Delhi District Court
Cbi vs Manas Kumar Kayal And Anr on 5 October, 2024
IN THE COURT OF SH. HASAN ANZAR,
SPECIAL JUDGE, PC ACT (CBI)-03,
ROUSE AVENUE DISTRICT COURT, NEW DELHI
DLCT110018572019
CNR NO. DLCT11-001857/2019
Registration/CC No. 342/2019
RC No. 9(A)/2019
PS : CBI/ACB/New Delhi
U/s 120-B IPC r/w Section 7 & 7A of Prevention of Corruption
Act 1988; under section 7 of Prevention of Corruption Act 1988
and 7A of Prevention of Corruption Act 1988 (As amended in
2018).
In re:
Central Bureau of Investigation (CBI)
Versus
(1) Manas Kumar Kayal
S/o Shri Shyamal Kumar Kayal,
R/o III/16, Sone Block, ALTTC, Raj Nagar
Near Fortune Hotel, Ghaziabad,
Uttar Pradesh - 201002.
And Permanent R/o
Z-5/22/1, Kanchantala Lane,
PS Metia Bruz, Kolkatta,
West Bengal - 700044.
(2) Somvir Dhanda
S/o Shri Khazan Singh,
R/o House No. 28, Near Mahesh Kiryana
Store & near Cooler Factory,
New Rishi Nagar, Hisar - 125001, Haryana.
Date of Institution : 23.10.2019
Arguments concluded on : 23.09.2024
Date of Judgment : 05.10.2024
Memo of Appearance
1. Ms. Rohini Anand, Ld. PP for the CBI.
2. Shri Sanjay Gupta, Ld. Counsel for A-1.
3. Shri Ajit Kumar Singh, Ld. Counsel for A-2.
CBI Vs. Manas Kumar Kayal & Anr. Page 1 of 168
JUDGMENT
1. The above named accused persons have been charge sheeted for committing offences under sections 7 & 7A of the Prevention of Corruption Act, 1988 (as amended in 2018) {hereinafter to be referred as 'PC Act'} and Section 120-B IPC r/w Section 7 & 7A of PC Act.
2. Brief facts of the case are that on the written complaint of Shri Pushkar Jain, a case under section 120B IPC r/w Section 7 of PC Act was registered against the accused persons Manas Kumar Kayal (A-1) Somvir Dhanda (A-2), Income Tax Officer and Income Tax Inspector, Ward No. 54(2), Delhi respectively. It is alleged that Shri Bharat Bhushan Jain, father of the complainant received a letter from Income Tax Department regarding limited scrutiny of income tax return for the financial year 2015-16 and the reply of the same was sent through Online portal, however, no response was received from their side. Thereafter, father of the complainant received a notice from Income Tax Department from A-1 Manas Kumar Kayal and pursuant to the said notice, complainant visited the office of Income Tax and met A-1. During the said meeting A-1 demanded bribe of Rs.1.5 lakhs to settle the matter, but the complainant had refused to pay the same. Thereafter, A-1 raised the tax demand of Rs.9,12,037/- and issued summon to father of the complainant for personal appearance and again demanded bribe, which was again refused.
3. Thereafter, complainant received a call from mobile no. 9958568880 of A-2 who was subordinate to A-1 and he asked CBI Vs. Manas Kumar Kayal & Anr. Page 2 of 168 him to pay the bribe to settle the matter and also threatened him that if bribe is not paid, they will implicate them in a false case. It is alleged that A-1 demanded Rs.1,50,000/- on 22.03.2019 to settle the case and threatened if they (complainant and his father) do not pay the bribe, they will make a false case against them. It is alleged that A-1 again directed the complainant to talk further in this matter to A-2 and since the complainant did not want to pay the bribe money to the accused persons, complainant made a written complaint dated 28.03.2019 to SP, CBI, ACB, Delhi for taking legal action against the accused persons.
