Sh.
Rajes Kumar Singhal, besides the other witnesses cited by the prosecution. Hence, it would be appropriate if the testimony of PW2, PW3 and PW8 is reproduced in detail before proceeding to evaluate the prosecution evidence on record.
7.3 PW3 Sh. Pintoo Choudhary (complainant) has deposed that in the year 2017, he was doing the business of supplying vehicles, in the department of CSIR-TKDL, whose one office was also in Ghaziabad. Later on, the said office got shifted to Satsang Vihar in Qutub Industrial Area, New Delhi. An amount of Rs. Twelve Lacs was due against the said office on account of his bills towards supply of vehicles to the said office. He had made repeated requests to Dr. Rakesh Tiwari, who was head of concerned TKDL unit and Dr. Tiwari asked him to meet CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 54 of 138 accused S. R. Alam, who was working as Section Officer, in the said office of TKDL, which then got transferred to New Delhi.
7.4 PW3 further deposed that he met accused several times and also made several phone calls to him for taking steps for making payments of his pending bills. Then on 15.05.2017, in the morning hours, the accused demanded a sum of Rs. 20,000/- from him, during conversation on mobile to clear his aforesaid bills. When PW3 showed his inability to make payment of that amount, accused asked him to make payment of Rs. 10,000/-. Since PW3 did not want to make payment of the said bribe amount, he decided to make complaint against accused, to CBI.
7.5 He reached at the CBI office, where he was produced infront of SP CBI and he showed his written complaint to SP CBI. After that, SP called Inspector Shitanshu Sharma and marked his complaint to him. Inspector Shitanshu Sharma heard his grievances and on his directions, he also made a call to accused S.R. Alam on his mobile phone. Inspector Shitanshu Sharma also called one witness namely Sh. Bachittar Singh. The said conversation was got recorded in the memory card through a DVR which was got arranged by Inspector Shitanshu Sharma, as he talked to the accused in speaker mode. Inspector Shitanshu Sharma also prepared some documents and the same were got signed.
7.6 Thereafter, one another Inspector Harnam Singh CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 55 of 138
came there and the documents prepared by Inspector Shitanshu Sharma were handed over to him. Inspector Harnam Singh joined another witness namely Sh. Singhal from LIC office. Thereafter, PW3 again talked to accused on mobile phone in the speaker mode, which conversation was also recorded in the memory card through the DVR. The voice of witnesses namely Sh. Bachittar Singh and Sh. Singal was also recorded in the memory card. Inspector Harnam Singh gave instructions to them regarding further proceedings of the case.
7.7 PW3 further deposed that he was having Rs.10,000/- in cash in the denomination of Rs.2,000/-. Inspector Harnam Singh noted down the numbers of those currency notes. Inspector Harnam Singh told in the presence of all the persons (i.e. 5-7 persons from CBI office and 2 public witnesses i.e. Sh. Bachittar and Sh. Singhal) that some powder would be smeared on the currency notes and if any person touches the same and then dips his hand into a solution prepared by him, the solution would turn pink. A practical demonstration was also given of the same. Thereafter, the aforesaid currency notes were smeared with the powder and public witness Sh. Singhal put the same in the left side pocket of jeans of complainant.
7.8 PW3 further deposed that as per the conversation between him and accused, he alongwith other persons of the trap team reached cafeteria of gate no.7 at Rajiv Chowk Metro CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 56 of 138 Station, New Delhi at about 4.45-5.00pm. Sh. Singhal also kept one DVR in open mode in the left pocket of PW3. Inspector Harnam Singh gave instructions to PW3 that he should make a miss call to him or touch his face with his both hands after bribe money is demanded and accepted by the accused. At the spot, PW3 sat in the cafeteria and Sh. Bachittar Singh was sitting on his right side on a different seat. After accused reached the cafeteria, PW3 ordered for coffee and some snacks. During conversation accused told him that payment of his pending bills would be cleared and demanded the bribe money orally as well as by making gestures using his fingers. Thereafter, PW3 gave Rs.10,000/- to accused stating that he cannot give more than that. The accused counted the same with his both hands and thereafter, kept it in his purse and then kept the purse in the left side pocket of his shirt. Thereafter, PW3 gave a missed call to Inspector Harnam Singh and the CBI officers reached there and accused was caught by two CBI officers. Solutions were prepared at the spot and when accused dipped his hands in those solutions, they turned pink. The CBI officer also took out the purse of accused from the left side pocket of his shirt and its solution also turned pink. Sh. Singhal took out the DVR from his pocket and hand out the same to Inspector Harnam Singh. The proceedings of sealing/signing/seizing were conducted by CBI officials at the spot. Thereafter, they returned back to CBI office alongwith accused. Some more proceedings were conducted at the CBI office and after 30-45 minutes at CBI office, he came back home.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 57 of 138 7.9 He further deposed that Inspector Harnam Singh had
taken his mobile phone at CBI office after leaving the spot for trap. The IO had also got recorded his voice, voice of witnesses Sh. Singhal and Sh. Bachittar Singh and voice of accused in a memory card, which was seized and sealed. Some written work was also done. During his testimony, his complaint Ex.PW2/A alongwith photocopies of summary of pending bills Mark PW3/A(colly.), verification report Ex.PW2/C, pre trap memorandum Ex.PW2/D, recovery memo Ex.PW2/E, sample voice memo dated 15.05.2017 Ex.PW3/A, voice identification cum transcription memo dated 12.06.2017 Ex.PW3/B were put to the witness and he identified his signatures on them. During his testimony, attested copy of agreement for transport arrangement for HRDC TKDL Unit Mark PW3/B, attested copy of contract agreement for engagement / empanelment of agencies to provide vehicles on hire on daily / monthly basis in CSIR TKDL Unit Mark PW3/C, the attested copy of award of work for providing services for vehicle in TKDL Unit dated 10.07.2014 Mark PW3/D, were put to the witness wherein he identified his signatures. The witness further proved his application in the form of reminder to the higher authorities of CSIR- TKDL regarding payment of pending bills with photocopy of summary of bills, photocopy of postal receipts, two envelopes addressed to head of CSIR-TKDL Ex.PW3/C (colly.). He had also sent time to time reminders Ex.PW3/B to the office of CSIR-TKDL. The duty vouchers, duty slips Ex.PW3/E (colly.) of which some slips were in the handwriting of different drivers, while some were in his CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 58 of 138 handwriting, were also exhibited. The folder containing photocopy of bills/ duty slips of M/s Jai Mata Travels which was submitted by PW3 in CSIR-TKDL, New Delhi are Mark PW3/E (colly.). The witness stated that he had submitted the originals in the Administration Branch of CSIR, New Delhi from where they were sent to Finance Department of aforesaid office. The rough site plan of the cafeteria where accused was apprehended was marked as PW3/F. The documents pertaining to his mobile no.9868593371 i.e. Customer relation form, etc. were marked as Mark PW3/ G (colly.).
7.10 During the testimony of this witness, he was shown one yellow colour envelope addressed to SP CBI, which when opened was found containing one Sandisk Memory card 8GB Ex.PW2/H, in its packing cover Ex.PW2/G, which was in another envelope Ex.PW2/F. The said memory card was containing one folder "FOLDER01" at address PRIVATE/SONY/FOLDER01 and the said FOLDER01 was containing three files, which were the introductory voices of independent witness Bachitter Singh and conversation between complainant and accused dated 15.05.2017 at time 12:28. He was shown another yellow colour envelope addressed to SP CBI, which when opened was found containing one Sandisk Memory card 8GB Ex.PW3/I, in its packing covers Ex.PW3/G and Ex.PW3/H, which was in another envelope Ex.PW3/F. The said memory card was containing one folder namely, FOLDER01 at the address PRIVATE/SONY/FOLDER01, the said FOLDER01 CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 59 of 138 was containing four files which were the introductory voices of independent witness Bachitter Singh and three conversations between complainant and accused dated 15.5.2017 at time 04:18 p.m., dated 15.05.2017 at time 4:30 p.m. and dated 15.05.2017 at time 4:55 p.m. The witness also correctly identified that the DVR used in the proceedings which is Ex.PW3/J. 7.11 During the testimony of this witness, the bottles containing right hand wash of accused and left hand wash of accused of the date of incident were also produced and are Ex.PW3/K and Ex.PW3/L respectively. Another bottle containing the purse wash of the accused taken on the date of incident was exhibited as Ex.PW3/M. The five currency notes of the denomination of Rs.2000/- each which was used as trap money, were also correctly identified by PW3 and the same is Ex.PW3/N (colly). The mobile phone of accused recovered during the personal search of accused is Ex.PW3/O. A brown colour purse of accused wherein he had kept the bribe/trap money was also identified by witness as Ex.PW3/P. The mobile phone of complainant from which he had talked to the accused is Ex.PW3/Q. PW3 also correctly identified the accused in the court.
7.12 During his cross-examination, PW3 stated that he had gone to the CBI office personally on 14.05.2017 but his complaint was not taken. He denied having visited the house of CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 60 of 138 accused ever. He once again reiterated that he had talked to the accused on 13.05.2017 and 14.05.2017, when the accused had demanded bribe from him. He further stated that in his complaint written at his house, he had mentioned the name of Dr. Rakesh Tiwari as well, who was head of TKDL. He further stated that some facts were added in his written complaint at CBI office. He further stated that he had generated total bill of Rs.9,12,320/- for the period June, 2015 to March, 2016 but 75% of payment of the bills for the period November, 2015, December, 2015 and January 2016 was already received by him and it was to be deducted from the aforesaid total bill amount. He denied having knowledge of any vigilance enquiry pending qua the discrepancies in his bills. He denied the suggestion that at the Cafe Coffee Day, when he was talking to the accused, he had taken out the trap money from his pocket and put the same on the table, after which accused asked him to take back the same by uttering words, "ise wapas lo". He further admitted that accused had stated the words, "main ye kaam nahi karunga" as per the transcript. He further admitted that in the transcription of conversation which took place in Cafe Coffee Day, there was no specific demand of accused asking for the bribe money, but also stated that accused had made specific demand of bribe money in the verification proceedings. He denied that he was having personal grudge against the officials of CSIR-TKDL, as they had refused to give him work of transportation, or that he had concocted a false story in order to falsely implicate the accused.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 61 of 138 7.13 PW2 Insp. Shitanshu Sharma, the verification
officer in this case deposed that on 15.05.2017, SP Abhishek Dular had marked a complaint of Pintoo Chaudhary, to him for verification. In order to verify the allegations made in the complaint and as per procedure and practice, an independent witness namely, Bachiter Singh, Head Clerk NDMC was joined in the proceedings. He got a new sealed packed DVR, sealed memory card and CBI seal, issued from the CBI office as per rules. After ensuring that DVR was empty, he put the memory card into it and recorded the introductory voice of the independent witness. The mobile phone of the complainant was put on speaker mode and he was asked to make a call on the mobile phone of the accused. In this call, the complainant informed the accused that he had arranged the bribe amount of Rs.10,000/- through some friend and requested the accused to clear his pending bills. The accused asked the complainant to meet him on the same day at Rajiv Chowk Metro Station at 5:00 p.m. This conversation was recorded in the memory card through the DVR and its rough transcription was prepared. Since the verification had revealed demand of bribe, therefore, he recommended to register a regular case against the accused S.R. Alam, Section Officer u/s 7 of PC Act. The seal and the DVR were handed over by PW2 to independent witness Sh. Bachitter Singh for keeping the same in safe custody, on the same day. The complaint of complainant is Ex.PW2/A, the verification memo prepared by PW2 is Ex.PW2/B and rough transcription of the conversation prepared by PW2 is Ex.PW2/C. As per PW2, the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 62 of 138 verification proceedings had started at about 12:00 noon and got concluded at 2:30 p.m. on the same day. PW2 further stated that after registration of FIR, the case was entrusted to Insp. Harnam Singh for investigation and laying a trap. PW2 was also made one of the member of the trap team and another independent witness namely, Rajesh Kumar Singhal, Admn. Officer, LIC was also joined in the trap proceedings. Thereafter, the witness gave detailed account of the trap proceedings, which is not being reproduced for the sake of brevity as it is being discussed in the testimony of PW8 Insp. Harnam Singh, the Trap Laying Officer.
7.14 During his cross-examination, PW2 admitted that PW3 had shown him the recording of the conversation between PW3 and accused which was made by PW3, from his mobile phone, however, he had not seized the said recording or got its transcription prepared. He denied that complainant PW3 Pintoo Chaudhary had come to him either on 13.05.2017 or 14.05.2017. He further stated that he had not conducted any investigation or verification with respect to the pending bills of PW3. He has further stated that during trap proceedings, PW3 informed that he was having the recorded conversation of the accused with him and he voluntarily gave his mobile phone, which was seized by CBI. He further stated that he was in a position to hear the conversation which was carried out between the complainant and accused at Cafe Coffee Day, from the place where he was sitting. When PW2 was confronted with his statement u/s 161 Cr.PC Mark PW2/D-1, the witness admitted that it was nowhere CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 63 of 138 mentioned that accused had demanded bribe by making gesture through his hands, which was clearly seen by them, at Cafe Coffee Day. He further admitted that the shirt of accused was not seized during investigation in the present case.
