Delhi District Court
Cbi vs . Vivek Yadav Page No. 1 Of 86 on 26 August, 2023
IN THE COURT OF SH. SATISH KUMAR ARORA:
SPECIAL JUDGE-05 (PC ACT) CBI,
ROUSE AVENUE DISTRICT COURT COMPLEX:
NEW DELHI.
CC No. 04/19
CIS No.426/2019
FIR No. RC-DAI-2019-A-0026
C.N.R. No. DLCT11-001907-2019
In the matter of :
Central Bureau of Investigation
Versus
Vivek Yadav
S/o. Sh. Kanwar Singh
R/o H. No. Plot No.130, Khasra No.71,
E Block Extension,Ist Floor, Shyam Vihar,
Phase-I, New Delhi.
Filed on : 27.11.2019
Decided on : 26.08.2023
JUDGMENT
CASE OF THE PROSECUTION:
1. On 17.07.2019, complainant PW-9 Dr. Nitendra Singh, a resident of Kalkaji, New Delhi gave a handwritten complaint Ex. PW9/A to SP, ACB, CBI, New Delhi. In the complaint, it was alleged by the complainant that one FIR of CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 1 of 86 fraud and cheating has been registered against him with the Economic Offences Wing (EOW) of the Delhi Police and investigation of the said FIR is with SI Gulshan Yadav. He further alleged that accused Vivek Yadav, SI in Delhi Police, with whom he has acquaintance, had told that he knows SI Gulshan Yadav and as such, can help the complainant in the matter of EOW FIR registered against him. Complainant further alleged that for this help, accused had demanded a bribe of Rs. 20 lacs and on his requesting that he cannot pay such a huge amount, that the accused had demanded first installment of Rs. 5 lacs towards settlement of the case.
2. Verification of the complaint was carried out by PW-15 SI Vinod Kumar of ACB, CBI, New Delhi and it was revealed therein that accused had agreed to accept Rs. 3 lacs from the complainant on the next day towards the demanded bribe amount of Rs. 20 lacs. The conversation as it took place between the complainant and accused was recorded in a memory card through DVR disclosing the demand of bribe by the accused. As such, FIR bearing No. RC DAI 2019 A 0026 was registered u/s 7A of the Prevention of Corruption Act, 1988 (for short, 'PC Act') against accused Vivek Yadav on 18.07.2019 at CBI, ACB, New Delhi.
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3. Investigation of the case was taken up by PW-14 Insp. Raman Kumar Shukla who after arranging independent witnesses, constituted a trap team with him as the Trap Laying Officer(TLO). When the trap team had assembled in the office of SP, ACB, CBI, New Delhi and the purpose of laying of the trap against the accused was explained to all the team members, that the complainant informed that when he was on his way to the CBI office, accused had made a whatsapp call to him and in this call, while telling the complainant to bring maximum bribe amount in cash, for the remaining amount, he had told the complainant to transfer it in his bank account maintained with Axis Bank, Najafgarh Branch, Delhi and had shared the bank account details with IFSC Code through a whatsapp message. Printout of the said whatsapp message was taken out from the mobile phone of the complainant. Towards the transfer of amount in the bank account of accused, complainant with the two independent witnesses and some CBI officials went to the Kalkaji branch of Kotak Mahindra Bank where the transaction of NEFT/RTGS transfer of Rs. 1 lac in the account of accused was processed. In this regard, complainant produced before the CBI team the acknowledgement slip of NEFT/RTGS form from his given bank. Photograph of such acknowledgement was also sent by the complainant to accused through whatsapp which the accused had duly acknowledged. Towards the cash component of the demanded bribe amount, complainant could arrange only CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 3 of 86 Rs. 40,000/- in the form of 20 GC notes of Rs. 2000/- denomination each and produced the same before the CBI team. The number of the said GC notes was noted down in a pre-trap memo and other required formalities of the pre-trap proceedings were carried out which was recorded in the handing over memo dt.18.07.2019. Finally, when the complainant through a telephonic call made by the accused, received the meeting point as that of Sector-23, Dwarka, that the CBI trap team comprising of the CBI officials, the independent witnesses and the complainant left the CBI office for the spot. While the complainant was on his way, accused shared on his mobile the location of the place of meeting which was near Police Station, Dwarka North. On reaching near the given location, the trap team members positioned themselves at some safe distance and the complainant was told to give a signal of blinking of the parking lights of his car after the transaction of bribe amount has taken place. The complainant while keeping the DVR fitted with the memory card in a switched on mode, left in his car and reached the spot at in front of Police Station, Dwarka North Building. After sometime, accused Vivek Yadav who was seen walking towards the spot, came and sat in the complainant's car. At about 8.50 pm, the CBI team saw the parking light of the complainant's car blinking and accused coming out of the car. Immediately thereupon, the CBI team was alerted and the accused was apprehended by the TLO. The DVR was taken back from the CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 4 of 86 complainant and was switched off. During investigation, complainant told the CBI team that the transaction of bribe did not take place and that the tainted bribe amount was still in his possession. However, complainant told that when the accused had sat on the seat adjacent to him in the car, that he was informed of Rs. 1 lac as bribe amount having already been transferred in his bank account which the accused told of having yet not received in his account. Further, the accused had demanded the bribe amount in the form of 'hard cash' to be delivered to him to which the complainant told that he could arrange only Rs. 40,000/- and assured that the delivery of the remaining bribe amount would be done in 2-3 days. Complainant also told that it was the accused who had switched on the parking lights of his car to bring drinking water for him (the complainant). Complainant further told that accused had agreed to accept the bribe amount when he was told that Rs. 40,000/- has been brought and that the accused had directed the complainant to also deliver rest of the bribe amount.
4. During further investigation, the tainted bribe amount was taken from the complainant and after tallying it with the number of the GC Notes mentioned in the handing over memo, the same was sealed with the CBI seal. Though the accused disclosed that none in EOW, Delhi Police had any share in the bribe amount and even the whatsapp chats/text messages CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 5 of 86 did not show any conversation between him and IO SI Gulshan Yadav, nonetheless the recorded conversation that took place between the complainant and accused corroborated the version of the complainant. The memory card was taken out from the DVR and was sealed while being marked as Q-2. Specimen voice of the accused was recorded separately in another blank memory card, which was marked as "S1 in RC-26/2019" and was sealed. All the proceedings of the trap were recorded in recovery memorandum which was signed by all the members including the independent witnesses, the complainant, the TLO and other trap team members as a token of its correctness.
5. During further investigation, transcripts of the conversations as had taken place between the complainant and accused during verification and trap proceedings were prepared from the copies of memory card Q-1 & Q-2 vide transcription cum voice identification memo dated 15.10.2019. The complainant identified his voice and the voice of accused and also confirmed that the said conversation took place between him and the accused on 17.07.2019 & 18.07.2019. The voice of accused was also identified by his colleague/subordinate Manish Kumar, ASI (Ministerial), MOB Branch, Office of DCP 3rd Battalion, Vikaspuri Police Line, New Delhi in the presence of independent witness vide voice identification memo dated 18.09.2019.
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6. During further investigation, CDRs of the mobile phones of complainant and accused were obtained from the service providers and it corroborated the location and timing of the alleged calls between them. Thus, it got established that accused had made a demand of bribe from the complainant and had attempted to obtain it by telling the complainant that he would induce IO SI Gulshan Yadav of EOW FIR against the complainant, by corrupt and illegal means and get the matter settled. As such, upon conclusion of investigation, charge-sheet was filed against the accused for the commission of offence punishable u/s 7A of PC Act.
FRAMING OF CHARGE
7. Upon hearing the Ld. Sr. PP for the CBI and Ld. Counsel for the accused and finding a prima facie case of the commission of offence punishable u/s 7A of the PC Act, that the charge was framed accordingly against the accused. To the charge so framed, accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
8. To substantiate and prove the charge against the accused, prosecution has examined 17 witnesses and these can be broadly classified under following categories: -
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(a) Nodal Officers:
Sl.No Witness Brief Description
1. PW-1 Kamal Kumar He is the Nodal Officer
from Reliance Jio
Infocomm Ltd and he
proved the location/Cell ID
Chart, the Customer
Application Forms and the
CDRs alongwith his
supporting certificate u/s
65B of the Evidence Act in
respect of the mobile no.
7827875008 in the name of
complainant Nitendra Singh
and mobile no. 8384065844
in the name of accused
Vivek Yadav.
2. PW-2 Pawan Singh He is the Nodal Officer
from Vodafone Idea Ltd and
he proved the location/ Cell
ID Chart, the Customer
Application Form and the
CDRs alongwith his
supporting certificate u/s
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65B of the Evidence Act in
respect of the mobile no.
9968581542 in the name of
accused Vivek Yadav.
3. PW-3 Surender He is the Nodal Officer
Kumar from Bharti Airtel Ltd and
he proved the CDR, Tower
Location Chart and the
CAF alongwith his
supporting certificate u/s
65B of the Evidence Act in
respect of the mobile no.
8800782137 in the name of
Smt. Robin Gaur, wife of
complainant Nitendra
Singh.
(b) Witnesses to the Verification Proceedings.
Sl Witness Brief Description
No.
1. PW-5 Gajender Verma He is one of the two
independent witnesses
joined in the present
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case. He remained
associated with the CBI
in the verification
proceedings, in the trap
proceedings and
proceedings conducted
consequent thereto.
2. PW-9 Dr. Nitendra He is the complainant
Singh and as such is a prime
witness for the
prosecution.
3. PW-15 Inspector Vinod He is the verification Kumar. officer who conducted verification of the complaint Ex. PW9/A of the complainant.
4. PW-17 Insp. Vikrant He is the CBI official Tomar. who was joined in the verification proceedings by PW-15 Insp. Vinod Kumar. He also remained associated in the pre-trap and post-trap proceedings of the present case.
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(c) Witnesses to the trap proceedings.
Sl. Witness Brief Description
No
1. PW-4 Nishant Sheoran He is one of the two
independent witnesses
who was joined by the
CBI in the trap
proceedings and the
proceedings carried out
consequent thereto.
2. PW-5 Gajender Verma. He is the other
independent witness who
remained associated with
the CBI in the trap
proceedings.
3. PW-14 Insp. Raman He is the first IO of the
Kumar Shukla. present case and is also
the Trap Laying
Officer(TLO).
4. PW-15 Insp. Vinod Though he carried out
Kumar. verification of the
complaint, however, he
also remained associated
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in the trap proceedings.
5. PW-17 Vikrant Tomar. He is one of the CBI
officials who too
remained associated in
the trap proceedings and
proceedings carried out
consequent thereto.
6. PW-9 Dr. Nitendra He is the complainant
Singh. and it was on his
complaint that the trap
was laid against the
accused.
(d) Other witnesses
Sl. Witness Brief Description
No
1. PW-6 ACP Virender He provided certified
Singh. copies of the FIR bearing
no. 256/2018, PS EOW,
the case diary of said FIR
and the transfer and
posting details of SI
Gulshan Yadav to CBI.
2. PW-7 Bhoop Singh He is an independent
witness joined by the CBI
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to the voice identification
proceedings of accused
Vivek Yadav.
3. PW-8 SI Shiv Kumar He is the Duty Officer
who had recorded FIR no.
256/2018, PS EOW on the
rukka brought by SI
Gulshan Yadav.
4. PW-10 Divya Anand She is the Branch
Operations Manager,
Kotak Mahindra Bank,
Kalkaji, New Delhi. She
proved on record the
account opening form and
the certified statement of
account for the period
01.07.2018 to 18.07.2019
of the account of
complainant Dr. Nitendra
Singh as maintained in the
said branch of the bank.
5. PW-11 Manish Kumar He was posted as ASI in
MOP Branch of 3rd
Battalion and was a
subordinate to accused
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Vivek Yadav. He is a
witness to the voice
identification of accused
Vivek Yadav in the
recorded conversations
and the corresponding
transcript of recordings
Q1 & Q2
6. PW-12 Mahesh Kumar He is the forensic expert Jain who gave his opinion/report Ex.
PW12/B on the voice of accused in the recordings as recorded in the present case.
7. PW-13 Insp. Gulshan He was the IO of FIR no.
Yadav 256/18, PS EOW
registered against the
complainant herein and
others.
8 PW-16 DSP Naresh He is the Investigating
Chandra Nawal. Officer who took over the
investigation from PW-14
Insp. Raman Shukla on
07.08.2019. After
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completing investigation,
he filed the charge-sheet
against the accused.
