Delhi District Court
Cbi vs . Dheer Singh on 20 November, 2017
IN THE COURT OF SH. SUNIL RANA,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 74/2016
RCDAI2016A0010CBIACBNew Delhi
U/s 7 & 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
CBI Vs. Dheer Singh
Unique ID No.: 02403R0183282015
Central Bureau of Investigation.. State
VS.
Dheer Singh Accused
S/o Late Sh. Behari Lal
R/o C92, LIG, DDA Flats,
East of Loni Road, Shahdara, Delhi
Date of filing of chargesheet : 06.10.2016
Arguments concluded on : 02.11.2017
Date of Judgment : 20.11.2017
Appearances
For prosecution :Sh B.K. Singh, Ld. Senior PP for CBI.
For accused : Sh.Punit Gaba, Counsel for the accused.
JUDGMENT
1. By this judgment, I shall decide the present case, wherein the accused Dheer Singh, Project Manager, NBCC at CBI Head CC No. 74/2016 Page no. 1 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 Quarter Building, 5V, CGO, Lodhi Road, New Delhi (public servant) has been facing trial for the offences punishable u/s Section 7, 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred as P.C. Act).
2. Brief facts of the prosecution case are that accused was working as a project manager in NBCC and complaint was received against him that he was demanding bribe for clearing the bills submitted by the complainant, who was having a contract for maintenance with the NBCC. CBI has laid the trap and accused was caught red handed with a bribe money of Rs. 25,000/received by him from the complainant on 21.04.2016. After the completion of investigation, the sanction for prosecution was obtained, the chargesheet u/s 173 Cr.P.C was submitted and the cognizance was taken and accused was summoned to face the trial. Compliance of Section 207 Cr. P.C was done and the charges u/s 7 & 13(1)(d) r/w 13(2) of P.C. Act were framed against the accused vide order dt. 18.01.2017 to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined 20 witnesses. The sum and substance of prosecution evidence are as follows: CC No. 74/2016 Page no. 2 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017
4. PW1 S.K. Chaudhary has deposed that he being the Director (Projects) was competent to remove the accused and after considering the entire records & documents, a sanction Ex.PW1/A was granted for the prosecution of accused Dheer Singh vide order dated 20.09.2016. PW1 has stated in his cross examination that the documents submitted for consideration were considered at the time of grant of sanction. PW1 has denied the suggestion that sanction was granted at the instance of CBI in a mechanical manner without application of mind.
5. PW2 Dharmendra Sharma deposed that he is working as UDC in Directorate of Health Services, Karkardooma, Delhi since 2012 and on the written direction of Addl. Director of his department, he reported to the CBI office and was introduced to Sh. Gaurav Gupta, the complainant. PW2 has further deposed that verification memo Ex. PW2/A & FIR registered on the basis of said memo were shown and told that a trap was to be laid on accused Dheer Singh. PW2 has further deposed that complainant Gaurav Gupta had brought the currency notes of Rs. 25,000/ in the denomination of Rs. 500/ each (total in 50 numbers) and the complaint Ex.PW2/B was shown to everyone and number of the notes were noted down in AnnexureA. PW2 has further deposed that said currency notes were tinted with some powder by the Inspector of CBI and as per direction, he CC No. 74/2016 Page no. 3 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 touched the tinted currency notes with his right hand finger and dip the same in colorless solution of sodium carbonate prepared in a clean glass tumbler and on doing so, color of the water turned pink and the reaction was explained to everyone.
6. PW2 has further deposed that as per the direction, said currency notes were kept in the left pocket of his pant by complainant Gaurav Gupta and he was instructed not to touch the currency notes till the same are handed over to the accused on his specific demand or to some other person on his direction. PW2 has further deposed that he was also directed to give the signal through his mobile to the CBI team leader Sh. Kailash Sahu as he was instructed to act as a shadow witness to see & hear the conversation of complainant with the accused and to give signal on the completion of transaction. PW2 has further deposed that all of them took personal search of each other and washed their hand and memo Ex.PW2/D was prepared with respect to aforesaid proceedings bears his signature at point A and signed by all of them.
7. PW2 has further deposed that during the said proceedings memory card was arranged and same was inserted in the DVR in their presence and thereafter they proceeded towards Cafe Coffee Day, Lodhi Colony, New Delhi as complainant suggested CC No. 74/2016 Page no. 4 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 that accused will not accept the bribe money in the CBI building. PW2 has further deposed that thereafter, complainant Gaurav Gupta had made a phone call to accused Dheer Singh from his mobile and conversations were heard by all of them as phone was kept on loudspeaker and Dheer Singh told that if vehicle is sent, he will come to the Cafe Coffee Day and the said conversation was recorded in the memory card through DVR. PW2 has further deposed that other team members reached near Cafe Coffee Day and vehicle of the complainant was sent to collect Dheer Singh and all of them took the position and he was standing near the complainant and DVR in ON mode was kept in the shirt of complainant.
8. PW2 has further deposed that car of the complainant had returned to the spot after some time with accused Dheer Singh, who came out of the vehicle and met the complainant outside Cafe Coffee Day and they talked for some time and thereafter left the spot in the said vehicle i.e. 'i 10' of the complainant. PW 2 has further deposed that thereafter all of them followed the car of the complainant, which went towards CBI (HQ) and stopped there and the accused Dheer Singh came out of the car carrying a diary in his hand. PW2 has further deposed that thereafter accused Dheer Singh crossed the road, reached the pan shop and kept his diary on the boundary wall of the Electronic Niketan CC No. 74/2016 Page no. 5 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 Building and after taking the pan picked up his diary. PW 2 has further deposed that in the meanwhile complainant Gaurav Gupta had informed that accused has accepted the bribe and thereafter Inspector Kailash Sahu along with other CBI team members reached near Dheer Singh and asked him that he had demanded and accepted bribe of Rs. 25,000/ from the complainant to which accused had no answer and kept mum.
9. PW2 has further deposed that thereafter accused was caught and complainant, Pramod Kumar & Veer Kumar also reached there and diary from the accused was taken by Sh. Veer Kumar and on opening the same, the currency notes of Rs. 25,000/ were found wrapped in the paper and their numbers got tallied with the numbers mentioned in AnnexureA.
10. PW2 has further deposed that recovered currency notes of Rs. 25,000/ were sealed in the envelope and signed by him, Veer Kumar & Inspector Kailash Sahu and the said envelope Ex. P1 bears his signatures at point A and currency notes of Rs. 25,000/ recovered from the diary of accused Dheer Singh are Ex. P2 (colly) and diary of the accused is Ex. P3 bearing his signatures at point A on page no. 46. PW2 has further deposed that currency notes recovered from the diary is Ex. P4 and paper recovered from the diary of accused Dheer Singh is Ex. P CC No. 74/2016 Page no. 6 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 5, bearing his signatures at point A.
11. PW2 has further deposed that on being directed, accused Dheer Singh dipped his left hand finger in the fresh prepared colorless solution of Sodium in a clean glass tumbler and the color of solution turned pink, which was transferred in the bottle Ex. P6 was sealed and signed by Veer Kumar, Inspector Kailash Sahu & himself.
12. PW2 has further deposed that a rough site plan of Cafe Coffee Day and position of accused and other members of the trap team were prepared at the spot and signed by team member and the same are Ex.PW2/E & PW2/F respectively. PW2 has further deposed that thereafter further proceedings were held in the CBI office and memory card of the DVR was taken out and sealed in the envelope and signed by Veer Kumar & himself and the sealed envelop contained ExQ2, CFSL/2016/827 and out of it another white color sealed envelope memory card was sealed in their presence, which is Ex. P10.
13. PW2 has further deposed that the envelope in which the said memory card was sealed is Ex.P11 and the memory card is Ex.P12 and the DVR used in the proceedings was sealed in the signed envelope is Ex. P13 and the DVR used and sealed in the CC No. 74/2016 Page no. 7 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 proceedings is Ex. P14 and the whole proceedings recorded in the memo Ex.PW2/G were signed by team members.
14. PW2 has further deposed that accused Dheer Singh was arrested vide arrest memo Ex.PW2/H and his cabin at the ground floor of CBI building was also searched by the CBI officials and documents mentioned in the memo D10 were taken into possession. PW2 has further deposed that documents D11 & D12 bearing his signatures at point C are Ex. PW2/J & Ex.PW2/K and the proceedings of office search recorded in memo is Ex. PW2/L. PW2 has further deposed that thereafter on 11.07.2016, he attended the CBI office at Lodhi Road and one of transcription of conversation was shown to them and the conversation matched with the voice in the CD and Sh. Gaurav Gupta identified his voice, which is marked C and also identified the voice of accused Dheer Singh marked as Q and the said transaction & CD were signed by Gaurv Gupta, Veer Kumar, Deepak Gaur and by him.
15. PW2 has further deposed that said CD Ex.P15 was signed and the transcription is Ex.PW2/M and thereafter another CD was played and matched the transcription with the conversation played in the CD and Sh. Gaurav Gupta identified the voice of accused Dheer Singh which was marked as Q in the CC No. 74/2016 Page no. 8 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 transcription and identified his voice, which is marked C in the transcription and the said CD (D42) is Ex.P16 and the transcription is Ex.PW2/N and voice identification memo Ex. PW2/O to the said proceedings was prepared and signed by team members.
16. PW2 has identified the voice of Dheer Singh when talking with complainant Gaurav Gupta on telephone, which was heard by all of them on speaker mode and recorded in the MICRO SD Card with the help of DVR. PW2 had identified the introductory voice of Veer Kumar, himself and also identified specimen voice of accused Dheer Singh in the SD Card.