7.15 PW8 Insp. Harnam Singh, the Trap Laying Officer (for short 'TLO') deposed that on 15.5.17 at 2:20 p.m., he was called by Sh. Abhishek Dular, SP, CBI, ACB, Delhi in his chamber and he handed over the copy of the present FIR Ex.PW8/A-1 to him. There was the allegation regarding demand of Rs.10000/- by accused from the complainant, for clearing his pending bills. Accordingly, PW8 constituted a trap team consisting of PW2 Insp. Shitanshu Sharma, Insp. Ramesh Kumar, Insp. Kamal Singh, Insp. S.S. Gill, SI Manish Kumar and SI T.K. Singh. Besides them, two independent witnesses namely, Bachitter Singh and Rajesh Kumar Singhal were also arranged through Duty officer. Both the independent witnesses, team members as well as the complainant were introduced to each other and briefed about the purpose of assembling. The copy of FIR, verification memo and the complaint were read over and shown to all the team members. Thereafter, complainant produced a sum of Rs.10,000/- in the denomination of Rs.2,000/- (five GC notes) before him and he noted down the number of each GC notes in the pre-trap memo.
7.16 PW8 further stated that in the meantime, phenolphthalein powder and sodium carbonate powder were got issued from the malkhana through subordinate staff. Insp. Kamal CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 64 of 138 Singh was asked to give demonstration regarding the reaction of phenolphthalein powder with solution of sodium carbonate and fresh water. Insp. Kamal Singh briefed all the trap team members that if any object comes in contact with phenolphthalein powder and the same is washed in a solution of sodium carbonate and fresh water, then it would turn in pink colour. Thereafter, the aforesaid GC notes were treated with phenolphthalein powder and PW13 Rajesh Kumar Singhal was asked to touch the said GC notes with his right hand. A solution of sodium carbonate and fresh water was prepared in a clean glass tumbler. When PW13 dipped his right hand's finger in the said solution, it turned pink. The remaining phenolphthalein powder as well as solution of sodium carbonate and clean water was thrown away. During personal search of complainant by PW13, except the mobile phone of complainant, all other items were put in the office. Thereafter, the tainted GC notes of Rs.10,000/- as aforesaid, were kept by the independent witness in the left side front pocket of the jeans pant worn by complainant. The complainant was instructed not to touch the said GC notes and to hand over the same to the accused or to some other person only on his specific demand. Thereafter, all the team members including the complainant and both the independent witnesses, washed their hands with soap and water.
7.17 The witness further deposed that independent witness Sh. Bachittar Singh produced the DVR and CBI seal used during the verification proceedings. Some newly packed CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 65 of 138 memory cards were arranged by PW8 through the caretaker of the branch and one of such newly packed memory card was opened. After confirming that the memory card as well as the DVR were not containing any files of recorded conversation, the introductory voices of both the independent witness was recorded in the memory card through DVR. The DVR was handed over to the independent witness for safe custody as it was to be used to record further conversation to be held between the complainant and accused, during the trap proceedings. Witness further deposed that Sh. Bachittar Singh was asked to act as a shadow witness and to remain close to the complainant in order to hear the conversation as well as to see the transaction, if any, that would take place between accused and the complainant. The complainant as well as Sh. Bachittar Singh were asked to give a missed call on the mobile number of PW8 or to rub their face with both hands immediately, after the delivery of bribe amount to the accused. All the aforesaid proceedings are recorded in the pre trap memo Ex.PW2/D on which PW8 identified the signatures of all the witnesses, who had signed the same.
7.18 After the proceedings were completed at about 4.20pm, the complainant received a call from the accused on his mobile phone, on loud speaker mode. During the said call, accused told the complainant that he would meet him at about 5.15pm, inside Rajiv Chowk Metro Station, near Gate No.7. Since there was some talk of having coffee, the ATM card of complainant was handed over to him for making the payment.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 66 of 138
Thereafter, trap team members including independent witnesses, complainant and subordinate staff, left the CBI office, in two govt. vehicles. At around 4.50pm, they reached near Gate No.7 of Rajiv Chowk Metro Station, where the DVR in switch on and recording mode, was kept in the left side shirt pocket of the complainant. They all entered the Rajiv Chowk Metro Station through Gate No.7 and then the complainant and the shadow witness Sh. Bachittar Singh were directed to enter into Cafe coffee day and the remaining team members took their positions and waited for the signal of complainant and the shadow witness.
7.19 Thereafter, accused came and sat on the table in the Cafe Coffee Day shop, where the complainant was sitting. During the conversation, complainant took out the tainted / bribe money of Rs.10,000/- and handed it over to the accused. The accused counted the said bribe amount with his both hands and put the same in a purse and kept the purse in the front pocket of his shirt. Immediately, the complainant gave a missed call on the mobile phone of PW8 as pre-decided signal, regarding the transaction of bribe money. Thereafter, PW8 signalled to the team members and all of them reached to the table, where the complainant and the accused were sitting. Inspector Ramesh Kumar took out the DVR from the pocket of the complainant and switched it off. PW8 then asked the accused about the bribe amount on which he turned pale and kept mum.
7.20 PW8 further deposed that the complainant told him CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 67 of 138
that accused had demanded bribe of Rs.10,000/- through gesture, for clearance of his pending bills. When complainant handed over the bribe amount to him, the accused counted the same with his both hands and kept it in his purse and the purse was kept in the front pocket of the shirt of the accused. The same story was narrated by shadow witness Sh. Bachittar Singh.
7.21 Thereafter, and accused was asked to dip his right hand fingers and left hand fingers in two separate fresh solutions of sodium carbonate and clean water and upon doing so, both the solutions turned into pink. Thereafter, on direction, independent witness Sh. Rajesh Kumar Singhal took out the purse from the front pocket of the shirt worn by the accused and upon checking, it was found containing the bribe amount of Rs.10,000/-. Both the independent witnesses tallied the serial no. of GC notes recovered from the accused with the serial no. already mentioned in the pre trap memo and it was found to be same. The bribe amount of Rs.10,000/- was then kept in a brown colour envelope which was marked as Trap Money. The witness correctly identified the Trap Money during his testimony.
7.22 The witness further deposed that another fresh solution of sodium carbonate and clean water was prepared in a clean glass tumbler. A damp cloth was rubbed on the purse of the accused where he had kept the tainted bribe amount and when the cloth was dipped in the solution, it turned into pink. All the three solutions were put in separate glass bottles and sealed with CBI CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 68 of 138 seal. The cloth wrappers in which the exhibits- RHW (Right Hand Wash of accused), LHW (Left Hand Wash of accused) and Wash of Purse of accused, were kept, were exhibited as Ex.PW8/A2 to Ex.PW8/A4. Thereafter, a rough site plan Ex.PW8/A5 without scale, was prepared by Inspector Kamal Singh. The brown colour envelope containing the purse of accused was exhibited as Ex.PW8/A6. The witness correctly identified the purse Ex.PW3/P as the purse of accused in which the bribe amount was kept.
7.23 Witness further deposed that since it was peak hour and the spot i.e. Cafe Coffee Day was over-crowded, so the entire team alongwith independent witnesses and accused reached back to CBI office at around 6.30pm. At the CBI office, the conversation recorded in DVR, was played and as there was demand and acceptance of bribe as per the conversation, therefore, accused was arrested vide separate arrest cum personal search memo Ex.PW8/A7. The black colour Nokia phone found upon personal search of accused was correctly identified by the witness and is Ex.PW3/O. 7.24 The witness further deposed that the memory card in which the conversation between accused and complainant was recorded, was taken out from DVR and sealed with the seal of CBI. On accessing the said memory card, it was found containing four files, one of which was having the voice of independent witness Sh. Bachittar Singh, another was having the voice of CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 69 of 138 independent witness Sh. Rajesh Kumar Singhal and the remaining two files were having the recording of conversation between complainant and accused, on the day of trap. The yellow colour envelope containing another yellow colour envelope, brown colour envelope and 8GB memory card in its plastic cover and original paper packing cover was Ex.PW8/A8 (colly.).
7.25 Witness further deposed that accused was asked to give his specimen voice samples. Thereafter, another fresh 8GB memory card was opened and after assuring its blankness, the introductory voices of both the independent witnesses and the specimen voice of accused S.R. Alam by asking him to speak some particular lines, which were noted from the already recorded conversation, were recorded. The concluding voices of both the independent witnesses were also recorded in the memory card through the DVR. The said memory card was accessed in court wherein it was found containing five files. They were found containing the introductory voices and the concluding voices of independent witnesses Sh. Bachittar Singh and Sh. Rajesh Kumar Singhal as well as the specimen voice of the accused. Both witnesses had also stated in their concluding voice that accused had consented in their presence to give his specimen voice sample. The yellow colour envelope containing another yellow colour envelope, brown colour envelope and 8GB memory card in its plastic cover and original paper packing cover was Ex.PW8/A9 (colly.).
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 70 of 138 7.26 The witness further deposed that thereafter specimen
voice of sample complainant was recorded in another fresh 8GB memory card and the introductory voices and the concluding voices of both the independent witnesses Sh. Bachittar Singh and Sh. Rajesh Kumar Singhal was also recorded. The said memory card was accessed in court wherein it was found containing five files. They were found containing the introductory voices and the concluding voices of independent witnesses Sh. Bachittar Singh and Sh. Rajesh Kumar Singhal as well as the specimen voice of the complainant. The yellow colour envelope containing another yellow colour envelope, brown colour envelope and 8GB memory card in its plastic cover and original paper packing cover was Ex.PW8/A10 (colly.). The DVR make Sony through which the voices were recorded, was also correctly identified by the witness and is Ex.PW8/A11.
7.27 Witness further stated that all the aforesaid proceedings which took place during the trap of accused, were mentioned in the recovery memo Ex.PW2/E and the proceedings were completed at 00.30am on 16.05.2017. He also identified the signatures of all the witnesses who had signed on the recovery memo. The intimation regarding arrest of accused was given to his family members. The case property was taken into police possession through recovery memo and was deposited in malkhana of CBI/ACB/Delhi. The accused was produced before the concerned court and thereafter, further investigation of the case was transferred to Dy. SP P. Shadang.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 71 of 138 7.28 During cross examination, the witness stated that he
had not confirmed from TKDL branch whether Rs. Twelve Lacs of complainant were outstanding with TKDL branch. He further stated that in the transcript Ex.PW2/C, there is mention of Rs.10,000/- and then the accused says "achha" and if the entire conversation was construed in context, there was demand of bribe of Rs.10,000/- by the accused even though, there was no direct demand. He further stated that the process for release of payment to the complainant was to be done through the accused. He also deposed that he had not conducted any other investigation except laying the trap to nab the accused. He further admitted that phenolphthalein powder was very sensitive and it may transfer on physical contact between two persons, if one of them was already in contact with phenolphthalein powder. He further stated that the transcript of conversation between accused and complainant which was recorded by complainant from his mobile phone, never came in front of him.
7.29 He further stated that after the tainted amount was handed over by the complainant to the accused, signal was given by independent witness Sh. Bachittar Singh by giving missed call on his mobile phone. He further stated that he had told the IO that the accused had demanded bribe of Rs.10,000/- from the complainant for clearance of his pending bills through gesture but it was not found recorded in his statement u/S 161 Cr.PC mark PW8/DX1, when he was confronted with the same. He CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 72 of 138 further admitted that he was carrying a smart mobile phone on 15.05.2017 but denied that he had deliberately not made a video recording of the incident through his mobile. He further admitted that the accused was not the final authority with respect to release of amount of the bills. He further stated that recovery memo Ex.PW2/E was prepared in CBI office by CBI team on his dictation and it took four hours to prepare the same. He further stated that in the DVR used by CBI, there was no internal memory and therefore conversation was recorded in external memory card. He further stated that the shirt of accused was not seized as he had kept the tainted money in his purse and the purse was kept in front pocket of his shirt, so the shirt had not come in contact with phenolphthalein powder and so it was not seized.
7.30 The testimony of other witnesses though supporting and corroborative of the prosecution case, including that of independent witnesses, is not reproduced herein for the sake of brevity, however, the material part of their testimonies will be discussed in the later part of the judgment.
8. Points for Consideration A. Whether the accused had demanded bribe of Rs.10,000/- from the complainant for clearance of his pending bills or not?
