Delhi District Court
2 vs . on 1 February, 2023
1
In the Court of Dig Vinay Singh: Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, Delhi
In re:
CC No. 137/19
CNR No. DLCT110006062019
FIR No. 99/17
U/S. 8/13(1)(d)/13(2) of POC Act 1988
and Sec. 120B/170/420 IPC
PS IP Estate
State
Vs.
1) Joemol Royise
W/o Sh. Jojo Mathew
R/o Govt. Quarter No. 333,
Type-II, Mirdard Lane,
MAMC Campus, Delhi-02
2) Jojo Mathew
S/o Sh. P. G. Mathew
R/o Govt. Quarter No. 333,
Type-II, Mirdard Lane,
MAMC Campus, Delhi-02
Date of institution : 30.07.2017
Date of arguments : 09.01.2023
Date of judgment : 01.02.2023
JUDGMENT
1. The above named two accused faced trial in the present matter for the above -
mentioned offences. Brief facts of the case are that upon an undated complaint of Ms. Shinimol P. George, the present FIR was registered on 25.04.2017 U/s 420/120B of IPC only.
1.1. The allegations set out in the complaint are that on 23.07.2015 the complainant along with her husband Mr. Jobin went to Delhi Nursing Council situated at CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 1 of 39; (r) 2Maulana Azad Medical College (MAMC) for registration of Nursing Degree of the complainant. There they met A2 Jojo Mathew, who introduced himself as a Government employee from LNJP Hospital, Delhi. Since both the sides belonged to State of Kerala, and A2 claimed good knowledge about the native place of husband of the complainant, both the sides entered into conversation. Complainant claims that A2 convinced her and her husband that A2 had very good relations and influence in Delhi Government, being a Government employee and he also told that his wife A1 Joemol Royise was working in the Radiology Department of LNJP Hospital and that A1 also had very good relations in the Administrative Wing of LNJP Hospital. On that very day, A2 invited the complainant and her husband to his residential quarter no. 333, Type-II, MAMC Campus, Mirdard Lane, New Delhi. The complainant and her husband went there and met A1 as well. Two daughters of the two accused were also present in the house. Both the sides had lunch and discussed future plans.
1.2. When the complainant told the accused persons that she intended to go to abroad for nursing job, both the accused convinced the complainant and her husband that a job can be secured for the complainant in Delhi in LNJP Hospital as a Staff Nurse on Adhoc basis, by using the influence of A2 and for the said purpose the complainant would have to give some 'security amount'. The complainant claimed that in that regard A1 convinced her whereas A2 convinced her husband. The accused persons insisted that security amount required to be deposited in LNJP Hospital for the said job would be Rs. 1.5 Lakhs and that the complainant must pay that amount at the earliest. Complainant claims that she and her husband were thus allured by the accused persons. A sum of Rs. 1.2 Lakhs were arranged by the complainant by mortgaging certain ornaments with Mannapuram Finance Limited and by borrowing from father of the complainant. The said amount was handed over to A2 in presence of A1 and at that time A1 was in her official uniform. Complainant claims that she and her husband were influenced because CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 2 of 39; (r) 3A1 was in her uniform and both the accused were residing in a government quarter and therefore, they had no idea about they getting cheated. At the time of receiving Rs. 1.2 Lakhs, both the accused assured the complainant and her husband that there was no problem in giving money and they also further demanded remaining Rs. 30,000/- at the earliest for securing job for the complainant. The complainant again mortgaged some ornaments with the said finance company and arranged Rs. 30,000/-. The said amount of Rs. 30,000/- was also handed over to A2 in presence of A1 in August 2015. Thereafter, for a substantial period no job could be secured for the complainant. During this time, the complainant was in regular touch with A1 through mobile phone and certain calls were also recorded in the mobile phone of the complainant, during which allegedly A1 assured that the complainant would get the job soon. Yet no job was secured for the complainant and during a visit by the complainant to the house of the accused persons, they met A1 who assured that the issue of the complainant would be cleared at the earliest. A2 however could not be found. On that day, when complainant and her husband were returning, they met one lady from Kerala who allegedly alerted the complainant and her husband about criminal past of A2 and that A2 was never in any government service.
1.3. Thereafter, the complainant gave the complaint around One and Half years after the alleged incident of cheating. Complainant claimed that not only she paid Rs. 1.5 Lakhs to the accused persons, but she also incurred an amount of Rs. 50,000/- as interest from the finance company for availing the gold loan.
1.4. During investigation the complainant furnished a pen drive containing copies of the audio conversations between her and the accused persons. During further investigation, Sec. 13(1)(d) & Sec. 8 of the POC Act, 1988, as existed at the time of offence of this case, were added, pursuant to directions passed by Sessions Court at the time of hearing of anticipatory bail application of A2.
1.5. The documents pertaining to taking of gold loan by the complainant, partially on CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 3 of 39; (r) 423.07.2015 and partially on 19.08.2015, were obtained, as also the statement of bank account. It revealed that a sum of Rs. 73,140/- were taken as loan by the husband of the complainant from Mannapuram Finance Limited on 23.07.2015; a sum of Rs. 45,000/- were withdrawn from the account of father-in-law of the complainant on 24.07.2015 and; later on complainant further obtained a sum of Rs. 28,100/- as loan from the same finance company on 19.08.2015.
1.6. During investigation, the mobile phone of the complainant containing audio recordings and also 14 CDs containing two sets of copies of audio recordings were also seized. The same were sent to the FSL. The complainant also furnished transcript of the conversation in English language as the conversation was in Malayalam language. A1 was found to be working in Radiology Department of LNJP Hospital and the above- mentioned government quarter was allotted to her. A1 was therefore a public servant at the time of commission of offence, whereas, A2 was not a public servant. During investigation, both the accused refused to give their voice samples for comparison with the questioned audio recordings. A2 was arrested and was put under police custody for one day, during which nothing could be recovered. A1 was granted anticipatory bail. Past record of A2 showing his involvement in seven criminal cases and one externment proceedings, was collected. In one of the FIR no. 228/2016 of PS I. P. Estate, both the accused were named. It may be mentioned here that most of the FIRs against A2 pertained to the same police station i.e. PS I. P. Estate where the present case was registered and all the cases against him are of cheating and impersonation except in one of the FIR, rape allegations are also there.
1.7. Initially, the charge sheet was filed against both the accused persons U/s 120B/420 of IPC & Sec. 13(1)(d) of the POC Act. Against A2, Sec. 8 of the POC Act was also invoked. After obtaining the FSL result as to the audio recordings contained in the mobile phone and the CDs dated 30.11.2017, supplementary charge sheet was filed. Sanction U/s 19 of the POC Act qua A1 was obtained from the CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 4 of 39; (r) 5competent authority and was filed along with the initial charge sheet.
2. On finding prima facie sufficient material against both the accused, a charge U/s 120B, 420 of IPC was framed against both the accused. A1 being public servant was also charged for offence U/s 13(1)(d) / 13(2) of POC Act, 1988 r/w Sec. 120B of IPC. Against A2, besides the above- mentioned charge, a charge U/s 8 of the POC Act, 1988 r/w Sec. 120B of IPC was also framed. Subsequently, against A2 additional charge for offence U/s 170 of IPC was also framed. Both the accused pleaded not guilty to the charges framed against them and claimed trial.
3. In support of its case, prosecution examined total 21 witnesses, whereas one Court Witness was also examined qua preparation and proving of translated transcript in English language from Malayalam language. Out of the 21 prosecution witnesses, the complainant Ms. Shinimol is examined as PW4, whereas her husband Mr. Jobin Jos has been examined as PW19. Both of them supported the case of prosecution. Their testimonies shall be discussed hereinafter at appropriate stage in order to avoid repetition. The remaining prosecution witnesses are more or less formal in nature.
3.1. PW1 Sh. Laxmi Raj Singh proved the appointment letter of A1 as Ex. PW1/B;
Bio data of A1 as Ex. PW1/C and; the allotment letter of the quarter to A1 as Ex. PW1/D, which were supplied to the investigating agency through forwarding letter Ex. PW1/A. He also proved a letter Ex. PW1/F informing the investigating agency that LNJP Hospital neither fills nor publishes any advertisement for filling up any ad-hoc or permanent Staff Nurse posts, and the said recruitment is done only by Department of Health & Family Welfare, GNCT, Delhi.