4. Verification of the complaint was conducted by Pramod Kumar Tanwar, Inspector, CBI, ACB in the presence of Shri Jyoti Kumar, Inspector CGST, Office of Commissioner, CGST. During verification, complainant and independent witness was introduced by Inspector Pramod Kumar Tanwar. A Sony make silver colour DVR and a micro SD card were arranged and after ensuring its blankness, the introductory voice of the independent witness was recorded in the memory card and the persons proceeded for physical verification of the complaint at Civic Centre, Minto Road, New Delhi. On 28.03.2019, the CBI team alongwith complainant and independent witness reached at the office of accused persons at about 05.35 pm. DVR alongwith memory card was given to the complainant on switch on mode. Complainant met Manas Kumar Kayal in his office at Civic Building, while the verification team remained seated in the vehicle in the basement parking of the building. During meeting, A-1 asked independent witness to wait outside the room. It is further alleged that during the meeting between the complainant CBI Vs. Manas Kumar Kayal & Anr. Page 3 of 168 and A-1 Manas Kumar Kayal, complainant told Manas Kumar Kayal that on his instruction, he had spoken to Somvir Dhanda who made a demand of Rs.1.5 Lakhs. It is further alleged that when complainant asked about the bribe money, A-1 said that he will only talk when complainant comes with papers and further insisted to speak about the same to A-2 Somvir Dhanda only. The conversation between complainant and A-1 Manas Kumar Kayal was heard which was recorded in DVR and memory card and the same confirms the version given by the complainant. The memory card was taken out from the DVR and the same was seized in an envelope marked as Mark Q-1 in CO-13/2019. The memos etc. were also prepared in which seal impression was put on each page.
5. It is also alleged that further verification was also made on the following day and the complainant was asked to meet Somvir Dhanda, Income Tax Officer and the process of verification was kept open and in pursuance of further verification, complainant, independent witness and other persons met at the office of CBI wherein independent witness handed over CBI brass seal. A micro SD card was arranged which was inserted into the DVR after ensuring the blankness of memory card and DVR, the introductory voice of independent witness was recorded in the said memory card through DVR and the DVR was switched off. Thereafter, a call was made from the mobile phone of the complainant to A-2 Somvir Dhanda to ascertain his availability and genuineness of the complaint and accordingly, a call was made from mobile no. 9811036311 (of the complainant) to mobile no. 9958568880 (of A-2 Somvir Dhanda) and the CBI Vs. Manas Kumar Kayal & Anr. Page 4 of 168 conversation over the phone was recorded in the memory card in which complainant was heard telling to A-2 that he had met Manas Kumar who asked him to speak to A-2 and upon which A- 2 agreed to meet the complainant. The complainant, independent witness and other team members left the office of CBI at about 11.00 hours on 29.03.2019 and CBI officials parked their vehicles in the basement of the building and the complainant was directed to meet A-2 Somvir Dhanda. Complainant was also provided with DVR fitted with memory card on "ON MODE"
and the independent witness was asked to follow the complainant and observe the proceedings at a safe distance to maintain the secrecy. The complainant and independent witness went to the office of A-2 and had discussion with him. Complainant and independent witness returned to the verification team and DVR was taken from the complainant and it was switched off. The team alongwith complainant and independent witness reached the office of CBI. Enroute the complainant told CBI officials that he entered the room of A-2 and told him about his meeting with A-1 Manas Kumar Kayal and in respect of the bribe, the complainant told him that A-1 had asked him to meet A-2. The complainant further told that A-2 had told that bribe amount is Rs.1.5 Lakhs and out of which Rs.1.3 Lakh is for A-1 Manas Kumar Kayal and Rs.20,000/- for him and A-2 has asked the complainant to come at 03.00 pm with bribe money and the complainant asked him for time. The recorded conversation in the memory card fitted in the DVR was heard in the presence of complainant and independent witness and which corroborated the version given by the complainant.CBI Vs. Manas Kumar Kayal & Anr. Page 5 of 168