8.1 In the case titled as State of Kerala and another vs. C.P. Rao ( (2011) 6 SCC 450) the Hon'ble Supreme Court held that mere recovery by itself would not prove the charge against CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 73 of 138 the accused and in the absence of any evidence to prove the payment of bribe or to show that the accused had voluntarily accepted the money, knowing it to be bribe, conviction cannot be sustained. It has been held that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant, to obtain any valuable thing or pecuniary advantage, cannot be held to be proved. The proof of demand is an indispensable essentiality for an offence under Sections 7 and 13 of the PCA. Hence the prosecution is obligated to prove the demand on the part of the accused.
8.2 The prosecution's case is that PW3/ complainant used to supply vehicles to CSIR-TKDL, Ghaziabad, for the use of its officers/officials. His bills for the period between June, 2015 to March, 2016, running into several lacs (the exact amount differs since somewhere it is claimed that the pending bills were worth Rs.12 lacs, at some places it is stated to be Rs.9,12,302/- and at other places, even lower than that amount as some amount towards the pending bills was already received by PW3), was due from CSIR-TKDL. The prosecution's claim is that the accused being Section Officer in CSIR-TKDL, had assured PW3 to get his pending bills cleared and for that purpose, he had demanded a bribe of Rs.10,000/- from PW3. PW3 has reiterated these allegations in his testimony recorded before the court.
8.3 Under such circumstances, it would be appropriate CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 74 of 138
to discuss the arguments made on behalf of accused to discredit the testimony of PW3. Ld. Counsel for accused has firstly argued that the accused was neither the sanctioning authority of bills nor the pending bills of PW3 pertained to the period when PW3 had supplied vehicles to CSIR-TKDL. As far as this argument is concerned, Ld. PP for CBI has rightly argued that it is not necessary that the public servant must himself have the power or must himself be in a position to perform the act, or show favour or disfavour, for, doing or showing, for which the bribe has been given to him nor is it necessary that the act for doing which the bribe is given, should actually be performed. It is sufficient if a representation is made that it has been or that it will be performed and a public servant, who obtains a bribe by making such representation renders himself guilty under this Section even if he had no intention to perform and has not performed or does not actually perform that act. It is not necessary that favour was in fact shown to the person who offered the bribe. It is sufficient if the person giving the gratification is led to believe that the matter would go against him if he did not give the gratification. He has relied upon the case titled as Syed Ahmed Vs. State of Karnataka (supra) and Mahesh Pal Singh Vs. State of NCT of Delhi.
8.4 The Explanation (d) appended to Section 7 of PC Act (unamended) is worth quoting and the same is as under:-
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 75 of 138 8.5 From the aforesaid provision of law, it is quite clear
that the public servant who has obtained illegal gratification or reward for doing a work, even though he does not intend to do so or he is not legally capable to do so, will be covered, as an act of obtaining illegal gratification/ bribe, as made punishable u/S 7 of P C Act. Furthermore, a perusal of the aforesaid judgment, relied upon by Ld. PP, CBI clearly shows that the public servant can be convicted for commission of offence u/S 7 of PC Act, even if he is not in a position to do any favour to a person, himself but demands illegal gratification to do the said act.
8.6 In the present case, it is undisputed that the accused herein is a public servant. It is also not in dispute that he was Section Officer during the relevant period in CSIR-TKDL. It is also not in dispute that being Section officer, the processing of any such bills would be initiated from him and thereafter, the bills would be put up before concerned sanctioning authority for actual clearance of the bills. Under such circumstances, it is only realistic that a rank outsider like PW3, will trust the words of accused that he will get his pending bills cleared.
8.7 It is also worth mentioning that in his cross- examination, PW3 had stated that when he had met the Head of CSIR-TKDL i.e. Dr. Rakesh Tiwari, he had told PW3 to meet the accused for clearance of his bills and that is how, he came into contact with the accused. There is no cross-examination of PW3 on this aspect, so it has remained unrebutted. Even PW8 in his CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 76 of 138 cross examination dated 27.02.2022 recorded at 2.15pm stated that the process for release of payment of bills was to be done through the accused. Furthermore, PW9 who was working as Under Secretary/ Administrative Officer, CSIR-TKDL has also deposed that accused S. R. Alam while being posted with him as Section Officer and DDO, looked after all the activities of CSIR- TKDL unit, including the transport related issues. This shows that not only accused was a Section Officer but he was also DDO (Drawing & Disbursing Officer) at CSIR-TKDL. So, the processing of the bills of PW3 would naturally go through him. Furthermore, PW9 was also the person in whose presence, the office of accused was searched and certain documents pertaining to this case, were seized by CBI. He had also signed the seizure memo Ex.PW5/A as a witness. Those documents which were seized included documents of M/s Jai Mata Travels qua the release of payment processed in TKDL unit. So, if the accused had nothing to do with the bills of M/s Jai Mata Travels, why was he dealing with those documents pertaining to the bills of PW3, at his office.
8.8 It has been argued on behalf of accused that the accused was not in a position even otherwise to process the bills of PW3 since there were irregularities with the bills and the bills of PW3 were pending with CVO (Chief Vigilance Officer), CSIR. Obviously, these facts are not disputed by the prosecution that there were some alleged irregularities in the bills of PW3, however PW3 has stated in his cross-examination at one place CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 77 of 138 that he was not aware that his bills were pending with CVO, CSIR-TKDL though at another place he admits this fact. However, one cannot lose sight of the fact that PW3 is a lay man and he cannot be expected to be aware of the exact proceedings, which may take place at CVO, CSIR-TKDL. Under such circumstances and also as argued by Ld. PP, CBI, one can say that the PW3 may place trust on the accused being Section Officer that his bills will get cleared through him. This was infact all the more reason to give and take bribe. Furthermore, perusal of the conversations which took place between PW3 and accused at the time of verification and during trap proceedings, nowhere reflects that the accused had stated to PW3 that his bills will not be processed until and unless, the same gets cleared by CVO, CSIR-TKDL. Rather during the conversation in trap proceedings, the accused can be heard saying that it was not the fault of PW3 that his bills became disputed since the issue for non-clearance of bills was the alleged use of vehicles provided by PW3, for personal purpose by the higher officials of CSIR-TKDL and he had also assured that the payment to PW3 would be initiated as soon as funds are received from the government and he will also assist in the same. The relevant extract in folder No.170515-1655 of memory card Ex.PW3/I of trap proceedings is as follows :-
Complainant- जो भी है बतओ मतलब इतने पैसे बतओ इतने पैसे पडे है मार्किट में हमारे Accused- नहीं नही हमने तो 2 वर्ड लिखना है कि इसके बारे में बताइये कि कोई के स पैडिंग है तो इसको क्यो रोका जाए Complainant- हां Accused- झगडा किन लोगो का है झगडा पी एस कम्पलेंनेट का CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 78 of 138 वीना जैन का झगडा था, झगडा उन लोगो का था तो पार्टि को क्या परेशानी है पार्टी में, पाटी ने जब कहा कि तुम हमे गाडी दो तो पार्टी ने गाडी दे दी, पार्टी ने गाडी दे दी तो गाडी गलत हुई या सही हुई वो यूजर जाने Complainant- हूं अच्छी बात है Accused- गाडी के गलत होने में यूजर का हाथ है ना कि पार्टी का"
It was also said during conversation as follows:-
Accused - मई के एण्ड में हम खत्म करेगें खतम कर देगे Complainant - फाइनल हो जाएगी सारी, सारी ही इकटठी करवा दिजो Accused - इकटठी करवा देगे Complainant - हां Accused - फ्री हुआ हूं, परसो के स पुट अप करवा दूगां Complainant - जो ये पैंमेंट में 25 प्रतिशत रोक रखी है 3 महीने के बिलन में से काटी इसका क्या होएगा जी Accused- उसको भी करवा देगे"
The above transcript clearly shows that the accused is telling that PW3 cannot be blamed for wrong use of his vehicle by CSIR-TKDL officials. He also stated that he will get it processed quite early. Accordingly, in my view this argument is of any help to the accused.
8.9 It was further argued by Ld. Defence Counsel that there were huge differences in the exact amount which was pending towards PW3 on account of his bills and this fact is apparent not only from the testimony of PW3 but also from the documents on record. He further argued that the original bills of PW3 were also not brought on record by the prosecution and only photocopies of the bills are on record. The IO also did not conduct any investigation as to why those bills of complainant CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 79 of 138 remained pending. Hence, the prosecution had failed to prove the exact amount which was due towards the PW3 and for what reason.
8.10 As far as this contention is concerned, it is correct that there is a discrepancy in the amount due towards PW3 which is not only reflected from his cross examination but also from other documents on record. In his reminder Ex.PW3/D, PW3 had claimed that an amount of Rs. 9,12,302/- was due towards him. However, in his cross examination dated 09.01.2020, he has admitted that the bills which were filed by him alongwith his reminder Ex.PW3/D, made to the Head of CSIR-TKDL were for the period June 2015 to March 2016 and he had already received payment of 75% of the bill amount for the period November 2015, December 2015 and January 2016 and the said 75% payment of bills was required to be deducted from the aforesaid total bills of Rs.9,12,302/-. This fact is also apparent from perusal of the documents pertaining to M/s Jai Mata Travels, which were seized from the office of accused, in the presence of PW9 and who also proved the same.
8.11 However, it is an admitted case that certain bills of PW3 were due and pending with CSIR-TKDL and PW3 had been trying to get the same released to him. The amount claimed by PW3 and the amount which may actually be due to him, can differ. It is a well known fact that in Govt. departments, often the bill amount which is sanctioned in favour of an applicant, is less CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 80 of 138 than the amount which is claimed by the applicant as there are some discrepancies. PW3 has of course made a false claim of certain bills, the amount of which was already released to him however, that does not make his other claim to be unjustified and invalid. Moreover, there is nothing on record to suggest that the CVO, CSIR-TKDL had held that the bills of PW3 were false though it is also correct that the pending bills of PW3 had not been cleared till the date of deposition of PW9, as stated by him in his cross examination. Furthermore, as on the date when PW3 alleged illegal demand of bribe by accused, the bills of PW3 were actually pending whatever their actual amount may be. For the same reason, the non-filing of original bills of M/s Jai Mata Travels does not affect the prosecution case one bit. The attested copies of those bills had been filed by PW11, the officer from the office of CVO, CSIR-TKDL. Even the accused had acknowledged in his talk with PW3 at the time of trap that bills of PW3 were pending. Relevant extract of transcription of trap proceedings contained in folder No.170515-1655 is as follows:-
Complainant- बताओ हमारे कितने के बिल हुए आलम साहब Accused- 9 लाख तीस हजार के तो है ही Complainant- ठीक प्लस इएमडी Accused- हां Complainant- प्लस इएमडी 1 लाख के करीब इएमडी ठीक दो महीने
के बिल पेंडिंग है कमती बढ़ती कितने हो जाएंगे बताओ 2 महीने के पेंडिंग है Accused- हां Complainant- वही 11 लाख के करीब Hence, one cannot say that merely because there is a CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 81 of 138 difference in the amount claimed and actual amount due or that the original bills were not filed on record, it will make the prosecution case doubtful. As far as non-investigation regarding the reasons for the bills being pending, how does that make a difference to this case, one fails to understand. The accused gave assurance to PW3 to get his pending bills cleared in a short time and demanded bribe for it, that's the end of the matter.
8.12 It was further argued on behalf of accused that the prosecution had failed to prove actual demand by the accused either during the verification stage or the trap proceedings. Neither from the actual conversation recorded in the memory card Ex.PW2/I or from written transcript filed by the prosecution, there is any semblance of demand made by the accused. Demand and acceptance are sine qua non for prosecution to prove before it can bring home the guilt of the accused.
8.13 As far as this contention is concerned, the grievance of PW3 is that the accused had demanded bribe of Rs.10,000/- from him to clear his pending bills. To this effect, he had made complaint Ex.PW2/A before CBI and when the demand by accused was verified, the present FIR was registered. The verification proceedings were recorded in memo Ex.PW2/B. During the said verification, PW3 was asked to make a call to the accused, which conversation was recorded in the memory card Ex.PW2/I. The transcript of the conversation between PW3 and accused during verification proceedings is Ex.PW2/C. Hence, it CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 82 of 138 is important to analyse the testimony of the PW3, his complaint Ex.PW2/A and the written transcript of conversation between PW3 and accused, during verification Ex.PW2/C, to determine whether there was any demand or not?