3.2. PW2 Dr. J. C. Passey, the Medical Director of LNJP Hospital proved Sanction U/s 19 of POC Act and Sec. 197 of Cr.P.C Ex. PW2/A against A1. In his cross examination, PW2 admitted that the competent authority to post nurses in the hospital of Delhi Government was Department of Family & Health Welfare and he also admitted that A1 was appointed as a Staff Nurse on the nomination of CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 5 of 39; (r) 6PHC / Joint Secretary (M), Technical Recruitment Cell, GNCT, Delhi and A1 was appointed by the Director, Administration. PW2 even admitted that he did not verify before according Sanction as to who was the relevant authority who appointed A1 as a Staff Nurse. When PW2 was questioned as to the rule under which he claims to be competent authority to remove A1, PW2 claimed that he will have to find it out from his office.
3.3. PW3 Surender Kumar, the Nodal officer from M/s Bharti Airtel proved the Customer Application Form (CAF) and the Call Detail Records (CDR) for the period 15.05.2017 to 25.05.2017 for the mobile phone no. 9717757800 belonging to A2 as Ex. PW3/A and Ex. PW3/C, along with the certificate U/s 65B of the Evidence Act Ex. PW3/D. It may be mentioned here that during the period for which call details were sought, there was no call made or received.
3.4. PW5 Ajit Singh from M/s Idea Cellular Limited proved the CAF & CDR for the period 20.09.2016 to 05.03.2017 for the mobile phone no. 8750876153 belonging to A2 as Ex. PW5/C & Ex. PW5/K1. PW5 also proved the CAF & CDR for the mobile phone no. 7836803856 belonging to A1 as Ex. PW5/A & Ex. PW5/J. PW5 also proved the CAF & CDR for the mobile phone no. 7503344229 belonging to the complainant as Ex. PW5/E & Ex. PW5/L. PW5 also proved the CAF & CDR for the mobile phone no. 9911724534 belonging to husband of the complainant as Ex. PW5/H & Ex. PW5/K. The witness also proved the certificates U/s 65B of Evidence Act qua the CDRs of the above mentioned four phone numbers as Ex. PW5/M & Ex. PW5/N. Ex.PW5/M relates to mobile phone no. 7503344229 pertaining to the complainant, whereas Ex. PW5/N relates to the remaining three mobile phones. The accused persons did not cross examine this witness despite opportunity.
3.5. PW6 Dr. Daisy Thomas supplied the details of registration of the complainant with Delhi Nursing Council, located at LNJP Hospital Complex dated 22.09.2009 to the investigating agency and a copy of that Registration Certificate is proved CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 6 of 39; (r) 7as Ex. PW4/F. Even this witness was not cross examined by the accused despite opportunity.
3.6. PW7 Mohit Kumar from Mannapuram Finance Limited, Mayur Vihar, Delhi proved the documents pertaining to pledge dated 23.07.2015 & 19.08.2015 as Ex. PW7/A1 to A3 & B1 to B3, respectively. Which reveals that a sum of Rs. 73,140/- (Seventy-Three Thousand One Hundred Forty) and Rs. 28,100/- (Twenty-Eight Thousand One Hundred) were respectively released to husband of complainant on the above mentioned two dates. Even this witness was not cross examined by the accused despite opportunity.
3.7. PW8 H. K. Sahu from Corporation Bank, Vasundhara Branch proved the statement of account for the period 10.07.2015 to 31.07.2015 for the bank account in the name of husband of the complainant as Ex. PW8/C, which reflects that a sum of Rs. 45,000/- was withdrawn on 24.07.2015. Even this witness was not cross examined by the accused despite opportunity.
3.8. PW9 K. K. Vashisht supplied employment details of A1 to the investigating agency as also the documents pertaining to allotment of quarter to A1, as proved by PW1.
3.9. PW10 HC Rajesh Kumar, the duty officer, proved registration of FIR of the present case and endorsement on rukka as Ex. PW10/A & B. He also proved certificate U/s 65B of the Evidence Act qua registration of FIR as Ex. PW10/C. 3.10. PW11 Ct. Amit Kumar is a witness to the arrest of A2 on 01.06.2017 vide arrest memo Ex. PW11/A. He also deposed that A2 was taken on one- day police custody on 05.06.2017, but during it, nothing could be recovered.
3.11. PW12 HC Ranvijay is a witness to seizure of documents and a pen drive supplied to the IO SI Manoj (PW20) by the complainant on 28.04.2017 vide seizure memo Ex. PW4/B. He proved those documents as Ex. PW4/C to Ex. PW4/F and the pen drive as Ex. PW12/Article 1. This witness also is a witness to seizure of transcript CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 7 of 39; (r) 8of voice recording Ex. PW4/G & H supplied by the complainant to the IO on 14.06.2017 vide seizure memo Ex. PW4/I. This witness also is a witness to seizure of mobile phone and 14 CDs Ex. PW12/Article 2 to Article 11, supplied by the complainant to the IO on 13.07.2017 vide seizure memo Ex. PW4/J & K. He deposed that the IO ACP Amit Kaushik (PW21) had sealed the articles vide seal of MK before seizing them. Even this witness was not cross examined by the accused despite opportunity.
3.12. PW13 Manoharan Thenayi deposed that on 26.06.2017 on being called by the IO he went and heard conversations which were played before him by the IO and after hearing the audio conversations and after going through the transcripts furnished by the complainant, which was in English as well as in Malayalam, he found the transcript to be matching with the conversation and they were correct. He proved the transcript in Malayalam as Ex. PW4/G and the transcript in English as Ex. PW4/H. In his cross examination, the witness admitted that he heard the conversation contained in CD and not from the original recording contained in the phone.
3.13. PW14 ASI Ravinder deposed that on 13.07.2017 investigating officer PW21 deposited duly sealed case property in the malkhana vide entry in Register no. 19 at Serial no. 2232. He also deposed that the case property was sent to the FSL vide entry Ex. PW14/A through road certificate Ex. PW14/B and acknowledgment Ex. PW14/C. The exhibits PW14/A to C reveals that the CDs and mobile phones were sent to FSL on 26.07.2017 and the FSL result and case property was received back from FSL on 17.01.2018 and the case property earlier was deposited in the malkhana on 13.07.2017. Even this witness was not cross examined despite opportunity.
3.14. PW15 Manoj Kumar, the Assistant Ahlmad from the Court of concerned Magistrate proved Order dated 18.07.2017 Ex. PW15/A, vide which both the accused persons had refused to supply their sample voice, pursuant to application CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 8 of 39; (r) 9of the IO Ex. PW15/B. 3.15. PW16 Vivek Kumar from FSL deposed that he had forensically examined the mobile phone of the complainant and one set of 7 CDs containing copy of the audio recording, as received from the investigating agency and he also deposed that he had copied the data from the mobile phone and the CDs, respectively in one pen drive with two different folders named "data of MP1" and "data of CD1 to data of CD7". Thereafter, the mobile phone, the CDs and the pen drive were sealed and sent to Physics Division of FSL. In this regard, he proved his report Ex. PW16/A with Certificate U/s 65B of the Indian Evidence Act Ex. PW16/B. He also identified the mobile phone in the Court as Ex. P12 and the CDs as Ex. P12/A4 to A10. Even this witness was not cross examined by the accused despite opportunity.
3.16. PW17 Dr. C. P. Singh, FSL expert in Physics Division of FSL upon receiving the sealed parcel from the Computer Forensic Unit of FSL, conducted analysis and did not find any indication of any form of alteration in the audio recordings as contained in the pen drive supplied by the FSL. In this regard, he proved his report Ex. PW17/A. In his cross examination by the accused, the witness claimed that he had personally heard the audio data contained in the pen drive and that he can carry out the continuity test of the audio data irrespective of the language in which the conversation is contained in the data. The witness denied the suggestion that since he did not understand the Malayalam language, therefore, it was not possible for him to have analysed the data.
3.17. PW18 W/Ct. Mamta is a witness to disclosure statement of A1, which is not admissible as there was no discovery of fact pursuant to the disclosure.
3.18. PW20 SI Manoj Kumar deposed that on 25.04.2017 on the complaint of PW4 which was already assigned to him, he made an endorsement Ex. PW20/A and got the present FIR registered and took up the further investigation of the matter. On 28.04.2017 complainant came to the police post located at LNJP hospital CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 9 of 39; (r) 10along with her husband and she produced certain documents viz., statement of bank account; loan pledge account; certificate of registration and; one pen drive, which were seized by him vide seizure memo Ex. PW4/B. Thereafter on 08.05.2017 upon invocation of the provisions of POC Act, further investigation was transferred to PW21 who was ACP, Kamla Market at the relevant time. Even after the investigation being undertaken by the ACP, this witness continued to assist in the investigation. On 26.07.2017, he collected the parcels containing the mobile phone and CD from the malkhana and deposited the same in the FSL, Rohini vide RC no. 99/21/17. The witness also identified the pen drive seized by him during investigation under seizure memo Ex. PW4/B as Ex. PW12/Article1.