6. Consequent to the submission of the verification report dated 29.03.2019, the present case was registered and the investigation was entrusted to Mr. Kuldeep Sharma, Trap Laying Officer (TLO). Presence of independent witnesses such as Jyoti Kumar and Dharmendra Chaudhary was secured by Inspector Kuldeep Sharma and a trap team was constituted to apprehend the accused persons while demanding and accepting the bribe. The CBI team and another independent person assembled at 01.00 pm on 29.03.2019 and introduction was carried out and the purpose of the assembly was explained and the content of the complaint was read over to all the persons who were present and the contents of verification memo and FIR were also explained. The memory cards (marked Q-1 and Q-2) in which the conversation was recorded, were also taken into possession alongwith verification memo dated 28/29.03.2019 from Shri Pramod Kumar Tanwar, Inspector by the TLO. The complainant produced a sum of Rs.40,000/-, comprising of 20 GC (Government Currency) notes of Rs.2,000/- denomination which he had brought to give to the accused persons on their demand. The denominations of the GC notes were also noted in the Handing Over Memo. A demonstration was given by Shri Nikesh Kumar Upadhyaya, Inspector to explain the use and significance of phenolphthalein powder and its chemical reaction with sodium carbonate and water were also explained. The smeared amount of Rs.40,000/- was kept in the right side pocket of the pant of the complainant after making search of the complainant by the independent witness and other instructions were also given for not touching the tainted money and it was also explained that tainted money is to be given to the accused on CBI Vs. Manas Kumar Kayal & Anr. Page 6 of 168 his specific demand or to some other person on the instruction of accused. The DVR was produced by independent witness Shri Jyoti Kumar alongwith CBI brass seal. A new memory card was also arranged and introductory voice of both the independent witnesses were recorded to ensure that memory card is blank and the DVR was given to the complainant at the spot on ON MODE for the purposes of recording the conversation with the accused persons. The CBI brass seal was also carried to the spot and members also washed their hands with soap and water and the complainant was given instruction to give signal either by rubbing his hand or a miss call from his mobile phone to the mobile phone of TLO after the transaction of bribe money. Instructions were also given to independent witness Jyoti Kumar to act as a shadow witness to the complainant and further to over hear the conversation and the transaction which might take place between complainant and the accused.
7. The CBI team reached at the spot in two vehicles and after parking the vehicles in the vicinity of Civic Centre, the trap team alongwith independent witnesses went inside the Civic Centre whereupon the complainant and the shadow witness visited the room of accused Somvir Dhanda on the 16th floor near room no. 1063 and the DVR was put on the recording mode and was kept in the left pocket of black pant of the complainant for the purposes of recording the conversation. After reaching the 16th floor, the complainant and shadow witness proceeded to the room of accused Somvir Dhanda and they were followed by trap laying officer to the office area and TLO sat on a sofa near room no. 1610. It is also alleged that since earlier accused did not allow CBI Vs. Manas Kumar Kayal & Anr. Page 7 of 168 the independent person in his room, therefore, Jyoti Kumar did not go inside the room of accused Somvir Dhanda and rather he sat outside the sofa alongwith Trap Laying Officer where cabin of accused Somvir Dhanda was visible.