17. PW2 has stated in his cross examination that his statement was recorded by CBI official and complainant was instructed to hand over the bribe money to accused Dheer Singh on his demand and the recovery of currency notes of Rs. 25,000/ from the diary of the accused was done in his presence.
18. PW3 Veer Kumar has deposed that during 2016, he was posted as LDC in Directorate of Health Services, Karkardooma, Delhi, on the written order of Addl. Director of his office, he reported to the Duty Officer, ACB, CBI, CGO Complex, Lodi Road, New Delhi on 21.04.2016. PW3 has further deposed that CC No. 74/2016 Page no. 9 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 thereafter he met Inspector Pramod Kumar & Sh. Gaurav Gupta, complainant, who had given complaint against accused Dheer Singh for the demand of Rs. 25,000/. PW3 has further deposed that the complaint was shown to all team members and contents were read over and apprised them that trap will be laid against Dheer Singh and the pretrap & posttrap proceedings were explained to the team members.
19. PW3 has further deposed that complainant Gaurav Gupta had brought Rs. 25,000/ in the denomination of Rs. 500/(50 no. of notes) and numbers of currency notes were noted down in AnnexureA, which is already Ex.PW2/C bearing his signatures at point B and the notes were tainted with some powder. PW3 has further deposed that after conducting the personal search of complainant Gaurav Gupta, the said tainted currency notes were put in his left side pocket of pant and he was directed not to touch the currency notes and to give the signal on the acceptance of bribe money by the accused. PW3 has further deposed that thereafter new memory card in a sealed cover was arranged and the same was inserted in the DVR and his introductory voice and Dharmendra Sharma was recorded in the same and the memo of said proceedings Ex. PW2/D was signed by team members and decided to go to Cafe Coffee Day.
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20. PW3 has further deposed that while traveling, the complainant had made call to accused Dheer Singh through his mobile phone and the conversation was heard by all the team members as the phone was kept on loudspeaker mode and accused told that he will come to the Cafe Coffee day, if the vehicle is sent and the conversation was recorded in the memory card through DVR, which was kept in the shirt pocket of complainant in switch on mode. PW3 has further deposed that thereafter call was received by Pramod Kumar that Dheer Singh was caught by CBI officials and recovered currency notes of Rs. 25,000/ were tallied with the AnnexureA and was kept in the sealed envelope Ex.P1 bearing his signatures at point B. PW3 has further deposed that currency notes Ex.P3, wrapped in another paper Ex.P4 recovered from the diary Ex.P2 of the accused and another paper recovered from the diary of accused is Ex.P5 and the bottle containing solution of Sodium is already Ex. P6, Ex. P7 & Ex. P8 respectively. PW3 has further deposed that the memory card of DVR was kept in plastic cover and sealed in an envelope containing detailed Ex Q2, CFSL/2016/827 and out of it another white color envelope sealed with the seal of CBI, ACB ND was taken out and the envelope is Ex. P9 and the memory card is Ex. P10. PW3 has further deposed that the envelope in which the said memory card was sealed is already Ex. P11 and the memory card is Ex.
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P12 and the DVR used in proceedings sealed in the envelope Ex. P13 bears his signatures at point B. PW3 has further deposed that whole proceedings were recorded in the memo and signed by all of them, which is already Ex.PW2/G and the accused was arrested vide arrest cum personal search memo already Ex. PW2/H bearing his signatures at point B.
21. PW3 has further deposed that thereafter CD was played before them on the laptop by Sh. Deepak Gaur and one transcription of conversation was shown to them and Mr. Gaurav Gupta has identified his voice, which was marked C and identified the voice of accused Dheer Singh, which is same was marked as Q and CD is already Ex. P15 and the transcription is already Ex.PW2/M bears his signatures at point B on every page. PW3 has further deposed that another CD was played before them by Sh. Deepak Gaur and complainant has identified the voice of accused Dheer Singh marked as Q in the transcription and identified his voice, which is marked C in the transcript and CD is Ex. P16 and the transcription is already Ex. PW2/N and the voice identification memo of the said proceedings already Ex. PW2/O was signed by all of them.
22. PW3 has further deposed that Q2 (Ex. P10) memory card was played on the laptop and he identified the introductory CC No. 74/2016 Page no. 12 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 voice of Dharmendra Sharma in one file and identified his voice in another file and also identified the voice of complainant Gaurav Gupta, when he talked with accused Dheer Singh. PW3 has further deposed that he also identified the voice of accused Dheer Singh, when he talked with the complainant Gaurav Gupta on telephone to send the vehicle, which was heard by all of them on speaker mode and recorded in the micro SD card with the help of DVR.
23. PW3 has identified the two mobile phone make Nokia and Samsung before the court which was seized during the personal search of accused Dheer Singh already Ex. P17 & Ex. P18. PW3 has identified his signatures on the envelope at point A produced by the Malkhana Assistant containing seals of CBI ACB containing one MICRO SD Card marked as Q1 and identified his signatures on the MICRO SD Card cover at point A. PW3 has identified MICRO SD Card Ex.PW3/A, which was used during the verification proceedings and the envelope containing MICRO SD card as Ex. PW3/B. PW3 has correctly identified his introductory voice in the SD card when played before the court.
24. PW3 has stated in cross that his statement was recorded by IO on 21.05.2016 and the complainant had informed that CC No. 74/2016 Page no. 13 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 accused Dheer Singh had demanded bribe money of Rs. 25,000/ and the same was recovered from the diary of the accused. PW3 has denied the suggestion that no trap proceedings was conducted in his presence and he signed under the pressure of CBI.
25. PW4 Lajpat Gupta deposed that complainant Gaurav Gupta is his son and proprietor of M/s S.N. Electricals, which was awarded work of electrical, civil maintenance & house keeping of CBI (HQ), New Delhi by the NBCC in June 2015. PW4 has further deposed that bills for the month of January to March 2016 were submitted by their firm on 12.04.2016 and accused Dheer Singh had demanded bribe for the clearance of those bills. PW4 has further opposed that he sent Rs. 15,000/ as a bribe to accused through Sh. Navneet Kumar on 15.04.2016 but he did not agree and further demanded bribe of Rs. 25,000/. PW4 has further deposed that he conveyed this fact to his son Gaurav Gupta to find out as to why Dheer Singh is demanding more money and thereafter his son told him that Dheer Singh was apprehended by CBI while accepting bribe money from him. At this stage, Ld. Senior PP for CBI sought permission to crossexamine the witness as he has resiled from his statement recorded u/s 161 Cr. P.C. on some points and the same was allowed and he was crossexamined by Ld. Sr. PP for CBI.
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26. PW4 has stated that his statement was recorded by Sh.
Deepak Gaur of CBI and the same is Ex. PW4/A and it has been recorded in his statement that they had submitted bills amounting to Rs. 28 lakhs for the month of January to March 2016. PW4 has stated that on 19/04/2016, he had sent Rs. 15,000/ to accused Dheer Singh but by mistake he had told the date as 15/04/2016. PW4 has further stated that he had given photocopies of invoices and copy of award to Sh. Deepak Gaur of CBI, which bears signatures of his son at point A, which he correctly identified and is Mark PW4/PA (colly) (D35 page 1 to 8). PW4 has further stated in his statement that he had asked his son Gaurav to go and meet Dheer Singh regarding demand of Rs. 25,000/ confronted with statement Ex. PW4/A, where it is not so recorded. PW4 has stated that he has skipped certain facts in his examination in chief as he forgot about the same but his statement recorded u/s 161 Cr. PC is factually correct.
27. PW4 was cross examined by ld. Defence counsel, wherein it is stated that he cannot say whether accused Dheer Singh had already processed and cleared bills for the month of January to March 2016, prior to 19/04/2016. PW4 has denied the suggestion that there was no question of demand of bribe by Dheer Singh as bills were already cleared and accused had never CC No. 74/2016 Page no. 15 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 demanded bribe. PW4 has denied the suggestion that accused was demanding Rs. 26,500/ from them as he got the work done from another contractor by purchasing the required material from his own pocket.
28. PW5 Anand Sarup deposed that he was working as Inspector in CBI, ACB, New Delhi since February 2009 and was deputed by the SP to assist TLO Inspector Kailash Sahu in the present case and on his directions, he along with Inspector Ramesh Kumar and independent witness Sh. Dharmender Sharma conducted the search in the office of NBCC situated at ground floor of CBI building. PW5 has further deposed that certain documents were recovered & seized during the search of cabin of accused vide search memo already Ex.PW2/L was signed by all and the recovered documents are already Ex. PW 2/K & Ex. PW2/J and the said office search memo and documents were deposited in the CBI Malkhana. PW5 has further deposed that he was also member of trap proceedings in this case and participated in the pretrap & posttrap proceedings and the documents prepared during the proceedings were also signed by him which are already Ex. PW2/D, Ex. PW2/C, Ex. PW2/G and correctly identified accused Dheer Singh. PW 5 has denied the suggestion that accused was got trapped by Gaurav Gupta on the basis of false complaint.
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29. PW6 Navneet Kumar Ranjan has deposed that on 19/04/2016 accused Dheer Singh met him in the NBCC office in CBI (HQ) and demanded Rs. 40,000/ for the clearance of bills and if money is not paid, the bills would remain on hold and asked him to convey the same to Mr. Lajpat Gupta. PW6 has further deposed that he conveyed the said demand to Sh. Lajpat Gupta, who told him to give Rs 15,000/ to accused Dheer Singh, which he handed over to the accused Dheer Singh on 19/04/2016 but accused asked him about the further balance payment of Rs. 25,000/.