3.19. PW21 Amit Kaushik undertook further investigation of the case from 08.05.2017 onwards. He too deposed that A1 was formally arrested on 27.05.2017 vide arrest memo Ex. PW21/A after she secured anticipatory bail. Subsequently, A2 was arrested on 01.06.2017 vide arrest memo Ex. PW11/A and his one- day police custody was obtained in which nothing could be recovered. On 14.06.2017 the complainant supplied some documents viz., transcript of the audio conversation in Malayalam and English language Ex. PW4/G & H which were taken into possession vide seizure memo Ex. PW4/I. On 26.06.2017 Mr. Manoharan (PW13) listened to the audio recordings and also perused the transcripts supplied by the complainant and after hearing the conversation and perusing the transcript he authenticated the same to be correct. On 13.07.2017, complainant produced her mobile phone and 14 CDs which were taken into possession after sealing them. 7 CDs out of the 14 were kept in open condition for investigation, whereas the remaining set of 7 CD and the mobile phone were sealed. It was taken into possession vide seizure memos Ex. PW4/J & K. On 26.07.2017 the sealed mobile phone and 7 CDs were sent to the FSL through SI Manoj (PW20). During investigation, the witness also filed application seeking directions from the Court to the accused for voice samples but both the accused CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 10 of 39; (r) 11refused to supply their voice samples vide order Ex. PW15/A. In July, 2017 through PW20 documents were got collected from Mannapuram Finance Ltd. and the details of the mobile phones of the complainant and the accused side were also obtained and thereafter Sanction was obtained against A1 and then charge sheet was filed.
3.20. The Court Witness CW1 Mr. M. Baiju was summoned by the Court vide order dated 29.02.2020 as it was pointed out during evidence that the investigating agency did not get the transcripts prepared from any independent person, particularly when the conversation is in Malayalam language and the transcripts were supplied by none other than the complainant only. Accordingly, Mr. M. Baiju who at that time was working as Director in All India Radio was requested to hear the audio conversation contained in the pen drive prepared at FSL which contained the data of the audio recording copied from the phone by the FSL and to prepare transcript in English language. Mr. M. Baiju did so on 03.03.2020 in an adjoining vacant Court Room and he prepared the transcript after hearing the conversation and supplied the transcript to the Court on that very day. As CW1 Mr. M. Baiju proved those transcripts running into seven leaves of pages as Ex.CW1/A to 1/G. Neither the prosecution nor either of the two accused cross examined the Court Witness.
4. On completion of Prosecution's evidence, all the incriminating evidence was put to the two accused in their statements recorded under section 313 Cr. P.C. 4.1. A1 claimed that she has been implicated falsely in the case and claimed that she never spoke to the complainant on phone or otherwise and the recordings are fabricated one. She also claimed that the transcripts supplied by the complainant were incorrect and were based on manipulated, fabricated, edited and altered recordings. Even the mobile phone of the complainant is claimed to be tampered. She even denied the existence of her voice in the recording as identified by the complainant in the Court. Sanction U/s 19 of the POC Act is claimed to be by an CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 11 of 39; (r) 12incompetent person that too without application of mind. It is also claimed that PW13 Manoharan did not hear the original audio recording in the phone and therefore it was of no evidentiary value. Regarding denial of the supply of sample voice, A1 claimed that she was not afforded an opportunity to consult a lawyer of her choice and since she suspected that her sample voice would be misused, therefore she denied to supply it. As to the transcripts prepared by the Court Witness, it is claimed that he could not have identified the conversations of the speakers contained in the CDs as that of A1 or A2 or the complainant. The prosecution witnesses were claimed to be interested and false witnesses and it is claimed that they deposed falsely at the instance of PW20 SI Manoj and members of Malayali Association who were inimical to A2. As to the testimony of PW17 Dr. C. P. Singh, it is claimed that he did not rule out that the audio conversations contained in the mobile phone were free from alteration / deletion or that the mobile phone was not tampered with. The other incriminating evidence is generally denied by A1 claiming it to be false. A1 did not opt to lead any evidence in her defense.
4.2. Similarly, A2 also generally denied the evidence against him and claimed that he never spoke to the complainant and the recordings are false and fabricated. He claimed that in fact PW4 & 19 deliberately withheld the recordings between PW19 and this accused. Recordings as well as transcripts are claimed to be fabricated and manipulated as well as altered and edited. A2 also claimed that PW13 could not have identified the accused persons or the complainant side after hearing the copy of recordings and he did not hear the recordings from the original mobile instruments. Even A2 claimed that he refused to supply his voice sample suspecting that it can be misused by the IO and that he was not provided with assistance of a lawyer of his choice at that time. A2 also claimed that the Court Witness could not have identified the conversation of the speakers in the CDs as to be that of the two accused or the complainant. As to the testimony of PW17 Dr. CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 12 of 39; (r) 13C. P. Singh, it is claimed that he did not rule out that the audio conversation contained in the mobile phone were free from alteration / deletion or that the mobile phone was not tampered with. False implication is claimed by A2 also on the same ground as is claimed by A1. Even A2 did not lead any evidence in his defense.
5. On behalf of accused, it is argued that the story claimed by the complainant and her husband is false which is evident from the fact of delay in filing of complaint; inconsistencies and contradictions in the testimonies of the complainant and her husband as to the dates on which payments were made, the amount paid etc.; no payment receipt or proof of payment has been furnished; it is highly unnatural that payments were made without any documentary proof obtained from the accused; no money has been recovered and the diary which the complainant claims to have maintained was withheld from the Court. It is also argued that assuming for the sake of arguments that the claim of the complainant as to payment of money to A2 was true, it does not establish conspiracy; money was not demanded or paid to A1; ingredients of Sec. 8 & Sec. 13(1)(d) of the POC Act are not attracted; Sanction against A1 is from an incompetent person; invoking of POC Act by the investigating agency at the behest of the Court hearing bail application caused prejudice to the accused and that the alleged audio recordings have not been proved in accordance with law.
6. On the other hand, Ld. Prosecutor for the State argues that the case of prosecution has been proved beyond reasonable doubt against both the accused qua all the offences for which they have been charged. Both the sides also took the Court through the relevant portions of the evidence of concerning witnesses in this regard.
7. At this stage it becomes necessary to briefly mention the evidence of the complainant and her husband who were examined as PW4 & PW19, respectively, before appreciating the contentions of both the sides.
CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 13 of 39; (r) 147.1. The complainant as PW4 deposed that on 23.07.2015 she along with PW19 went to Delhi Nursing Council situated at MAMC College for registration of her Nursing Degree where they met A2 who introduced himself as belonging to Kerala near the native place of PW19 and he also introduced himself to be a Government employee of LNJP Hospital. A2 won trust of PW4 & 19 and also told that his wife (A1) was also an employee of LNJP Hospital and it was A2 who claimed at that time that both he and his wife have good relations with the officials and administration people of LNJP Hospital. Upon being invited, PW4 & PW19 went to the house of accused where A1 was present. Over lunch they chatted, during which PW4 expressed her desire to go abroad for job. PW4 claimed that she was talking to A1 whereas her husband PW19 was talking to A2 at that time. It was then that the accused (without specifying which one of the two accused persons) told PW4 & 19 that because of her small child, it would be better for her to not go abroad. It was thereafter both the accused told PW4 & 19 that they were having good relations with the Administration of LNJP Hospital and that they can arrange a good government job for PW4 as a Staff Nurse in the Hospital on adhoc basis for which PW4 and 19 will have to pay security amount of Rs. 1.5 Lakhs. It is also deposed that both the accused convinced PW4 & 19 that as soon as the money is arranged, the job would also be arranged. PW4 & 19 got convinced and then amount was paid to the accused, i.e. Rs. 1.2 Lakh (One Lakh Twenty Thousand) on 24.07.2015 and Rs. 30,000/- subsequently. Initially, PW4 deposed that Rs. 1.2 Lakh was paid on 24.08.2015, but in the leading question by the prosecution, she admitted the correct date to be 24.07.2015. The date of making second payment of Rs. 30,000/- is not forthcoming in the evidence of PW4. PW4 specifically deposed that both the payments were handed over to A2, but claimed that it was done in presence of A1 who was present there on both the occasions and she was in uniform at that time, at their residence. PW4 also deposed that after receiving the amount, both the accused assured her that her job would be done soon and that she need not worry. When she did not get any job and she CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 14 of 39; (r) 15communicated with the accused, A1 even told PW4 that due to some administrative difficulty in the administration, the job could not be arranged. When PW4 demanded her money back repeatedly, the accused avoided and no money was returned. Thereafter, one day some unknown lady informed the criminal background of A2, particularly as to cases of cheating and then the complaint was made Ex. PW4/A. The complainant also recorded her mobile telephonic conversation with the accused persons during the month of February, 2017 i.e. prior to the making of complaint and she gave the copy of recordings in pen drive / in CDs / the mobile phone and the transcript to the investigating officer during investigation. PW4 claimed that she had prepared the transcript of the recordings initially in Malayalam language Ex. PW4/G and thereafter in English language Ex. PW4/H, which were then given to the police, as also certificate U/s 65B of Evidence Act in support of the CDs Ex. PW4/L. During her evidence, the recordings contained in the mobile phone of the complainant were played in the Court which was found to be containing following calls, which were heard by the complainant and she also identified the voice contained in those recordings as that of the two accused persons and herself.