8. It is further alleged that after complainant went inside the room of accused Somvir Dhanda at about 03.20 pm and when he came out of the room at about 03.35 pm, no pre-decided signal was given by the complainant and accused Somvir Dhanda was coming out of his room and was proceeding towards the toilet in the lift lobby area outside room no. 1601. It is further alleged that complainant was also following Somvir Dhanda inside the toilet area and the trap laying officer and the shadow witness also followed them. However, shadow witness remained present outside and Somvir Dhanda came out of the toilet after washing his hand and was also wiping his hands with handkerchief at about 03.45 pm. It is also alleged that the complainant and the TLO remained inside the toilet area where the TLO asked the complainant about the transaction of the bribe amount. Complainant told the Trap Laying Officer (TLO) that bribe amount was delivered to Somvir Dhanda in his cabin room and the accused Somvir Dhanda kept the bribe money inside his shirt pocket and due to nervousness, he could not give pre-decided signal. Thereafter Trap Laying Officer (TLO) came out of the toilet and told shadow witness that bribe amount was delivered to the accused inside the room and information was also conveyed to other members of the team as well as independent witness. The remaining trap members and independent witness rushed to the cabin of Somvir Dhanda and where Somvir Dhanda was CBI Vs. Manas Kumar Kayal & Anr. Page 8 of 168 apprehended by Trap Laying Officer and Inspector Harish Chandra of CBI. After apprehension of Somvir Dhanda, the introduction was given and accused was challenged and during the said period, accused accepted that he took bribe amount of Rs.40,000/- from the complainant and the accused became perplexed and uttered that "मुझे माफ़ कर दो सर मेरी नयी नौकरी है"
Meanwhile, the DVR was taken from the complainant and was put in the switch off mode and the complainant reiterated as to how the bribe amount was taken and further disclosed that accused Somvir Dhanda had told that amount would be delivered to A-1 Manas Kumar Kayal. Thereafter, CBI team and accused Somvir Dhanda went to room no. 1601 of A-1 Manas Kayal where it was found that accused Manas Kumar Kayal was on 21 st floor and the search of accused Somvir Dhanda was also made but trap money could not be found and when further interrogation was made, accused Somvir Dhanda said "मुझे छोड़ दो सर मुझे मेरे रूम में ले चलो मैं बता दूंगा" In the cabin of accused Somvir Dhanda, the accused pointed out towards a black colour bag lying on the floor beside his chair and disclosed that he had kept the bribe amount in the front pocket of his bag which was seen and heard by Jyoti Kumar and Shri Dharmendra Chaudhary and thereafter on the directions of the TLO, Shri Dharmendra Chaudhary, independent witness opened the front pocket of the said black colour bag of accused Somvir Dhanda and recovered the tainted bribe amount from the internal portion of the front pocket of the said black colour bag. Both the independent witnesses tallied the recovered bribe amount/notes and found the same to be correct as per handing over memo. They also signed the handing over memo mentioning denomination of tainted CBI Vs. Manas Kumar Kayal & Anr. Page 9 of 168 bribe amount in token of its correctness. In the meantime accused Manas Kumar Kayal arrived in his room no. 1601 where he was detained by Pramod Kumar Tanwar, Inspector and Umesh, SI and thereafter the said tainted bribe amount was packed, sealed and marked as "Trap Money Rs.40,000/- in RC- 09(A)/2019. Left and right hand washes of accused Somvir Dhanda was taken. The right hand finger of the accused Somvir Dhanda on dipping inside the colourless solution of sodium carbonate and water turned PINK. Both the respective hand washes were sealed, packed and marked as "LHW in RC-09(A)/2019" and "RHW in C-09(A)/2019" respectively. The accused Somvir Dhanda was asked to produce his handkerchief and the said handkerchief was dipped in the colourless solution of sodium carbonate and water and upon dipping the same, the handkerchief turned slightly PINK. The handkerchief was seized, packed and bottle was marked as "HCW in RC-09(A)/2019". A fresh solution of sodium carbonate of water was also prepared and the internal portion of the front pocket of the black colour bag from which the bribe money was recovered was dipped into the solution and upon dipping the same, it turned into PINK. The said solution was packed, seized and marked as "Bag wash in RC-09(A)/2019". As it is stated by the complainant to the Trap Laying officer that accused Somvir Dhanda has kept the bribe amount in his left pocket and therefore, the wash of shirt was also taken and the left pocket upon being dipped in the solution of sodium carbonate and water turned PINK. The wash was also packed, seized and marked as "SPW in RC-09(A)/2019". The handkerchief, shirt and bag of accused Somvir Dhand were packed, seized and marked as CBI Vs. Manas Kumar Kayal & Anr. Page 10 of 168 "Handkerchief of accused Somvir in RC-09(A)/2019", "Shirt of accused Somvir in RC-09(A)/2019" and "Bag of accused Somvir in RC-09(A)/2019" respectively.