30. PW6 has further deposed that on 21/04/2016, Gaurav Gupta has filed a complaint Ex PW2/B in CBI and on being asked Gaurav Gupta had brought Rs. 25,000/ (50 notes in the denomination of Rs 500/) and numbers of the notes were noted in the white paper by Sh. Dharmender Sharma, which is already Ex PW2/C bearing his signatures at point C. PW6 has further deposed that whole proceedings was recorded in the memo Ex.PW2/D and correctly identified the recovery memo already Ex PW2/G both bearing his signatures at point C.
31. PW6 has further deposed that his statement was recorded on 17/05/2016 and the voice identification memo Ex.PW6/A bears CC No. 74/2016 Page no. 17 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 his signatures at point A and identified the transcripts recorded in CD as Ex PW6/B and Ex PW6/C both bearing his signatures at point A. PW6 has identified the CDs already Ex P15 & Ex P16 bearing his signatures at point C.
32. PW6 has denied the suggestion that S.N Electricals was required to execute the work at the entrance of CBI office and further denied the suggestion that accused was actually claiming his amount of Rs 26,500/,which he spent from his own pocket for the work at the main entrance of CBI building.
33. PW7 Naresh Kumar Dy. Project Manager of NBCC Services Ltd., CBI Head Quarter has deposed that after completion of work contractor submits bills to site office at CBI headquarter and same is verified by project engineer and then put up before DGM/GM and thereafter marked to finance department for payment. PW7 has stated in his cross examination that project manager is responsible to get the work executed from the concerned contractor.
34. PW8 Sh. Kanhaiya Lal Bhatia deposed that during his posting in NBCC Services Limited, Pragati Vihar, New Delhi as Assistant Manager (Finance), the maintenance bills were submitted by various contractors for payments and accused CC No. 74/2016 Page no. 18 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 Dheer Singh was posted as Project Manager, NBCC, CBI Headquarter, New Delhi and Sh. Aditya Arora was General Manager (Mechanical), NBCC, New Delhi. PW8 has further deposed that bills used to come after the verification and letter dated 16/06/2016 bears signatures of Sh. R.K Jain at point A and through this letter Ex.PW8/A, D33 & D34 were forwarded. PW8 has correctly identified the signatures of Sh. Aditya Arora at point A and signatures of Sh. Dheer Singh at point B on the bill D33, which was passed for a gross value of Rs 15,06,324/ after the deduction. PW8 has also identified the signatures of Sh. Aditya Arora & Sh. Dheer Singh for verifying and checking the bill at points C & D on the letter of S.N Electricals and also identified the signatures of Sh. Dheer Singh on the documents annexed with D33. PW8 has also identified the signatures of accused Dheer Singh on duly attested photocopy of bill (D34) at point A and invoice schedule is Mark PW8/A and bill was passed for Rs. 14,63,159/ after deduction mentioned on the first page of D34.
35. PW8 has identified the signature of Sh. Dheer Singh at point B on Ex PW2/J and letters dated 01/07/2016 & 11/07/2016, Ex.PW8/B and Ex.PW8/C respectively both bearing signatures of Sh. R.K Jain, at point A. PW8 has stated in his cross examination that the bill before clearance passes through CC No. 74/2016 Page no. 19 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 34 stages involving project manager, general manager, accounts officer etc and accused as project manager used to check & verify the bills and thereafter forward the same for clearance.
36. PW9 Arvind Kumar Sharma has deposed that he had furnished letter Ex.PW9/A along with photocopies of documents from their record and identified Ex.PW9/B & Ex. PW9/C bearing signatures of Sh. Manas Kaviraj on the letters dated 14/06/2016 & 11/07/2016 at point A. PW9 was not cross examined by ld. defence counsel.
37. PW10, Sh Pawan Singh deposed that he is working as Nodal Officer since 2005 and furnished Customer Application Form of mobile number 9990846465 and connected documents, call details of mobile for the period 20/04/2016 to 22/04/2016 along with certificate u/s 65 B of Indian Evidence Act to CBI officer Sh. Arjun Singh vide seizure memo (D19) dated 10/05/2016 and identified his signatures at point A on the seizure memo Ex PW10/A. PW 10 has identified his signatures on the call details record and also stamp of his company at point A and the CDR is Ex PW10/B. PW10 has identified the original CAF and connected documents of the said mobile phone are Ex PW10/C (colly) and the certificate u/s 65B of Indian Evidence Act is Ex.PW10/D pertaining to the said CDR. PW10 has denied the CC No. 74/2016 Page no. 20 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 suggestion that CDR of mobile phone number 9990846465 is fabricated and was produced at the instance of CBI.
38. PW11 Sh Gaurav Gupta has deposed that he is the proprietor of S N Electricals and their firm was awarded work for providing facility management services under packageI for mechanized housekeeping, horticulture, external & internal electrical work, miscellaneous civil work including operation of lifts etc at CBI Headquarter Building, CGO Complex, New Delhi vide letter of award dated 29/06/2015 Ex.PW11/A.
39. PW11 further deposed that the work executed by his firm was to be supervised by Sh. Dheer Singh being the Project Manager (NBCC) and the monthly running bills of the work executed at CBI (HQ) building by his firm were submitted at NBCC office and bills were initially cleared under the signatures of Dheer Singh and thereafter by the Finance Department.
40. PW11 has further deposed that on 12/04/2016, his father met accused Dheer Singh in his office and he had demanded Rs 25,000/ for clearing the bills and this fact was told to him by his father. PW11 has further deposed that on 19/04/2016 Sh. Navneet Kumar, site Engineer of his firm told him that accused CC No. 74/2016 Page no. 21 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 Dheer Singh is demanding Rs 40,000/ as per new calculation for the clearance of bills. PW11 has further deposed that as the accused Dheer Singh was demanding bribe to clear the bills, a written complaint Ex.PW2/B was given to SP CBI on 21.04.2016 and after the verification of his complaint, CBI had arranged one witness Sh. Veer Kumar, one DVR & one memory card of 4 GB in sealed cover and was opened in his presence and the initial voice of Sh. Veer Kumar was recorded in the said memory card with the help of DVR. PW11 has further deposed that the said DVR was kept in his pocket by switch ON mode and he along with Sh. Veer Kumar, Inspector Pramod Kumar & Navneet Kumar went towards the office of accused Dheer Singh but he went alone to the room of Dheer Singh as he thought that accused may not demand bribe in the presence of unknown persons. PW11 has further deposed that accused Dheer Singh made some gestures and intimated several amounts including Rs 7500/,10,000/ &15,000/during conversations and further told him that he had already intimated Navneet about the calculations and will clear all the bills.
41. PW11 further deposed that after meeting the accused, he came to Sh Pramod Kumar Inspector and the said DVR was taken out by Inspector Pramod Kumar and the conversation was listened by Sh. Pramod Kumar, Veer Kumar. PW11 further CC No. 74/2016 Page no. 22 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 deposed that thereafter the said memory card was sealed in the envelope bearing his signatures including independent witness Veer Kumar and Inspector Pramod and the said DVR taken by Inspector Pramod Kumar was deposited and verification report already Ex.PW2/A bears his signatures at point B.
42. PW11 has correctly identified the envelope Ex Q1 produced by Constable Finny Sam, Assistant Malkhana, CBI containing memory card Ex Q1 in plastic packing Ex PW3/A, envelope Ex PW3/B and one envelope of CFSL were taken out and also identified his signatures at point B on memory card Ex PW3/A and on the envelope Ex.PW3/B.
43. PW11 has further deposed that as per the instructions, he brought Rs 25,000/ comprising of 50 notes of Rs 500/ denomination and some powder was applied on the said currency notes and the numbers of notes were noted in the annexure already Ex.PW2/C bearing his signatures at point Y. PW11 has further deposed that his personal search was conducted by CBI officer and after that he was not allowed to keep anything except his mobile phone and the said treated currency notes were kept in his left side pant pocket with instruction not to touch the currency notes and handover the same to accused Dheer Singh on his demand. PW11 has further CC No. 74/2016 Page no. 23 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 deposed that said DVR was again arranged and new sealed packing memory card was also arranged and the said new memory card was inserted in the said DVR and the voice of Dharmender Sharma and Veer Kumar were recorded in the said memory card and Sh. Dharmender Sharma was instructed to act as shadow witness and to observe whatever may take place between him & accused Dheer Singh and to hear the conversations. PW11 has further deposed that he was also instructed to give call , if accused accept the bribe from him and thereafter all of them left for Cafe Coffee Day Lodhi Colony, New Delhi in two vehicles, one of which was CBI vehicle and other was his i10 car. PW11 has further deposed that on the way he called accused Dheer Singh from his mobile phone number 9990846465 to the mobile phone number of accused and after reaching near CCD, he had sent his vehicle with driver to collect accused Dheer Singh and all the team members took their convenient positions nearby CCD. PW11 has further deposed that thereafter accused came in his vehicle and got out of the car and he told him that he had brought the amount as discussed and he asked him for an envelope and to drop him to Pragati Vihar. PW11 has further deposed that then accused opened one diary in which A4 size paper was there and instructed him to keep the said currency notes of Rs 25,000/ in the aforesaid paper in the diary, which he did and after that CC No. 74/2016 Page no. 24 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 accused folded the diary.