STATEMENT OF ACCUSED
9. After the conclusion of prosecution evidence, statement of accused was recorded u/s 313 Cr.PC. In his statement, while denying all the incriminating evidence put to him and pleading innocence and false implication, accused stated that he had financial transaction with the complainant Dr. Nitendra Singh under which complainant was to repay him a legally recoverable debt of Rs. 20 lacs comprising of Rs. 11 lacs as principal amount and remaining as interest amount. Towards the said amount, complainant gave him two cheques of Rs. 10 lacs each which upon presentation were returned dishonoured and when he kept on demanding the money, that the complainant got him falsely implicated in the present case. Accused, however, did not examine any witness in his defence.
POINTS FOR DETERMINATION, SUBMISSIONS OF THE PARTIES, APPRECIATION OF EVIDENCE AND THE FINDINGS THEREON.
10. The points for determination as can be culled out from the facts of the present case are as follows:-
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(i) Whether on 17.07.2019, accused Vivek Yadav made an initial demand of Rs. 20 lacs towards which he demanded first installment of Rs. 5 lac from complainant on 17.07.2019 and had agreed to accept Rs. 3 lac on 18.07.2019 on the pretext that he knows SI Gulshan Yadav, IO of FIR no.
256/2018, PS EOW registered against the complainant, and would influence him to get the investigation finished in favour of complainant?
(ii) Whether the accused had shared his bank
account details with the complainant on
18.07.2019 for the purposes of receiving part of the demanded bribe money of Rs. 3 lacs and as such attempted to obtain the bribe amount from the complainant for the purpose as mentioned in
(i) above?
(iii) Whether the accused in the manner as above, committed offence punishable u/s 7A of the Prevention of Corruption Act, 1988?
11. As has been noted, prosecution in order to establish the charge against the accused had examined as many as 17 witnesses and a brief thereof in a tabulated manner has already CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 16 of 86 been given in para '8' of this judgment. In this part, while taking into account the rival submissions of the Ld. Counsel for the parties, that this Court will analyze the evidence brought on record to decide the points for determination as above framed.
12. Taking up first the submissions of the Ld. Sr. PP for the CBI, Ld. Sr. PP in his oral arguments as well as in the written submissions separately filed, had argued that prosecution has been able to prove the demand of bribe made by accused Vivek Yadav who had attempted to obtain the same for himself and in this regard, he made a brief reference to the deposition of all the seventeen prosecution witnesses and also the documents and the case property proved on record. It was submitted that verification of the demand of bribe as made by the accused and as agitated by the complainant in his complaint Ex.PW9/A was carried out by the Verification Officer PW-15 Inspector Vinod and it got established therein that accused did make a demand of bribe. In this regard, Ld. Prosecutor also referred to the recorded conversation between the complainant and accused as recorded in the memory card Ex.PW5/F3 and the transcript thereof Ex.PW5/C (colly)(D-21). Ld. Sr. PP also referred to the deposition of complainant/PW-9 Dr. Nitendra Singh wherein he had stated that before the arrest of accused and it may be on 16 th or 17th of July, 2019, that he was given a DVR by the CBI team in the CBI office, to record the likely conversation between him CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 17 of 86 and the accused. Complainant had further stated that with this DVR he had proceeded to the spot i.e. 3rd Battalion, Vikas Puri Police Line where accused had met him and in the conversation so recorded, accused demanded money in respect of EOW case. Ld. Sr. PP submitted that the electronic evidence i.e. the memory card Ex.PW5/F3 in which the conversation was recorded during the verification proceeding, corroborated the deposition of complainant of the demand of bribe by accused Vivek Yadav. It was further submitted that the memory card was produced in a sealed condition during the deposition of independent witness PW-5 Gajender Verma and that the voice of accused as contained therein was duly matched with his specimen voice by the Forensic Expert PW-12 Mahesh Kumar Jain who proved on record his detailed report Ex.PW12/B.
13. In his further arguments, Ld. Sr. PP while making his submissions in respect of the prosecution evidence related to the trap proceedings, again referred to the testimony of complainant PW-9 Dr. Nitendra Singh wherein he had deposed that when he went to the CBI office, he was told to arrange for the money which the accused had demanded from him. He had further deposed that since he was not having that much of money, that he could take out only Rs.40,000/- from his wife's account in Kotak Mahindra Bank, Kalkaji Branch. He had further deposed that he also did one transaction of RTGS transfer of some amount CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 18 of 86 in the account of accused which was done on the asking of accused. It was submitted that the RTGS transfer in the account of the accused was done by the complainant on the asking of accused who had shared his bank account details in this regard in a whatsapp message sent by him on the mobile of the complainant. Besides this, accused in the conversation that took place between him and the complainant in the complainant's car on the day of trap, had reiterated the demand by asking the complainant "to usko kya amount dena hai yeh batao". The accused had also uttered the words "hard cash" in the said recording. Ld. Sr. PP argued that though the delivery of the bribe amount could not take place since accused himself switched on the parking light of complainant's car, nonetheless, the conversation between the complainant and accused on the day of trap clearly establishes that accused made a demand of the bribe amount on the pretext of it to be given to IO SI Gulshan Yadav of the EOW FIR registered against the complainant. Ld. Sr.PP submitted that the conversation between complainant and accused as it took place in the complainant's car on the day of trap was recorded in the memory card Ex.PW4/J3 (colly) which was produced in a sealed condition during the deposition of the other independent witness PW-4 Nishant Sheoran. It was submitted that the forensic expert PW-12 Mahesh Kumar Jain through his report Ex. PW12/B that one of the voice in this recorded conversation was that of the accused, corroborated the CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 19 of 86 version of the transaction as presented by complainant.
14. In his further arguments, Ld. Sr.PP for the CBI submitted that accused by sharing his account number and IFSC code of his bank with the complainant did his part of the offence in having attempted to obtain the bribe amount for himself. In this regard, Ld. Sr. PP again referred to the deposition of complainant PW-9 Dr. Nitendra Singh wherein he had deposed that when he was coming to the CBI office on 18.07.2019, he had received a whatsapp call from the accused asking him to bring maximum amount in cash and to transfer the remaining amount in his bank account which he had shared with the complainant through a whatsapp message. It was submitted that this deposition of the complainant has been corroborated in material terms by the other witnesses including the two independent witnesses PW-4 Nishant Shoeran and PW-5 Gajender Verma. It was further submitted that the printout of the whatsapp chat Ex. PW4/D(colly)(D-6) and Ex. PW4/E(colly)(D-7) was duly proved on record by the prosecution through the deposition of PW-17 SI Vikrant Tomar. Also, through the deposition of the concerned banker PW-10 Divya Anand, prosecution offered the necessary corroboration that the complainant attempted to transfer Rs. 1 lac from his account to the account of accused.
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15. In his further arguments, Ld. Sr. PP submitted that voices in the conversations as recorded during verification proceedings and trap proceedings were identified by the independent witnesses namely PW-4 Nishant Shoeran, PW-5 Gajender Verma, PW-7 Bhoop Singh and PW-11 Manish Kumar as that of complainant and accused. Further, the prosecution through the deposition of the Nodal Officers viz. PW-1 Kamal Kumar, PW-2 Pawan Singh and PW-3 Surender Kumar has proved on record the call detail records, the call location chart and the customer application forms of the mobile numbers of the complainant and accused and as such has established that the two were in contact with each other and were at the given locations at the time of verification proceedings and the trap proceedings. Summing up his arguments, Ld. Sr. PP for the CBI submitted that the prosecution has proved its case beyond all reasonable doubt that accused committed offence punishable u/s 7A of the PC Act, 1988 by establishing that he demanded bribe of Rs. 5 lac from the complainant on 17.07.2019 which after negotiation was reduced to Rs. 3 lacs and further that the accused on 18.07.2019 had demanded the bribe in hard cash and also attempted to obtain part of the bribe amount in his account by sending his bank account details to the complainant. While so arguing and on the point that minor contradictions should not weigh in the otherwise trustworthy deposition of a witness, Ld. Sr. PP placed reliance on the judgments cited as: (i) State of UP vs. M. K. Anthony, AIR CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 21 of 86 1985 SC 48, (ii) Bhogni Bhai vs. State of Gujarat, AIR 1983 SC 759, (iii) Faquira vs. State of UP, AIR 1976 SC 1915, (iv) Iqbal Musa Patel vs. State of Gujarat, 2011 SCC (Crl) 654,(v) Gurbachan Singh vs. Satpal Singh, 1990 SCC (Crl.) 151 and (vi) Devan @ Vasudevan and etc. vs. State, 1987 SCC OnLine Ker. 1959.
16. Sh. Siddharth Narang, Ld. counsel for the accused in his oral arguments as well as in the written submissions separately filed, argued that as per prosecution, accused allegedly attempted to obtain bribe from the complainant on the pretext of influencing IO SI Gulshan Yadav to do favour to the complainant in the EOW case registered against him. It was argued that on this count, prosecution has failed miserably as the EOW case stood settled even before filing of the complaint by complainant with CBI. In this regard, Ld. counsel referred to the statement u/s 161 Cr.PC of complainant PW-9 Dr. Nitendra Singh wherein he had categorically stated that the complaint before EOW was settled and the settlement was executed with the opposite party on 19.11.2018 and that he had also made the payment of the amount under the settlement. Ld. counsel for the accused also referred to the case diary Ex. PW6/B of the EOW case wherein the factum of such settlement was recorded. Ld. counsel also referred to the deposition of the independent witness PW-4 Nishant Sheoran who in his cross-examination, had admitted that CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 22 of 86 the entire team of the CBI was aware that the complainant's EOW matter was under process of settlement before the Delhi High Court Mediation Centre. Ld. counsel further submitted that even the IO PW-16 DSP N. C. Nawal had stated in his deposition that he was informed by the complainant that there was some prior financial transaction between him and the accused and that the EOW matter had already got settled. Ld. counsel submitted that from the statement/admission of these witnesses, it is clear that the alleged subject matter based on which the alleged attempt to obtain was made, already got settled prior to the filing of the present complaint. Once the subject matter was already settled and was within the knowledge of complainant, there was nothing for the complainant to accept to the alleged demand of accused to settle his EOW case. In this regard, Ld. counsel placed reliance on the judgment of Karnataka High Court in Sri P. Manjunath vs. State of Karnataka & Anr, WP no 10027 of 2022 (GM-RES) decided on 16.11.2022. In the said case, the petitioner before the High Court was the public servant against whom a case was registered by the CBI u/s 7A of the PC Act 1988. The allegations were that the petitioner while functioning as In- charge, Sub-Registrar had demanded illegal gratification of Rs. 5000/- to do official favour of registering the mortgage deed. It was observed therein that there was no work pending in the office of the petitioner for him to either demand or accept money as illegal gratification. In fact, the mortgage deed was registered CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 23 of 86 prior to the lodging of complaint which was in the context of the petitioner demanding illegal gratification for such registration. Having noted thus, the Hon'ble Karnataka High Court had allowed the petition and had quashed the proceedings of the case u/s 7A of the PC Act registered against the petitioner.
17. Developing further on this line of argument, Ld. counsel for the accused submitted that another charge of the prosecution has been that accused knew SI Gulshan Yadav, IO of EOW case FIR No. 256/2018 lodged against the complainant and that he would induce and influence the IO to settle the case. Ld. counsel submitted that this allegation fell flat on the ground when IO SI Gulshan Yadav came to depose in this matter and was examined by the prosecution as PW-13. In his deposition, PW-13 SI Gulshan Yadav admitted that he had no relation with accused Vivek Yadav. He further stated that they never remained posted together at any place of posting at any point of time. He was also categorical in stating that he had never met accused, had never talked to him on phone and had never discussed the given case with him. It was submitted that when this witness had denied every bit of the prosecution allegation against the accused, prosecution fails to prove one of the very important limb of its charge that accused Vivek Yadav knew SI Gulshan and would have used his connection for the benefit of complainant.