9. The recording in the DVR was played and it was found that accused Somvir Dhanda demanded a bribe of Rs.1.5 Lakhs for himself and for A-1 Manas Kumar Kayal. A-2 Somvir Dhanda also agreed to collect bribe amount of Rs.40,000/- for himself and for A-1 Manas Kumar Kayal and also assured the complainant that no harm would be caused.
10. The search of office of both the accused persons were conducted and the file related to father of the complainant was recovered from the office of A-1 Manas Kumar Kayal and A-2 Somvir Dhanda and search and seizure memo were also prepared and since it was getting late, therefore, Trap Laying Officer and other persons went to the office of CBI for completing further trap proceedings. In the office of CBI, the memory card which was inserted in the DVR was taken out and was packed and seized vide Mark "Q-3 in RC-09(A)/2019, ACB, CBI, DLI" and the disclosure statements of the respective accused persons were also also recorded. Specimen voice of accused persons were taken out and packed and seized vide Mark "S-1 in RC-09(A)/2019, ACB, CBI, DLI" and "S-2 in RC-09(A)/2019, ACBI, CBI, DLI" respectively. The DVR used during Trap proceeding was packed, seized and marked as "DVR" used in CO-13/2019 & RC-09(A)/2019" and the brass seal was handed over to independent witness Jyoti Kumar with a direction to produce the same before competent authority as and when required. The details were also mentioned in post trap CBI Vs. Manas Kumar Kayal & Anr. Page 11 of 168 proceedings which was signed by independent witnesses as well as trap team members.
11. FSL report dated 30.04.2019 in respect of the washes were obtained and it was opined that LHW, RHW, HCW, Bag Wash and SPW gave positive results for the presence of phenolpthalein and sodium carbonate. FSL report in respect of voices i.e. Q-1, Q-2, Q-3 and S-1, S-2 and DVR were to the effect that audio recordings were continuous and no tampering was detected, the DVR used for recording the contents in memory card vide Ex. Q- 1, Q-2, Q-3 & S-1 and S-2 was found functional in normal manner. The voice recording in Q-1 (2)(M) matches with the voice recording of accused Manas Kumar Kayal whose specimen voice is marked as Ex.S-1 (3)(M). The voice recording in Q-2 (2)(D), Q-2(3)(D) & Q-3 (D) matches with the voice recording of accused Somvir Dhanda whose specimen voice is marked as Ex.S-2 (3)(D).
12. The Customer Application Form and Call Detail Record of mobile number 9958568880 which was being used by A-2 Somvir Dhanda was also obtained and it was found that same was in the name of his friend Shri Bhushan Aggarwal and the said connection number was being used by A-2 Somvir Dhanda. The Customer Application Form and Call Detail Record of mobile number 9811036311 which was being used by complainant Shri Pushkar Jain was also obtained and it was found that same was in the name of his mother Smt. Anuradha Jain and the said connection number was being used by the complainant.