44. PW11 has further deposed that thereafter they reached near CBI office and accused Dheer Singh got down from the car with his diary in which the bribe amount was kept and went to Paan Shop opposite CBI's gate across the road. PW11 has further deposed that thereafter, he made a telephone call to inform about the acceptance of bribe money by accused Dheer Singh. PW11 has further deposed that thereafter accused Dheer Singh was apprehended by the CBI team with bribe money and the same was recovered from the said diary of the accused and the numbers of the currency notes were matched with the Annexure A of handing over memo Ex PW2/D and were found tallied. PW11 has further deposed that the recovered currency notes were duly sealed in envelope which was signed by himself, witnesses and Inspector Kailash Sahu and correctly identified the signatures of Veer Kumar, Kailash Sahu & Dharmender Sharma on the envelope Ex P1 containing currency notes of Rs 25,000/ as Ex. P2. PW11 has further deposed that thereafter fresh colourless solution of powder and water was prepared in a clean glass tumbler and on being directed, accused Dheer Singh dipped his right hand's fingers in the solution and colour of the solution turned light pink and said solution was sealed in a bottle Ex P7.
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45. PW 11 further deposed that thereafter fresh colourless solution of some powder and water was prepared in a clean glass tumbler and the contents on the paper Ex P4 was lifted with the help of cotton cloth and same was dipped in the said solution and on doing so the colour of the solution turned pink, which was thereafter sealed in a bottle Ex P8 and was signed by witnesses and Inspector Kailash Sahu. PW11 further deposed that the diary of the accused Ex P3 and the paper Ex P4 are the same in which accused had kept the bribe money and the rough site plans Ex PW2/E and Ex PW2/F were prepared and signed by himself and other team members and his signatures on the same is at points X. PW11 has further deposed that the DVR was played and he identified his voice and also voice of Dheer Singh and the memory card was taken out of the DVR and sealed in an envelope and signed by himself, witnesses and Inspector Kailash Sahu.
46. PW11 has correctly identified sealed envelope Ex Q2 containing memory card Ex Q2 in plastic packing Ex P10, envelope Ex P9 and one envelope of CFSL and also identified the signatures of witnesses and of Inspector Kailash Sahu on the memory card Ex P10 sealed in the envelope Ex P9. PW11 has correctly identified introductory voice of Dharmender Sharma, CC No. 74/2016 Page no. 26 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 Veer Kumar in the said SD card and also identified his voice in the conversations and dialogues spoken by him marked as C in the transcripts is Ex PW2/N. PW11 has correctly identified the voice of accused and his driver Ranjeet as well as the dialogues spoken by the accused marked as A & D respectively in the transcripts (Ex PW2/N).
47. PW11 further deposed that the memory card Ex P12 contained the specimen voice of accused Dheer Singh and was sealed in an envelope Ex P11 bearing the signatures of Veer Kumar, Dharmender Sharma & Inspector Kailash Sahu. PW 11 has correctly identified introductory voice of Veer Kumar, Dharmender Sharma in the said SD card and also identified the specimen voice of Dheer Singh in the said SD card and the said DVR was sealed in an envelope Ex P13.
48. PW11 further deposed that he was called by Dy. SP Deepak and on 11/07/2016 in presence of Dharmender Sharma and Veer Kumar CDs Ex P15 and Ex P16 were played before them and he correctly identified his voice in the conversation in the CD against C in the transcript in Q1 Ex PW2/M and identified voice of accused Dheer Singh in the CD which was marked A and encircled as Q with the blue pencil. He further deposed that all of them signed the CD as well as memo prepared at that time CC No. 74/2016 Page no. 27 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 and he also identified his voice against C and of accused Dheer Singh against A marked as Q mentioned in the transcript Ex PW2/N. He further deposed that after hearing the CD Q1/1, which was duly signed by all of them vide Ex P15 & Ex P16 and also identified his signatures on the same at point X. PW 11 further deposed that the memo Ex PW2/O was signed by team members and he also identified his signatures on the same at point C. He has also identified his signatures on the transcripts Ex PW2/M & Ex PW2/N at point C and also identified the signatures of Sh. Navneet Ranjan at point X on D 33 i.e., bill Ex.PW11/AA of his company for the month of January 2016 which are from page no. 1 to 93. He has also identified the signatures of Sh. Navneet Ranjan at point X on Ex. PW8/A (D34). PW11 has also identified his signatures at point A on Mark Ex PW4/A (colly), copy of bill for the month of March 2016 and copy of letter of award. PW11 has identified the signatures of his father on Ex PW2/K and also correctly identified the signatures of Navneet at point A on Ex PW4/DA which is original bill for the month of March 2016.
49. PW11 was cross examined by Ld. Sr. PP as he resiled from his statement u/s 161 Cr.PC on some points. It has been stated that DVR and CBI seal was handed over to Veer Kumar and endorsement to this effect is at point X on the verification CC No. 74/2016 Page no. 28 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 memo Ex PW2/A. He further stated that he does not remember to whom the said DVR and brass seal was given by Inspector Pramod Kumar. He further stated that Pramod Kumar and Veer Kumar were also member of trap team and proceedings mentioned in Ex PW2/D was conducted in his presence and identified the post trap memo Ex PW2/G. PW11 has further stated that money was recovered by Veer Kumar from the diary of the accused as mentioned in recovery memo and he did not remember the fact regarding recovery and was confused with Dharmender Sharma as both were independent witnesses. PW 11 further stated that now he remember that Dharmender Sharma has not recovered the notes from the diary of accused but the same were recovered by Veer Kumar. He further stated that it is correct that he had got recorded in his statement u/s 161 Cr.PC that accused Dheer Singh asked him for a paper in the car before the money was kept in the diary but he told him that he had no paper but did not remember about asking of the paper.
50. PW11 was then cross examined by ld. Defence counsel and he stated that the complaint Ex.PW2/B was written by him and did not mention the payment of bribe money of Rs 15,000/ to the accused in his complaint. PW11 has denied the suggestion that no such amount was paid to accused and as such he did not mention the said fact in his complaint and further denied the suggestion that there was no specific demand of Rs 25,000/ in CC No. 74/2016 Page no. 29 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 the conversation between him & accused.
51. PW11 has denied the suggestion that there were instructions for doing the work of elevation of front gate of the reception of CBI Head Quarter Building and further denied the suggestion that on their refusal to execute the aforesaid repair work, accused had got this work done from some other contractor. PW11 has denied the suggestion that accused was demanding the money spent by him for purchasing the aluminium sheets for the said work and a false complaint was lodged against the accused Dheer Singh for a demand of Rs 25,000/.
52. PW11 has denied the suggestion that accused Dheer Singh had accepted Rs 25,000/ as expenses incurred by him for the purchase of aluminum sheets for doing work at the gate of CBI headquarter and not as bribe. PW11 has further denied the suggestion that accused was falsely got trapped by misrepresenting CBI.
53. PW12 Sh. Kuldeep Seth deposed that Mobile no.
8527798425 was allotted to accused Dheer Singh and identified certified copy of record regarding issuance of mobile phone vide letter dated 04/07/2016 Ex.PW12/A. PW12 was not cross examined by ld. Counsel for the accused.
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54. PW13 Chander Shekhar has deposed that he had furnished certified copies of Customer Application Form (CAF) Ex.PW 13/B & Ex.PW13/C along with annexures and call detail records of mobile phone no. 8527798425 & 9717249245 along with certificate u/s 65B of Indian Evidence Act to CBI vide his letter dated 26/05/2016 Ex PW13/A bearing his signatures and stamp of the company at point A. PW13 has identified call detail records Ex.PW13/D & Ex.PW13/E which were certified vide certificate u/s 65B of Indian Evidence Act Ex PW13/F. PW13 has denied the suggestion that CDR produced by him relating to above said mobile phone numbers are false & fabricated.
55. PW14 Sh. Arjun Singh, Inspector, CBI has deposed that the investigation of this case was transferred to him from Inspector Kailash Sahu and during investigation, he had personally handed over the sealed bottles containing washes Mark PW 14/A and the sealed memory cards Q1, Q2 and S1 Mark PW 14/B to CFSL after collecting the same from Malkhana.
56. PW14 has further deposed that during investigation, he recorded the statement of witnesses namely Sh. Dharmendra Sharma, Veer Kumar, Navneet Kumar, Pramod Kumar & Pawan CC No. 74/2016 Page no. 31 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 Singh and thereafter investigation was transferred from him to Sh. Shitanshu Sharma, Inspector of CBI. In his cross examination, he has denied the suggestion that CFSL has given the reports of the samples under the influence of CBI.
57. PW15 Sh. Kailash Sahu has deposed that on 21/04/2016 an FIR bearing no. RC DAI2016A0010, CBI, ACB, New Delhi was entrusted to him for investigation as the complaint was made by Sh. Gaurav Gupta and verification was conducted by Sh. Pramod Kumar, Inspector CBI, ACB, New Delhi.
58. PW15 has identified the letter Ex. PW15/B vide which residential as well as office premises of accused was searched and also identified the envelope Ex.P11 containing micro SD card Ex P12 and another envelope Ex. P13 containing the DVR Ex.P14 bearing his signatures at point C respectively. PW15 has also identified the two mobile phones Ex. P17 & Ex.P18, which were recovered from the personal search of accused and deposed that thereafter the investigation of this case was transferred from him to Inspector Arjun Singh. PW15 has stated in his cross examination that the amount of Rs. 25,000/ and the factum of demand by accused was confirmed from the statement of Navneet Kumar recorded by IO u/s 161 Cr.P.C.