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18. Another line of argument taken up by the Ld. defence counsel was of material contradictions and major improvements in the testimony of complainant PW-9 Nitendra Singh. Ld. counsel submitted that as per complaint and as per the statement u/s 161 Cr. PC of the complainant, the initial theory as propounded was that accused Vivek Yadav had informed complainant that he knows SI Gulshan Yadav and can get the EOW matter settled in complainant's favour. For this work, accused had demanded a bribe of Rs. 20 lacs and when the complainant had told him that he is not capable of arranging such a huge amount that the accused had asked him to pay Rs. 5 lac as first installment and had agreed to accept Rs. 3 lac from him on 18.07.2019. It was further submitted that another aspect the complainant introduced was that on 18.07.2019 there was a call between him and the accused for 12 seconds wherein, as per the complainant, when he had informed the accused that he was short of cash, that the accused had then shared his bank details on whatsapp of complainant in order to receive the alleged agreed part amount of bribe in his account and the remaining in cash. Ld. counsel submitted that in his deposition, complainant improved upon by stating that accused had also demanded and took money from him to get settled the PCPNDT Act case earlier registered against him. It was further submitted that another story the complainant introduced in his deposition was when he stated that he came to know through some sources that the complaints CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 25 of 86 at EOW and Surat were dictated by the accused to concerned parties. When the complainant was cross-examined on this point, he stated that this was his thought and when the accused was arrested, CBI had told him that accused was behind the complaints at EOW and Surat. It was further submitted that complainant had also stated that in the recorded conversation, accused had demanded money for EOW, Surat and in the name of one MM. Ld. counsel submitted that there are many more contradictions and as such, the testimony of complainant cannot be relied upon in any manner whatsoever and in the context of his having admitted that there was financial transaction between him and the accused under which he had owed some money to the accused, that the complainant with an ulterior motive of not paying the debt, had laid a well designed trap in connivance with the CBI officials to falsely implicate the accused.
19. Ld. counsel submitted that there are material contradictions in the deposition of other prosecution witnesses as well. These contradictions are in the context of firstly, the actual place of the spot of trap, secondly, with respect to the number of officers present at the spot for trap and of the availability of the general public during trap proceedings, thirdly, with respect to whether the witnesses saw the complainant and accused sitting in the car or heard their conversation at the spot during verification and trap proceedings and lastly, with respect to number of CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 26 of 86 vehicles which were used for verification proceedings.
20. In respect of the contradiction concerning the actual location of the spot, ld. counsel submitted that as per complainant, he had proceeded to the spot i.e. Dwarka, Sector-15. This was contrary to the actual location of the spot which was of PS Dwarka North as projected in the prosecution case. Similarly, the TLO PW-14 Insp. Raman Shukla also wrongly stated about the spot to be of Dwarka, Sector-23.
21. In respect of the contradiction concerning the number of officers available at the spot, it was submitted that the site plan Ex. PW4/F(D-8) shows ten CBI officers and other subordinate staff which was way more than 10-12 persons as was so stated by PW-4 Nishant Shoeran in his cross-examination. Complainant PW-9 Dr. Nitendra Singh when confronted with the site plan agreed that there were no signatures of the 12 CBI members and other subordinate staff as mentioned therein. He also admitted that whereas there are three "R" mentioned in the site plan, on the other hand, the names which are mentioned therein have only two names starting with the alphabet "R". It was submitted that even the TLO PW-14 Raman Shukla introduced contradiction by stating in his deposition that they were 15-16.
CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 27 of 86
22. On the point of the spot being crowded or not during trap proceedings, ld. counsel submitted that the prosecution witnesses have again introduced contradictions. One of such contradiction as was pointed out was in the testimony of PW-5 Gajender Verma, one of the independent witnesses, who in his cross-examination had stated that when they reached the spot, it was not crowded and there were no street lights and that it was so dark that he could not see the accused meeting the complainant or sitting inside his car. It was submitted that on the contrary, in his statement u/s 161 Cr.PC, the witness states the spot to be busy and crowded and many people having started gathering at the spot. Even PW-15 in his cross-examination had spoken about there being no crowd at the spot which was contrary to what he stated in his statement u/s 161 Cr.PC that there was crowd at the spot so the team had to come back to the CBI office for further verification proceedings.
23. On the point of the witnesses having seen the complainant and the accused sitting in the car or of having heard their conversation at the spot during the verification and trap proceedings, it was submitted by the ld. counsel that PW-5 Gajender Verma who is the independent witness joined by the CBI in the verification proceedings of the complaint, had stated in his examination-in-chief that it was decided outside 3rd battalion that complainant would go inside the premises and that CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 28 of 86 they would wait outside. PW-5 had admitted that he could not see the accused either at the spot or entering the complainant's car. Ld. counsel submitted that even in his cross-examination, PW-5 admitted that at the time of verification proceedings, they were unaware of the spot/location where the complainant and accused were present and this was contrary to what he stated in his examination that they had seen accused and complainant sitting in the car in the 3rd battalion complex. Ld. counsel submitted that PW-5 also admitted that he and the other team members have not heard any conversation which took place between the complainant and accused. Ld. counsel submitted that even the Verification Officer PW-15 Insp. Vinod Kumar had stated in his deposition that he does not remember whether he saw the complainant and the suspect officer together inside the police line. He had also stated that he does not remember whether he had seen complainant and accused sitting inside the car. He admitted that he had not heard the conversation that took place between complainant and accused and that they even did not try to hear the conversation at the spot. Ld. counsel submitted that these contradictions in the deposition of witnesses depicts that the purpose of verification was defeated as neither the witnesses including the verification officer saw the accused sitting in the car with the complainant nor heard their conversation. It was submitted that the so called verification proceedings was a sham exercise. On the point of contradiction with respect to the number CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 29 of 86 of vehicles, ld. counsel for the accused submitted that as per prosecution case only two vehicles were used for the trap proceedings, however, the Trap Laying Officer PW-14 Insp. Raman Shukla had contradicted himself with the statement of the independent witnesses by stating that the number of vehicles were seven.
24. Another line of argument taken up by the ld. counsel for accused was of the prosecution failing to prove the CDRs of various mobile numbers on account of defective certificates u/s 65B of the Indian Evidence Act. In this regard, ld. counsel referred to the deposition of the three Nodal Officers examined by the prosecution. It was submitted that the language of the certificates u/s 65B of the Evidence Act which were issued by PW-1 Kamal Kumar, the Nodal Officer from Reliance Jio and PW-2 Pawan Singh, Nodal Officer from Vodafone Idea, was defective as per the requirements of the provisions of Section 65B and is enough to discredit the given certificates. As to the other Nodal Officer PW-3 Surender Kumar from Bharti Airtel, ld. counsel submitted that this witness in his deposition had stated that the certificate u/s 65B of the Indian Evidence Act was not drafted by him but by someone else. He also stated that the certificate bears his signature, however, its printout was taken by the legal department. Ld. counsel submitted that on account of such deposition of PW-3, it is apparent that he did not prepare the CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 30 of 86 certificate and never authenticated it and as such, the said certificate cannot be said to be issued by him. On account of faulty certificates, ld. counsel submitted that the evidence in the form of CDR becomes inadmissible and as such cannot be looked into for any purpose. In this regard, ld. counsel placed reliance on the following citations:(i) Achheylal Yadav vs. State, 2014 8 P LRC 236 Delhi (9);(ii) Ashwani & Anr vs. State, Crl A 323/2018 & 412/2018 dated 08.10.2018, High Court of Delhi,
(iii) Ram Singh vs. Col. Ram Singh 1985 (supp) SCC 611; (iv) Anvar PV Vs. P.K. Basheer (2014) 10SCC 473; (v) Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal CA no. 20825/2017; (vi)Tomaso Bruno vs. State of UP (2015) 7SCC 178;(vii)Shahfi Mohd. vs. State of MP MANU SC/1414/2013 and
(viii) Ankur Chawla vs. CBI, 2014(10) LRC96.
25. Ld. counsel for the accused also made his submissions on the point that prosecution has failed to prove the demand and even the attempt to obtain tainted money on the part of accused. It was submitted that nothing incriminating came in the verification proceedings as was carried out by the CBI on 17.07.2019. Even the witnesses to the verification have stated that they had neither seen any gestures nor heard any oral demand by the accused. They also stated that they did not hear the word 'bribe' or 'EOW' from the accused during the verification proceedings. It was further submitted that over and CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 31 of 86 above, complainant in his deposition had changed the entire story and as already submitted there are material contradictions and major improvements in his deposition, thus, rendering it unbelievable.
26. Ld. counsel further submitted that it has been the consistent stand of the accused from the very beginning that he and the complainant had financial dealings relating to a chemist shop having been opened in the complainant's hospital. In respect of such transaction, complainant owed Rs. 11 lacs to the accused which was given as a security at the time of opening of the chemist shop in his hospital. The cheques which were issued by the complainant got dishonoured and that it was about his own money that the accused was making a demand from the complainant. In this regard, ld. counsel referred to the printout of the whatsapp chat Ex. PW4/E(colly)(D-7) between the complainant and accused and as also relied upon by the prosecution. Ld. counsel submitted that in the whatsapp messages exchanged between the two, accused had not only asked for the status of his money but had also sent his bank details to the complainant. Ld. counsel further submitted that search of the residence of accused was carried out by the CBI and a search list Ex. PW14/DX1 was prepared giving details of the property seized by the CBI in the said search. It was argued that one of such document as was seized by the CBI was a diary CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 32 of 86 Ex. PW14/DX2 (colly) where in reference to the year 2012, accused had made several entries in his diary reflecting that the complainant owed to him legally recoverable debt. Not only that, in the search list Ex. PW14/DX1, there is a mention that some cheques as detailed therein and as signed by complainant Dr. Nitendra Singh were also seized from the house search of accused. Ld. counsel submitted that this fact that the complainant had to repay the amount to accused was also not disputed by the complainant in his examination, though the complainant tried to qualify it by stating that he had paid the amount partly in cash and partly in cheque, however, failed to bring on record any documentary proof in respect thereof. Ld. counsel submitted that in his cross-examination, complainant while admitting that there were several criminal cases registered against him and his wife and that most of the said cases were settled, had stated that the settlements in all such cases were recorded in writing and the settled amount was paid via NEFT/RTGS/bank transfer only and was not paid in cash. It was argued that when the complainant himself is admitting that whatever payments he was making under the settlement were never in cash, then it is unfathomable that he would pay the amount he owed to accused in cash.
27. It was further submitted that as already pointed out, the very basis of the alleged demand of bribe which was claimed to be of the settlement of EOW case by the accused, was already CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 33 of 86 settled in Mediation between the parties before the Delhi High Court Mediation Centre and this fact was also admitted by the complainant himself in his deposition. It was submitted, rather reiterated by the ld. counsel for the accused that when the basis of the alleged allegation never existed, then the complaint in itself is nothing but a malafide attempt on the part of complainant to implicate accused in a false case.
28. Ld. counsel further submitted that as per the charge framed against the accused for the offence u/s 7A of the PC Act, the basis thereof is that accused had sent his bank account details to the complainant's whatsapp number on 18.07.2019. In this regard, there was a claim made by the complainant that on 18.07.2019, he had received a whatsapp call from the accused wherein the accused told him to bring maximum bribe amount in cash and to transfer the remaining amount in his bank account maintained with the Axis Bank, Najafgarh Branch. Ld. counsel submitted that prosecution failed to bring on record anything establishing that the complainant did receive such a call. It was also submitted that complainant in his examination had stated that prior to the registration of FIR, he was visiting the CBI office for about 10 days and during all those visits, all his calls were recorded by the CBI. It was argued that if the complainant's deposition is to be believed, then no such call record of the alleged demand of bribe by the accused was placed on record and CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 34 of 86 proved by the CBI.
29. It was further submitted that CBI also failed as the alleged transaction of bank account transfer of Rs. 1 lac from the account of complainant to the account of accused did not fructify as is evident from the deposition of the concerned branch manager PW-10 Divya Anand who had proved the bank account statement Ex. PW10/A of the complainant's account showing that till the period 30.06.2019 as no further transaction took place in the complainant's account, the bank balance as was seen standing in the given account was Rs. 3385.42 as on 18.07.2019. It was submitted that it is impossible that the complainant would not be knowing about such deficient balance in his own bank account.
30. It was further submitted that even on the day of trap proceedings i.e. 18.07.2019, the trap had failed as it was the complainant who had switched on the parking light of his car and had introduced a false story that the parking light was switched on by the accused. In this regard, ld. counsel referred to the deposition of the Trap Laying Officer PW-14 Insp. Raman Shukla who had stated in his examination that the parking light was switched on by the complainant to avert any danger to the car which was parked on the road. It was argued that as such, the prosecution has failed miserably on both the counts of either the accused making a demand of bribe or of his accepting or trying CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 35 of 86 to obtain the tainted bribe amount from the complainant.