7.2. The relevant part of testimony of PW4 in this regard is as follows, which would elaborate the date, time of the calls and the mobile numbers.
"call dated 11.02.2017, at 07:24 made to mobile no. 7836803856, duration 00:01:51, file size 362.8 kB.
call dated 12.02.2017, at 08:45 made to mobile no. 7836803856, duration 00:01:11, file size 236.1 kB.
call dated 16.02.2017, at 07:23 made to mobile no. 7836803856, duration 00:01:31, file size 299.4 kB.
call dated 16.02.2017, at 07:25 made to mobile no. 7836803856, duration 00:03:33, file size 694.0 kB.
call dated 17.02.2017, at 10:53 made to mobile no. 7836803856, duration 00:00:47, file size 156.2 kB.
call dated 17.02.2017, at 10:54 made to mobile no. 7836803856, duration 00:00:47, file size 157.8 kB.
call dated 17.02.2017, at 10:59 made to mobile no. 7836803856, duration 00:01:52, file size 366.8 kB.
call dated 18.02.2017, at 10:52 made to mobile no. 7836803856, duration 00:00:10, file size 38.6 kB.
CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 15 of 39; (r) 16
call dated 18.02.2017, at 10:53 made to mobile no. 7836803856, duration 00:03:02, file size 593.4 kB.
call dated 21.02.2017, at 17:28 made to mobile no. 7836803856, duration 00:04:47, file size 931.4 kB.
call dated 22.02.2017, at 12:02 made to mobile no. 7836803856, duration 00:00:36, file size 120.7 kB.
call dated 22.02.2017, at 12:17 made to mobile no. 7836803856, duration 00:07:57, file size 1.5 MB.
call dated 25.02.2017, at 08:51 made to mobile no. 7836803856, duration 00:06:03, file size 1.2 MB.
The witness submits that these calls were recorded and were copied in the pen drive and CDs also, except the call made on 21.02.2017. (Court Observation: It is noticed that in the phone of the witness there are two more calls with the same mobile no. 7836803856, dated 02.03.2017. One call is at 10:59 for duration 00:02:53 file size is 562.1 kB, and another call at 11:14, duration 00:01:50 and file size 362.1kB.) The calls were played and were heard by the witness. The witness submits that in call dated 11.02.2017, at 07:24 made to mobile no. 7836803856, duration 00:01:51, file size 362.8 kB, she spoke to accused Joemol and then accused Jojo in this call and she identified her voice and the voice of two accused.
In call dated 12.02.2017, at 08:45 made to mobile no. 7836803856, duration 00:01:11, file size 236.1 kB, she spoke to accused Jojo in this call and she identified her voice and the voice of accused Jojo.
In call dated 16.02.2017, at 07:23 made to mobile no. 7836803856, duration 00:01:31, file size 299.4 kB, she spoke to accused Joemol in this call and she identified her voice and the voice of accused Joemol.
In call dated 16.02.2017, at 07:25 made to mobile no. 7836803856, duration 00:03:33, file size 694.0 kB, she spoke to accused Joemol in this call and she identified her voice and the voice of accused Joemol.
In call dated 17.02.2017, at 10:53 made to mobile no. 7836803856, duration 00:00:47, file size 156.2 kB, only bell kept on ringing on the other side and this call was not picked from the other side.
In call dated 17.02.2017, at 10:54 made to mobile no. 7836803856, duration 00:00:47, file size 157.8 kB, only bell kept on ringing on the other side and this call was not picked from the other side.
In call dated 17.02.2017, at 10:59 made to mobile no. 7836803856, duration 00:01:52, file size 366.8 kB, she spoke to accused Joemol in this call and she identified her voice and the voice of accused Joemol.
In call dated 18.02.2017, at 10:52 made to mobile no. 7836803856, duration 00:00:10, file size 38.6 kB, the phone is switched off on the other side.
In call dated 18.02.2017, at 10:53 made to mobile no. 7836803856, duration 00:03:02, file size 593.4 kB, she spoke to accused Joemol in this call and she identified her voice and the voice of accused Joemol.
In call dated 21.02.2017, at 17:28 made to mobile no. 7836803856, duration 00:04:47, file size 931.4 kB, she spoke to accused Joemol in this call and she identified her voice and the voice of accused Joemol.
In call dated 22.02.2017, at 12:02 made to mobile no. 7836803856, duration 00:00:36, file size 120.7 kB, she spoke to accused Joemol in this call and she identified her voice and the voice of accused Joemol.
In call dated 22.02.2017, at 12:17 made to mobile no. 7836803856, CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 16 of 39; (r) 17
duration 00:07:57, file size 1.5 MB, she spoke to accused Joemol in this call and she identified her voice and the voice of accused Joemol.
In call dated 25.02.2017, at 08:51 made to mobile no. 7836803856, duration 00:06:03, file size 1.2 MB, she spoke to accused Joemol in this call and she identified her voice and the voice of accused Joemol.
(Court Observation: All the above conversations played from the mobile phone and heard by the witness are in Malayalam language.)"
7.3 Though, the accused objected to the mode and manner of playing of the audios in the testimony of PW4, claiming that PW4 was not an expert and was thus not competent to identify the voice of the accused, but that objection has to be over ruled since when a person communicates with other known person for a fairly good amount of time over a period of days, months or years, that person is the best witness to identify the voice of other.
7.4 PW19 also corroborated the testimony of PW4 and claimed that A2 introduced himself as a government employee at LNJP Hospital on 23.07.2015 and when he and his wife went to the house of A2, A1 also came there and then A2 introduced A1 as working in Radiology Department of LNJP Hospital as a nurse, and it was A2 who told that A1 had good connections with management in the hospital. He also deposed that it was both the accused who advised PW4 not to go abroad and that they assured PW4 & 19 that they would get government job arranged for PW4 at LNJP Hospital on adhoc basis and that both of the accused said that some security amount of Rs. 1.5 Lakh would be required for said adhoc job. PW19 claimed that when A1 reached her house on that day of their first visit to the house of accused, she was in nursing uniform. Thereafter, he arranged a sum of Rs. 1.2 Lakh partly by mortgaging gold ornaments and partly from his father and paid that amount of Rs. 1.2 Lakh to the accused persons on 24.07.2015 in presence of PW4. At that time also, A1 was in nursing uniform and therefore their faith and trust increased upon the accused. PW19 also deposed that the accused persons assured PW4 & 19 for the job at the earliest. Thereafter the accused persons kept on demanding remaining amount which was also arranged and in the month of CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 17 of 39; (r) 18August 2015, balance amount of Rs. 30,000/- was paid. PW19 did not specify as to which particular accused kept on demanding the remaining amount and to whom the balance amount was paid. Thereafter, the accused kept on assuring them for the job for about two years, but it was not arranged and after learning from some unknown lady about the past of A2, the complaint was filed. But only after the audio recordings were recorded by PW4 on her phone. The witness was put to cross examination by the Ld. Prosecutor after declaring him partially hostile and during his cross examination, PW19 admitted that he and his wife paid the amounts on two occasions to A2, but in presence of A1 and on both the occasions, A1 was in her uniform, because of which they developed trust. PW19 also admitted suggestion of the Prosecutor that he was in touch with A2 through his mobile numbers 8750876153 & 9717757800 before filing of the complaint, during which also A2 assured about getting the job for PW4.