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59. PW16 Sh. Pramod Kumar deposed that on 21/04/2016 at about 11.30 am, SP, Sh. Anish Prasad had introduced him to complainant Sh. Gaurav Gupta and handed over the complaint Ex.PW2/B and after verifying the complaint, a trap team was made and arranged the witness Sh. Veer Kumar. PW16 has further deposed that one DVR make SONY and one 4 GB Kingston memory card was arranged and explained to the witness regarding the complaint and thereafter, at about 12.40 p.m. the complainant was given DVR in recording ON mode and sent to the office of Dheer Singh.
60. PW16 further deposed that the recording was also heard in presence of witness, which confirmed demand of bribe of Rs. 25,000/ on the part of Dheer Singh and stated in his deposition about pretrap & post trap proceedings. He further deposed that accused was caught red handed by CBI officials and Sh. Veer Kumar recovered the bribe amount wrapped in the paper from the diary of the accused and tallied the numbers of currency notes with AnnexureA Ex PW2/C.
61. PW16 has stated in his cross examination that he had gone through the contents of the complaint Ex PW2/B before verification. He denied the suggestion that there is no element of specific demand of bribe by accused or that his verification CC No. 74/2016 Page no. 33 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 report is based on the version of complainant.
62. PW17 Sh. Deepak Kumar Tanwar, Senior Scientific Officer, CFSL deposed that he had examined the three sealed parcels marked Q1, Q2 and S1 and it has been revealed by the auditory examination of questioned voices marked Q1 (D), Q2 (1) (D) and Q2 (2) (D) and specimen voice of Sh. Dheer Singh marked Ex S1 (D) that they are similar to each other in respect of their linguistic and phonetic features. PW17 further deposed that on the basis of examination, he came to the conclusion that the questioned voices Marked Ex Q1 (D), Q2 (1) (D) and Q2 (2) (D) are the probable voice of Dheer Singh whose specimen voice was marked Ex S1 (D).
63. PW17 has deposed that he has given his report Ex.PW17/B vide which he said that voice recording contained in micro SD card Marked Ex Q1, Q2 and S1 also reveals that the recorded conversations/specimen voice recordings are continuous and no form of tampering detected and identified envelopes Q1 Ex. PW17/C, Q2 E. PW17/D, Ex. PW17/E, S1 Ex.PW17/F, Ex. PW17/G and also identified his signature at point X on the envelope Ex.PW17/X. CC No. 74/2016 Page no. 34 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017
64. PW17 has stated in his cross examination that particular voice of a person cannot be created in the recording studio with the help of equipments and by adjusting wavelength, pitch and frequency. He denied the suggestion that CFSL gives the reports at the instance of CBI.
65. PW18 Sh. Aditya Arora deposed that accused Dheer Singh, was working as Project Manager, NBCC and a scheme was floated NIT No. NSL/DGM/CBI/2015/66 dated 10.06.2015 for providing facility management services under package1 at CBI Headquarter Building and after technical and price bidding, M/s SN Electricals was awarded work vide Ex.PW18/A.
66. PW18 has further deposed that CBI was informed about the tender conditions accepted by M/s SN Electricals vide letter Ex. PW18/B. In his cross examination, PW18 stated that he was directly supervising accused Dheer Singh and there was no AGM or DGM between them and he used to randomly check the work executed by the contractor before signing the bills. PW18 has further stated that payment of the bills could not be released without his signatures and bill for the month of March, 2016, Ex.PW4/DA was verified and checked by accused Dheer Singh under his signatures on 16.04.2016 and, thereafter, he had CC No. 74/2016 Page no. 35 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 countersigned the same for payment.
67. PW19 Sh. Shitanshu Sharma, Inspector Anti Corruption Branch deposed that investigation of this case bearing RC No. 10/2016 was transferred to him from Insp. Arjun Singh by the orders of S.P., CBI, ACB, New Delhi and investigation remained with him from 26.05.16 to 06.06.16 and thereafter the investigation of this case was transferred to Sh. Deepak Gaur, Dy. S.P., CBI, ACB, New Delhi on the orders of S.P., CBI. PW 19 was not cross examined by ld. Counsel for accused.
68. PW20 Sh. Deepak Gaur, Dy. S.P., CBI deposed that the investigation of this case was transferred to him from Insp. Shitanshu Sharma and had recorded the statement of complainant Sh. Gaurav Gupta, Sh. Lajpat Gupta, two independent witnesses, namely, Sh. Dharmender Sharma & Sh.
Veer Kumar, Sh. Navneet Ranjan and other witnesses.
69. PW20 has further deposed that he had received Forensic Voice Examination Report vide letter Ex. PW20/A (D38) and identified the voice identification memo Ex.PW20/B, the transcriptions Ex PW20/C and Ex.PW20/D, which were duly prepared by him. PW20 has stated in his cross examination that CC No. 74/2016 Page no. 36 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 the voice identification was done on different dates since there were three different persons, who were to identify the voices and the process used to take long time. He denied the suggestion that there was no specific demand either in Q1 and Q2 and that is why, the identification process was carried out on three different occasions for different witnesses. Prosecution evidence was closed on 28.03.2017.
70. Thereafter, the statement of the accused was recorded u/s 313 Cr. PC, entire incriminating evidence was put forth to him and in answer to which, it is mainly stated by him that he was working as Project Manager at CBI (HQ), Lodhi Road New Delhi from 2015 and he had processed the bills during January to April 2016 on the basis of the work done by the contractor but bills were cleared by the Finance Department only after the signature of Sh. Aditya Arora, GM. Accused has further stated that he had never demanded any money and was asking for his legitimate amount of Rs. 26,500/ spent by him for the purchase of aluminum sheets from Analco Impex. Accused has further stated that he had talked with the complainant and was under
the impression that complainant was returning his legitimate amount and the money recovered from his diary was not bribe money as he had already cleared all the bills. Accused has stated that he was falsely implicated at the instance of complainant CC No. 74/2016 Page no. 37 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 Gaurav Gupta.
71. Here are the few answers given to the question no. 1, 4, 5, 9, 13 & 14 in his statement u/s 313 Cr.P.C, and the same are reproduced here as under:
Q.1 It has come in the evidence that you (accused Dheer Singh) were working as Project Manager at CBI Maintenance Works, NBCC Limited, CBI Headquarter, Lodhi Road, New Delhi from 2015 and during January to April, 2016; you were responsible for processing the bills submitted by S.N. Electricals towards providing facility management services under package1 for mechanised house keeping, horticulture, external and internal electrical works, miscellaneous civil works including operation of lifts etc. at CBI Headquarter Building, CGO Headquarter, New Delhi. The concerned documents are Ex.PW9/A, Ex.PW9/B, Ex.PW9/C and Ex.PW18/B. What do you have to say?
Answer: I was only processing the bills on the basis of the work done by the contractor, but the bills were used to be cleared by the Finance Department only after signature of Sh. Aditya Arora, G.M. Q. 4 It has come in the evidence of prosecution that after execution of work, the monthly bills for aforesaid firm M/s S.N. Electricals were required to be submitted by contractor to you (accused Dheer Singh) were required to be verified by you under your signatures and further to be put up to G.M. (Engineer) for his signatures and bills were further required to be marked/ sent to branch office of NBCC having office at Pragati Vihar, Lodhi Road for payment. What do you have to say?
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Answer: It is correct.
Q. 5 It has come in evidence against you that on 12.04.2016, you accused Dheer Singh demanded bribe of Rs.25,000/ from Sh. Lajpat Gupta, father of complainant Sh. Gaurav Gupta for having cleared the bills of M/s S.N. Electricals in the third week of April, 2016. What do you have to say?
Answer: It is incorrect. I never demanded any money. Rather, I was asking for my legitimate amount of Rs.26,500/ spent by me for purchase of alluminium sheets from ANALCO IMPEX.
Q. 9 It has come in evidence against you that the said memory card was played in the Court and complainant identified his voice and dialogues spoken by him marked as 'C' in the transcript and also identified your voice and dialogues spoken by you mark 'A' in the transcript Ex.PW2/M. What do you have to say?
Answer: The transcript is falsely prepared by pick and choose method. There is no demand of any illegal amount on my part.
Q.13 It has come in evidence against you that during conversation, complainant told you that he had brought the amount as discussed, but you asked him whether he had envelope but, complainant told you that he had no envelope. You also asked the complainant for paper, but complainant told that he had no paper with him. Thereafter, you opened one diary which was in your hand and instructed complainant to keep the said amount of Rs.25,000/ in the same, in which A4 size papers were also there and complainant did the same and you folded the diary. The vehicle moved towards Pragati Vihar, you CC No. 74/2016 Page no. 39 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 asked complainant about the amount, who informed you that it was Rs.25,000/ and complainant also referred his father for the demand of bribe in the conversation with you. You also hesitated to count the money however, tried to stake the money with your both hands in the paper and folded the said diary with amount and paper. What do you have to say?
Answer: I was under the impression that complainant was returning my legitimate amount of Rs.26,500/, the reason for asking the envelope or paper was that I was to visit CBI office and it would not have been nice to carry the money openly because of the suspicious environment in CBI office.
Q.14 It has come in evidence against you that during travelling in the said car, you told complainant that you had to pick Vikas, Office Assistant, NBCC from Pragati Vihar and had to drop him to CBI Headquarter. The said vehicle went towards Pragati Vihar and picked Vikas from gate no. 1, NBCC, Pragati Vihar, New Delhi and, thereafter, vehicle moved and reached near CBI Headquarter, New Delhi. Vikas alighted from the car near CBI Headquarter and went inside the CBI Building. You accused also got down from the said car in front of CBI office with the said diary in which the bribe amount was kept and went towards Pan Shop opposite CBI Gate across the road. You kept the diary on the boundary wall of Electronic Niketan Building and took one pan from the shop and after picking the dairy from boundary wall, started walking. What do you have to say?