8.14 Perusal of complaint Ex.PW2/A shows that PW3 had mentioned that about Rs.12 lacs was outstanding towards supply of vehicles to CSIR-TKDL Ghaziabad. After shifting of the said office to Delhi, he had contacted the head of TKDL Sh. Rakesh Tiwari, who asked him to meet accused S.R. Alam and when PW3 met the accused, he demanded Rs.10,000/- as bribe from him. Accused also told PW3 that without paying the bribe, his bills would not be cleared as nothing happens without payment. The accused used to call on the mobile numbers of PW3 asking him to give money. Even on 15.05.2017 i.e. the date on which this complaint was given by PW3 and FIR was registered, the accused had called him in the morning. When PW3 could not pick the call and when he saw the missed call of accused, he called on the mobile no. of accused and assured him that he was making arrangement of money, upon which accused told him that he would call him in the lunch time. Further, the accused had asked him to meet him at about 3:00/4:00 p.m. along with the money.
8.15 In his testimony dated 09.08.2019, PW3 improved his version by stating that on 15.05.2017 in the morning hours accused had demanded a sum of Rs.20,000/- from him and when CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 83 of 138 he showed his inability to make the payment of that amount, accused asked him to make payment of Rs.10,000/-. Obviously, except the above oral testimony of PW3, there is no documentary evidence to the effect that accused had initially demanded Rs.20,000/- and thereafter reduced it to Rs.10,000/-. However, the fact that there was a conversation between accused and PW3 on 15.05.2017 in the morning, is apparent from the CDR Ex.PW4/A of the mobile phone of accused, which shows incoming call received on the mobile no. 9810236849 in the name of accused from mobile no. 9868593371 at 11:17 a.m. on 15.05.2017. The same fact was reflected from CDR Ex.PW4/B of the mobile phone of PW3. So, this does prove that there was some conversation between PW3 and accused on 15.05.2017, before verification proceedings were conducted. Even the transcript of conversation between PW3 and accused during verification proceedings, shows that there is a reference to some earlier talk with respect to money. In these circumstances, it would be pertinent to refer the conversation between accused and PW3 which was recorded during verification proceedings. The material portion of the said conversation contained in Folder no. 170515-1228 in memory card Ex.PW2/I, is as follows:-
"फोल्डर नं. 170515-1228 Accused- हैलो Complainant- आलम साहब नमस्कार Accused- हां मैं ये कह रहा था Complainant- है जी Accused- मैं ये कह रहा था कि Complainant- हां जी CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 84 of 138 Accused- वो 3 से 4 का नं. 3 से 4 ही है या देर कर लो Complainant- वो तो थोडा बहुत देर कर लेगे, पैसे को जो है ना वो जो
आपसे मेरी बात हुई थी जी दस हजार रूप्ये के लिए - - वो मेरे दोस्त से मैंने क्लीयरिंग उसकी आ गई मैंने चैक से निकाल लिए उससे पैसे Accused- अच्छा Complainant- ठीक है जी - - और आलम साहब Accused- हूं Complainant- एक बहुत विनम्र विनती है प्लीज इतने में ही सब कु छ कर लेना देखो और मैं ज्यादा वो नहीं कर पाउंगा बस यहीं खत्म करके मेरे बिल विलो को सब निकालवा दो प्लीज Accused- मेरी बात सुन लो Complainant- जी Accused- बानवे लाख हमने मांग रखा है Complainant- हां Accused- इसमें आप का भी पैमेंट है सतकार का भी पैमेंट है Complainant- हूं Accused- पैमेंट जैसे आती है हम प्रोसेस शुरू कर देगे Complainant- हां अब देख लो आप जैसे भी है वैसे नही तो मैं मारा जाउंगा बेमौत Accused- अरे मारा हम जाएगे बेमौत - - आप प्रोसेस करोगें तो हम मारे जाएंगे Complainant- ना ना ना वो कोई नहीं ठीक Accused- - - - हम प्यार से कर लेते है Complainant- तो कै बजे फिर - - कै बजे - - कहां मिलोगे बताओ आलम साहब Accused- यार देखो लू लगा हुआ है आप बोलो कहां या तो राजीव चौक पर मिल लो Complainant- राजीव चौक पे Accused- हां Complainant- हां राजीव चौक मिल लेते है - - मुझे भी नजदीक पडेगा Accused- राजीव चौक के अंदर कै से मिलोगें Complainant- अंदर चौक अंदर कहां - - वो तो बात कर लेगे फोन पे किस जगह मिलना है बाहर मिल लेगे Accused- राजीव चौक बाहर नहीं आउंगा, अंदर ही आना पडेगा आपको जहां पर राजीव चौक मैट्रो चैंज होता है"
8.16 A perusal of the aforesaid conversation shows that CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 85 of 138 PW3 said to accused, 'Paise ka jo hai na, vo jo aapse meri baat hui thi ji das hazaar ke liye.......wo mere dost se maine clearing uski aa gayi maine cheque se nikal liye usse paise', which shows that PW3 was referring to an amount of Rs.10,000/- about which he had already talked to the accused and the said amount had been withdrawn by PW3 with the help of his friend. The accused replied to PW3 in the affirmative by saying, 'acchha', which was further responded by PW3 as 'theek hai ji'. This shows that both accused and PW3 had previously talked about some Rs.10,000/-, however, for what purpose and to whom it had to be given, is not clear.
8.17 If we further go through the transcript of the said conversation, PW3 tells the accused, 'ek bahut vinmra vinti hai please itne mein hi sab kuch kar lena dekho or main jyada wo nahi kar paunga but yahi khatam karke mere bill villo ko sab nikalwa do please'. This statement of PW3 gives a clear indication that Rs.10,000/- was to be paid to the accused and for clearance of his bills as PW3 specifically says, 'itne me hi sab kuch kar lena dekho'. Had the money not to be paid to the accused, the accused would have retorted while responding to the statement of PW3, but rather he can be heard stating that Rs.92 Lacs had been asked (from Govt.) which included the payment of PW3 as well as payment of one Satkar and as soon as the payment is released, he would start the processing. In the further conversation, both accused and PW3 decide to meet at Rajiv Chowk Metro Station, on the same day.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 86 of 138 8.18 Of course, there is no direct demand of money by accused from PW3, however, from perusal of above
conversation, it can be inferred that Rs.10,000/- had been arranged by PW3 in order to give it to the accused, as per their previous talks and the accused had acknowledged the same. PW3 also asked the accused to get his bills cleared with that amount itself. So obviously, it means that Rs.10,000/- was to be given as bribe to accused. Ld. PP CBI had further argued that in view of Section 20 of PC Act, a statutory presumption has to be drawn against the accused that the amount demanded was towards bribe. This aspect will be dealt later on in the judgment.
8.19 One more important factor which cannot be over looked is that the accused decided to meet PW3 at Rajiv Chowk Metro Station on the same day, even though he was suffering from 'heat stroke' (loo lagna), which also shows that there was his own interest in meeting PW3 on the same day.
8.20 PW3 had also deposed that he had recorded the conversation between him and accused which took place between him and accused on 14.05.2017 and 15.05.2017, in his mobile phone (the conversation prior to him reaching the CBI office for making complaint). PW2, the verification officer had also admitted in his cross-examination that he had asked PW3 to show the recording of the already recorded conversation between him and accused and thereafter, PW3 had showed the said CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 87 of 138 conversation, which was also heard by him. However, he had not seized the said recording or got a transcription prepared of the same. Hence, this vital piece of evidence has not been placed on record by CBI, even though it existed.
8.21 Ld. Defence counsel for accused argued that an adverse inference against prosecution needs to be drawn in view of not filing the alleged recorded conversation between accused and PW3, in view of illustration (g) of Section 114 of Indian Evidence Act. On the other hand, Ld. PP for CBI argued that the mobile of PW3 was already seized on record and the court may peruse the same. Since the prosecution was relying entirely on the material collected during verification and trap proceedings, there was no need to consider the said recorded conversation.
8.22 As far as the above submission is concerned, it is rightly submitted by Ld. PP CBI that the mobile phone of accused is lying seized with the court which contains the alleged recorded conversation. However, the fact remains that the prosecution has not relied upon the said conversation or made it a part of evidence, hence the court at this stage, cannot rely on it without it being tendered in evidence by either of the parties. Moreover, in the absence of any CFSL examination, it will not be possible for the court to satisfy itself that the alleged recorded conversation is genuine or has not been tampered with, so, the said recorded conversation cannot be read in evidence.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 88 of 138 8.23 As far as the arguments on behalf of accused that an
adverse inference needs to be drawn against the prosecution is concerned, it will be appropriate to reproduce Illustration (g) of Section 114 of Indian Evidence Act, which reads as under:-
"114. The court may presume the existence of any fact which is thing likely to be happened, regard being had to the common course of natural events, human conduct and public and private business, in the relations to the facts of the particular case. ..........
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
8.24 From the aforesaid, it is clear that this section details about some presumption which the court may take in view of common course of event, conduct etc. However, these are not statutory presumption and are rebuttable. Moreover, the use of word 'may' signifies that it is not obligatory on the court to draw the presumption in every case, in given facts and circumstances. Furthermore, as per illustration (g), an adverse inference may be drawn when evidence is withheld by a person, even though it could have been produced before the court. However, in the present case, the prosecution had not withheld the mobile phone which allegedly contains the said recorded conversation between PW3 and accused but rather the same is still lying seized in court custody. Under such circumstances, the said alleged conversation which was recorded by PW3 in his mobile phone, can at the best be called as 'unrelied document' i.e. a document which exists and is seized but the prosecution does not intend to rely on it. Accordingly, the court cannot take any adverse inference for not CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 89 of 138 filing the said recorded conversation on record. Rather, if the accused was confident that he had made no such conversation with PW3, he could have got the said recorded conversation, tendered in evidence during cross-examination of PW3 or any of the other prosecution witnesses or even in the defence evidence, however, he did not do so. Under such circumstances, neither the prosecution nor the accused stand to benefit due to non- production of alleged recorded conversation.
8.25 It was also argued on behalf of Ld. Defence Counsel for accused that the accused went to meet PW3 at Cafe Coffee Day since accused and PW3 were at family terms with each other and both of them used to meet regularly. However, in his cross examination dated 02.03.2020, the PW3 has completely denied this suggestion given to him. He admitted that they both did attend the marriage of daughter of one Arvind Sharma, who was employee of TKDL, however, that does not in itself means that accused and PW3 were at family terms. It is also not in dispute that the PW3 had met the accused even previously for clearance of his bills, many times. So, the fact that the accused and PW3 had a casual talk with one another, is not surprising.
8.26 Even though, the accused had not demanded Rs.10,000/- in so many words as per transcript Ex.PW3/B (colly), however, the court has to consider the conversation between accused and PW3 in totality and not in piecemeal manner. There will hardly be any case where a public servant CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 90 of 138 specifically asks or admits that he wants bribe for doing any particular work, during a mobile conversation. The obvious reason being that such conversation can be recorded. Moreover, since the PW3 had specifically stated that, 'we jo aapse mere baat hui the das hazaar ke liye' clearly gives an inference that PW3 and accused had previously talked about the said Rs.10,000/- and the meeting at Café coffee day, was for the purpose of delivery of money. In the case of Neeraj Dutta Vs State (Government of GCT of Delhi) (supra), the Hon'ble Supreme court has held that the the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. Hence, in my considered opinion, the prosecution has been able to prove the demand of Rs.10,000/- made by accused, by way of circumstantial evidence.
B. Whether the accused had accepted the bribe of Rs.10,000/- from the PW3 at Cafe Coffee Day?
9. As per the prosecution, since accused and PW3 were supposed to meet at Coffee Shop on the same day, at Rajiv Chowk Metro Station, a trap team was constituted headed by PW8. The accused and PW3 met at Cafe Coffee Day, Gate no.7 of Rajiv Chowk Metro Station, wherein at the demand of accused, PW3 gave him Rs.10,000/-. Though the accused does not dispute the fact that Rs.10,000/- was recovered from his purse at Cafe Coffee Day, when trap team members came at their table, but he had alleged that the said amount was thrusted by PW3 in CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 91 of 138 his purse, without any specific demand made by him. Ld. Counsel for accused has once again argued that the prosecution failed to prove the demand made by accused during trap proceedings, as is clear from the transcription of trap proceedings, wherein the accused had not stated any such word or phrase, asking PW3 to give him the bribe money. Rather, the accused can be heard telling PW3, 'ise wapas lo' at point mark X of page 8 of the transcript Ex.PW3/3, but the said words were willfully concealed by CBI in transcription of file at Folder No.170515-1655 of Ex.PW3/B (colly), of conversation during trap proceedings. He also drew attention to the words of accused, 'main ye kaam nahi karunga' at point A of page 16 of the transcript, in Folder No. 170515-1655 of Ex.PW3/B (colly) as indicative of the unwillingness of accused to do the work of PW3. Under such circumstances, it would be imperative that the relevant portion of transcript is reproduced on record. It is clarified that the court had heard the audio recording again at the time of writing this judgment.