8. Turning to the contentions raised by the accused, the case of prosecution cannot be thrown away merely on the ground that there is a delay in lodging of the complaint. It is explained by the complainant and her husband that after they had paid money to A2, they waited for job of A4 to be secured, but when a long time elapsed and no job could be secured and when they came to know about the past of A2, they filed the complaint. The payments to the accused were made in July and August 2015, whereas the complaint was given sometime in April 2017. Delay in filing of complaint is not always fatal to the case of prosecution and it becomes fatal when the delay is unexplained and it reflects or indicates concoction of the story or false implication.
8.1. Similarly, the argument of accused that the complaint on which FIR was registered on 25.04.2017 is undated is not a ground to doubt the case of prosecution in its entirety.
8.2. Also, the claim of accused that the story put forth by PW4 & 19 that an unknown lady told PW4 & 19 about the criminal past of A2, even though it may be little CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 18 of 39; (r) 19suspicious, but cannot be a ground to disbelieve the entire case of the prosecution. Whether or not the complainant side came to know about previous record of A2 is inconsequential and cannot affect the merits of case.
8.3. Similarly, non-recovery of the cheated amount is also not a ground to disbelieve the case as it would have even otherwise been impossible for the investigating agency to recover the amount after such a long time of the offence.
8.4. The argument that there are contradictions and inconsistencies in the evidence of prosecution as to on which dates exactly the payments were made to the accused persons is not a ground in favour of the accused. In the evidence of PW4, the complainant mentioned that Rs. 1.2 Lakh were paid on 24.07.2015. In the evidence of PW19 also, the said date is clearly mentioned. Merely because in the statements U/s 161 Cr.P.C of these two witnesses Ex. PW4/DA & Ex. PW19/D1, which were recorded after registration of FIR, the date of 30.07.2015 is mentioned as the date of payment of Rs. 1.2 Lakh, the entire testimony of these two witnesses cannot be doubted. After all, in the complaint Ex. PW4/A on which the case was registered, the date is mentioned to be 24.07.2015 on which first payment was made. PW19 clarified that the date of 30.07.2015 in his statement U/s 161 Cr.P.C has been wrongly typed. When the complaint was given after substantially long time and the evidence of the witnesses was recorded after a long gap, these small contradictions cannot affect the merits of the case. The trivial contradictions after a huge gap of time from the date of incident and the date of recording of evidence cannot be given any undue weightage and those minor contradictions have to be rejected.
9. Accused claims that the audio recordings have not been proved in this case. In this regard reliance is placed by the accused upon the case of Mahabir Prasad Verma Vs. Dr. Surinder Kaur (1982) 2 Supreme Court Cases 258, wherein it was observed that a tape recorded conversation can only be relied upon as corroborative evidence of the conversation deposed by any of the parties to the CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 19 of 39; (r) 20conversation and, in absence of evidence of any such conversation, the tape recorded conversation cannot be relied upon. In that case, in an eviction proceeding the Rent Controller arrived at a finding as to sub-letting of the premises basing it on some tape recorded conversation between the tenant and the husband of the land lady, without there being any oral evidence led by the parties to that effect. Whereas in the present case there is evidence of PW4 to prove the audio recordings.
9.1. Accused also places reliance upon the case of Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 Supreme Court Cases 143. In that case conviction of one of the appellant / convict was set aside by the Hon'ble Supreme Court observing that when the High Court had disbelieved the entire prosecution version against A1 to A4, the High Court was in error in distinguishing the case of appellant only on the additional circumstance that his voice in the recorded conversation was identified by a police officer and when the High Court had disbelieved voice identification qua other two accused, there was no reason to adopt a different yardstick qua the appellant as there was hardly any distinction in evidence with regard to voice identification of the appellant on one hand and other two accused on the other hand. In such circumstances it was held that voice identification had little value in absence of any material and, also because of other infirmities in evidence with regard to authenticity of tape recordings produced in the Court, the benefit was given to the appellant of that case.
9.2. However, in Nilesh Dinkar (supra) in paragraph no.33 following observations were also made by the Hon'ble Supreme Court as to the conditions regarding proving of recorded audio conversations, which are relevant for the present case.
"33. In Ram Singh v. Col. Ram Singh, again this Court stated some of the conditions necessary for admissibility of tape-recorded statements, as follows: (SCC p.623. Para 32) "(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 20 of 39; (r) 21
identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence- direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape- recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of the Evidence Act. (5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
9.3 In the present case, vide FSL result Ex.PW16/A dated 30.11.2017 from the mobile phone of PW4 the FSL official retrieved and copied the data in one pen drive and thereafter the pen drive was sent to the Physics Division of FSL, duly sealed. Thereafter, the FSL expert vide FSL result Ex.PW17/A dated 11.01.2018 examined the audio files contained in the pen drive and no alteration in the audio recordings were found. Also, the audio files in the mobile phone and the CDs supplied by the complainant were found to be same. The audio recordings were also clear when heard during the evidence. Thus, the requisite conditions for admissibility of the audio recordings in this case were fulfilled. The audio recordings of the conversations between the accused and PW4, though are sought to be doubted by the accused, but the same is proved by the prosecution in accordance with law and the same can be used as a corroborative piece of evidence against the accused persons. The original recordings have been proved during testimony of PW4. It was PW4 who communicated with the accused not only in those calls but also otherwise for a fairly long period, therefore she was competent and the best person to recognize and identify the voice of accused persons in those conversations. The claim of accused that those recordings were tampered and are not proved in accordance with law is all in the air and there is no substantial material shown by the accused which could justify the claim that the recordings were tampered with.
CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 21 of 39; (r) 229.4 Perusal of those recordings, transcripts of which were prepared by an independent witness and were proved by the independent witness i.e. CW1 Mr. M. Baiju does indicate that money was taken by A2 which was required to be repaid. The transcripts of the audio recordings are proved as Ex.CW1/A to 1/G. In the transcript Ex.CW1/A, regarding conversation dated 17.02.2017, A1 is telling PW4 that A2 would arrange the money to give A4 which may take one week. Similarly, in the transcript Ex.CW1/B qua the conversation dated 22.02.2017 there is clear reference by A1 that A2 would arrange the money. Similarly, the other calls would clearly corroborate the claim of PW4 & 19 that a sum of Rs. 1.5 Lakh was indeed paid to A2. The payment of money by PW4 & PW19 also gets corroborated from the fact of mortgaging of gold and loan taken and from the statements of accounts from which the money was withdrawn as proved by PW7 & 8.
9.5 It is argued that no adverse inference can be drawn against the accused as to the two accused not giving their voice samples during investigation. In this regard the accused places reliance upon the case of Somappa Hanamantappa Vs. State of Karnataka Crl. App. no. 162/1984 decided by Karnataka High Court on 12.03.1986 and K. Lal Vs. CBI 2013 (137) DRJ 669. In the case of Somappa (Supra) the conviction of an accused was set aside as the convict was denied opportunity of being represented by a pleader of his choice. In the case of K. Lal (Supra) the accused had refused to give his voice sample stating that he would consult his lawyer before giving the samples and there was no material to suggest that any legal aid was provided to the accused. Hon'ble Delhi High Court held that there cannot be any adverse inference against the accused for refusing to give voice sample.
9.6 As regarding the competence of the Court to direct the accused to give voice sample, the accused also places reliance upon the cases of Rakesh Bisht Vs. Central Bureau of Investigation ILR (2007) I Delhi 223 and Ritesh Sinha Vs. CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 22 of 39; (r) 23State of Uttar Pradesh & Another (2019) 8 Supreme Court Cases 1. In the case of Ritesh Sinha (Supra) a three Judge bench of the Hon'ble Supreme Court specifically observed that a Judicial Magistrate has powers to order a person to give a voice sample for the purpose of investigation of a crime and, therefore, this issue may not hold this Court any further.
9.7 No adverse inference is drawn against either of the accused for not giving voice sample. The voice of accused has been identified in the Court during trial by PW4 categorically and this Court has no reason to suspect the voice of the accused in the audio recordings or to disbelieve the identification of the voice by PW4.