Answer: It is correct that money was in diary, but it was not bribe money but was my own legitimate money which was returned by the complainant to me. Rest of the version is correct.
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72. 30. In Rafiq Ahmed @ Rafi v. State of U.P.
MANU/SC/0959;AIR 2011 SC 3114, this Court observed as under:
"It is true that the statement under Section 313 CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events...."
73. In Dharnidhar v. State of U.P. & Ors.MANU/SC/0480/2010;
(2010) 7 SCC 759, this Court held:
"31. The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC."
74. Accused has also submitted his statement u/s 313 (5) Cr. P.C as he wanted to lead evidence and has examined 4 witnesses in his defence.
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75.DW1 Sh. Vikas, deposed that maintenance work of
Aluminium Glazing at the main gate of the reception of CBI building was carried out by M/s Sustainable Glazing as the same was awarded to this firm/ agency. DW1 further deposed that after the completion of the work, the said ACP/aluminium sheets got damaged and said work was not in the tender of M/s Sustainable Glazing so, M/s S.N. Electricals was asked to carry out the said work, however they refused to do the same. DW1 has further deposed that Dheer Singh had paid the cost of sheet from his own pocket and got the work done through another contractor.
76. DW1 has stated in his cross examination that fact of damage of aluminium sheet was recorded in the minutes of meeting of CBI held in November and M/s Sustainable Glazing was awarded the work of automatic sensor glass door. DW1 has further stated that M/s S.N. Electricals was awarded work of maintenance including civil, electrical, mechanized housekeeping, operation of lift, plumbing/ drainage work and horticulture. DW1 has stated in his deposition that in case, work is to be replaced by some other agency, there has to be proper documentation, i.e., report of concerned J.E. and the order of concerned officer and approval of competent authority.
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DW1 further stated in his deposition that neither any communication was given in writing by Dheer Singh or from the office of NBCC to M/s S.N. Electricals for carrying out the work of ACP sheets nor any complaint was given with respect to nonperformance of the work of ACP sheets by M/s S.N. Electricals.
77. DW2: Sh. Devender Pal Singh, Branch Manager, ICICI Bank deposed that he had brought statement of account Ex.DW 2/A and copy of cheque Ex. DW2/B and the statement of account is computer generated and certificate u/s 65B of Indian Evidence Act is Ex.DW2/C. DW2 has stated in his cross examination that he had not dealt with clearing of the aforesaid cheque Ex.DW2/B.
78. DW3: Sh. Arvind Singhal has deposed that he had supplied aluminium sheets at CBI Headquarters for an amount of Rs.26,508/ and the payment was received through cheque and the same was handed over by Dheer Singh but the challan and bill was issued in the name of M/s Sustainable Glazing. It has been stated in his cross examination that the bill/ challan was issued in the name of M/s Sustainable Glazing Corporation, which was the purchaser of the material and there are no CC No. 74/2016 Page no. 43 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 signatures of receiver or customer in the columns mentioned in the bill. DW3 has denied the suggestion that he had introduced the name of Dheer Singh in connivance with him in order to help him.
79. DW4: Sh. Yogendra Pal Singh has deposed that in November, 2015, he was working with M/s Sustainable Glazing Corporation as a design manager and got the glass work at the main entrance of CBI (HQ). DW4 further deposed that the ACP sheets were arranged and the payment was made by Dheer Singh as the time was short and material was not arranged by M/s Sustainable Glazing Corporation. DW 4 has stated in his cross examination that minutes of meeting relates to the allotment of spider glazing work at the main entrance to Abaxys Interior Company.
80. Having heard the ld. Sr. PP for CBI and ld. Counsel for the accused.
81. Initiating the arguments, Ld. Sr. PP for CBI contended that the case of prosecution is u/s 7 & 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 as the accused is a public servant and was working as project manager in NBCC posted at CC No. 74/2016 Page no. 44 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 CBI Head Quarter and accordingly sanction u/s 19 of P.C. Act was duly accorded for his prosecution. Ld. Sr. PP submits that the ingredients of offence u/s 7 P.C. Act, mainly demand and acceptance of bribe/illegal gratification has been duly proved by the testimonies of prosecution witnesses as the complainant PW11 Gaurav Gupta has clearly spelt out the circumstances, whereby accused demanded bribe of Rs. 25,000/ as a motive or reward for clearing the bills of S.N Electricals being represented through the complainant. Ld. Sr. PP further submits that the demand and acceptance of the bribe has been duly proved with the deposition of witnesses as the bribe money of Rs. 25,000/ was recovered from the accused by the trap team.
82. Ld. Sr PP further contended that the presumption u/s 20 P.C. Act, also arises against the accused and he has not given any reasonable explanation to rebut the same and the version of prosecution is supported by the testimonies of prosecution witnesses namely complainant (PW11) Gaurav Gupta and shadow witness (PW2) Dharmendra Sharma and TLO PW 15 Kailash Sahu.
83. Ld. Sr. PP further submitted that the official witnesses of CBI have also remained consistent during their depositions and CC No. 74/2016 Page no. 45 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 the case of the prosecution is further corroborated through the recorded conversations duly proved with the production and display of original DVR and SD cards. Ld. Sr. PP further submitted that the recorded conversations contain element of demand of bribe by accused and the deposition of witness also proved that accused was in a position to show favour to the complainant.
84. Ld. Sr. PP, speaking about the defence has stressed that none of the defence witnesses can be of any help to the accused and there are no material discrepancies with respect to the testimonies of prosecution witnesses and case stands corroborated as all the charges have been proved against the accused. Ld. Sr. PP has also relied upon the following judgments in support of his arguments:
(i) M. Narsinga Rao Vs. State of Andhra Pradesh, AIR 2001 SC 318;
(ii) Hazari Lal Vs. State (Delhi Admn.), AIR 1980 SC 873;
(iii) State of U.P. Vs. Zakaullah, 1998, AIR 1998 SC1474.
(iv) State of Bihar Vs. Basawan Singh, 1958 AIR 500
(v) Mukhtiar Singh Vs. State of Punjab, CA No. 618 of 2012
(vii) V. Kannan Vs. State Rep. Inspector of Police, SLP (Crl.) No. 6209 of 2008 CC No. 74/2016 Page no. 46 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017
(ix) C.M. Sharma Vs. State of A.P., CA No. 232 of 2006
(x) The State rep. By CBI, Hyderabad Vs. G. Prem Raj, C No. 261 of 2007
85. On the other hand, ld. defence counsel has argued on behalf of the accused that he has been falsely implicated in the present case and the mandatory sanction has not been validly granted as sanctioning authority did not apply its mind while passing the sanction order.
86. Ld. defence counsel has submitted in his written submissions that allegation made in the complaint Ex.PW2/B is that accused was demanding bribe of Rs. 25,000/ for clearing the bills of the complainant for the months of January March 2016 amounting to Rs. 28 lacs. Ld. Defence counsel further submitted that once the complainant has stated in his deposition that accused was demanding 5% of the total amount of the bill and again stated that he was demanding Rs. 32,500/ and the 5% on the total amount of Rs. 28 lacs comes to Rs. 1.40 lacs. Ld. defence counsel has further submitted that even the amount/figures mentioned by the complainant or of his father are not matching with each other which shows that they have concocted a false story to implicate the accused in the present case.
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87. It has been further submitted that all the bills of complainant were verified by the accused on 16.04.2016 before the day of trap by the CBI team i.e. on 21.04.2016. It has been further submitted that as per the condition of the tender, if the contractor refused to carry out the work assigned to him then the project manager can get the work done at the risk & cost of the contractor. It has been further submitted that work was carried out on urgent basis as there was a interpol meeting in November 2015 and there was a pressure on accused Dheer Singh to complete all civil work before said meeting. It is further submitted that he has got the work done at the main gate of CBI building and spent the money from his own pocket and was demanding the same from the complainant. It has been further submitted that accused was demanding his own money and not the bribe money or illegal gratification and to satisfy the basic ingredients of section 7 of Prevention of Corruption Act, the money accepted must be the illegal gratification.
88. Ld. Defence Counsel has relied upon the following judgments in support of his arguments:
(i) State (CBI) Vs. R.P. Tiwari decided on 07.8.2014 in Crl. LP No. 219 of 2006;
(ii) Kelash Chander Vs. State of Delhi, 2016 (1) Acquittal 1 (SC).
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89. I have heard the arguments of Ld. Sr. PP for CBI as well as Ld. defence counsel and perused the record of this case.
90. On the basis of the complaint Ex PW2/B, the PW16 Inspector Pramod Kumar, raid officer has recorded the preraid proceedings in ExPW2/D and the currency notes of Rs.