Folder No.170515-1655 ............................ (talks not relevant) (After the voice of coffee counter boys and some other persons.) Complainant- बडा मंहगा है जी Accused- क्या लिया Complainant- 564 वैज कटलेट तो है नही तो भी वो ले आया फिर मैंने वैज सेंडविच और क्या बोलता Accused- बकवास चीज है Complainant- चलो अब ले लगे कोई बात नही और बताओ साहब बडी मुश्किल से हुए है बडी मुश्किल से CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 92 of 138 इंगे-उं गे से हाथ पांव जोड के हुए है बस इनमें ही Accused 10 दिन का उम्मीद रखो कि पैसे आ जाएंगे Complainant- बस इनमें ही जो तुम मेरा जो है (*)खत्म करवा के ले लु लवाके (*)अलग करो ना Accused- इसे वापस लो (**) Complainant- बस अब तुम और मत करयो मतलब हां हां हां समझे साहब Accused- 10 दिन का उम्मीद रखो कि पैसे आ जाएंगे Accused- शर्मा क्या कह रहा था, तेरे को पिन्टो चौधरी ने पैसे नहीं दिए Complainant- ना शर्मा जी मुझसे भी कह रहे थे They further talked :-
Complainant- बहुत भारी हो गया ना - - - तुम कहते हो काम हो जाएगा हाथ टाइट चल रहा है बताओ Accused- हो जाएगा इसी पैसे में सारे अब पैसे नहीं मांगने है आपसे(*) अब उलटे हमने देने है Complainant- अब कितने में काम हो जाएगा Accused- इसी में काम हो जाएगा Complainant- 10 में ही Accused- अब लौटाउंगा Complainant- 10 में ही Accused- 10 में ही, 20 लौटाउंगा Complainant- चलो 10 में काम कर लो, बाकी और देखयो फिर ये हाथ जोडेगी - - अब और नहीं है आलम साहब ये 10 ही है इन्हें ही इन्हें end(*) कर के बस खत्म करो, पैमेंट करवा दो Accused- मैं ये काम नहीं करुं गा Complainant- मेरा पैमेंट करवा के मुझे अलग करो बडा दुखी हूं परेशान हू "
......................
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 93 of 138 Complainant- ठीक है, बाकी सब यहीं में कर दियो साहब Accused- ए Complainant- यहीं में कर दीजिए इतने में ही निपटा दीजिए Accused- इतने में निपट जाएगा 20 आपकी वापस आगी Complainant- ठीक है जी" 9.1 From perusal of the transcript Ex.PW3/B (colly.), it
transpires that the words 'ise wapas lo' are not mentioned in it. However, when the audio recording as contained in memory card Ex.PW3/I was played in the court, the accused can be heard saying the above words at point (**) in the transcript above and the same has been highlighted in bold in bigger font. However, the pitch of his voice is so low that it could be heard only when a headphone was used and after playing the said recording multiple times. However, PW3 had also used the words "mera jo hai", "loo lawa ke", "end" and "aapse" which are again depicted in bold and are highlighted at point (*). Before that, PW3 can be heard saying 'aur batao sahab badi mushkil se hue hain badi mushkil se inge unge se hath paun jodkar hua hain bus inme hi' after which the accused can be heard responding 'das din ka umeed rakho ke paise aa jayenge' after which PW3 said 'bas inme hi jo tum mera jo jai khatam karwa ke loo lawa ke alag karo na'. Thereafter, the accused can be heard saying very slowly 'ise wapas lo' as stated above. Thereafter, the PW3 stated ' bus ab tum aur mat kariyo matlab han han samjhe sahab'. From the aforesaid portion of the conversation, it can be deduced that the same pertains to the alleged bribe money, which may have been brought by PW3 as he also uses the words "loo lawa ke".
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 94 of 138
However, if the money had been kept on the table by PW3 and thereafter, the accused had asked PW3 to take it back, as is being contended, one fails to understand as to why the accused refused it, in a very low voice, which is hardly audible, since the other portion of his conversation is clearly audible. Rather his voice should have been quite firm in declining the money. Moreover, further conversation by the parties do not give any indication that at the said point of time, as stated above, the money had been kept on the table by PW3 as the accused responded to PW3 by saying 'Sharma kya keh raha tha, tere ko Pintoo Choudhary ne paise nahi diye' and then both PW3 and accused had some more casual talks. If the money had been put on the table, PW3 would have again insisted the accused to take it, as already agreed between them but he did not do so.
9.2 One more thing is surprising to note that as per accused, he never demanded any money from PW3 then how could he figure out that the money which was allegedly kept on the table by the PW3, was being offered to him by PW3, as bribe, to clear his bills. Moreover in the same conversation, the accused can be heard later on that he will get all the bills cleared in May. He also told the complainant to give party when his bills got cleared as is clear from below portion of transcript-
Accused- - - - पैमेंट हो जाए तो पार्टी करोगे Complainant- - - - बढिया वाली" Accused- बढिया वाली करेंगे CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 95 of 138 9.3 He also stated that "ho jayega ise paise me saare ab
paise nahin maangne aapse hain ulte hamein dene hain." The accused should have explained which money was being received by him from PW3, if not the bribe money but he failed to do so. Under the totality of circumstances, I am not convinced that the words 'ise wapas lo' refer to the accused asking PW3 to take back his money. Rather, the low tone and pitch of the voice of accused while saying 'ise wapas lo' may be addressed to the counter boys as has been argued by Ld. PP, CBI.
9.4 Ld. Counsel for accused has further argued that the accused had told PW3 that he would not do his work by saying 'main ye kaam nahi karunga'. On the other hand, this time of the conversation is the approx time, which the prosecution alleges to be the time during which the payment of bribe amount was made by PW3 to the accused.
9.5 In this regard, the court is again required to look into the relevant portion of conversation which was held between PW3 and accused at that point of time, as reflected in the transcript Ex.PW3/B(colly.). It is correct that just before accused stating ' main ye kam nahi karunga' (I won't do this work), PW3 had stated ' chalo das mein kam kar lo', 'baki aur dekhiyo phir ye hath jodegi.....' ' ab aur nahi hai Alam sahab ye das hi hain, inhe hi inhe karke bas khatam karo, payment karwa do'. Obviously, the above portion of conversation reflects that the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 96 of 138 PW3 had requested the accused to do his work, in Rs.10,000/- only which he had brought. However to conclude that accused had denied to do the work of PW3, cannot be established from the later portion of the conversation as already aforesaid. Further, in response to the words of accused ' main ye kam nahin karunga', PW3 stated that " mera payment karwa ke mujhe alag karo, bada dukhi hoon pareshan hoon'. After which the accused stated 'Sharma apke sath daru party karta hai. It is quite strange that immediately after the accused refusing to do the work of PW3, both of them started having casual talk. Infact in my considered opinion, the said words ' main ye kam nahin karunga' as uttered by the accused refer to the accused assuring that he will not do such kind of work that even after taking money, he will not get the work done for PW3, like saying ' main ye kam nahin karunga' 'ki paise bhi le loo aur kam bhi na karoon' (It is clarified that the words in bold have been added by this court for better understanding of the actual intention of accused by speaking those words and were not actually spoken by the accused.). I come to this conclusion from the fact that just before the above words 'main ye kam nahin karunga' were said, the accused had 2-3 times stated that 'ho jayega isse paise main, ab paise nahin mangne hain, ab ulte humne dene hain' . He again repeated 'isse main kam ho jayega' when PW3 asked him ' ab kitne main kam ho jayega'. When PW3 stated 'das mein hi', the accused again repeated 'ab lautaunga'. Some of the relevant portion of transcript is as follows:-
Complainant- चलो खैर बडी मुश्किल से - इतना हाथ टाइट हे आलम CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 97 of 138
साहब कि उस दिन फ्राइ डे को मेरी बात हई आपसे बात हुई थी ठीक, फ्राइ डे को इतना शर्मिदा हुआ एक बार फोन भी नहीं उठा पाया क्या करता फिर बताओ पैसे का जुगाड हुआ नहीं और ये भी अब बडी मुश्किल में ही जुगाड करे है इसलिए बस भाई की रख लियो आपने जो कही ठीक उतनी मैंने निकाल लिए"
Accused- मई के एण्ड में हम खत्म करेगें खतम कर देगे Complainant- फाइनल हो जाएगी सारी, सारी ही इकटठी करवा दिजो Accused- इकटठी करवा देगे Complainant- हां Accused- फ्री हुआ हूं, परसो के स पुट अप करवा दूगां Complainant- जो ये पैंमेंट में 25 प्रतिशत रोक रखी है 3 महीने के बिलन में से काटी इसका क्या होएगा जी Accused- उसको भी करवा देगे"
Infact even after saying "main ye kaam nahi karunga"
the accused had assured to do the work of complainant as reflected from the later part of their conversation as follows:-
Complainant- ठीक है, बाकी सब यहीं में कर दियो साहब Accused- ए Complainant- यहीं में कर दीजिए इतने में ही निपटा दीजिए Accused- इतने में निपट जाएगा 20 आपकी वापस आगी Complainant- ठीक है जी"
Accused- बीस वापस आएगें आपके Complainant चलो फिर जैसे भी है , देख लिजिए और ना दे पाउं गा साहब पैसे, इतने ही हैं (*) Accused- आपको बोलने की जरूरत नहीं मैं महसूस करता हूं 9.6 The words in the bold and which are highlighted at
point (*), are again found missing in the above transcript but can be heard in the audio recording after which the accused again CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 98 of 138 assured PW3. So, when the accused had been repeatedly assuring PW3 to get his work done, then it is implausible to believe that he would refuse to do the work of PW3 thereafter. Rather, when PW3 kept on asking him whether the accused was satisfied with Rs.10,000/-, the accused in order to assure him stated ' main ye kam nahin karunga' thereby assuring PW3 that he will not back out after taking money. Moreover, the tone and tenor of the voice of accused does not give any such suggestion that he did not want to do the work of accused and those words were said for something else and appear to be an assurance.
9.7 It has further been argued by Ld. Counsel for the accused that prosecution has failed to prove the actual demand made by accused even at the time of trap proceedings, as the conversation between accused and PW3 does not give any such indication. As far as this contention is concerned, PW3 in his examination in chief stated that the accused had demanded bribe money orally as well as by making gestures, using his fingers.
Obviously, as per the conversation which took place during trap proceedings, there is no oral demand made by accused, so to that extent the PW3 has deposed falsely. However, PW3 also said that the demand was made by the accused by making gestures using his fingers as well. The same fact has been stated by PW2 that they had clearly seen the accused demanding bribe from PW3 by making gestures through his hands. PW2 did not say that accused had orally asked PW3 to hand over the bribe amount. In his examination in chief, PW10 Sh. Bachittar Singh, the shadow CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 99 of 138 witness, on being asked by Ld. PP, CBI whether any gesture was made by the accused, stated that the accused had put forth his right hand and then PW10 made gesture with this index finger and thumb as that of counting money. The Ld. Defence counsel objected to the same being a leading question, however, Ld. Predecessor of this court disallowed the objection, observing that by the word gesture by hand, is not limited to that of counting money and it cannot be said that in response to the question of Ld. PP, the witness could have only answered with gesture of counting money. Even another independent witness, PW13 deposed that he could figure out that the accused and PW3 were talking about money even though he was not able to hear the conversation, since he could gather this from the hand gesture of accused and thereafter, PW3 took out the envelope containing GC notes. Hence, four of the witnesses have stated that the accused had demanded money by way of gesture of hand.
9.8 It has been argued by Ld. Counsel for the accused that the factum of accused making demand of money by way of gesture is missing in the statement u/S 161 Cr.PC of PW2 as well as PW13 and this is a significant improvement in the prosecution evidence which belies the case of prosecution. However, a perusal of statement u/S 161 CrPC of PW3 Sh. Pintoo Choudhary dated 12.06.2017 shows that he had mentioned to the IO that the accused had demanded bribe money by gesture of his hand. Similarly, in his statement u/S 161 CrPC dated 27.05.2017, PW10 Sh. Bachittar Singh had also stated to the IO that the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 100 of 138 accused had demanded bribe money by way of gesture of his hand whereafter, the PW3 took out the money and handed over same to the accused. This fact is also recorded in recovery memo Ex.PW2/E that the accused was seen demanding bribe money by way of gesture of his hand.
9.9 It is however correct that the factum of demand by way of gesture of hand by accused is not mentioned in the statement u/S 161 CrPC of PW2 Inspector Shitanshu and PW13 Sh. Rajesh Kumar Singhal (independent witness). However, this in itself does not make the prosecution case doubtful for the simple reason that it is not a new fact being set up by the prosecution as PW3 and another independent witness PW10 Sh. Bachittar Singh had already stated to the IO about it and even the recovery memo Ex.PW2/E also makes a record of the same. It is further pertinent to mention that there is no worthwhile cross examination on behalf of accused to place any doubt on the testimony of PW3 and PW10 on this aspect.