31. It was also submitted that it is highly improbable that any public servant would demand the bribe through banking channels. It was submitted that accused was demanding the legally recoverable debt which the complainant owed to him and as such, had shared his bank account details with the complainant to transfer the said amount. In his submissions, ld. counsel also invoked the doctrine of repentance to submit that mere intention to commit a crime except for some exception is not punishable. It was also submitted that the complainant had also disowned his own complaint which was the very foundation of the registration of the present CBI case against the accused. Ld. counsel also placed reliance on the following citations: (i) Mukhtiar Singh vs. State of Punjab (2017) 8SCC 136; (ii) P. Satyanarayan Murthy (2015) 10 SCC 152; (iii)B. Jayaraj vs. State of S.P.(2014) 13 SCC 55; (iv) State of Kerala vs. C.P.Rao (2011) 6 SCC 450; (v) Roshan lal Saini vs. CBI (2010) SCC Online Del 909; (vi)Prem Raj Meena vs. CBI (2011) SCC Online Del 909; (vii)Banarsi Dass vs. State of Haryana (2010) 4 SCC 450; (viii) A Subair vs. State of Kerala (2009) 6SCC 587 & (ix) Neeraj Dutta vs. State of N.C.T of Delhi.
32. I have given my thoughtful consideration to the rival submissions of the Ld. counsel for the parties. Before adverting CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 36 of 86 to the points for determination and the evidence brought on record by the prosecution, it is necessary to first take note of the legal provision as is contained u/s 7A of the PC Act. It is reproduced hereinunder :-
Section 7A: Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence. It lays down that "whoever accepts or obtains or attempts to obtain from another person for himself or for any other person any undue advantage as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine".
33. For the prosecution to establish the charge for the offence u/s 7A of the PC Act, it has to firstly prove that the accused had accepted or had obtained or had attempted to obtain any undue advantage from the complainant. Secondly, such acceptance or obtaining of undue advantage has to be as a motive or reward for the accused to induce a public servant either by corrupt or illegal means or by exercise of his personal influence and lastly, by such inducement, accused intends to CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 37 of 86 cause performance of a public duty improperly or dishonestly or its forbearance by such public servant or by another public servant. Undue advantage has been defined in Section 2(d) as meaning any gratification whatever, other than legal remuneration. Gratification, in turn, has been explained in Explanation (a) to Section 2(d) as which is not limited to pecuniary gratifications or to gratifications estimable in money. Thus, undue advantage can take many forms and is not restricted to taking of money alone.
34. Having noted thus the legal provision as has been invoked in the present case, prosecution was to establish that the accused had accepted or obtained or had attempted to obtain from the complainant any undue advantage as a motive or reward to induce SI Gulshan Yadav, a public servant, IO of the case registered against the complainant, by corrupt or illegal means or by exercise of his personal influence, to act favourably to the complainant in the matter of the said case FIR registered against him. It is in this context and the charge as framed, that the points for determination were noted in para '10' of this judgment and the same are now being taken up for determination in the light of evidence as brought on record by the prosecution and upon appreciating the rival submissions of the ld. counsel for the parties.
CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 38 of 86
35. First of the points for determination is whether on 17.07.2019, accused Vivek Yadav made an initial demand of Rs. 20 lacs towards which he demanded first installment of Rs. 5 lac from complainant on 17.07.2019 and had agreed to accept Rs. 3 lac on 18.07.2019 on the pretext that he knows SI Gulshan Yadav, IO of FIR no. 256/2018, PS EOW registered against the complainant, and would influence him to get the investigation finished in favour of complainant. In this regard, I will take up the prosecution evidence concerning the verification of complaint as made by the complainant to CBI. First of such witness is the verification officer PW-15 Insp. Vinod Kumar and his deposition to the extent of it concerning the verification proceedings is taken up for discussion and analysis.
36. PW-15 Insp. Vinod Kumar in his examination stated that on 17.07.2019, he was assigned the complaint Ex. PW9/A for verification. To verify the allegations made in the complaint which were against one SI Vivek Yadav who had initially made a demand of Rs. 20 lac from the complainant which was negotiated for Rs. 5 lac to settle a case against the complainant pending before EOW, Delhi Police, PW-15 arranged an independent witness and also took assistance of one CBI official PW-17 SI Vikrant Tomar. He also got arranged one DVR and a memory card to record the likely conversation. A call was made by the complainant to the suspect officer to decide upon the location of CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 39 of 86 meeting and the conversation of this call was recorded in the memory card. Location of meeting was shared by the suspect which was of Vikas Puri Police Line. As such, the team reached the given location where complainant was instructed to go inside and DVR in a switched on mode was kept in the right side pant pocket of the complainant. To avoid any suspicion by the suspect officer, complainant was sent alone in his car and the others followed him where they saw the car of the complainant parked inside the police line. PW-15 further stated that after sometime, complainant came out of the police line in his car and narrated the incident of demand of bribe by the suspect officer. DVR was taken back from the complainant and was switched off. On returning to CBI office, data of the memory card was copied by means of write blocker application and the recording was heard wherein SI Vivek Yadav of Delhi Police was heard demanding bribe money from the complainant to settle the given case and instructed the complainant to come on the next day i.e. 18.07.2019 at 12-1 pm with the bribe money on the same place. PW-15 stated that on verifying the complaint, he prepared the verification memo Ex. PW5/A (colly) and while keeping the memory card in its original packing, he sealed it in a brown envelope. The micro SD card mark Q-1 was identified by PW-15 as Ex. PW5/F3(colly).
37. In his cross-examination, PW-15 made a reiteration that for verification of complaint, he had constituted a team CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 40 of 86 comprising of himself, the complainant, SI Vikrant Tomar and the independent witness PW-5 Gajender. He admitted that the calls made by complainant to the suspect officer during verification proceedings were made on his instructions. He further added that these calls were recorded in the memory card. He further stated that during verification, the first call was made by complainant to the suspect officer, however, due to lapse of time, he does not remember as to who had recorded the calls during verification proceedings. He stated that he did not verify about any complaint pending before EOW from the concerned IO. He also did not verify about the fact that the EOW matter was settled in Delhi High Court Mediation between complainant Dr. Nitendra Singh and Dr. Nikhil. He also did not verify the antecedents of the complainant and that the complainant also did not tell him about any financial transaction between him and the accused.
38. In his further cross-examination, PW-15 admitted that complainant alone went inside the police line and they waited outside, however, he clarified that when the complainant went inside the police line in his car, that they had also followed him by walking and saw the car of complainant parked inside. Though he admitted that they did not hear the conversation which took place between the complainant and accused and they also did not try to listen live conversation as held between them CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 41 of 86 at the spot. He reiterated that the DVR was kept in the right side pant pocket of the complainant at Vikas Puri Police Line and was taken back from the complainant at the spot itself.
39. In his further cross-examination, on being asked by the defence about write blocker, PW-15 stated that it is a device which is used for accessing the data stored in a device/memory card to avoid any manipulation, tampering etc. He further stated that as per verification memo Ex. PW5/A(colly), the transcript of the conversations recorded during verification proceedings was prepared and it may be by SI Vikrant Tomar, however, it was prepared in his presence. While admitting that it has not been so specifically mentioned in the verification memo Ex. PW5/A(colly), PW-15 clarified it by stating that transcript is a part of the memo and some lines have also been reproduced in the memo from point X to X. He further stated that as per verification memo, the micro SD card was sealed and marked as Q-1 before being taken in police possession and the seal after use was given to the independent witness.
40. As can be seen from the deposition of PW-15 Insp. Vinod Kumar, he in broad terms stated about the verification proceedings carried out by him concerning the verification of complaint Ex. PW9/A. Though he is not privy to what conversation took place between the complainant and accused CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 42 of 86 while they were seated in the complainant's car inside Vikas Puri Police Line, however, he did state that the conversations right from the complainant making a call to the accused on his instructions, were all recorded in the DVR. There is nothing in the cross-examination of this witness to raise a doubt that the DVR and the memory card used during verification proceedings were tampered with or did not record the actual conversation as it took place between the complainant and accused. The primary evidence i.e. the DVR and the memory card both were produced in a sealed and intact condition during the examination of the independent witnesses PW-4 Nishant Sheoran and PW-5 Gajender Verma. As has already been noted, only one independent witness PW-5 Gajender Verma was joined by the CBI during verification of the complaint. As such, now I will take up the deposition of PW-5 which is related to the aspect of verification proceedings.
41. In his deposition, PW-5 Gajender Verma stated that it was on the directions of his senior officer, that he went to CBI office on 17.07.2019 and 18.07.2019. On 17.07.2019, when he reached the CBI office in the morning hours, he was explained the purpose of his visit and was introduced to complainant Nitendra by the CBI officer. He was also shown the complaint Mark PW4/A (also Ex. PW9/A) on 17.07.2019 and was told that there is one Delhi Police Officer who was demanding bribe of CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 43 of 86 Rs. 20 lacs to settle a case. He further stated that so far as he remembers, he was told that complainant had received a phone call from the mobile phone of accused to meet him and that it was decided that four members would visit the place where the accused had called to meet. Besides him and the complainant, there were two CBI officers and they all left the CBI office in the car of complainant. It was in the car, that DVR was given to the complainant. PW-5 corroborated the version of the verification officer by stating that when they reached the spot which was outside third battalion, it was decided that complainant Nitendra would go inside the premises and that they would wait outside. He further stated that after waiting for about 15 minutes, he and one of the CBI officers whom he met for the first time in the CBI office, went inside the premises to check the whereabouts of the complainant and observed that complainant was sitting in the car with one person. He further stated that after about 10-15 minutes, complainant came out in his car and the DVR was taken from him and the CBI officer heard the conversation by putting on the ear phone, however, he did not hear the conversation at that time. PW-5 further stated that they returned to the CBI office where the recording was copied on an official laptop and thereafter, the DVR was kept in an envelope which was sealed and the brass seal used in this regard, was handed over to him with the direction to produce the same on the next day.
CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 44 of 86
42. In his further examination, PW-5 while identifying his signature on the verification memo dt. 17.07.2019 Ex PW5/A(colly) stated that vide writing at point X thereon, he had received the DVR and brass seal from the CBI on 17.07.2019. Whereas the DVR was returned on the next day i.e. 18.07.2019, on the other hand, the brass seal was given to CBI as and when it was demanded for its use. The seal after use was returned to him and has remained in his custody. The CBI brass seal was brought by him and was identified as Ex. PW5/E. Further, vide writing at point Y on Ex. PW5/A (colly), PW-5 stated that his introductory voice was recorded in the memory card through DVR while sitting in a cubicle/chamber in CBI office.
43. During the examination of PW-5, one sealed yellow envelope titled 'Parcel 3/Exhibit S-1' was produced and from it one brown envelope Ex.PW4/K in cut open condition bearing particulars 'S-1 in RC-26A/2019' was taken out and it was inter alia found containing a micro SD card 8 GB Ex. PW4/K-3(colly). It was in this memory card which was played on an official laptop in the hearing of PW-5, that he not only identified the introductory and concluding voice recording of his and of the other witness PW-4 Nishant Sheoran but also of the specimen voice recording of accused Vivek Yadav which the accused voluntarily consented to give on 19.07.2019.
CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 45 of 86
44. Similarly, another sealed yellow envelope titled 'Parcel 1/Exhibit Q-1' was produced and from it one brown envelope Ex. PW5/F in cut open condition bearing particulars 'Q-1 in RC-26A/2019' was taken out and it was inter alia found containing a micro SD card 8 GB Ex. PW5/F3(colly). PW-5 stated that it was on 17.07.2019, that the said micro SD card was sealed in his presence after copying the content from the SD card. In this regard, PW-5 also identified the transcription of Q-1 Ex. PW5/C(colly) which as per him was prepared in his presence in Tihar Jail on 15.10.2019.
45. After the memory card was so identified, it was opened on a laptop and was found containing two folders titled MUSIC and PRIVATE and one System File Capability_02. In the folder titled PRIVATE, one folder titled 'SONY' was found which on opening was found containing another folder titled 'REC_FILE' which, in turn, was found containing two folders titled FOLDER01 and RADIO01. It was in the folder titled FOLDER01, that 04 recording files were found which were played to the hearing of PW-5. In the recording file no. 190717_1358, PW-5 identified his voice as the introductory voice recording taken on 17.07.2019.