25,000/ was brought by the complainant in the form of 50 currency notes of Rs. 500/each, which was also taken into possession vide ExPW2/C after treating the same with phenolphthalein powder and was given back after explaining the procedure to be followed by the complainant. Thereafter a raiding team was constituted of which PW2 Dharmendra Sharma & PW3 Veer Kumar are important witness being the independent witnesses. PW11 complainant had given bribe money of Rs. 25,000/ to the accused and same was voluntarily accepted by him and on the signal given by the shadow witness, the raiding team then followed the accused and recovered the aforesaid currency notes of Rs. 25,000/. Thereafter the hands of accused Dheer Singh were put in the sodium carbonate solution brought by the raiding team, which turned pink and the FIR bearing RC No DAI2016A0010 was registered against the accused. After the completion of the investigation, the prosecution has filed the challan and the sanction was obtained CC No. 74/2016 Page no. 49 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 from the sanctioning authority vide Ex. PW1/A. Court has taken the Cognizance and accused was summoned and after the compliance of section 207 Cr.PC, arguments were heard on the charge and framed the charges against the accused u/s 7 & 13(1)
(d) r/w 13(2) of P.C. Act vide order dt. 18.01.2017.
91. In order to prove its case, prosecution has examined 20 witnesses. PW1 Sh. S.K. Chaudhary(sanctioning authority), who has proved the sanction Ex. PW1/A. PW2 Dharmendra Sharma, PW3 Veer Kumar are the independent witnesses, PW 11 complainant Gaurav Gupta & PW16 Inspector Pramod Kumar, who acted as a raid officer and investigated the matter are the main important witnesses.
92. In State of Maharashtra through CBI V Mahesh G. Jain (2013) 8 SCC 119, Hon'ble Supreme Court culled out the principles of law relating to sanction. The relevant portion of the said judgment is reproduced hereunder:
"..14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution. 14.3 The prosecution may prove by adducing the evidence CC No. 74/2016 Page no. 50 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him. 14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6 If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
93. It is evident from the testimony of PW1 that before granting the sanction he had considered all the documents of the case such as complaint, statements of witnesses, memos prepared during the investigation etc. Sanction order Ex.PW1/A reveals that there has been application of mind on the part of sanctioning authority, which was also competent to remove the accused. The prosecution has been able to prove that the sanction was duly accorded for the prosecution of accused Dheer Singh and as such there is no merit in the plea of the accused that the sanction was granted in a mechanical manner.
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94. In the case of Ram Singh vs. Col. Ram Singh, 1985 SCR Supl. (2) 399 Hon'ble Supreme Court has held and the relevant portion of the judgment is as under:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."
95. The requirements as laid down by Apex Court in Ram Singh (supra) have been fulfilled in the present case and there is CC No. 74/2016 Page no. 52 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 cogent and satisfactory evidence on record to establish the correctness and genuineness of the tape recorded conversations. In the present case it has come in the deposition of PW2 & PW3 that CD (D42) was played before them and complainant Gaurav Gupta had correctly identified the voice of accused Dheer Singh and the transcription is mark Q and the conversation recorded in CD are transcribed vide Ex. PW2/M and Ex.PW2/N respectively. PW17 Scientific officer has stated in his deposition that voice recordings/conversations are continuous and no form of tampering detected. It is worthwhile to mention here that accused has not disputed the demand and acceptance of money from the complainant. The only plea raised by him is that money accepted by him from the complainant is not bribe.
96. The next important requirement for the prosecution is to establish the demand and acceptance of illegal gratification by the accused. Legal position in this regard remains that proof of demand is sinequanon to prove the offence u/s 7 and 13(1) (d) (1) & (2) of PC Act.
97. In this regard, I shall examine the evidence on record, case was been registered on the basis of complaint Ex. PW2/B moved by complainant Gaurav Gupta. Therefore, to prove the CC No. 74/2016 Page no. 53 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 factum of demand PW11(complainant) Gaurav Gupta is the important witness. In the light of the complaint Ex. PW2/B and deposition of the witnesses examined by the prosecution and recovery of currency notes of Rs. 25,000/ from accused Dheer Singh after it was received by him from the complainant. It comprised of same currency notes, which were given to the complainant after treatment and currency notes recovered from the accused were taken into possession vide seizure memo Ex.PW10/A.
98. It has been proved on record that same currency notes of Rs.
25,000/ were recovered from the accused and nothing has been brought on record by the defence or in the cross examination of material witnesses. Ld. Counsel for the accused has also admitted on behalf of accused in the written submissions that the accused was in the possession of currency notes to the tune of Rs. 25,000/ handed over to him by the complainant just before the trap. The demand and acceptance of bribe money of Rs. 25,000/ and recovery of the same from the accused have been proved as a motive or reward for clearing the bills of the complainant.
99. The only plea of defence taken by the accused is that he was demanding and accepted the money from the complainant, CC No. 74/2016 Page no. 54 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 which he had spent from his own pocket to carry out the work at the main gate of CBI HQ building. The plea raised by the defence cannot be accepted on the face of it as there is no such provision or rules in the department of NBCC to show that an employee/official is authorized to spend the money from his own pocket and later on recovered the same from the contractor. During the course of arguments ld Counsel for the accused has even submitted that there is no rules or procedure in the department to this effect. DW1 has also stated in his deposition that if work is to be replaced by some other agency, there has to be proper documentation, i.e., report of concerned J.E. and the order of concerned officer and approval of competent authority. This explains the hollowness of the defence version.
100. PW11 complainant Gaurav Gupta has testified the sequence of events of pretrap and posttrap proceedings and acceptance and recovery of bribe money from the accused Dheer Singh. It is worthwhile to mention here that accused has admitted that he was demanding and accepted the amount of Rs. 25,000/ from the complainant (PW11) but the stand taken by him is that he had received the money, which was spent by him from his own pocket for the work carried out at the main gate of CBI (HQ).
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101. PW2 Dharmendra Sharma being the shadow witness had participated in the proceedings of the case from the beginning in pretrap proceedings and thereafter till the completion of the trap and the bribe money of Rs. 25,000/ was recovered from the diary of accused Dheer Singh in his presence.
102. PW15 TLO Kailash Sahu has also corroborated and supported the version of PW11 complainant Gaurav Gupta and shadow witness PW2 Dharmendra Sharma and remained consistent throughout in his deposition about the recovery of bribe money of Rs. 25,000/ from the diary of the accused.
103. Prosecution has been able to prove on record the entire sequence of events whereby bribe money of Rs 25,000/ was accepted by the accused by directing the complainant to keep the money in his diary and further recovery of the same from the accused Dheer Singh by CBI trap team. On examining the evidence brought on record, I find that prosecution witnesses have remained consistent and confident with respect to the factum of acceptance and recovery of bribe amount. It is clear that accused voluntarily accepted bribe/illegal gratification of Rs 25,000/ from the complainant. During the cross examination of PW2 Dharmendra Sharma, PW6 Navneet Kumar, PW11 Complainant Gaurav Gupta and PW15 Kailash Sahu, no motive CC No. 74/2016 Page no. 56 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 or purpose has been attributed for false implication of accused. The testimonies of these witnesses could not be impeached in particular and there is nothing on record to suggest that the witnesses were having any grudge or bias against the accused or that they had any motive to create false evidence against him. There is nothing on record to substantiate that there was any enmity between the complainant and accused.
104. In the Judgment State of U.P. V Dr. G.K. Ghosh (1984) 1 SCC 254, Hon'ble Supreme Court of India has observed that by and large a citizen is somewhat reluctant, rather than anxious, to complain to the Vigilance Department to have a trap arranged even if illegal gratification is demanded by a Govt. official. The relevant para 9 of the said judgment is reproduced hereunder:
"9. By and large a citizen is somewhat reluctant, rather than anxious, to complain to the vigilance Department and to have a trap arranged even if illegal gratification is demanded by a Government servant.There are numerous reasons for the reluctance. In the first place, he has to make a number of visits to the office of Vigilance Department and to wait on a number of officers. He has to provide his own currency notes for arranging a trap. He has to comply with several formalities. He has to CC No. 74/2016 Page no. 57 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 accompany the officers and participants of the raiding party. All the while he has to remain away from his job, work, or avocation. He has to sacrifice his time and effort whilst doing so. Thereafter, he has to attend the court at the time of the trial from day to day. He has to withstand the searching crossexamination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has been harassed by a Government Officer, has to face the humiliation of being considered as a person who tried to falsely implicate a Government servant, not to speak of facing the wrath of the Government servants of the department concerned in his future dealings with the department. No one would therefore be too keen or too anxious to face such an ordeal. Ordinarily, it is only when a citizen feels oppressed by a feeling of being wronged and finds the situation to be beyond endurance, that he adopts the course of approaching the Vigilance Department for laying a trap. His evidence cannot therefore be easily or lightly brushed aside. Of course, it cannot be gain said that it does not mean that the court should be oblivious of the need for caution and circumspection bearing in mind that one can conceive of cases where an honest or strict Government official may be falsely implicated by a vindictive person to whose demand, for showing CC No. 74/2016 Page no. 58 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 favours, or for according a special treatment by giving a gobye to the rules, the official refuses to yield."
105. Accused Dheer Singh has raised the plea in his defence that he was demanding money from the complainant which he had spent from his own pocket. However, accused has not been able to bring any cogent or satisfactory evidence in this regard to establish that he was authorized to spend the money from his own pocket and to recover the same from the complainant. Moreover, DW4 has stated in his deposition that legally accused is not permissible to spend money from his own pocket and to recover the same from the contractor later on.
106. Moreover, the acceptance of Rs. 25,000/ by accused Dheer Singh from the complainant is not even disputed by him. Currency notes of Rs. 25,000/ recovered from the accused are the same which were brought by the complainant before CBI and were tallied with Annexure A vide Ex.PW2/C and stands proved in view of the evidence of the prosecution witnesses brought on record.
107. No cogent and satisfactory evidence has been brought by the accused in his defence that he was demanding and accepted the amount which was to be legally recoverable by him from the CC No. 74/2016 Page no. 59 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 complainant/contractor as per rules.