CBI Vs. Manas Kumar Kayal & Anr. Page 12 of 16813. During the course of investigation, assessment file of Bharat Bhushan Jain for the financial year 2016-17 was seized from the office of A-1 Manas Kumar Kayal, whereas the complaint file against Bharat Bhushan, 133(6) Ward No. 52(2) {total of 157 pages}, was seized from official table drawer of A-2 Somvir Dhanda. It is further alleged that A-1 Manas Kumar Kayal had gone beyond the limited scrutiny case by asking details whereby he sought brief summary of business and details of unsecured loans during the assessment year 2016-17. It was also disclosed during the investigation that Ms. Laxmi Barthwal, Income Tax Officer, Ward No. 54(2) was examined in respect of the contents of abovesaid two seized files vide office search- cum-search memo and she proved the files which were seized by CBI. A-1 Manas Kumar Kayal requested Range Head vide letter dated 13.02.2019 for approval to issue notice under section 133(6) to Shri Bharat Bhushan enquiring the TEP received vide speed post of Shri Hemant Jain. However, this approval was denied by Joint Commissioner and on 13.03.2019, A-1 Manas Kumar Kayal again issued notice to Shri Bharat Bhushan when on the same date he himself examined Shri Jain and recorded his statement, though in a limited scrutiny matter. It is further alleged that Shri Hemant Jain S/o Shri Girdhari Lal Jain, R/o 61, Central Road, Bhogal, New Delhi was examined on 17.05.2019 and he stated in his statement that he had never filed any such complaint before the Income Tax and this TEP/complaint does not bear his signature. CFSL "Handwriting Examination Report"
dated 16.07.2019 opined that the questioned signature of Shri Hemant Jain does not match with the specimen signatures.CBI Vs. Manas Kumar Kayal & Anr. Page 13 of 168
14. It is further alleged that A-2 Somvir Dhanda asked from complainant about the details pertaining to rental/tenanted income from the shop at 61 GF, Central Road, Bhogal, New Delhi alongwith details of rent from other flat for last about 4 to 5 years which were related to Tax Evasion Petition. It is alleged that A-2 Somvir Dhanda was talking about closing of TEP for which he sought complainant to bring a suitable reply. It is further alleged that even the recovery of TEP file of assessee also effected from Somvir Dhanda's cabin only. Thereafter, A-1 Manas Kumar Kayal requested the approval of the Principal CIT- 18 vide his letters dated 13.02.2019 and 13.03.2019 for initiating enquiry on the TEP of Hemant Jain and the grounds mentioned in these letters bear the same questions which A-2 Somvir Dhanda had asked from the complainant. It is alleged that there was no legal occasion for either Somvir Dhanda or Manas Kumar Kayal to ask for records to be submitted by the complainant/or assessee, when accused Manas Kumar Kayal had already processed the stay of demand in the file relating to the assessment proceedings and the complainant was asked to deposit the tax amount equivalent to 20% of the total disputed demand. It is alleged that the assessing officer has no discretionary power to change this 20% of the demand raised and as such complainant was forced to either pay the bribe or they will implicate him in a false Tax Evasion case.
15. The competent authority granted the prosecution sanction of accused persons.
16. On the basis of material submitted through charge-sheet, cognizance under Section 7 & 7A of the PC Act 1988 (as CBI Vs. Manas Kumar Kayal & Anr. Page 14 of 168 amended in 2018) and also offence under section 120B IPC r/w Section 7 & 7A of the PC Act 1988 was taken and the accused persons were summoned to face the trial.
17. After compliance under section 207 Cr.P.C., the copies were supplied to accused persons.
18. Vide order dated 25.02.2020, charges under section 7 & 7A of PC Act as well as Section 120B IPC r/w Section 7 & 7A of PC Act were directed to be framed against both the accused persons.
19. Charges were framed against both the accused persons for committing offence under section 120-B IPC r/w Section 7 & 7A of PC Act. Separate charges under section 7 of Prevention of Corruption Act 1988 and under section 7A of PC Act 1988 were also framed against both the accused persons.
PROSECUTION EVIDENCE
20. To substantiate and prove the charges against the accused persons, the prosecution has examined 21 witnesses and their testimonies are broadly summarised in the tabular form for easy reference and understanding :-
(A) MATERIAL WITNESSES RELATING TO VERIFICATION, TRAP PROCEEDINGS DATED 28.03.2019 & 29.03.2019 AND EVENTS PRIOR THEREOF Sr. Witnesses Brief Description No.