10. A lot of stress has been made by the accused on the point that in the evidence PW4 & 19 claimed that they had maintained some diary regarding payment of money to the accused, but that diary never saw the light of the day and therefore adverse inference should be drawn against the case of prosecution. For that reason alone, the case of prosecution cannot be doubted. Even if any such diary was maintained by the PW4 & 19, it is nobody's case that in that diary the accused persons acknowledged by signing it or writing it in acknowledgment of taking money and therefore even if that diary was proved, it would have had no evidentiary value. PW4 & 19 have no reason to falsely depose against A2 in that regard about extending money to him. Though the accused sought to claim that they were falsely implicated at the behest of others by the complainant and her husband, but the same is nothing more than a hollow claim as no positive evidence to that effect has come on record, either in the cross examination of the prosecution witnesses or in the defense of accused. The claim of PW4 & 19 to the effect that A2 met them on 23.07.2015, he introduced himself as a government servant and then took them to his house where he assured or allured the complainant to secure government job and then obtained money cannot be viewed with suspicion.
11. However, the question is, whether the claim of PW4 & 19 that it was A1 also who CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 23 of 39; (r) 24actively induced them in shelling out money for securing a government job for PW4, is proved beyond reasonable doubt? This fact is not in dispute that A1 is a government servant, whereas A2 is not.
11.1. A perusal of the transcripts of the proved recordings would rather indicate that A1 may not have induced to pay money or assured them of any government job and also did not take money from PW4 & 19. The transcript Ex.CW1/A finds mention that PW4 in her conversation with A1 specifically said that she "waited for long for the job her uncle offered". The said conversation indicates that it was A2 who offered the job. Similarly, in Ex.CW1/B i.e. the transcript of the conversation between A1 and PW4 dated 22.02.2017 indicate that PW4 was specifically referring to A2 to whom the money was given. Although, in this conversation at one place it is mentioned that PW4 & 19 gave money because both A1 & A2 were in government job and that PW4 waited for two years, but even that utterance by PW4 does not speak about any assurance given by A1 or any money taken by A1 or any inducement by A1. In other conversation dated 18.02.2017 as mentioned in transcript Ex.CW1/C at the most, A1 assured PW4 that their money is not going anywhere and that A2 would call PW4 after he comes back. In communication dated 25.02.2017, between A1 & PW4 as revealed in Ex.CW1/D, at one place A1 is even questioning PW4 to the effect that PW4 should have inquired about the job assured etc. earlier and that PW4 should not call A1 again for that matter and only after A2 returns, she would communicate. This communication also suggests that A1 was asking PW4 to have been cautious in dealing with A2. A1 has even clarified at another place that she does not know anything about the date when the money would be returned by A2 and that let A2 first come back and then again talks can be held. In communication dated 11.02.2017, as reflected in transcript Ex.CW1/E, PW4 can be heard telling A2 as to why A2 was not returning the money which was given to A2 and that A2 must return it at the earliest. Only in the communication dated 16.02.2017 as reflected in Ex.CW1/G at one place PW4 CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 24 of 39; (r) 25is telling A1 that money was given because of her job and because of the job offered by A1, but even in that conversation she is asking about A2. Even in this communication A1 has not uttered or admitted any money taken by her from PW4 & 19 or any job offered by her or any assurance given by her.
11.2. A holistic view of the communication between the accused on one hand and PW4 on the another hand, as reflected in Ex.CW1/A to G, indicates that money was taken by A2 and the job was offered by A2. It does not corroborate the claim of PW4 & 19 that A1 offered the job or gave any assurance.
11.3. In the testimony of PW4, it is mentioned that money was handed over to A2 on both the occasions. Similarly, PW19 also so admitted. Though, both of them claimed that at that time of handing over of the money A1 was also present, that too in her uniform, but mere presence of A1 at the time of payment of money to A2 cannot prove that A1 was in conspiracy with A2 in obtaining money or assuring job to PW4. The oral testimony of PW4 &19 that A1 played active role in inducing them to pay money and gave assurance or expressed any difficulties later on, does not get corroborated from any of the conversations between PW4 & A1 which were recorded and proved by none other than PW4. Rather, as mentioned above the conversations indicate otherwise that it was A2 who induced and assured. In the cross examination of PW4, she even volunteered at one place that it was A2 who had said that he will secure job for PW4 as soon as possible. She even admitted in her cross examination that in the transcripts prepared by her Ex. PW4/H, there is no mention that A1 ever assured her the job or that money should be paid for the job.
11.4. PW19 in his cross examination by the Prosecutor admitted that he too was in touch with A2 with his mobile phones. But no calls between A2 and PW19 are proved to have been recorded. Once PW4 & 19 came to know about ill intentions of A2 and when they started recording conversations with A1, in all likelihood they would have recorded conversations with A2 also, but the same was not proved CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 25 of 39; (r) 26which also raises suspicion so far as role of A1 in the present case is concerned.
11.5. It is an admitted case of the prosecution that when PW4 & 19 first met A2, it was a chance meeting which was not pre-planned and A1 was not even present there. Rather A1 met them at her house. Which also creates suspicion that when A2 introduced himself as a government servant before PW4 & 19 and invited them to his house, there was existence of any conspiracy between the two accused. Undoubtedly, conspiracy between the two accused could have come into existence even at the stage when PW4 & 19 came and had lunch with the accused at their house. But then even that commencement of conspiracy between the two accused cannot be assumed in absence of any circumstantial or direct evidence. Conspiracy can be proved by Prosecution either by direct or circumstantial evidence. But it is equally settled that conspiracy cannot be presumed or assumed against any accused without there being any material at all to suggest any such conspiracy.
11.6. It would be apt to note few important observations of Apex Court in the case of K.R. Purushothaman v. State of Kerala, (2005) 12 SCC 631, wherein it is held as follows;
"11. Section 120-A IPC defines "criminal conspiracy". According to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G. Barsay v. State of Bombay [(1962) 2 SCR 195:
AIR 1961 SC 1762: (1961) 2 Cri LJ 828] Subba Rao, J., speaking for the Court has said: (SCR p. 228) "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."
12. In State v. Nalini [(1999) 5 SCC 253: 1999 SCC (Cri) 691: JT (1999) 4 SC 106] it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp. 568-69, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 26 of 39; (r) 27form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."
13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin v. State of Maharashtra [(1970) 1 SCC 696: 1970 SCC (Cri) 274: AIR 1971 SC 885], that: (SCC pp. 699-700, para 7) "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
15. It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 27 of 39; (r) 28the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600: 2005 SCC (Cri) 1715: JT (2005) 7 SC 1] (p. 63) as follows: (SCC pp. 691-92, para 103) "103. We do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle."
11.7. In the present case, the first meeting between A2 and the complainant side was a chance meeting and there is no circumstantial evidence to show that A1 also had prior meeting of mind with A2 to commit the offence. The allegations against A1 as to her participating in the assurances for job or demand of money, is not supported by the audio recordings. There is no evidence which could even suggest that A2 committed the offence at the behest of A1. There is no presumption U/s 20 of the POC Act available for offence U/s 8 or Sec. 13(1)(d) of the POC Act. Such a presumption is available only qua Sec. 7, Sec. 11 and Sec. 13(1) (a) & (b) of the POC Act. It is nobody's case that A2 claimed that he would secure job for PW4 through A1 only.
11.8. The oral evidence of PW4 & 19 though claims that A1 was also actively involved, but it is not corroborated from the audio recordings. It may well be a case where the name of A1 was dragged in order to exert pressure on A2 to return the money or to come to terms with the complainant side. In absence of any corroboration as to the role of A1, as claimed by PW4 & 19, it would be unsafe to infer conspiracy between A1 & A2 or to base conviction against A1. There is no evidence on record to show that A1 was in any manner capable of extending any help in securing job for PW4 in the LNJP hospital. Rather contrary evidence has come on record that CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 28 of 39; (r) 29she was not capable of doing it.
11.9. On behalf of A1 it is argued that ingredients of section 13(1)(d) are not fulfilled in this case. A1 places reliance upon Manoj Kumar Mishra Vs. CBI (2018) 250 DLT 497. In the said case the convicted accused, who was also a public servant, was charged for impersonating in someone else's name and thereby cheating the complainant and obtaining a sum of Rs. 50,000/-, whereas the person who was impersonated was also a public servant. The convicted accused was not only charged u/s 419 of IPC, but he was also charged u/s 13(1)(d) and section 7 of the POC Act. In those facts Hon'ble Delhi High Court observed as follows in para 23 and 24.
"23. Thus, abuse of the position by the accused is an essential element even if he acts by a corrupt or an illegal mean because though the illegal mean would survive, element of corrupt will not arise without an abuse of the official position.