46. In the recording file bearing no. 190717_1410, PW-5 identified the voice which was louder in tone to be that of CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 46 of 86 complainant and the voice in low pitch to be that of accused. In addition, PW-5 also stated that the word 'location' was spoken by the complainant and the word 'bhej raha hoon' is in the voice of accused. In the recording file no. 190717_1514, PW-5 again identified the voice in a louder tone to be of complainant and the one in lower pitch to be of accused. In the voice recording file no. 190717_1515, PW-5 stated that this is the recording of the conversation that took place between complainant and accused on 17.07.2019 at third battalion.
47. Now taking up the cross-examination of PW-5, he too made a reiteration that on the day of verification proceedings, there were four persons i.e. two CBI officers, complainant Nitendra and himself. PW-5 admitted that he had not heard any conversation that took place between complainant and accused. He also admitted they did not even try to hear the conversation as it took place between complainant and accused at third battalion. PW-5 further stated that the DVR was handed over to the complainant at the spot outside the complex of third battalion and was taken back when he came out. PW-5 admitted that when they were sitting in the car, the recording was not heard by him.
48. Though PW-5 Gajender Verma in his cross-
examination had admitted that he did not hear the conversation as it took place between the complainant and accused inside the 3rd CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 47 of 86 Battalion Complex, however, the defence did not counter him on the point of his having identified the voice of complainant and of accused in the recorded conversations which were played in his hearing during recording of his deposition. Defence also did not counter the witness either on the point of his assertion that the accused in his presence had voluntarily consented to give his specimen voice recording to the IO or of his having identified the voice of accused in the specimen voice recording which was played to his hearing during his deposition. Nothing contrary came on record in the cross-examination of this witness to show or suggest that the DVR or the memory card Q-1 used therein for the purposes of recording, was tampered with or manipulated in any manner whatsoever. Defence also did not counter the witness on the point of his having asserted in his examination that he is a witness to the preparation of the transcript Ex. PW5/C(colly) of Q-1. The other material witness is the complainant himself and his deposition so far as it concerns the verification proceedings is now taken up for consideration.
49. In his examination, complainant PW-9 Dr. Nitendra Singh stated that three complaints came to be lodged against him in respect of his hospital, sometime in the year 2016. One of such complaint was under the PCPNDT Act which was in his name and not in the name of his hospital or the directors. Of the other two complaints, one was lodged with EOW, Delhi Police and the CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 48 of 86 other was with PS Punagram, Surat. He further stated that one SI Pawan Yadav was the IO of the complaint under PCPNDT Act and SI Gulshan Yadav was the IO of the EOW case. He stated that in respect of the complaint lodged with EOW, he received a call from IO SI Gulshan Yadav to meet him at EOW office, Mandir Marg, New Delhi and as such, he went to EOW office with his advocate where he met SI Gulshan Yadav who told him about the allegations of the complaint which was primarily of cheating of Rs. 4.76 crores and forgery of signature of Dr. Nikhil Yadav in respect of a loan of Rs. 2.53 crores obtained from ICICI Bank. He also gave to the IO some documents as demanded by him. PW-9 further stated that during this period, accused Vivek Yadav was in regular touch with him on phone and personal visits and told that he knows IO SI Gulshan Yadav and would ask him to get the matter settled. For this, accused demanded some money which he gave to him. PW-9 further stated that thereafter accused told him that he had talked to SI Gulshan Yadav who had told that DCP Varsha Sharma was asking for Rs. 37 lac to settle the matter. He further stated that at the time when accused took the money on the pretext of talking to SI Gulshan Yadav, he did not make any complaint against the accused under the belief that he was helping him.
50. In his further examination, complainant PW-9 stated that through some sources, he came to know that both the complaints at EOW and in Surat were dictated by the accused to CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 49 of 86 the concerned parties and that, he had thereafter gone to CBI making a complaint against accused Vivek Yadav. In this regard, complainant PW-9 identified the handwritten complaint dated 17.07.2019 Ex. PW9/A (D-2) to be the said complaint and in his handwriting.
51. In his further examination, PW-9 stated that before the arrest of accused and it may be on 16th or 17th July 2019, that the CBI team gave him a DVR for recording the likely conversation between him and the accused. He further stated that thereafter, he alongwith the CBI team comprising of seven-eight people and one independent witness, went to 3rd Battalion, Vikas Puri where accused met and sat in his car where they had conversation. He further stated that in the said conversation, accused had demanded money inter alia in respect of EOW case and the exact amount must be there in the recorded conversation. He further stated that after the conversation, whereas accused went for his duty, on the other hand, he alongwith the CBI team returned to the CBI office where he was told that he would be called for the next course of action.
52. In his further examination, PW-9 spoke about the transcription-cum-voice identification memo dated 15.10.2019 Ex. PW5/B (D-20) by stating that on that day, the recorded conversations were played before him and he identified his voice CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 50 of 86 and the voice of accused Vivek Yadav in the said conversations. PW-9 similarly spoke about the transcription of Q-1 Ex. PW5/C (colly)(D-21). In this regard, complainant PW-9 Dr. Nitendra identified his signature on a brown envelope Ex.PW5/F bearing particulars 'Q-1 in RC-26A/2019' inter alia containing a micro SD card 8 GB Ex. PW5/F3(colly). He stated that it was on 17.07.2019, that the said micro SD card was sealed in his presence. After the memory card was so identified, it was opened on a laptop and it was in a folder titled FOLDER01, that 04 recording files were found which were played to the hearing of PW-9. In the recording file no. 190717_1358, PW-9 identified the voice as the introductory voice recording of an independent witness called by the CBI.
53. In the recording file bearing no. 190717_1410, PW-9 identified the voice which was louder in tone to be of his and the voice in low pitch to be that of accused Vivek Yadav. In addition, PW-9 also stated that the word 'location' was spoken by him and the word 'bhej raha hoon' was spoken by accused. In the recording file no. 190717_1514, PW-9 again identified the voice in a louder tone to be of his and the one in lower pitch to be accused. In the voice recording file no. 190717_1515, PW-9 stated that this is the recording of the conversation that took place between him and the accused in his car at third battalion. In the recording so played and in the transcription Ex. PW5/C(colly) CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 51 of 86 thereof, PW-9 also identified the voice as that of accused in respect of the utterances i.e. "Theek Hai Kya Amount Doge Usko Abhi" at point X, "Sir Niche Manne Ge Nahi Wo" at point X1, "Abhi Teen Kar Do Usko" at point X2, "Teen" at point X3, "Sir Mein Keh Raha Hoon Teen Se Niche Mat Karna please" at point X4, "Teen Se Niche Mat Karna Sir" at point X5, "Aur Monday Ko Hai" at point X6, "Dekh Liya Theek Hai Aur Ho To Sir Maximum Le Aana" at point X7 and "Monday Shaam Ko Aapse Uthva Lunga Mein Idhar Se Nikal Jayega Rasta" at point X8.
54. Besides identifying the voices in the recorded conversations in Q-1, complainant also identified the DVR make SONY Ex. PW4/H-1 as the same DVR which was given to him to record the likely conversations.
55. Coming on to the cross-examination of PW-9 which was conducted by Ld. Senior Advocate Sh. P. K. Dubey for the accused, PW-9 while showing his ignorance about the make of the DVR and the memory card or whether the memory card was already inside the DVR or was inserted in his presence, stated that he did not touch the DVR and it was kept in his pocket by a CBI official. He also showed complete ignorance of the time it took for him to leave the CBI office and to return in respect of verification. However, PW-9 stated that for verification purposes when he had gone to 3rd battalion, Vikas Puri with CBI officials, CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 52 of 86 they went in two cars, one belonging to him and the other of CBI and that he was driving his car and there might have been 3-4 persons in his car. He further stated that he remained with the accused for about 30 minutes to 1 hour during verification. PW-9 further stated that the DVR was taken by the CBI official from him as soon as the accused had left the spot at 3rd battalion, Vikas Puri, however, he showed his inability to remember about preparation of any handing over memo in this regard or of the name of the CBI official to whom the DVR was given. On being asked about what is Q-1 in the present case, PW-9 while showing his inability to explain, stated that Mark Q-1 was given on an envelope and that the DVR was also kept in an envelope and was sealed.
56. As can be seen from the deposition of complainant PW-9 Dr. Nitendra Singh, the defence failed to bring anything contrary to either the visit of the complainant with the CBI officers and the independent witness to Vikas Puri Police Line for the purpose of verification of his complaint Ex. PW9/A or of the use of DVR in recording the conversation as it took between him and the accused inside the Police Line premises. As already noted, nothing came in the cross-examination of either the verification officer PW-15 Insp. Vinod Kumar or the independent witness PW-5 Gajender Verma that the DVR or the memory card Q-1 were tampered by the investigating agency. There was no CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 53 of 86 cross-examination by the defence in respect of the identification of the voices in the recorded conversations as recorded during verification. Whatever contradictions the ld defence counsel pointed out in his submissions both oral and written and as are related to the verification proceedings, are not of such nature so as to doubt the prosecution case in this regard. In this perspective, I will now take up the relevant portion of the recorded conversation from the transcript Ex. PW5/C(colly) to see whether any demand was made by the accused to the complainant for the purposes of influencing SI Gulshan Yadav, IO of EOW case registered against the complainant. Relevant portion of the said recording is being reproduced herein from its transcript titled as 'transcription of Q-1' Ex. PW5/C (colly) wherein alphabet 'A' is for accused Vivek Yadav and alphabet 'C' is for complainant Dr. Nitendra Singh.
A: EOW Ka Kya Karna Hai
C: EOW Ko Karo Khatam Karvao.
A: Total Usne Mereko Kaha Tha 20 Phir Maine
Kaha Yaar 20 Nahi Honge Thode Kitne
Thode Karega Wo. Pehle Usko Payment
Deke Phir Bataunga.
C: 20 Bahut Zyada Hai.
A: Sir Pichhli Baar Se To Aadhe Ke Lagbhag
Ho Hi Gaye.
A: To Aur Todega Isme Se Par Abhi Wo Yahi
CC no.04/19 (CIS no.426/19)
CBI vs. Vivek Yadav Page no. 54 of 86
Baat Keh Raha Hai Pehle Rupay 5 Lakh
De Phir Baat Karonga Aage.....
C: Kal De Do Aur Kya Kehna Hai Baat Khatam
Par Ye Ek Baat Dhyan Rakhna Ab Ye
Khatam Ho Jaani Chaiye.
A: Kal Nahi Pehle Rupay Lega Uske Baad Baat
Karega Uske Baad Time Dega.
C To Rupay Leke Jao Aur Uske Baad Mein
Phir Shaam Ki Meeting Rakh Lo
C: Kal Ka Matlab Kal Hai.
C: 12-1 Baje
A: Yahi Aaana Padega Aapko
A: Sector-1 Dwarka Ki Red Light Pe Aa Jaoge.
A: Time Batao Kis Time Miloge.
C: 12-1 Baje Hi Aaunga.
A: Theek Hai Kya Amount Doge Usko Abhi.
C Abhi Paach Lakh Rupay Nahi Hai Mere
Paas.
A: Phir Wahi Baat.
A Sir Niche Manega Nahi Wo.
A: To Abhi Kya Payment Doge.
C: 1-2 Jo Bhi Ho Jaye.
A: 1-2 Mein To Sir Bilkul Nahi Manega Kuch
Bhi Kar Lo.
A: Abhi Teen Karo Do Usko
C: Teen Honge To Mein Teen Kar Donga Chalo.
A: Teen.
C: Agar Teen Honge To Mein Teen Kar Donga
A: Yaar Mein Usko Sidha 2-3 Deen Ka Aur
Time Loonga.
A: Kal Mere Ko Yeh Batau Fix Amount Kitna
Donge Phir Me Us Hishab Se Batata
CC no.04/19 (CIS no.426/19)
CBI vs. Vivek Yadav Page no. 55 of 86
Hoon.
A: Sir Me Kehe Raha Hoon Teen Se Nichi Mat
Karna Please.
C: Koshish Karta Hoon.
C: Bol Diya Monday Shaam Tak Kar Donga.
C: Theek Hai Done Kal Aata Hoon.
A: Teen Se Niche Mat Karna Sir.
A: Dekh Liya Theek Hai Aur Ho To Sir
Maximum Le Aana.