1. PW-7 Shri Bharat He is the father of the complainant.
Bhushan Jain. He stated that his son Pushkar Jain CBI Vs. Manas Kumar Kayal & Anr. Page 15 of 168 had made a complaint because A-1 was harassing him and he authorised his son Pushkar Jain to deal with the issue.
2. PW-11 Shri Pushkar He is the complainant. He gave Jain. complaint to the CBI in respect of the demand and payment of bribe to the accused persons and he deposed in relation to the present case.
3. PW-13 Shri He is Asttt. Malaria Inspector, DC Dharmendra Office, Keshav Chowk, Shahdara Chaudhary. Zone, MCD, Delhi and an independent witness who joined the pre-trap and post-trap proceedings. He is witness to number of memos and he also accompanied to the Income Tax Office.
4. PW-16 Sh. Jyoti He is a witness to the verification Kumar proceedings dated 28.03.2019 and 29.03.2019 vide verification memos Ex. PW11/D and Ex.
PW11/C. (B) POLICE WITNESSES RELATING TO INVESTIGATION, VERIFICATION AND TRAP PROCEEDINGS.
Sr. Witnesses Brief Description
No.
1. PW-14 Inspector He is the verifying officer of the
Pramod Kumar complaint and also conducted pre-
Tanwar. trap proceedings. He identified
complaint vide Ex.PW11/A as well
as verification memo vide
Ex.PW11/D dated 28.03.2019. He
deposed in relation to the pre-trap
proceedings.
2. PW-17 Shri He is the Trap Laying Officer
Kuldeep Sharma, (TLO) and FIR was marked to him
CBI Vs. Manas Kumar Kayal & Anr. Page 16 of 168
Inspector/Addl. and he constituted a raiding team
SHO PS Patel comprising himself and other
Nagar. officials from CBI as well as
complainant and independent
witnesses.
3. PW-19 Shri Sushil He is the Investigating Officer who Kumar. took over the investigation from PW-14 TLO Shri Kuldeep Sharma and carried out part investigation and thereafter handed over all the documents/materials/statements of case to IO/Inspector S.S. Gill.
4. PW-20 Inspector He is the Investigating Officer who Saminder Singh took over the investigation from Gill. PW-19 IO/Shri Sushil Kumar.
After completing investigation, he filed the charge-sheet against the accused persons.
(C) WITNESSES FROM THE INCOME TAX DEPARTMENT
Sr. Witnesses Brief Description
No.
1. PW-3 Smt. Laxmi She is from Income Tax
Barathwal. Department and has brought on
record notice under section 142(1)
I.T. Act dated 13.08.2018 vide
Ex.PW3/A (Page No. 71 to 73, file
D-11).
2. PW-8 Shri C.P. He is the Income Tax Officer (HQ)
Meena. who identified the signature of
PW6 as well as his writing by
which he put up Ex.PW6/B before
PCIT.
3. PW-21 Shri Gaurav He is Joint Commissioner in Sharma. Range 54 of Income Tax Department. He has brought on record CBDT Circular vide Ex.PW21/A and copy of office memorandum dated 29.02.2016 related to the stay of demand vide CBI Vs. Manas Kumar Kayal & Anr. Page 17 of 168 Ex.PW21/B. (D) SANCTIONING AUTHORITY Sr. Witnesses Brief Description No.
1. PW-18 Ms. She is the Principal Commissioner Parminder. of Income Tax and granted sanction for prosecution under section 19 of PC Act against A-1 & A-2 vide Ex.PW18/A. (E) WITNESSES FROM FORENSIC DEPARTMENT Sr. Witnesses Brief Description No.
1. PW-6 Ms. Lavang She is the forensic expert has Lata. tendered her report vide Ex.PW6/A on the questioned documents and stated that questioned documents could not be connected to the specimen as well as admitted documents.
2. PW-9 Shri Surbat He is the forensic expert who Kumar Choudhury. furnished his opinion in respect of the voice recordings vide report Ex.PW9/A.