24. As noted above in the facts of the case the appellant nowhere abused his position as a public servant. He misused his father's position as a public servant. Father of the appellant has since been acquitted and no leave to appeal has been sought by CBI. The appellant not having abused the position as an officer, he cannot be convicted for offence punishable under section 13(1)(d) of the PC Act, merely because he is a public servant though the criminal act committed by him had no nexus whatsoever with his position."
11.10. Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, as were in existence at the time of the offence of this case, and so far as relevant in this case, read as follows:
"13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct--
***
(d) if he--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or *** (2) Any public servant who commits criminal misconduct shall be punishable with CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 29 of 39; (r) 30
imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
11.11. To attract the provisions of Section 13(1)(d) of the Prevention of Corruption Act, a public servant should obtain for himself or for any other person any valuable thing or pecuniary advantage either by corrupt or illegal means or, by abusing his position as a public servant or, while holding such office without any public interest any such advantage is obtained. All the three sub clauses of Clause (d) of Sub-Section (1) of Sec. 13 of the POC Act are independent and if the elements of any of the three sub clauses are met, the same would be sufficient to constitute offence of 'criminal misconduct'. The three sub clauses of clause (d) are in the alternative and disjunctive. Thus, even where any pecuniary advantage is obtained for someone else by a public servant or for himself, by corrupt or illegal means or by abusing his position, it would amount to criminal misconduct.
11.12. In the case of Neera Yadav v. CBI, (2017) 8 SCC 757, it is held as follows:
"17. A perusal of the above provision makes it clear that if the elements of any of the three sub-clauses are met, the same would be sufficient to constitute an offence of "criminal misconduct" under Section 13(1)(d). Undoubtedly, all the three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i), obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. On the same reasoning "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person would amount to criminal misconduct.
11.13. Thus, the argument of A1 that since there was no abuse of position by A1, Sec.
13(1)(d) could not have come into picture at all, is not correct and had there been sufficient and reliable evidence that A1 obtained pecuniary advantage by corrupt or illegal means, it would have attracted and fulfilled the ingredients of Sec. 13(1)(d). However, as discussed above in this case there is no reliable evidence proved beyond reasonable doubt that A1 obtained pecuniary advantage as such, either for herself or for A2, therefore the ingredients of Sec. 13(1)(d) are not CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 30 of 39; (r) 31
fulfilled. In the facts of this case necessary ingredients of none of the three sub- clauses of Sec. 13(1)(d) of POC Act, 1988 gets fulfilled so against A1.
11.14. In such circumstances, offence of Sec. 13(1)(d) of POC Act, 1988 or Sec. 120B of IPC for which A1 has been charged are not proved beyond reasonable doubt against A1.
11.15. Similarly, so far as A1 is concerned, against her there is no reliable and beyond doubt evidence that she induced the complainant side and obtained the money and therefore even for the offence of cheating, A1 cannot be held liable.
11.16. Once it is held that A1 had no role to play in committing offence U/s 13(1)(d) of POC Act, the argument of A1 that the Sanction against her U/s 19 of POC Act is defective being granted by an incompetent person, pales into insignificance. Similarly, the argument of A1 that POC Act could not have been invoked by the investigating agency on the directions of the Court hearing bail application of one of the accused and that the Court could not have directed the investigating agency at the stage of hearing of bail application as to invoke the offence under POC Act becomes academic. But even otherwise this argument had to fail for the following reasons.
11.17. In the order dated 03.05.2017, while hearing anticipatory bail application of A1 Ld. Special Judge observed that the allegations in the FIR prima facie attracts Sec. 13(1)(d) of the POC Act against A1 and therefore the ACP concerned was directed to investigate on that aspect. Ld. Counsel for accused drew attention of this Court to order dated 23.07.2019 passed by Hon'ble Delhi High Court in W.P.(Crl.) No. 1985 of 2019, wherein it is observed that the issue whether the investigating agency was entitled to invoke provisions U/s 13(1)(d) & Sec. 8 of the POC Act on the directions of Ld. ASJ at the stage of hearing of anticipatory bail application caused any prejudice would be decided by this Court at the stage of judgment. In this regard, accused relies upon the case of Bindeshwari Prasad Singh Vs. Kali CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 31 of 39; (r) 32
Singh (1977) 1 Supreme Court Cases 57. The said case is distinguishable as in that case it was held that a Magistrate who had dismissed the complaint could not have recalled the order without there being any express provision in Cr.P.C empowering the Magistrate to review or recall an order passed by him. Accused also places reliance upon order dated 11.11.2021 passed by Hon'ble Delhi High Court in the case of Mohd. Mehandi Shah Vs. State in Crl. M.C. No. 2802/2021, wherein some observations passed by the Ld. ASJ while hearing a bail application as to the conduct of the investigating officer and lapse in the investigation were in question and Hon'ble Delhi High Court vide said order stayed the order of the Sessions Court till the next date of hearing. Even the said case is distinguishable. In any case vide subsequent order dated 8.12.2021 that petition was dismissed as infructuous by the Hon'ble Delhi High Court.
11.18. The argument of the accused that during hearing of the bail application the Sessions Court could not have directed invoking the provisions of POC Ac during investigation, is liable to be rejected as indeed Courts are vested with powers to ensure that proper investigation is done in a matter, which would imply power of the Court to question the investigating agency as to invocation or non-invocation of a particular provision of law if the facts & circumstances of that case so indicates.
11.19. In the case of Sakiri Vasu v. State of U.P., (2008) 2 SCC 409, SC has held that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, and if the Magistrate is satisfied than he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. It was held that all these powers a Magistrate enjoys under Section 156(3) Cr.P.C. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII of CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 32 of 39; (r) 33
satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. (Para 13 & 15) 11.20. Accused also relies upon the cases of P Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh & Another (2015) 10 Supreme Court Cases 152 and Dashrath Singh Chauhan Vs. Central Bureau of Investigation (2019) 17 Supreme Court Cases 509, on the point that demand is necessary ingredient in a case u/s 7 and 13 of the POC Act. Once it is held by this court that there is no beyond doubt evidence as to the role of A1 in obtaining money from PW4 & 19, there is no need to discuss the requirement of demand as laid down in those cases.
12. So far as A2 is concerned, as discussed above, against him there are categorical allegations by PW4 & 19 that when A2 met them on 23.07.2015 he introduced himself as a Government Servant and also that he obtained money from the complainant side promising government job for PW4. The taking of money by A2 and the demand of return of money by PW4 is also corroborated from the audio recordings which indeed reflects that A2 obtained the amount from PW4 and her husband on the pretext for securing government job for PW4. There is no justifiable ground put forth by A2 as to why he would be falsely implicated by PW4 & 19 had he not taken money for securing government job for PW4. Though, in absence of corroboration from the audio recordings, the case against A1 is not proved beyond reasonable doubt and it is understandable that against A1, PW4 & 19 might not have come with true picture and A1 might have been named to exert pressure on the accused persons to return money, but there is no such reasonable doubt so far as case against A2 is concerned. From the evidence of PW4 & 19, it is established beyond reasonable doubt that not only A2 falsely claimed before PW4 & 19 that he was a government servant, but he also induced PW4 & 19 to part with money on false assurance of securing government job for PW4.
CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 33 of 39; (r) 34
12.1. A2 cannot argue that when this court is disbelieving the evidence of PW 4 & 19 as to the role of A1, their testimonies must be discarded against A2 also. These witnesses may have improved the prosecution story to some extent. But, that improvement or that exaggerated version can be safely separated from the main case of the prosecution. So far as the main prosecution case is concerned, both the witnesses are consistent. Where the exaggeration does not change the prosecution story or convert it into an altogether new story, entire testimony cannot be discarded. The maxim 'falsus in uno falsus in omnibus' has no application in India.
12.2. In the case of Sheesh Ram and Ors. Vs. The State of Rajasthan, Criminal Appeal No. 191 of 2004, Decided on January 29, 2014, it is held as follows;
"7. ................It is true that these witnesses have improved the prosecution story to some extent. But, that improvement or that exaggerated version can be safely separated from the main case of the prosecution. So far as the main prosecution case is concerned, all the witnesses are consistent. This is not a case where truth and falsehood are inextricably mixed up. Witnesses tend to exaggerate the prosecution story. If the exaggeration does not change the prosecution story or convert it into an altogether new story, allowance can be made for it. If evidence of a witness is to be disbelieved merely because he has made some improvement in his evidence, there would hardly be any witness on whom reliance can be placed by the courts. It is trite that the maxim 'falsus in uno falsus in omnibus' has no application in India. It is merely a rule of caution. It does not have the status of rule of law. ......................"