108. In the facts & circumstances of the case and the evidence brought on record, the prosecution has established its case beyond reasonable doubt and the defence of the accused is improbable for the following reasons:
(i) The money paid by the complainant to the CBI for the purpose of meeting the demand of accused Dheer Singh in the light of complaint ExPW2/B stands proved by the preraid and post raid proceedings.
(ii) The money brought by the complainant in the form of GC Notes were treated with Phenolphthalein powder and those very currency notes were recovered from the accused, which is not even disputed by him.
109. The story put up by the accused is that said money of Rs.
25,000/ received was to be recovered from the complainant but accused has failed to substantiate it either in the form of cross examination of the prosecution witnesses or by leading any cogent defence evidence to show that the accepted money by the CC No. 74/2016 Page no. 60 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 accused was not the bribe/illegal gratification.
110. In these circumstances, it can be said that it is highly improbable that anyone in his official capacity will spend the money from his own pocket and then recover the same from the contractor, when there is no such provision or rules in the department of NBCC.
111. The presumption u/s 20 P.C Act, invariably arises that the amount of Rs 25,000/ was accepted by the accused as a bribe or reward for giving favour in clearing the bills of the complainant. The presumption to be drawn u/s 20 of P.C Act, is a presumption of law and it has to be rebutted by proof and not just by explanation. In the case of B. Noha Vs. State of Kerala & Anr. (Crl.) 1122 of 2006 SC decided on 06.11.2006, it has been held that, "....When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case.
....."
112. In another case titled Madhukar Bhaskarrao Joshi v. State of Maharashtra (2000 (8) SCC 571), it has been held and the CC No. 74/2016 Page no. 61 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 relevant part of the judgment is as follows:
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
CONCLUSION
113. In view of the facts & circumstances of the case and evidences brought on record, the prosecution has been able to prove the demand and acceptance of bribe money, as well as recovery of the tainted money of Rs. 25,000/ from accused Dheer Singh after the receipt of same from the complainant. It is worthwhile to mention here that accused has not even disputed this fact that he had received the amount of Rs.
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25,000/ from the complainant, however, the only defence taken by him is that he was demanding and accepted the money from the complainant, which he had spent from his own pocket.
114. It is worthwhile to mention here that it has come in the deposition of DW1 that the work of aluminium glazing at the main gate of the reception was carried out by Sustainable Glazing as work was awarded to this firm/agency. It has also come in the deposition of DW1 that repair work is awarded after following procedure and by issuing proper order and the official is not required to spend money from his own pocket without obtaining any approval.
115. Accused has not been able to bring any cogent or satisfactory evidence to establish that why he was demanding and accepted the said amount from the complainant. During the course of arguments, it is also submitted on behalf of the accused that there is no such procedure or prescribed rules, which authorize him to spend the money from his own pocket and to recover the same from the contractor later on. Also the judgments relied upon by ld. defence counsel are not of any help to the accused in the present case.
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116. It has also come in the deposition of DW4 that minutes of the meeting Ex.DW4/A relates to allotment and execution of the spider Glazing work at the main entrance, which was awarded to Abaxys Interior Company. In these circumstances it is very surprising that when the said work was awarded to the Abaxys Interior Company, why the accused was demanding money for the said work from the complainant. The defence of the accused is a vague and lame and cannot be accepted in view of the evidence brought on record.
117. The condition for drawing a legal presumption under Section 20 of PC Act is that during trial it should be proved that the accused had accepted or agreed to accept any gratification. From such proved facts, the Court can legitimately draw a presumption that accused accepted the said money as illegal gratification on his own volition.
118. But the other circumstances which have been proved in this case is relevant and useful to help the Court to draw a factual presumption that accused had willingly received the currency notes of Rs. 25,000/ as illegal gratification as the acceptance of the said amount from the complainant has not been disputed by the accused.
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119. It is true that the said presumption is not a inviolable one, as the accused could rebut it either through crossexamination of the witnesses cited against him or by adducing reliable evidence. But the accused has failed to disprove the presumption and the same would stick and then it can be said that the prosecution has been able to prove that accused received the said amount as bribe money/ illegal gratification.
120. In the aforesaid discussion and evidence brought on record it can be concluded that accused has misused his official position to gain pecuniary benefit and thus also committed an offence of criminal misconduct u/s 13(1)(d) of P.C. Act, 1988. Prosecution has been able to prove its case beyond reasonable doubt but the accused has not been able to prove its defence even by taking into consideration the theory of preponderance of probability.
121. Relevant portiion of section 7 is reads as under:
Section 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 renumeration as a 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 CC No. 74/2016 Page no. 65 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 disservice to any person with the Central Govt. or any State Govt. or Parliament or the legislature of any state or with any local authority corporation or govt. 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 which may extend to [seven years] and shall also be liable to fine.
122. Relevant portion of Section 13 which provide for criminal misconduct by a public servant reads as under:
"13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct. ....(d) if he, ...(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public advantage; or (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four year but which shall may extend to ten years and shall also be liable to fine."
Section 13 in general lays down if a public servant, by corrupt or illegal means or otherwise abusing his position as a public servant obtained for himself or for any other person any valuable thing or pecuniary advantage he would be guilty of 'criminal misconduct'. Clause (2) thereof speaks of the punishment for such misconduct. The ingredients of subsection (iii) of Sec.13 (1)(d) contemplated that a public servant, who while holding office obtains from any person any valuable thing or pecuniary advantage without any public interest would be guilty of criminal misconduct. Sub Section (2) of section 13 provides for the punishment for such criminal misconduct.
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123. Demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money.
124. In case titled C.M. Sharma Vs. State of A.P.(2010) 15 SCC 1, Hon'ble Supreme Court has been held and the relevant part of the judgment is as under:
"23. We do not have the slightest hesitation in accepting the broad submission of Mr. Rai that demand of illegal gratification is a sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does not constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money k nowing it to be bribe. In the facts of the present case, we are of the opinion that both the ingredients to bring the Act within the mischief of Section 7 and 13(1)(d)(ii) of the Act are satisfied."
18) It is a settled principle of law laid down by this court in a number of decisions that once the demand and voluntary acceptance of illegal gratification knowing it to be the bribe are proved by evidence then conviction must follow under Section 7 of the PC AC against the accused. Indeed, these twin requirements are sine qua non for proving the offence under Section 7 of the PC Act. In the light of our own reappraisal of the evidence and keeping in view the above said principle in mind, we have also come to a conclusion that twin requirements of demand and acceptance of illegal gratification were proved in the CC No. 74/2016 Page no. 67 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 case on hand on the basis of evidence adduced by the prosecution against the appellant and hence the appellant was rightly convicted and sentenced for the offences punishable under section 7 read with section 13(1)(d) and section 13(2) of PC Act.
125. In the facts of the present case, I am of the opinion that both the ingredients to bring the act within the mischief of Sections 7 and 13 (1) (d) (ii) of the Act are satisfied. From the evidence led on behalf of the prosecution it is evident that the accused demanded the money from the complainant/contractor as he was in a position to pass his bills. There is further evidence that when the accused reached at Cafe Coffee Day on 21.04.2016 the payment of illegal gratification of Rs. 25,000/ was paid by the complainant and accepted by the accused and the same was recovered from the diary of accused by one of the trap team member i.e. PW3 Veer Kumar. The positive sodium carbonate test visavis the fingers of the accused go to show that he voluntarily accepted the bribe. Thus there is evidence of demand of illegal gratification and the voluntary acceptance thereof.
126. In these circumstances, I do not have the hesitation in accepting the broad submission of the prosecution that demand of illegal gratification is a sine qua non to constitute the offence under the Act. It has been proved by the prosecution beyond CC No. 74/2016 Page no. 68 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 reasonable doubt that accused accepted the bribe money of Rs. 25,000/ from the complainant. Therefore, I am of the opinion that both the ingredients to bring the act within the offence of section 7 and 13(1) (d) of P.C. Act are established against the accused beyond reasonable doubt. From the evidence led on behalf of the prosecution it is evident that the accused demanded the money from the contractor as he had passed his bills. There is further evidence that when the contractor went along with the trap team for the payment of bribe at Cafe Coffee Day on 21.04.2016 and on the signal accused was followed by the trap team and the tainted currency notes recovered from the custody of the accused has been duly proved by the direct evidence. The positive sodium carbonate test vis a vis the fingers and the paper in which the currency notes kept goes to show that he voluntarily accepted the bribe. Thus there is evidence of demand of illegal gratification and the voluntary acceptance thereof.
127. In view of aforesaid discussions, I conclude that accused has no defence and he has failed to establish his alleged innocence. The pleas raised by the accused are merit less and the defence put forth by the accused cannot be taken to indicate his innocence.
128. Finally, I conclude that ingredients of offence u/s 7 P.C. Act CC No. 74/2016 Page no. 69 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017 are established against the accused beyond reasonable doubt. Based on aforesaid discussion, comes the invariable conclusion that accused has misused his official position to gain pecuniary benefit and thus also committed an offence of criminal misconduct u/s 13(1)(d) of P.C. Act, 1988.
129. I accordingly convict the accused for the offences u/s 7 and u/s 13(1)(d) of P.C. Act, 1988.
130. Copy of order be given dasti to the accused.
(Sunil Rana) Announced in open court Special Judge (PCAct)(CBI)6, today i.e., 20/11/2017 Patiala House Court, New Delhi CC No. 74/2016 Page no. 70 of 70 CBI Vs. Dheer Singh Dated : 20.11.2017