9.10 It is settled law that demand for bribe need not be oral in all the cases but even a gesture inferring a demand for bribe is sufficient. It is not at all required that the accused should utter some words while making demand of bribe. Not only this, PW10 Sh. Bachittar Singh who is independent witness in this case and neither connected to the accused or to PW3, has also clearly mentioned the hand gesture with his index finger and thumb that of counting money, which was made by the accused CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 101 of 138 while making demand for bribe. Hence, it stands proved that the accused did make a demand of bribe by way of gesture of his hand.
9.11 Ld. Counsel for accused during arguments also raised an argument that both the independent witnesses i.e. PW10 and PW13 were already present in CBI office even before the complaint from PW3 was received on 15.05.2017. The presence of independent witness even before receipt of complaint and registration of FIR clearly shows that the accused had been falsely implicated in a conspiracy, by PW3 and CBI officials. He has relied upon judgment in the case titled as CBI vs R. K. Sharma, High Court of Delhi, Crl. L.P.No.67 of 2013.
9.12 On the other hand, Ld. PP, CBI argued that as per practice, CBI (ACB Branch) always keeps some independent witnesses already requisitioned, to be used during trap proceedings considering the short time available with CBI officials in conducting verification and trap proceedings. He has relied upon one notification vide MHA OM No.371/13/66- AVD.II dated 25.06.1969 regarding the directive on "Investigation of cases by the SPE Division of the CBI and facilities and co-operation to be extended by the Administrative Authorities". As per the said notification, different government departments were required to cooperate with CBI during investigation of cases.
9.13 Moreover, as far as above submissions are CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 102 of 138
concerned, it is pertinent to note that there are several judgments both of Hon'ble Supreme Court of India as well as Hon'ble High Courts spread across the country that CBI must enjoin respectable, independent public witnesses in any such trap proceedings, so that the sanctity of such proceedings is maintained. Reference can be had to the case titled as Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211 at p. 222 :
AIR 2005 SC 3123, wherein while relying upon Raghbir Singh Vs. State of Punjab (1976) 1 SCC 145, the Hon'ble Supreme court had acquitted the accused by observing that :-
"We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is something of a dubious character for the purpose of deciding the fate of the public servant."
(Emphasis is ours) We must not forget that in a trap case the duty of the officer to prove the allegations made against a Government officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the Court is not left in any doubt whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom a trap case may have been laid."
9.14 Even as per notification of MHA vide MHA OM No.371/13/66-AVD.II dated 25.06.1969, it is mentioned in para 13.2 that in trap cases, it is necessary that some responsible and CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 103 of 138 impartial person or persons should have witnessed the transaction and / or overhear the conversation of the suspect public servant. All public servants, particularly gazetted officers, should assist and witness a trap, whenever they are asked by the Special Police Establishment. The department/ office will, when requested by SPE, detail a suitable person or persons to be present at the scene of the trap. Refusal to assist or witness a trap will be regarded breach of duty and disciplinary action may be taken against such an officer. From the aforesaid, it is clear that the CBI can requisition public servants from various government departments to witness a trap. Moreover, being public servants, their testimony as independent witness will be more trustworthy and reliable as compared to testimony of any ordinary public witness.
9.15 PW10 has deposed in his examination in chief that the Administrative Officer of MCD had directed him to visit CBI office on 15.05.2017. He has nowhere stated that he had been asked to become a witness in a trap case. Similarly, PW13 stated that he had received directions from his office on 14.05.2017 that on 15.05.2017, he had to attend CBI office. Accordingly, both of them had attended CBI office on 15.05.2017. Infact during the cross examination of PW13, one Sh. Yogesh Chandra Joshi, Administrative Officer, P&IR, LIC of India, Jeevan Bharti Building, New Delhi, had produced the authorisation letter Ex.PW13/D1 as per which PW13 had been deputed for secret official duty as required by CBI Anti-Corruption Branch and was asked to report to one Puran Singh, Duty Officer, CBI, ACB, CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 104 of 138 New Delhi, on 15.05.2017. It is nowhere stated in the said authorisation letter that PW13 had been asked to become a trap witness in the present case by CBI or by his department, before reaching the CBI office.
9.16 It has been rightly stated by Ld. PP, CBI that there is normally very short time available with CBI to carry out verification proceedings, if any such complaint for demand of bribe is made by any complainant against any public servant. Moreover, the independent witness are not general public persons but are themselves public servants in other government departments. Hence, within a very short notice, it is not possible for CBI to arrange public servants to witness any such verification proceeding and trap proceeding. If, CBI seeks requisition of public servants upon receipt of complaint regarding demand of bribe and waits for the arrival of a public servant to act as an independent witness, valuable time will be lost and it may lead to failure of CBI to nab the accused red handed. Moreover, the possibility of trap being set up against such public servant may also get leaked to the concerned suspect public servant against whom trap is being set. The argument of Ld. Defence Counsel would have been worthwhile if PW10 and PW13 had deposed that they had been asked by their department or by CBI before reaching CBI office to become witnesses in the verification proceedings/ trap proceedings in the present case itself. However, that not being the case herein, the argument of Ld. Defence Counsel must fail. Even, the judgment relied upon CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 105 of 138 him is of no help for the reason that in the said judgment Hon'ble Delhi High Court had observed that both the independent witnesses had been called at CBI office to become trap witnesses. Whereas in this case, the public servants i.e PW10 and PW13 had been called for secret duty at CBI office. Obviously, the CBI cannot anticipate that on a given particular day, it will receive any such complaint of demand of bribe from any person and so, CBI is required to keep such witnesses (who are public servants) ready before hand, to be used when any such complaint is received. Hence, this fact alone that independent witnesses were already available at CBI office, does not in any manner creates any doubt on investigation.
9.17 Coming back again to the aspect of recovery of bribe amount, it is not disputed by the accused that the alleged bribe amount of Rs.10,000/- was recovered from his purse upon the conclusion of trap proceedings. It is also not in dispute that the trap money had been tainted with phenolphthalein powder before it was kept in the pocket of PW3. It is also not in dispute that any object, if treated with phenolphthalein powder and a wash is taken of the said object and put in a solution of sodium carbonate and water, the water turns pink. In the present case, the hand wash of both the hands of accused was taken by asking him to dip his hands in the solution of sodium carbonate and water and the same had turned pink as per the testimony of PW3 and other witnesses. Similarly, the wash of the purse of the accused was also taken and when mixed in the solution, proved the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 106 of 138 presence of phenolphthalein powder in the currency notes.
9.18 It had been argued that the solution of the purse wash of accused when produced in court, was of white colour and not pink colour, which created doubt. However, it has to be re-iterated that the accused himself admits that the trap money was recovered from his purse (alleged to be thrusted by complainant). Moreover, as per the CFSL result Ex.PW12/A2, the solution of purse wash of accused gave positive indication of presence of phenolphthalein powder in the solution, besides other solutions.
9.19 Further the currency notes i.e. GC notes of denomination of Rs.2000 /- (five in number) were the same currency notes which had been brought by PW3 to be used as trap money is also established from the testimony of PW10 and PW13 who had checked and tallied the individual currency numbers of those notes recovered from the purse of accused, with the memo prepared during pre-trap proceedings, wherein the individual currency numbers of all the five currency notes brought by PW3 were recorded. The purse of the accused was duly identified by PW3 and other witnesses during their testimonies. Furthermore, it was PW13, the independent witness who took out the purse from the pocket of the accused after the end of trap proceedings. These facts sufficiently prove that the accused had received/ accepted the bribe amount of Rs.10,000/- from PW3.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 107 of 138
C. Whether the statutory presumption u/s 20 of PC Act is applicable in the present case against accused and its implications thereof?
10. Before proceeding to evaluate the evidence in this regard, it would be appropriate to reproduce Section 20 of unamended PC Act which is as under:-
(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-seciton (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification ( other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under sectin 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
10.1 As far as the above provision of statute is concerned, it is settled law that demand and acceptance are sine qua non to be proved by the prosecution before presumption u/S 20 PC Act is drawn against an accused. Furthermore, the presumption is a statutory presumption to be drawn against the accused and the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 108 of 138 court is required to draw this adverse presumption in case the other background facts regarding the demand and acceptance is proved by the prosecution. Moreover, an amount of Rs.10,000/- is not a trivial amount that it can be over looked for not drawing adverse presumption.
10.2 My findings in the preceding paragraphs clearly show that there was demand and acceptance of money by the accused and hence, the adverse presumption as laid down in Section 20 of PC Act has to be drawn against the accused. Ofcourse, the presumption as per Section 20 of PC Act is a rebuttable presumption and accused can rebut the same either by way of cross examination of prosecution witnesses or by leading defence evidence as has been held in P. Sarangapani (Dead) v. State of A.P., 2023 SCC OnLine SC 1200 where it was observed that once the undue advantage i.e., any gratification whatever, other than the legal remuneration is proved to have been accepted by the accused, the Court is entitled to raise the presumption under Section 20 that accused accepted the undue advantage as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly. Thus, once it is proved that public servant had received gratification beyond legal remuneration, statutory presumption operates. However, such presumption is rebuttable. Since no defence evidence has been lead in the present case, so the accused is left with only the cross examination of prosecution witnesses to rebut the presumption.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 109 of 138 10.3 One of the prime arguments on behalf of the accused
was that the money of Rs.10,000/- had been thrusted upon by PW3 in the purse of accused, which was lying on the table despite there being no demand by accused. The word "Thrusting" means to push or drive with force or to cause to enter or pierce something by or as if by pushing. Hence, when some object is thrusted in another object, it will require use of force. In the present case, the accused was present when the money was allegedly being thrusted in his purse. If the said allegation is correct, then before thrusting money in the purse of accused, PW3 would have picked the purse of the accused either from his pocket or from his bag which the accused was carrying. Then, he would have taken out the trap money from the envelope and put the same in the purse of the accused and then, after putting the money in the purse, he would have, put the purse in the shirt pocket of the accused, considering the fact that purse of accused had been taken out from the front pocket of his shirt. Under such circumstances, one fails to understand as to why the accused did not protest either at the time when PW3 picked his purse without permission, put money into it and then put the purse in the pocket of the accused. It must have taken atleast 15-20 seconds for PW3 to do so and so, the accused had enough time to object and protest the said act of the PW3. However, he did not do so.
This is apparent from the conversation during trap proceedings, which was recorded in the pendrive Ex.PW3/I and it does not show any protest being made by the accused. Rather, it CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 110 of 138 can be seen that at the end of conversation, which took place in a jovial atmosphere, PW3 had even offered to drop the accused outside as a matter of courtesy. This shows that either the money was put in the purse of accused by PW3 with consent of the accused or the money was put in his purse by the accused himself. However, since both the hands of the accused were found having traces of phenolphthalein powder upon their handwashes, it is quite clear that the accused had received the money from PW3 himself, counted the same with fingers of both his hands and then, put it in his purse. Even otherwise, it is not possible for a common person to pick the purse of a public servant, put money in it and then put the purse in the pocket of the public servant, without the tacit consent of the public servant concerned.
10.4 Ld. Defence Counsel has relied upon the judgment in State of NCT of Delhi vs Devender Singh, Delhi High Court, Crl. A. 760/2012 to assert that the court has to consider the explanation offered by accused u/s 20 on the anvil of preponderance of probabilities. There can be no two arguments on this aspect. Even in the case titled as C.M.Girish Babu vs Cbi, Cochin, High Court of Kerala AIR 2009 SC 2022, the Hon'ble Supreme Court observed that :-
"19. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 111 of 138 can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.
20. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. "It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." (See Jhangan Vs. State 1966 (3) SCR 736).
(Emphasis supplied) 10.5 That being the case, the accused was required to bring some semblance of material on record for the court to raise that preponderance of probabilities in his favour. Mere stating something in defence without any supporting proof or even iota of proof, will not help the accused in discharging the burden upon him to rebut the aforesaid statutory presumption of law.
10.6 Ld. Counsel for the accused took another defence that the traces of phenolphthalein powder on the hand of the accused was due to the reason that PW3 and accused had a CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 112 of 138 handshake when the accused entered Cafe Coffee Day at the time of trap proceedings. PW3 has admitted that he shook hands of the accused when he entered the Café coffee day. However, even if, PW3 had a hand shake with the accused when the accused entered Cafe Coffee Day, PW3's hand were not having phenolphthalein powder or its traces. The trap money which was to be given to the accused, had been put in an envelope and then the envelope was put in the left pocket of the trouser of PW3 by PW13, after the trap money was smeared with phenolphthalein powder. PW3 had also been directed by PW8 not to touch the currency notes and to hand over the same to accused only, on his specific demand or to some other person on specific directions of the accused. Under such circumstances, there was no occasion for PW3 to himself touch those tainted GC notes before shaking hands with the accused. Furthermore, the accused still fails to explain as to why the traces of phenolphthalein powder was found on his both hands instead of only the hand with which he shook the hand of PW3. Hence, even this argument on behalf of accused fails. Accordingly, the statutory presumption u/S 20 of PC Act has remained unrebutted on the part of the accused, which further strengthens the case of the prosecution.