12.3. In Rizan v. State of Chhattisgarh (2003) 2 SCC 661, it is held as;
"Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 34 of 39; (r) 35
guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence".
(Also See Nisar Ali v. State of U.P AIR 1957 SC 366.)"
12.4. The claim of A2 that the investigating agency was hell-bent to charge sheet A2 as he had prior criminal record, as is also reflected from the charge sheet wherein the earlier involvements of A2 have been specified, has to be rejected as the investigating agency was perfectly justified in bringing to the notice of the Court the previous involvement of A2, if any. Merely because his previous involvements have been specified in the chargesheet, it does not give inference that the police implicated A2 in the present case for his past criminal record.
12.5. Though, it is argued on behalf of A2 that even Sec. 8 does not get attracted against A2 as its ingredients are not fulfilled, but the said argument is fallacious. It has come in evidence that A2 obtained money from the complainant and her husband in order to secure government job against money for PW4, but it has also come in the evidence that the said obtaining of money by A2 was by claiming that he knew public servants in LNJP Hospital in the Administration Department and therefore he can secure job for PW4. Argument of A2 that assuming the case of Prosecution to be true and the version of PW4 to be true, the amount cannot be called as gratification as the words used by the complainant are 'security' at more than one place and therefore at the most A2 took security amount from the complainant, is fallacious. The very act of obtaining money from the complainant side by A2 by promising her a government job and especially when he himself personated as a CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 35 of 39; (r) 36
government servant is enough to bring the case of A2 within the purview of Sec. 8 of POC Act, 1988.
12.6. Accused relies upon the case of Babji Vs. State of Andhra Pradesh (2018) 17 Supreme Court Cases 732, wherein it was held that prosecution must establish by convincing evidence that the amount was received by the accused for inducing public servant for doing something in his official capacity. In that case the appellant/ accused had approached the complainant stating that there was a long waiting list for reservation of a seat in flight but he can arrange a confirmed ticket and the appellant demanded a sum of Rs.2100/- against actual fare of Rs.1646/-. Hon'ble Supreme court held that it was insufficient to attract necessary ingredient of section 8 of POC Act. The said case is distinguishable on facts clearly.
12.7. Section 8 of The POC Act, as it stood on the date of offence of this case, before amendment (vide Act 16 of 2018, S. 4 (w.e.f. 26-7-2018), provided that whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or not, to do or forbear to do any official act or to show favour or render any service to any of the persons specified in the section.
12.8. In order to constitute an offence under Section 8 of the Act, in the first place, there must have been the solicitation or receipt of the gratification. Secondly, such gratification must have been asked for or paid as a motive or reward for inducing a public servant to do an act or do a favour or render some service as stated under Section 8 of the Act.
12.9. In the present case A2 being a private individual did solicit gratification and demanded bribe from the complainant and her husband and also told the complainant to pay that amount. PW4 specifically deposed that when A2 met them on 23.07.2015 at MAMC Compound, A2 after introducing himself as a government employee of LNJP Hospital told PW4 & 19 that his wife is also an employee of the CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 36 of 39; (r) 37
LNJP Hospital and that they have good relations with the officials and administration of LNJP Hospital. At the house of the two accused, PW4 & 19 were told that the accused have very good relations with the administration of LNJP and that a government job for PW4 can be arranged in the hospital for which the amount was demanded. PW19 similarly deposed that A2 told PW4 & 19 that A1 was working in Radiology Department in LNJP as a nurse and that she had good connections with management there. PW19 also deposed that the accused also assured that a government job for PW4 at LNJP Hospital would be arranged on adhoc basis for which the said amount would be required as security. For invoking Sec. 8 of the POC Act, it is not necessary that the accused charged for that offence should have by any express use of words informed the person from whom gratification is obtained or asked that he shall induce any particular public servant. Sec. 8 would apply even where from the conduct of an accused he so conveys to the bribe giver that he is obtaining bribe to induce a public servant. It is not necessary for application of this Section that the public servant should be named and Sec. 8 would apply even where the public servant is not named, as is clear from the words "any public servant, whether named or otherwise". It is not necessary U/s 8 that the person who receives the gratification should have succeeded in inducing the public servant. It is also not necessary that the recipient of gratification should have in fact attempted to induce the public servant. As soon as gratification is obtained or attempt is made to obtain it for the purposes of inducing the public servant by corrupt or illegal means, the offence U/s 8 would get complete. It is not necessary for offence of Sec. 8 that the offender should be a public servant. Even a private individual would get covered under this provision, if ingredients of the said provision are fulfilled.
12.10. In the facts of the present case when A2 claimed before PW4 & 19 that because of his contacts in government hospital and because of the contact of his wife (A1) in the hospital, he can secure government job for PW4, and for this purpose he demanded a sum of Rs.1,50,000/- (One Lakh Fifty Thousand) and obtained that CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 37 of 39; (r) 38
amount, it clearly indicates that he wanted to obtain gratification in the name of inducing public servant as defined in Sec. 8. As mentioned above, Sec. 8 would get attracted where a person even attempts to obtain gratification for the said purposes. Therefore, ingredients of Sec. 8 do get fulfilled against A2 and he is found guilty for the said offence.
13. So far as Sec. 170 of IPC is concerned, it makes punishable where a person not holding any particular office as a public servant pretends to hold such an office before any other person and where the person personating in such assumed character does any act or attempts to do any act under colour of such office.
13.1. The prosecution, therefore, is to prove the following points in order to attract Sec.
170 of IPC. Firstly, that the accused falsely pretended to be or personated to be a public servant. Secondly, he did so knowingly, and thirdly that when assuming such character, the accused did or attempted to do something under colour of such office. The clause "under colour of such office" apparently means making use of such office and an act done or attempted to be done "under colour" must be an act having some relation to the office which the accused pretends to hold. Mere assumption of the office would not be sufficient but the act done or attempted to be done must also be under colour of such office.
13.2. In Emperor v. Umakant Balvant (1907) 5 Cri LJ 211 (Bom.) a Division Bench of the Bombay High Court held that the phrase "an act under colour of such office" points to acts which could not have been done without assuming official authority or responsibility. In the case reported in Sukhdeo Pathak v. Emperor, AIR 1918 Pat 653 it was held that "mere assumption of false character without any attempt to do an official act is not sufficient to bring the offender within the meaning of S. 170". In Lakshminarayan Tripathy v. Emperor, AIR 1943 Pat 378 it was held that the act done "under colour" of an office is an act having some relation to the office which the accused pretends to hold.
CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;
Page 38 of 39; (r) 3913.3. In the present case, though A2 did pretend to hold a Government office as a public servant before PW4 & 19 by claiming that he was employed in the hospital, but the act of A2 in obtaining money from PW4 & 19 in such assumed character cannot be called as an act done under the colour of such office. In any case, all that he claimed before PW4 & 19 was that he was in government service but it has not come in evidence as to whether A2 claimed to have been occupying or holding any particular post or designation in the government department / hospital. The demand or receipt of cheated amount by A2 for securing job cannot be said to be under colour of office and the ingredients for offence under S. 170 Penal Code, 1860 are not therefore satisfied in the fact and circumstances of this case.
13.4. However, the ingredients of Sec. 420 of IPC are indeed fulfilled in the present matter as A2 dishonestly and fraudulently by inducing PW4 & 19 to deliver money by promising government job for PW4, cheated them. The circumstances of the case clearly establish the dishonest intention of A2. A2 is found guilty for offence U/s 420 IPC.
14. Accordingly:
14.1. A1 Joemol Royise is acquitted of all the charges framed against her.
14.2. A2 Jojo Mathew is acquitted U/s 170 & 120B of IPC, whereas he (A2 Jojo Mathew) is found guilty and convicted U/s 8 of POC Act 1988 & Sec. 420 of IPC.
Announced in the open Court Digitally
on 01st February 2023. DIG signed by DIG
VINAY SINGH
VINAY Date:
2023.02.01
SINGH 12:42:27
+0530
(Dig Vinay Singh)
Special Judge (PC Act) ACB-02
Rouse Avenue Courts
New Delhi (r)
CNR No. DLCT110006062019; CC NO. 137/19; FIR NO. 99/2017; State Vs. Joemol Royise & Anr.; PS IP Estate; Dated 01.02.2023;Page 39 of 39; (r)