C: Teen Ki Koshish Karoonga.
57. The transcript of the recorded conversation as above noted, makes it quite apparent that in the conversation, accused had asked the complainant about what he wanted to do of the EOW case and when the complainant responded that he wants it to be closed, that the first demand in the name of someone, not given or taken in the conversation, was that the concerned person had demanded Rs. 20 lacs. It was when the complainant stated it to be quite excessive, that the accused in the name of the other made a demand of first installment of Rs. 5 lacs. Further conversation between the two establishes that there was then some negotiation between the two and it came from the mouth of the accused that complainant has to atleast arrange for Rs. 3 lacs which was to be delivered on the next day. As is also evident from the recorded conversation, all the given negotiations and the demand by the accused was in the context of settlement of EOW case. Though it did not come in the conversation that the accused CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 56 of 86 was demanding the amount in the name of IO SI Gulshan Yadav, however, considering that the conversation was in the context of settlement of EOW case, it can be safely concluded that it was in his name that the accused was making such a demand. Here, I may also deal with the argument of ld counsel for the accused that the EOW case was already settled before the complainant made his complaint to CBI. It was argued that once the subject matter was not in existence, no credence can be given to any allegation of demand against the accused. This line of argument deserves rejection as some settlement which was being effected between the parties was in the context of some other parallel proceedings though having trappings over the EOW case. The case diary Ex. PW6/B of the EOW case sufficient records that complainant (accused in the said matter) did come up with some settlement in mediation, however, considering that the allegations were of forgery which were of serious nature, that it would not have much bearing on the said case. Thus, the prosecution establishes beyond any iota of doubt that to settle the EOW case in favour of complainant, accused had firstly quoted the amount of Rs. 20 lac, which was negotiated for an amount of Rs. 5 lacs as the first installment and towards the said demanded amount, that the accused had agreed to accept Rs. 3 lac on 18.07.2019 on such pretext. The first point for determination as such is decided in favour of the prosecution and against the accused.
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58. Point for determination no.(ii) : whether the accused had shared his bank account details with the complainant on 18.07.2019 for the purposes of receiving part of the demanded bribe money of Rs. 3 lacs and as such attempted to obtain the bribe amount from the complainant for the purpose of influencing the IO of EOW case.
59. As has been noted in the discussion on the first point for determination, it nowhere came during the conversation between the accused and complainant, that the demanded amount of Rs. 3 lac was to be delivered partly in cash and partly in bank account transfer. This fact of the accused having agreed to obtain part of the demanded bribe amount in his bank account, came for the first time when the complainant visited the CBI office on the day of trap i.e. on 18.07.2019. In this context, relevant part of the complainant's deposition and of the other witnesses concerning the laying of trap needs to be noted and discussed. But before that, as it has been one of the arguments of the defence that complainant had financial transactions with the accused under which he owed Rs. 11 lacs as principal amount to the accused which was never returned and it was in this context that the accused had shared his bank account details with the complainant, it becomes necessary to first take note of the deposition of complainant so far as it relates to such relations with the accused.
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60. Complainant PW-9 Dr. Nitendra Singh in his examination-in-chief stated that in the year 2010 after working in Dada Dev Maitri Avam Shishu Chikatsalya, Dabri, New Delhi, he had opened his own hospital in the name of Max Life Care Hospital, Sector 19, Dwarka. PW-9 stated that accused Vivek Yadav who was posted as Sub Inspector, PS Dwarka, Sector-21, used to bring patients to his hospital and was himself treated for viral fever and as such they came to know each other. PW-9 further stated that accused had requested him to outsource the pharmacy shop in the hospital in his brother's name and gave Rs. 11 lac as refundable security which was without interest. The shop was opened in the hospital by accused in his brother's name and he also hired his (complainant) cousin brother on salary basis as an Assistant in the said shop. PW-9 further stated that after about two years, when he had shifted his hospital from Sector-19 Dwarka to C-1, Kalkaji and renamed it as 'Kalkaji Hospital- A Unit of Max Life Care Pvt Ltd' with him, his father and one Dr. Nikhil Yadav as its directors, accused again requested to outsource the pharmacy shop as well as pathology lab but the director Dr. Nikhil Yadav refused to outsource the same. PW-9 further stated that he had returned the refundable security amount of Rs. 11 lacs alongwith interest to accused after shifting the hospital to Kalkaji. This amount was paid partly in cheque and partly in cash. A cheque of Rs. 5 lac drawn on ICICI Bank and remaining amount in cash was given to accused. PW-9 further CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 59 of 86 stated that towards the remaining cash amount, accused had obtained two security cheques, one in the name of his wife and the other in his name and both the cheques were presented by the accused despite the amount having been paid in cash and as such, the cheques were returned unpaid. PW-9 stated that he had paid to accused Rs. 19 lacs towards the refundable security deposit of Rs. 11 lac.
61. As can be seen, complainant in his examination had admitted of his having financial dealing with the accused under which as claimed by him, he had paid to the accused Rs. 19 lacs towards the refundable security deposit of Rs. 11 lacs. Though the complainant states that part of the amount he owed to accused was paid through cheque and part through cash, admittedly complainant did not produce before the investigating agency any such document evidencing such payment to the accused. It was all the more necessary for the complainant since he was alleging against the accused the demand of bribe. He should have come clean insofar as his past financial dealings with the accused were concerned. In this regard, relevant part of the cross-examination of complainant can also be noted.
62. In his cross-examination, PW-9 stated that he used to maintain a record of his income and expenditure with his Chartered Accountant and for the record of day to day income CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 60 of 86 and expenditure of his hospital, a register was maintained by an employee of his hospital who used to sit at the reception, giving details of the patient visit, fees charged and the expenses incurred by the hospital on a given day. He further stated that he and his wife are income tax payee and that his hospital is also assessed to income tax. He further stated that all the cash payments either received through OPD or otherwise were accounted for in the IT returns, however, he does not remember whether cash component was reflected in the IT returns for the year 2017 to 2019. About the total amount to be refunded to the accused for his pharmacy shop in the hospital at Dwarka, PW-9 stated that it was Rs. 18 lacs which was Rs. 11 lacs as principal amount and Rs. 7 lac as interest. He further stated that the interest amount was not calculated by him but was told by the accused to be paid to him and for that accused was maintaining some diary with him, however, there was no agreement either written or oral for payment of interest component. On being asked whether the fact of maintaining of a diary by the accused was told by him to the IO of this case, complainant answered in negative, however, in this regard, he denied that he had deliberately introduced a false story of maintaining of a diary by the accused in respect of the interest component. On being asked whether he had shown the cash component of the refunded amount of Rs. 18 lacs to the accused in his IT return of the given financial year or afterwards, PW-9 stated that he did not show the said amount as he remained CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 61 of 86 in judicial custody and for this reason, could not file the IT returns for the period 2019 to 2022. However, he had filed the returns for the year 2011 to 2018 but does not remember whether during this period of IT returns, he had shown any financial transaction with the accused in such returns. PW-9 further stated that his wife filed her IT returns during the period he remained in custody, however, does not remember whether his hospital at Dwarka had shown in its IT return the cash payment made to the accused. He further stated that he was released from custody on 13.01.2022, however, did not file the IT return for the period 2019-2022 from the date of his release or thereafter. He further stated that he also did not ask his wife to get the IT returns filed through the Chartered Accountant for the given years. In his further cross-examination, complainant PW-9 stated that CBI had shown him his statement recorded by them and after going through the same, he had told that some important facts were left out which he wanted them to incorporate. He further stated that as he was in custody in Tihar at that time, IO had assured that on his coming out, those additional facts would be recorded. He further stated that after coming out, neither he met the IO to give his additional statement nor made any efforts to give his handwritten statement of such additional facts.
63. In his further cross-examination, on being asked as to how many cases are registered against him as on date, PW-9 CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 62 of 86 stated that there are about 5 or 6 cases. PW-9 was then given details of his involvement in as many as 32 criminal cases of the nature of FIRs and criminal complaints u/s 138 NI Act. About this, PW-9 admitted of his involvement in some of such cases and about others, more specifically the criminal complaints u/s 138 NI Act, PW-9 stated that almost all have been settled with the respective complainants. He further stated that the criminal complaints u/s 138 NI Act against him and his wife were all settled with the settlements having been effected in the Court and duly recorded before the Court. He further stated that the payments towards settlements were all made through IMPS mode of transfer and no payment in cash was made to any of the complainants in any of the settlements. Even no oral agreement was entered in respect of any of such settlements and that all settlements were recorded before the Court. He denied that he had made a false statement of an oral settlement with the accused or that no payment in cash was made to the accused. PW-9 stated that the payment of Rs. 19 lacs made by him to the accused is not reflected either in his balance sheet or profit and loss account. He denied that the amount he took from the accused was never returned either in principal or in interest or that he never had the intention to return the amount.
64. Having taken note of the deposition of complainant about his financial dealings with the accused and of his CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 63 of 86 involvement in multiple cases, I will now take up that part of the deposition of complainant so far as it relates to his assertion that accused had shared his bank account details in the context of a whatsapp call made by him to pay part of the demanded bribe amount in his account.
65. In his examination, complainant PW-9 Dr. Nitendra Singh after deposing about the verification proceedings, stated that on the next day, he went to CBI office where he was told to arrange for the money which the accused had demanded from him. He further stated that he was not having much of money and could fetch Rs. 40,000/- only from his wife's account at Kotak Bank, Kalkaji Branch. He further stated, and which is material for the present purpose, that besides this, he had also done one transaction of RTGS transfer of some amount in the account of the accused which was done on the asking of accused. In his further examination, complainant was shown the handing over memorandum Ex. PW4/A (D-4) about which he stated that the proceedings concerning his visiting the bank, transferring the money through RTGS and the demonstration were all recorded in this memorandum which was signed by him and by other persons who were present there. Though the complainant was not specific in his deposition that the accused had asked him to transfer part of the demanded bribe money in his bank account, what the complainant uttered was that he transferred Rs. 1 lac through CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 64 of 86 RTGS in the bank account of accused on the asking of accused. However, in his statement u/s 161 Cr.PC Ex. PW9/D1, complainant was specific that he had informed the team members that on his way to the CBI office, a whatsapp call of accused was received who told him to bring maximum bribe amount in cash and transfer the remaining amount in his bank account no. 120010100688338, Axis Bank, Najafgarh Branch, Delhi. The bank account details were shared by the accused on whatsapp for transferring the bribe amount in his account. Since the complainant had deposed that he had so told the CBI team and others when he had reached the CBI office on the day of trap, it now becomes necessary to refer to the deposition of the other witnesses concerned with the trap proceedings. On this aspect, I will first take up the deposition of the two independent witnesses PW-4 Nishant Sheoran and PW-5 Gajender Verma.
66. PW-4 Nishant Sheoran, in his examination, stated that he was deputed to attend CBI Office on 17.07.2019 to 18.07.2019 by his department on some requisition having been received in this regard from the CBI. As such, on 18.07.2019, he reported to Insp. Raman Kumar Shukla, the Trap Laying Officer, who introduced him to the trap team. PW-4 further stated that the purpose of assembly and laying of trap was explained and he was also informed that accused Vivek Yadav had demanded from the complainant doctor some bribe amount to settle his case in EOW.
CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 65 of 86 PW-4 while identifying the complaint dated 17.07.2019 (D-2) Mark PW4/A of complainant Dr. Nitendra Singh, stated that this is the same complaint which was shown to him on his visit to CBI office on 18.07.2019 and that the demand was made by accused Vivek Yadav in hard cash as well as by transfer in his account. In his further examination, while identifying his signature on the handing over memorandum (D-4) Ex. PW4/A, PW-4 stated that he had read over the document after it was prepared. In his cross-examination, while denying that complainant did not tell him that accused Vivek Yadav had demanded bribe money, PW-4 admitted that the call received by complainant from the accused on whatsapp was not received in his presence.
67. PW-4 Nishant Sheoran also did not specifically state in his examination-in-chief about complainant telling all the trap team members that while he was on his way to the CBI office, accused gave him a whatsapp call asking him to bring maximum bribe amount in cash and to deposit the remaining amount in his bank account which was separately shared through whatsapp. However, PW-4 did speak about the preparation of the handing over memorandum Ex. PW4/A and his reading and signing the same. As already noted, the given fact of receiving of whatsapp call and sharing of bank details has been mentioned therein. Though PW-4 in his cross-examination admitted that the CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 66 of 86 whatsapp call was not received in his presence.