D. Whether the sanction for prosecution of accused is legally defective as draft sanction was provided to the Sanctioning Authority by CBI?
11. It has been argued on behalf of accused that the sanction for prosecution which was awarded against the accused CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 113 of 138 by PW1, is defective, since the sanctioning authority was already provided with the draft sanction order, by CBI and the sanctioning authority had merely signed the same on dotted lines. On the other hand, Ld. PP CBI has argued that the law requires the sanctioning authority to apply its mind before the grant of sanction and evenif for arguments sake, one presumes that a draft sanction order was provided to the sanctioning authority, the same is not a material irregularity, unless the defence can prove lack of application of mind by sanctioning authority.
11.1 In this regard, it is relevant to consider the testimony of PW1, the sanctioning authority, to arrive at any conclusion. In his examination-in-chief, PW1 deposed that the CBI had sent copy of FIR, copy of transcript of conversation, complaint and other supporting documents alongwith the request for sanction. He further deposed that he had examined the material placed alongwith with the request. He was satisfied that the material placed before him along with the request was sufficient to grant sanction for prosecution of accused. This shows that not only all the relevant material pertaining to this case was provided to the sanctioning authority, he also applied his mind before grant of sanction by perusing the same and thereafter being satisfied with the material, he granted sanction for prosecution of the accused.
11.2 Ofcourse, in his cross-examination, PW1 admitted that CBI had sent the draft of sanction order Ex.PW1/DB alongwith the documents. Though the IO, examined as PW15 CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 114 of 138 denies this that a draft sanction order was sent by him to the sanctioning authority, however in view of the admission of PW1, it does appear that a draft sanction order was provided to him alongwith other documents. However, PW1 denied the suggestion that he had mechanically signed the sanction order on the dotted lines of draft sanction order without applying his mind and without going through the record placed before him.
11.3 The mere factum of draft sanction order being supplied to sanctioning authority does not by itself, prove that there was no application of mind by the sanctioning authority. In the case titled as Hari Shanker Sharma Vs. CBI (2014) 4 HCC (Del) 577, wherein draft sanction order was provided to the sanctioning authority, the Hon'ble High Court of Delhi, had held that :-
17. Also, merely because the order granting sanction repeats the text of the draft sanction order cannot, ipso facto, mean that it is vitiated by non-application of mind.
In Indu Bhusan Chatterjee v. State of West Bengal AIR 1958 SC 1482, the Supreme Court held that if the competent authority, after perusing the material, signed a draft sanction order, it could not be said to be suffering from non-application of mind. Further, in State of Bihar v. P.P. Sharma AIR 1991 SC 1260, the Supreme Court held that the order of sanction need not contain the detailed reasons in support thereof. This Court is, therefore, unable to agree with the submission of Mr. Chopra that the sanction order stood vitiated on account of non- application of mind by PW1 to the relevant materials."
11.4 Even in the case titled as State of Tamil Nadu vs CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 115 of 138
Damodaran AIR 1992 SC 563, while setting aside the judgment of acquittal passed by Hon'ble High Court on the mere ground that draft sanction order was provided to sanctioning authority, it was held as follows:-
"We are of the view that the High Court was not justified in reaching the conclusion that the sanctioning authority granted sanction mechanically and without application of mind. The statement of witnesses recorded under Section 162, Criminal Procedure Code were reproduced in detail in the letter dated April 25, 1979. We are satisfied that all the relevant material was before the sanctioning authority and he granted sanction after fully applying his mind. We see no infirmity in the order granting the sanction."
11.5 PW1 also admitted that CD was not submitted by CBI alongwith other documents. Obviously, the CD was with CFSL at that point of time for its examination, so it could not have been provided to PW1 at the time of obtaining sanction. However PW1 had perused the transcript of the conversation. Hence there is no infirmity as such. In the case titled as State Of Bihar & Ors vs Rajmangal Ram AIR 2014 SC 1674 , it was held by Hon'ble Supreme Court that :-
"5. The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under the Code of Criminal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is-- whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 116 of 138 function is, prima facie, founded on the bonafide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated, ill-founded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provisions have been incorporated in Section 19(3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Procedure which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned. This is how the balance is sought to be struck."
11.6 The above has been the uniform view of the Hon'ble Supreme Court and the Hon'ble High courts of India, till date. Accordingly, I do not find any infirmity in the grant of sanction to the accused.
E. Whether there was willful withholdment by CBI of certain parts of conversations between accused and PW3, in the written transcript as well as in memory card containing the conversations, so as to falsely implicate the accused ?
12. My findings in the preceding paragraphs qua demand and acceptance by accused persons shows that indeed the words 'isse wapas lo' as stated by accused are not mentioned in the transcript of conversation of trap proceedings. However, it has also been observed that the voice of accused while saying CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 117 of 138 'isse wapas lo' was almost inaudible and it was only upon the use of head phone, that the court was able to figure out, what had been said by the accused at that point of time. The words were spoken in so slow tone and pitch by the accused that even the shadow witness, PW10 could not hear it. Under such circumstances, it is highly likely that the IO while preparing the rough transcript, would have missed the said words spoken by the accused. Infact one may add that the IO has not mentioned about many words uttered during trap proceedings, which were even in favour of the prosecution, as has been stated above, so there does not appear to be any wilful intention on the part of the IO in not mentioning certain words. Moreover, the accused has failed to give any plausible reason as to why PW3 intended to falsely implicate the accused despite having family terms with him. He also fails to prove why the CBI officials had connived with PW3 in falsely implicating the accused. Even if one may say that the CBI officials being interested in the success of their case, would have chosen to falsely implicate the accused at the behest of PW3 but still it has not been established even prima facie by the accused as to why the independent public servants PW10 and PW13 helped PW3 and CBI in falsely implicating the accused.
12.1 It was also argued on behalf of accused that some sort of tampering with the recorded conversation between the accused and PW3 during trap proceedings, also cannot be ruled out. However, when the court specifically asked the Ld. Defence Counsel, exactly at what point and time of the conversation, he CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 118 of 138 was alleging manipulation and tampering, Ld. Defence Counsel gave no clear and satisfactory answers. It has remained a mere apprehension. Rather, the prosecution examined PW18 Sh. Amitosh Kumar, CFSL expert to whom the sample and questioned voices of PW3 and accused were sent for forensic voice examination. He deposed that after comparing and identifying the questioned voice (recorded conversation between accused and PW3) with the specimen voice, he found them to be similar and of the same person, on the basis of auditory and spectrographic examination. His report is Ex.PW18/A, where it was also reported that the waveform, spectographic and critical auditory examination of the audio recordings contained in the memory cards Ex. PW2/I and Ex. PW3/I were continuous and no form of tampering was detected. There is nothing on record to suggest that there was any tampering with the recording of the conversation between accused and PW3.
12.2 It was also argued on behalf of accused that CFSL Lab was under the administrative control of CBI during the concerned period and so, a favourable report was got prepared by CBI in the present case. It was also argued that CFSL was not notified u/S 79-A of Information Technology Act as examiner of electronic evidence. PW18 admitted that CFSL was under the administrative control of CBI but he also deposed that Director CFSL was separate as he belonged to the scientific community and the funding of CFSL was from MHA (Ministry of Home Affairs). Under such circumstances, this is only a bare allegation CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 119 of 138 on the part of accused that a favourable report was given by CFSL, at the behest of CBI. As regards the argument that CFSL is not notified u/S 79-A of IT Act is concerned, the said provision is merely a directory provision and not a mandatory provision meaning thereby the forensic labs who are not notified u/S 79-A of IT Act, are not restrained in any manner from being examiner of electronic evidence. Moreover, PW18 also deposed that the CFSL Lab, New Delhi was accredited by NABL and a logo of NABL was also present on the left upper corner of CFSL report Ex.PW18/A. He also produced a certificate of NABL which is Ex.PW18/D1. Accordingly, even this argument on behalf of accused does not hold any weightage.
12.3 In the considered opinion of this court, there is no tampering or manipulation with the recorded conversation in the absence of any evidence to that effect. Furthermore, the absence of words 'ise wapas lo' as spoken by the accused was not intentional but rather, it was due to the fact that the words were spoken in a very low pitch, being hardly audible. Moreover, even if the CBI intended to willfully omit certain words spoken during the conversation between the accused and PW3 from the written transcript, it was of no use since the original recorded conversation was also filed before the court and would have definitely been played during testimony of witnesses.
F. Whether the prosecution has been able to prove its case beyond reasonable doubt or not, in CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 120 of 138 view of contradictions and infirmities, cited by Ld. Defence counsel?
13. At this stage, I will deal with the remaining contradictions, infirmities and alleged irregularities in the prosecution case, as has been alleged and referred by Ld. Defence Counsel in his final arguments. Firstly, it has been argued that PW3 lied to this court by claiming an exaggerated amount of bills which was pending towards him and he even admitted in his cross examination that he had claimed an excess amount, however, this argument has already been dealt in preceding paras above and hence, is not being repeated herein.
13.1 It was next argued that as per PW3, he had visited the CBI office even on 14.05.2017 to make his complaint, however, on that date, his complaint was not taken. PW3 further deposed that he had talked to the accused on his mobile even on 14.05.2017 whereas, the CDR of his mobile phone does not show any talk between them on 14.05.2017 but rather shows the talk on 13.05.2017. He further argued that the PW3 had mentioned in his complaint Ex.PW2/A that he had talked to the accused from two of his mobile numbers i.e. 9911237272 and 9868593371 on the mobile phone of accused i.e. 9810236849. However, as per the CDR of mobile no.9911237272 Ex.PW17/A2, no talk between PW3 and accused took place from the said number. He also argued that PW3 had deposed falsely about these facts as he wanted to falsely implicate the accused.
13.2 Perusal of examination in chief of PW3 shows that CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 121 of 138
he has admitted that he went to CBI office on 14.05.2017 but he could not meet any CBI officer as he was told that SSP was not in the office. He also admitted that in his complaint dated 15.05.2017 and in his statement u/S 161 Cr.PC, he did not mention about visiting CBI office on 14.05.2017. However, this in itself does not prove that the complaint made by PW3 was false or an after thought, so as to falsely implicate the accused. The CBI officials deny that complainant had visited the CBI office on 14.05.2017 or even earlier. Had complainant visited the CBI office on 14.05.2017, his gate pass would have been prepared at the gate of CBI but no such gate pass was produced by PW3 in support.
13.3 As regards the conversation between accused and PW3 from mobile no.9911237272, the CDR of said mobile Ex.PW17/A2 indeed shows that there was no conversation between PW3 and accused from the said number and to that extent, the contents of the complaint are false but at the same time, the CDR of other mobile phone of PW3 i.e. 9868593371 does show that PW3 had talked to the accused and vice versa, on the mobile phone of accused from this number on 13.05.2017 as well as on 15.05.2017. In my opinion, the fact that PW3 had mentioned another mobile number having been used by him to talk to the accused does not in any manner materially affect his testimony, which is otherwise reliable.
13.4 Further PW3 stated in his cross examination that the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 122 of 138
accused had demanded money during verification proceedings when he had called on the mobile number of accused or that accused had demanded amount of Rs.20,000/- from him at Cafe Coffee Day and PW3 had paid Rs.10,000/- to him saying that he was not having the balance amount and if accused wants to do his work, he may do, otherwise, he may refuse. PW3 had also denied that the accused had stated at Cafe Coffee Day that 'main ye kam aapka nahi karunga'. Similarly, PW13 had stated that though he was not able to hear the conversation between PW3 and accused, however, it appeared to him that they were talking about money which they could gathered from the gestures of the hands of the accused. However, the place where PW13 was sitting at the time of trap proceedings in Cafe Coffee Day, he could only see the back of the accused and so, he was not in a position to see the hand gestures of the accused.
13.5 Obviously, there is no direct demand of money made by accused either at the time of verification proceedings or at the time of trap proceedings and as already observed above, the accused did utter the words 'main ye kam nahi karunga' but without the word "aapka". However, the court cannot loose sight of the fact that the aforesaid conversation took place between accused and PW3 about four years before the date of his cross examination. Under such circumstances, it is quite natural that PW3 as well as PW10 and other witnesses may not remember the exact conversation which took place between PW3 and the accused on the said day. Infact, if one is asked to reproduce the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 123 of 138 conversation which took place between him and another person, one will find it hard to reproduce the conversation in verbatim even after one or two hours.
13.6 There are catenas of judgments that in India, sometimes the complainant and other witnesses exaggerate the facts, so as to give more force to their case but that does not in itself makes their testimony unreliable, if it is trustworthy in the material part. So, the above contradiction in the testimony of PW3 is of no help to the accused. With respect to PW13 having stated about the hand gesture made by the accused, the same finds corroboration in the testimony of PW3 as well as independent witness PW10, who both have stated that accused had made hand gesture while demanding money. As regards the arguments that only the back of accused was visible to PW13, the same depends upon the posture of accused and the witness. If the accused was sitting in a manner which makes his hands gestures visible to other trap members from the back, PW13 could not be faulted for having deposed about the same. Moreover, being a responsible public servant in his own capacity, there was no reason for PW13 to falsely depose against the accused and in fact, his truthfulness is also evident from the fact that he admitted that the place where he was sitting, he was not in a position to hear the conversation between PW3 and accused.
13.7 Ld. Defence counsel also pointed towards the testimony of PW10, who had stated that PW10 had deposed that CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 124 of 138 accused had told PW3 that his work would be done but the same does not find corroboration either from the transcription or the statement made to him u/s 161 Cr.PC. However a bare perusal of the transcription of conversation at the time of trap proceedings shows that the accused had repeatedly assured complainant to do his work.
13.8 In the case of Gangadhar Behera and Ors vs State Of Orissa AIR 2002 SC 3633, it was observed while citing another judgment in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) as follows:-
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana ( 2002 (3) SCC 76). Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co- accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 125 of 138 be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh (AIR 1957 SC)"
(emphasis supplied) 13.9 In the case titled as Rammi Alias Rameshwar vs State of Madhya Pradesh AIR 1999 SC 3544 , the Hon'ble Supreme Court has held that :-
"When eye-witness is examined at length it is quite possi- ble for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can suc- cessfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepan- cies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. It is a common practice in trial courts to make out contradictions from previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of inconsistent CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 126 of 138 former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the Section is extracted below: 155. Impeaching credit of witness.- The credit of a witness maybe impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to contradict the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose, i.e. to contradict the witness.
To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness, (vide Tahsildar Singh and Anr. vs. State of U.P., AIR 1959 SC 1012)."
13.10 Again the judgment of Hon'ble Supreme Court in Bharwada Bhoginbai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 sums up the position of law as under:-
" We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 127 of 138 incident. It is not as if a video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 128 of 138 important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
(emphasis supplied) 13.11 It was also argued that the prosecution / CBI offi- cials could have made video recording of the trap proceedings to substantiate their case since they were carrying smartphones with them but they did not do so as no such bribe was given to ac- cused. However, in my considered opinion, the same is not a ma- terial infirmity. Without doubt, if the video recording of the trap proceedings had been conducted, it would have given more force to the prosecution case and it is advisable that CBI does do the same in future. However, it is also to be considered that if any of the CBI official had made the video recording of the trap pro- ceedings from his own mobile phone, then the said mobile phone of that CBI official, would have become case property of the case and could have been seized in this case, thus, depriving the said CBI official from using the same atleast for few months, till the trial commenced. Hence, it is but expected that a CBI official will not use his own mobile phone in making video recording of official trap proceedings. Though, at the same time, I am of the opinion that CBI should provide some video recording instru- ment to its officials in future, so that video recordings can be made at the time of such trap proceedings.
13.12 It was also argued on behalf of accused that the IO did not seize the CCTV footage from Cafe Coffee Day where the trap proceedings had taken place. It was argued that the CCTV CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 129 of 138 footage would have reflected the true trap proceedings and would have shown that PW3 had himself thrusted the amount in the purse of accused. In this regard, the testimony of PW14 becomes relevant, who was Cafe Manager at the said Cafe Coffee Day shop near gate no.7 of Rajeev Chowk Metro Station, wherein the alleged trap proceedings had taken place. PW14 stated in his ex- amination in chief that after the CBI activity was over, PW8 Har- nam Singh had asked him to preserve the CCTV footage of ap- proximately two hours i.e. 5pm to 7pm. Upon which, he in- formed PW8 that the aforesaid store of Cafe Coffee Day did not have the availability of CCTV footage as it was arranged by the backend maintenance team. He further informed PW8 that even otherwise, the CCTV camera installed at Cafe Coffee Day were just above the counter and was only for the surveillance of Cafe Coffee Day staff, having its focus inside towards the employees and not towards the customers visiting the shop. The prosecution also exhibited one letter Ex.PW14/A as per which the mainte- nance department of Café Coffee Day informed that the focus of CCTV cameras of the shop were inside the counter towards the employee and the said letter was handed over to PW15, the IO of this case. Under such circumstances, even if the DVR and the CCTV camera of Cafe Coffee Day had been seized by the IO, the same would have been a futile exercise, serving no purpose. So, there is no force even in this argument on behalf of accused.
13.13 It has been further argued by Ld. Counsel that be- sides the above, there are various other material infirmities in the CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 130 of 138 investigation conducted by the IO, as he did not seize the shirt of the accused, then it took him about four hours in preparation of the recovery memo Ex. PW2/E and so, its manipulation by CBI in connivance with the PW3, cannot be ruled out, the rough site plan Ex.PW8/A-5 was defective since the position of the wit- nesses was not correctly depicted and is in contradiction to the oral testimony of the witnesses. Furthermore, the verification of- ficer PW2 Shitanshu was made part of the trap team as well and lastly the IO/ PW15 DSP P. Shadang was not well conversant in Hindi language as admitted by him in his cross-examination, so, he could not have conducted proper investigation in this case.
13.14 As far as the aforesaid arguments are concerned, the tainted trap money had been kept by the accused in his purse and the said purse was kept in the pocket of the shirt. Under such cir- cumstances, when the purse in which the tainted money was kept had been seized in this case, there is no further requirement even to seize the shirt of the accused. With respect to the long time taken in preparation of recovery memo Ex. PW2/E, the same by itself does not show that the memo had been manipulated until and unless there is some proof regarding manipulation especially considering the post trap proceedings were quite lenghty.
13.15 With respect to the rough site plan Ex. PW8/A-5 of the Cafe Coffee Day being defective in view of contradiction in CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 131 of 138 the testimony of PW2, PW3, PW10 and PW13, is concerned, without doubt, the oral testimonies of these witnesses does not matches with the exact position of some of the trap witnesses, as reflected in the rough site plan. However, when the accused ad- mits having visiting the Cafe Coffee Day on the day of incident and further admits that recovery of Rs.10,000/- was effected from his purse, any alleged discrepancy in site plan Ex.PW8/A-5, loses its significance. Moreover, when the witnesses had been exam- ined few years after the date of incident, it is but natural that they may forget some facts unless tutored.
13.16 As regards PW2 the verification officer being made part of trap team is concerned, Ld. Defence counsel could not site any law on the subject that the verification officer cannot be a part of trap team. Moreover, the court has to keep in mind the fact that the trap team was headed by PW8 Insp. Harnam Singh and not by PW2 Insp. Shitanshu Sharma. So, simply because ver- ification officer was also made part of trap team, it cannot be said that the trap proceedings had become vitiated.
13.17 As regards IO being not conversant in Hindi, even in the opinion of this court considering that some documents are in Hindi language, it would have been appropriate that a CBI official, who was well conversant in Hindi language, ought to have been assigned the investigation of this case. However, in his CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 132 of 138 cross-examination, PW15 submitted that he had taken assistance of other officials of CBI during the course of investigation, in view of his inability to properly converse in Hindi language. He had also stated that he could speak and understand Hindi language but was not able to read and write in Hindi language. So, that does not impair his ability to record statement of witnesses u/s 161 Cr.P.C. by translating it in English language. Hence, even this cannot be said to be material infirmity in the prosecution case.
13.18 The Ld. Defence Counsel has placed reliance upon the judgments in the case titled as Pithani Chinna Veeraiah vs Spl. PP ACB, High Court of Andhra Pradesh , Crl. M.L. Appl. No.574 of 2016 ; P. Satyanarayan Murthy vs The District Insp of Police, SC, Crl. M. L. Appl. No.31 of 2009; V. Sejappa vs The State by Police Inspector Lokayukta, Chitradurga, Crl. Appeal No.747 of 2008 of Supreme Court and various other judgments, to argue that the accused deserves benefit of doubt in case of material inconsistencies in the evidence of prosecution witnesses, PW3 being interested witness and that suspicion however strong, cannot take place of proof. However, my aforesaid findings clearly demonstrate that the prosecution has managed to sufficiently prove its case. Moreover, it depends on the facts and circumstances of each case whether there are grounds to grant benefit of doubt to an accused or not and whether the alleged inconsistencies and discrepancies are material to the prosecution case or not, which I do not find in this case.
CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 133 of 138 13.19 Furthermore, it is settled law that the prosecution is
required to prove its case "beyond reasonable doubt" and not "beyond all doubts". In the case titled as Iqbal Moosa Patel vs State of Gujarat 2011 (2) SCC 198, it has been held by Hon'ble Supreme Court as follows:-
" 13. That brings us to the question whether the appellants could be given the benefit of doubt having regard to the nature of the evidence adduced by the prosecution against them. We do not think that the appellants have made out a case for grant of any such benefit. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions (1947) 2 ALL ER 272:
"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence `of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt....
It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land."
14. Reference may also be made to the decision of this Court in Sucha Singh & Anr. v. State of Punjab (2003) 7 SCC 643 where this Court has reiterated the principle in the following words:
".......Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 134 of 138 guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh AIR 1990 SC
209). Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish."
13.20 In Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, a three Judge Bench of Hon'ble Supreme Court speaking through Hon'ble Justie V.R. Krishna Iyer, J. stated:
"Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused.
Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 135 of 138 tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent." In short, our jurisprudential enthusiasm far presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."
(emphasis supplied) 13.21 Similarly, it has been held in the case titled as 'Harijana Thirupala v. Public Prosecutor, High Court of A.P Hyderabad, AIR 2002 SC 2821' that :
"The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence, the approach of the court must be integrated not truncated or isolated. In other words, the impact of evidence in totality on the prosecution case or innocence of accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching to a conclusion about the guilt of the accused, the court has to appreciate, analyze and access the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of the witnesses."
13.22 Lastly, it was stated by accused in his examination u/s 313 Cr.PC that complainant/PW3 had falsely implicated him in this case as he wrongly alleged that he (accused) was responsible for non-clearance of his pending bills and due to this, difference of opinion took CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 136 of 138 place between them, which ultimately led to this false case. However, this so-called difference of opinion is completely invisible in the recorded conversations held between them, both at the time of verification proceedings as well as trap proceedings. Rather the accused can be heard having a nice time with PW3 at Café coffee day and also assuring to do the work of complainant, before he was apprehended. So, this is a false plea.
14. Decision 14.1 In view of aforesaid findings and discussions, I am of the considered opinion that accused S.R. Alam has accepted/obtained from PW3, a bribe of Rs.10,000/- as gratification other than legal remuneration, as a motive or reward for clearing bills of PW3/complainant, in exercise of his official functions and attempted to show favour to PW3. Further he, by corrupt means, obtained for himself a bribe of Rs.10,000/- by abusing his position as a public servant, while holding office as a public servant, without any public interest and is also guilty of criminal misconduct.
14.2 Accordingly, prosecution has successfully proved its case qua commission of offence punishable U/s 7 and Section 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act 1988 (unamended) beyond reasonable doubt against accused S.R. CBI Vs. S.Rabban Alam Atul Krishna Agrawal RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC Date of Decision: 05.06.2024 Page no. 137 of 138 Alam and he, accordingly, stands convicted for aforesaid offences.
14.3 Convict be heard separately on the point of sentence.
Announced in open court Digitally signed
ATUL by ATUL
on 05.06.2024 KRISHNA
KRISHNA AGRAWAL
AGRAWAL Date: 2024.06.05
16:11:15 +0530
(Atul Krishna Agrawal)
Special Judge, CBI-19 (PC Act)
RADC/New Delhi/05.06.2024
Certified that this judgment contains 138 pages and each page bears my signatures, at the end.
Digitally signed ATUL by ATUL
KRISHNA
KRISHNA AGRAWAL
AGRAWAL Date: 2024.06.05
16:11:31 +0530
(Atul Krishna Agrawal)
Special Judge, CBI-19 (PC Act)
RADC/New Delhi/05.06.2024
CBI Vs. S.Rabban Alam Atul Krishna Agrawal
RC No.DAI/2017/A/0019/ACB/CBI/ND Spl.Judge, CBI-19, RADC
Date of Decision: 05.06.2024 Page no. 138 of 138