68. The other independent witness PW-5 Gajender Verma, as already noted, had participated both in the verification proceedings and in the trap and post-trap proceedings of the present case. In his examination, PW-5 stated that he again visited the CBI office on the next day i.e. 18.07.2019 where he met the same officer whom he had met the previous day. On that day, CBI officers had asked the complainant to arrange for the trap money and that it was agreed that part of the amount, the complainant would deposit in the account and the remaining he would arrange. In his cross-examination by the counsel for accused, PW-5 admitted that the whatsapp call was not received by complainant from the accused in his presence.
69. This witness too like the other independent witness did not speak categorically about receiving of whatsapp call from the accused and even in his cross-examination, admitted that no such call was received in his presence. As such, now the deposition of the other witnesses of the trap is to be looked into and the relevant prosecution witnesses in this regard are the trap laying officer PW-14 Insp. Raman Kumar Shukla and the trap team members PW-15 Insp. Vinod Kumar and PW-17 Insp. Vikrant Tomar.
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70. PW-14 Insp. Raman Kumar Shukla, in his examination, stated that the present FIR bearing no. 26/A/2019, registered on the complaint Ex. PW9/A(D-2) of PW-9 Dr. Nitendra Singh, was marked to him for laying a trap against Vivek Yadav, a Sub Inspector in Delhi Police. He stated that after discussing the matter with S.D. Mishra, SP, CBI, he constituted a team for laying a trap and in this regard, also joined two independent witnesses who were briefed about the complaint and were also introduced with the other team members including the complainant. He further stated that he told the purpose of assembly to the team members and also told them that accused Vivek Yadav, SI in Delhi Police has demanded bribe from the complainant. He further stated that during this period, complainant informed that accused is demanding bribe money in his account and in cash. As such, he instructed two Sub Inspectors of the team and the independent witnesses to accompany the complainant to his bank i.e. Kotak Mahindra Bank at Kalkaji to transfer the bribe amount into the account of accused Vivek Yadav.
71. In his cross-examination, PW-14 stated that it was when the complainant came to the CBI office on 18.07.2019, that he told about the whatsapp call between him and the accused. PW-14 admitted that this call was not heard by any trap team member. He also admitted that the verification of the receiving of CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 68 of 86 such a call by the complainant is not mentioned in the handing over memorandum Ex PW4/A. He further stated that complainant did not tell him regarding insufficient funds in his account.
72. As can be seen from the deposition of the trap laying officer PW-14 Insp. Raman Shukla, he made no efforts to verify the claim of the complainant that accused had given him a whatsapp call asking to bring maximum bribe amount in cash and the remaining to deposit in his bank account. Even no screen shot of the whatsapp call list of the complainant's mobile phone was taken either by this witness or by any other witness to lend credence to the complainant's claim. It was all the more important considering that complainant in his own admissions, had financial dealings with the accused and as is evident from the printouts Ex. PW4/D(colly)(D-6) and Ex. PW4/E(colly)(D-7) of the whatsapp messages exchanged between the accused and the complainant on their respective mobile phones, it was not for the first time that the accused was sharing his bank account details with the complainant. Previously as well, as the whatsapp messages would show, accused had shared his bank account details with the complainant on more than one occasion. It is in this light, that the evidentiary worth of the whatsapp message of the accused having shared his bank account details with the complainant on the day of trap i.e. on 18.07.2019 is to be CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 69 of 86 weighed and appreciated. Having noted that the bank account details were previously shared as well and there is no evidence available on record except of the oral deposition of the complainant that the accused made a whatsapp call to him, that the other evidence brought on record by the prosecution is to be looked into. Such evidence is the recording of the conversation as it took place between the complainant and accused in the complainant's car during the trap proceedings. In this regard, relevant part of the deposition of PW-14 Insp. Raman Kumar Shukla can be noted. In his examination, PW-14 stated that after returning to the CBI office, memory card which was used for recording the conversation between the accused and complainant, was taken out from DVR and its investigation copy was prepared by SI Vikrant Tomar by using the software write blocker on the official computer for investigation purpose. The said memory card was then kept in its original plastic packing and was marked as Q-2. The investigation of the case was taken up by PW-16 DSP Naresh Chandra Nawal from PW-14 Insp. Raman Kumar Shukla and as such, his deposition can now be looked into as it would throw light on the preparation of the transcript of the recorded conversation between the complainant and accused on the day of trap.
73. In his examination, PW-16 DSP Naresh Chandra Nawal stated that he took over the investigation from Insp.
CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 70 of 86 Raman Kumar Shukla on 07.08.2019 and received the documents viz. complaint Ex. PW9/A (D-2), verification memo Ex. PW5/A (colly)(D-3), handing over memorandum Ex. PW4/A (D-4), post trap proceedings Ex. PW4/C (colly) (D-5) and printouts Ex. PW 4/D(colly) (D-6) and Ex. PW4/E (colly)(D-7) of whatsapp chats between accused and complainant from their respective mobile phones, site plan Ex. PW4/F (D-8), Customer Acknowledgment of NEFT transaction Ex. PW4/B (colly) (D-9) alongwith photocopy of RTGS/NEFT application form and copy of cheque and arrest-cum-personal search memo Ex. P-2 (colly) (D-10). He further stated that during investigation, he collected documents, CDRs etc and recorded statement of witnesses. He also provided specimen voice and questioned voice to CFSL for comparison and opinion. He further stated that during investigation, he prepared transcription-cum-voice identification memo dt. 15.10.2019 Ex. PW5/B (D-20) in the presence of independent witness Gajender Verma. It was in respect of preparation of the transcript Ex. PW5/C(colly) (D-21) of recorded conversation Q-1. Further, complainant Nitendra Singh also identified his voice and the voice of accused Vivek Yadav during this proceeding. He further stated that he also prepared transcript Ex.PW5/D (colly) (D-22) of the recorded conversation Q-2. In his further examination, PW-16 stated that during investigation, the then SP, ACB, CBI, New Delhi Mr. V. M. Mittal had sent one sealed Micro SD Card Q-1, one sealed Micro CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 71 of 86 SD card Q-2, one sealed Micro SD Card S-1 and one sealed digital voice recorder (DVR) to CFSL for expert examination vide his letter dt. 30.09.2019 Ex.PW12/A addressed to Director CFSL, CBI, New Delhi. CFSL result Ex.PW12/B(colly) which was subsequently received, was filed by him with the Court vide his application Ex. PW16/B.
74. In his cross-examination, PW-16 stated that he does not remember the date on which he had prepared the transcript- cum-voice identification memo Ex. PW7/A (D-19), Ex. PW5/B (D-20), Ex PW5/C (D-21) and Ex. PW5/D (D-22), however, he stated that the same were prepared by him and he had typed it which approximately took 2-3 days. PW-16 further stated that Ex. PW7/A is dt.18.09.2019 and Ex. PW5/B is dt. 15.10.2019 and that the witnesses Manish and Bhoop Singh were not present during the time of preparation of the said documents, however, they were shown the transcripts already typed which were read over and tallied with the recorded conversation by them and that the corrections as pointed out by them were also made. He further stated that for the purposes of investigation, he visited Tihar Jail on 15.10.2019, however, does not remember by what time, he had started typing Ex.PW5/B(D-20) but the time is mentioned therein and that he had done the typing work in Tihar Jail in the presence of one independent witness Gajender Verma and his subordinate staff.
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75. As can be seen from the deposition of IO PW-16 DSP N. C. Nawal, for the purposes of independently identifying the voice of accused Vivek Yadav, he took the assistance of PW-11 Manish Kumar who was working under the accused in the same department. While taking assistance of this witness, IO also joined an independent witness PW-7 Bhoop Singh to the proceedings so carried out in this regard. As such, deposition of these two witnesses can now be noted.
76. PW-7 Bhoop Singh was joined by the CBI on 18.09.2019 to the voice identification proceedings of accused Vivek Yadav. At that time, PW-7 was posted as Assistant Grade-II in Housing Division, DSIDC. When he visited the CBI office on the said day, in his presence, some recordings were played and after hearing the said recordings, some typing was done by the CBI official and transcriptions were prepared. He identified the voice identification memo dt. 18.09.2019 Ex. PW7/A(colly) alongwith the transcripts which were prepared by the IO PW-16 DSP N.C. Nawal. In his cross examination, PW-7 stated that the proceedings were conducted in an open hall in CBI and besides him, Manish and Nawal were present. PW-7 admitted that he was made to hear the recording which were already saved in the computer and there was no sealed envelope brought in front of him, however, he denied that the documents Q-1 and Q-2 were tampered documents as they were already CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 73 of 86 saved in the computer of IO.
77. PW-11 Manish Kumar was joined by the CBI for the voice identification of accused Vivek Yadav in the recorded conversations and the corresponding transcripts of recordings Q-1 & Q-2. He was joined for the reason that he had worked under the accused in 3rd Battalion, DAP, Vikas Puri, Delhi in the year 2019 where he was posted as ASI in MOP Branch of 3rd Battalion. In his examination-in-chief, PW-11 Manish Kumar stated that in the year 2019, he was posted as ASI in MOP Branch, 3rd Battalion, DAP, Vikas Puri, Delhi working under Inspector Devi Dutt who was the In-charge of MOP Branch and at that time accused SI Vivek Yadav was also working under the In-charge and he was working under both of them. PW-11 stated that on the directions of Inspector Devi Dutt, he visited CBI office where he met a Inspector in CBI office who asked him to identify the voice of accused Vivek Yadav. In this regard, recordings were played in his presence and in the said recordings, he identified the voice of Vivek Yadav. He further stated that copies of transcription were also given to him which he compared with the audio played in his presence. With respect to the proceedings of voice identification of accused by him, PW-11 identified the voice identification memo Ex. PW7/A(colly) (D-19). He further stated that in the transcription of Q1 & Q2, the conversation which is in the voice CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 74 of 86 of Vivek Yadav is mentioned against 'A'(written in hindi language).
78. During the examination of PW-11 Manish Kumar, memory card Ex. PW5/F3(colly) was played on a laptop and in it in a folder titled FOLDER01, 04 recording files were found which were played in the presence of PW-11 and in the recording file no. 190717_1410, PW-11 stated that the word 'Bhej Raha Hoon' is in the voice of accused Vivek Yadav. Similarly, in the recording file no. 190717_1514, PW-11 identified the voice in the lower pitch as that of accused Vivek Yadav. In addition, he also stated that the utterance 'aa raha hoon' in the recorded conversation is in the voice of Vivek Yadav. In the recording file no. 190717_1515, PW-11 again identified the voice of accused in the given conversation. Another memory card Ex. PW5/J3 (colly) was played on a laptop and in it in a folder titled FOLDER01, 08 recording files were found which were played in the presence of PW-11 and in the recording files no.190718_1627, 190718_1805, 190718_1854, 190718_1951, 190718_2010, PW-11 identified the voice in the lower pitch to be that of accused Vivek Yadav. Further, in the recording file no. 190718_2016, PW-11 identified the voice of accused in a conversation between the accused and some other person.
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79. In his cross-examination, PW-11 admitted that the copy of the transcript was presented before him after he had heard the audio recordings. He further stated that initially the audio was played before him wherein he identified the voice of accused Vivek Yadav and it was thereafter, that the transcriptions were handed over to him and he was asked to compare the transcriptions with the audio recording of Vivek Yadav which he did accordingly. PW-11 admitted that the audio which was played was already saved in a computer or a laptop. He also admitted that the transcriptions were not prepared before him, however, he on his own clarified that the copy of the transcription was given to him by the IO.
80. As can be seen from the deposition of PW-11 Manish Kumar, he had not only identified the voice of accused Vivek Yadav as was contained in the recordings in the memory cards Ex. PW5/F3(colly) (Q-1) and Ex. PW5/J3(colly)(Q-2) but had also verified the transcripts thereof with the recordings as heard by him. He also corroborated the deposition of the IO PW-16 DSP N. C. Nawal that the transcripts were already typed when the same were given to PW-11 to tally it with the recorded conversations as heard by him. The fact of voice identification of accused by PW-11 and of the tallying of transcripts with the recordings was corroborated by the independent witness PW-7 Bhoop Singh. There is nothing in the cross-examination of either CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 76 of 86 PW-7 Bhoop Singh or of PW-11 Manish Kumar that no such proceeding was carried out or that the voice of accused was not contained in the given recordings or was incorrectly identified.
81. Though the voice identification of accused was carried out through his subordinate PW-11 Manish Kumar, independently thereto, even the forensic expert PW-12 Mahesh Kumar Jain was engaged by the investigating agency in giving his expert opinion regarding the voice of accused in the recordings as recorded during verification proceedings and during trap proceedings.
82. In his examination, PW-12 stated that vide forwarding letter dated 30.09.2019 (D-18) Ex. PW12/A(colly), CBI had sent exhibits as detailed in the said letter to Director, CFSL for expert opinion and this case was allotted to him for examination and opinion. PW-12 stated that he opened the exhibits which were in sealed condition and transferred the data stored in the said exhibits to his computer. Thereafter, the common words were segregated from the said exhibits. He further stated that he conducted the auditory examination of the exhibits and also took the spectrograph of the common words which were clearly audible. After thorough examination, he gave his opinion vide his report dt. 03.07.2020 Ex.PW12/B. In his further examination, PW-12 stated that it was from the memory CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 77 of 86 card Ex. PW5/F3 (colly.) and memory card Ex.PW4/J3(colly) that he had transferred the data to the computer system of the CFSL and had then examined the data. He also identified the DVR make Sony Ex PW4/H1 to be the same DVR which was examined by him and after examination, he had sent the said DVR to CBI in a sealed yellow envelope Ex.PW12/E sealed with CFSL seal. About the memory card Ex. PW4/K3 (colly) (S-1), PW-12 stated that the comparison of Q1 and Q2 was conducted by him on the basis of the specimen voice contained in this memory card. Defence could not cull out much in the cross- examination of this witness doubting his opinion as given in the report Ex. PW12/B.
83. Thus, the prosecution through the deposition of the complainant and the independent witnesses to the trap proceedings coupled with the voice identification by the independent witness PW-11 Manish Kumar and also on the basis of expert opinion, had established that the recordings as contained in the memory card Ex. PW5/J3(colly)(Q-2) which were of the trap proceedings, contained the voice of accused Vivek Yadav. Insofar as preparation of the transcript of Q-2 is concerned, the defence again failed to discredit the testimony of the IO PW-16 DSP N. C. Nawal who had prepared the said transcript in the presence of the independent witness PW-5 Gajender Verma. Even PW-5 in his testimony had stated that the CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 78 of 86 transcription-cum-voice identification memo dt. 15.10.2019 Ex. PW5/B was prepared in respect of proceedings conducted in Tihar Jail. In this regard, he also identified the transcription of Q-1 Ex. PW5/C(colly) and transcription of Q-2 Ex. PW5/D (colly) which as per him were prepared in his presence at Tihar Jail. Once the preparation of the transcript of Q-2 stands proved, it can be reproduced herein to determine whether or not the sharing of bank details by the accused was towards receiving part of the bribe amount. Relevant portion of the said recording is being reproduced herein from its transcript titled as 'transcription of Q-2' Ex. PW5/D (colly) wherein alphabet 'A' is for accused Vivek Yadav and alphabet 'C' is for complainant Dr. Nitendra Singh.
A: Hello
C: Haan Ji Sorry Phone Nahi Utha Paya.
A: Haan Ji Bolo.
C: Ek To Meine NEFT Kara Di Aapko, Hello.
A: Nahi Aaya Message Kuch Bhi.
C: Aa Jayega Message Mere Ko Confirm Kar
Dena Aur Baaki Mein Aaa Raha Hoon
Mere Ko Aane Mein Ho Sakta Hain Saade
Paach -Chhe Baj Jaye.
A: Nahi Aaya Sir Kuch Bhi Nahi Aaya.
C: Check Kar Lo Ek Baar Apna Online Check
Kar Lo Kai Baar Message Late Aata Hai.
A: Abhi Tak Kuch Nahi Aaya Hai.
CC no.04/19 (CIS no.426/19)
CBI vs. Vivek Yadav Page no. 79 of 86
C: Abhi Tak Kuch Nahi Aaya Bhai Bank Ki
Meine Stamp Lagi Hui Slip Tak Aapko
Bhej Di Ab Aap Jano Aapki Bank Jane Bas
Usse Jayda Kar Sakta Hoon.
A: 10,148.
C: Haan Jo Aa Jayega NEFT Kai Baar Aisa Ho
Jata Hai.
A: To Usko Kya Amount Dena Hai Ye Batao.
C: Ab Tak To Kuch Nahi.
A: Hard Cash
C: Hard Cash Kam Hai.
A: Kitna Hai.
C: 40 Hai ab Kya Karoo Jo Hai Wo Aapke
Samne Hai.
A: Phir Denge Kab Usko.
C: 2-3 Deen Lag Jayenge Please.
A: 2-3 Deen Denge Kitne.
C: Monday Tuesday Ko De Doonga Pacca Aur
Baaki Jo Hai Yadi Kal Aa Gya Na To
Mein Kal Transfer Kar Doonga.
A: Transfer Mat Karo Sir Mujhe Dikkat Hogi
Mere Account Mein.
C: Mein Kaha Se Matlap Pehle Bank Jao Phir
Waha Se Nikalo Phir Mein Idhar Aao
Isse Badiya Transfer Kar Do Baat Khatam
Ho Gayi Aap Apne Nikalte Rehna Aur Dete
Rehnna Mera Aana Jana Bach Jayega Na
Yeh Bhi To Samjho Kudh Ko Bhe Payas
Lagi Hai Aur Mere Ko Bhi Payas Lagi Hai.
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CBI vs. Vivek Yadav Page no. 80 of 86
C: Mein Yehe Bol Raha Tha 40 Aur Wo Kya
Bolte Hei Kal Aur Daal Doonga Aur Aage
Wo De Dena Par Ek Meri Cheez Karni Hai
Wo Jaroor Karwa Dena Madam Ne Meri Ek
Baat Nahi Sunni Thi Jis Deen Mere Ko
Bulaya Tha Yaad Hai Meine Aapko Bataya
Tha Nikhil Aur Pallavi Dono Bethe Huye
The Madam Ne Pucha Mere Se Kaya Matter
Hai Meine Kaha Matter Ye Nahi Ye Hai
Unhone Gulshan Ko Ya Bola Jao Yaha
Se Leke Jao Dekho Apni Karyawahi Karo
Yaar atleast Meri Baat To Suun Lete Ek
Time Meri Baat.
A: Usi Time Matlab Samajh Jaate.
C: Kaya Matlab Samajh Jaata Haan Theek Hai
Aap Mein Us Cheez Ke Liye Nahi Bol
Raha Lekeen Kam Se Kam Ek Baar Baat To
Sunni Chahiye Thi.
A: Wo Baat Bhi Sunti Bethti Bhi Aab Wahi
Baat Hai Ab.
C: Mujhe Ab Yeh Pahuchane Ke Baat Meri Ko
Varsha Sharma Se Baat Karni Hai Ke.........
A: Bulayenge Payment Pahuchao Sab Kuch Hoyga Kaha Rehe Gaye Paani To Mil Hi Jata Kaha Reh Gaye Sir Bahar Kaha Gaadi Mein Hai..... Hai Theek Hai Chaiye Tha Peene Ka ... Meine Usko 3 Lakh Kaha Tha.
C: Kal Bol Diya Tha Nahi Hoga Yaar Baat Ko Samjho.
84. As can be seen from the transcript Ex. PW5/D(colly) of the recorded conversation as it took place between the CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 81 of 86 complainant and accused in the complainant's car on the day of trap, there are two limbs to it. In the first of the limb, the conversation is centered around the accused enquiring from the complainant of the amount having yet not been received in his account. Having been given assurance by the complainant that he had effected the transfer and had also sent a proof thereof to him on whatsapp, that the conversation now changes to the issue relevant to the present case when the accused asks the complainant "to usko kya amount dena hai ye batao". It is in this conversation that the accused now utters the words "hard cash"
and "transfer mat karo sir mujhe dikkat hogi mere account mein". Had the intention of the accused been to accept part of the bribe amount in his account, he would not have uttered the words as above noted, in his conversation with the complainant. Thus, this aspect of the recorded conversation coupled with the fact that there were financial dealings between the complainant and accused and that on couple of occasions, accused had earlier shared his bank account details with the complainant through whatsapp messages, there is absolutely no convincing evidence on record except the oral account of the complainant which stands doubted by the complainant himself, that I have no hesitation to hold that the prosecution has failed to connect the transfer of Rs. 1 lac in the account of accused, which evidently failed due to insufficiency of funds in the account of complainant, with the demand of bribe of Rs. 3 lacs by the CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 82 of 86 accused. Prosecution, thus, fails in establishing that by so sharing his bank account details through a whatsapp message on the mobile of the complainant, that the accused attempted to obtain bribe money from the complainant. This answers the second point for determination against the prosecution and in favour of the accused.
85. Last of the point for determination is whether the accused in the manner as detailed in the other points for determination, committed offence punishable u/s 7A of the Prevention of Corruption Act, 1988.
86. As already noted, though the prosecution succeeded in establishing that the accused did make a demand of Rs. 3 lacs from the complainant in respect of settlement of his EOW case, however, it failed in establishing that towards his demand so made, the accused attempted to obtain part of the demanded bribe amount in his bank account. In having so failed, the prosecution was to establish that the accused has otherwise accepted or obtained the demanded bribe money. Though, it is an admitted fact that on the day of trap when the accused came to the spot and sat in the complainant's car, the tainted bribe money of Rs. 40,000/- which was kept with the complainant by CBI trap team, was not exchanged with the accused, still I may here refer to the relevant part of the complainant's deposition.
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87. PW-9 Dr. Nitendra Singh while deposing on the point of his visiting the CBI office on the day of trap, of having arranged cash amount of Rs. 40,000/- in the form of 20 GC notes each of Rs. 2000/- denomination, of the giving of demonstration of reaction of phenolphthalein powder as smeared on the said currency notes with the sodium carbonate solution, stated that the treated bribe amount was then kept in his pocket and he was instructed not to touch the same. He further stated that he was again given the DVR to record the likely conversation and thereafter they proceeded towards the location sent by the accused which was finally settled as that of Police Station, Sector-15, Dwarka. He further stated that they had reached the spot in three vehicles and he was told by CBI officials to give a signal by switching on the parking light of his car on completion of the transaction of bribe. PW-9 further stated that accused came and sat in his car where they had some conversation. In the said conversation, accused had asked how much money he had brought, to which he replied Rs. 40,000/-. Before the delivery of the bribe amount, accused got busy in some telephonic conversation with someone and during that time, he had asked the accused to bring a water bottle and rajnigandha for him from the person to whom the accused was talking over phone. He further stated that the other person with whom the accused was talking, had again called asking for location and it was at that time, that the accused switched on the parking light of the car.
CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 84 of 86 PW-9 further stated that there was no delivery of bribe amount and the CBI team came and arrested the accused under the belief that the transaction of bribe amount had taken place as the pre- determined signal of switching on the parking light of the car was given. He was also enquired by the CBI whether the bribe amount was delivered to accused and in reply, he told that the amount could not be delivered. On asking of CBI officials as to why the parking light of the car was then switched on, he told them that it was switched on by accused himself. The other witnesses to the trap also deposed on the lines of the deposition of complainant PW-9 that the tainted bribe amount of Rs. 40,000/- could not be exchanged. Once there is no exchange, the prosecution fails to establish that the accused accepted or obtained the tainted bribe amount from the complainant which is an essential ingredient of the provision of Section 7A of the PC Act. Resultantly, the point for determination is answered against the prosecution and in favour of the accused.
CONCLUSION
88. In view of the findings given on the points for determination, it is held that the prosecution has failed to establish the charge of the commission of offence punishable u/s 7A of the PC Act against accused Vivek Yadav and he is accordingly acquitted of the said offence.
CC no.04/19 (CIS no.426/19) CBI vs. Vivek Yadav Page no. 85 of 86 Bonds/surety bonds under section 437A CrPC stands already furnished and accepted. Same shall remain in force for a period of six months.
SATISH Digitally by SATISH signed KUMAR ARORA KUMAR Date:
ARORA 2023.08.28 14:45:04 +0530 Announced in the open Court (SATISH KUMAR ARORA) on 26th August, 2023 Special Judge-05, (PC Act), CBI, Rouse Avenue District Court Complex, New Delhi.
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