3. PW-10 Shri V.B. He is the Principal Scientific Ramteke. Officer (Chemistry)-cum-Ex.
Officio Assistant Chemical
Examiner and he examined
contents of five sealed bottles
marked as Ex.LHW, Ex.RWH,
Ex.HCW, Ex.Bag Wash and
Ex.SPW and proved the chemical
examination report dated
30.04.2019 Ex.PW10/A.
(F) MISCELLANEOUS WITNESSES
Sr. Witnesses Brief Description
No.
CBI Vs. Manas Kumar Kayal & Anr. Page 18 of 168
1. PW-1 Smt. She is the mother of the
Anuradha Jain. complainant and deposed that
mobile no. 9811036311 belongs to
her and she had given the same to
her son Pushkar Jain (PW-11). She
has brought on record copy of
Customer Application Form (CAF)
alongwith attested copy of election
I-card and copy of local address
declaration form vide Ex.PW1/A
(Part of D-17).
2. PW-4 Shri Saurabh He is the Nodal Officer, Vodafone Aggarwal. Idea Ltd. and proved the forwarding letter dated 15.04.2019 (Ex.PW4/A); Call Detail Record of mobile number 9811036311 (Ex.PW4/B) in the name of Anuradha W/o Shri Bharat Bhushan Jain for the period 13.03.2019 to 29.03.2019 alongwith certificate under section 65B of Indian Evidence Act.
3. PW-12 Shri He is the friend of accused Somvir Bhushan Aggarwal. Dhanda and deposed SIM/Mobile No. 9958568880 was given to A-2 Somvir Dhanda.
4. PW-2 Shri Ajay He is the Nodal Officer from Airtel Kumar. and proved the forwarding letter Ex.PW2/A; Customer Application Form, E-KYC form (Ex.PW2/C), Call Detail Record (CDR) Ex.PW2/D of mobile number 9958568880, for the period from 13.03.2019 to 29.03.2019 pertaining to Shri Bhushan Aggarwal alongwith certificate under section 65B of Indian Evidence Act Ex.PW2/B.
5. PW-5 Shri Hemant He is uncle of the complainant and Jain. stated that he did not make any complaint against his brother i.e. CBI Vs. Manas Kumar Kayal & Anr. Page 19 of 168 father of the complainant. He also works as a document/deed writer.
6. PW-15 Shri He is Crime Assistant in CBI, Narender Pal. ACB, New Delhi and he identified signature of Shri N.M.P. Sinha, the then SP on the copy of FIR Ex.PW15/A, sent to court.
STATEMENT OF THE MATERIAL WITNESSES RELATING TO VERIFICATION, TRAP PROCEEDINGS DATED 28.03.2019 AND 29.03.2019 AND EVENTS PRIOR THEREOF.
21. PW-7 Shri Bharat Bhushan Jain is the father of the complainant Shri Pushkar Jain (PW11) and assessor of Income Tax. He deposed that his son Pushkar Jain had made a complaint since A-1 Manas Kumar, Income Tax Officer of Ward No. 54(2) was harassing him. He further deposed that he had authorized his son to deal with the issue. He also deposed that he had sent a reply to the Office of Income Tax Online but no response was received from Income Tax Office and he once again sent the reply. He also deposed that consequent to the receipt of the summon, he personally visited the Office of CBI, but he was unable to recall the date of his visit. He identified A-1 Manas Kumar Kayal in the court. He further deposed that inquiries were made from him about receiving the profit from sale of property. He also deposed that he had asked A-1 Manas Kumar about the issuance of summons to which Manas Kumar Kayal told that he can do setting with him and demanded Rs.1.5 Lacs. He further deposed that Manas Kumar Kayal provided number of A-2 Somvir to which he passed on his son and since he did not pay amount of Rs.1.5 Lacs due to which assessment order was passed and a demand of Rs.9 Lacs was made. He also deposed CBI Vs. Manas Kumar Kayal & Anr. Page 20 of 168 that his statement was recorded by A-1 Manas Kumar Kayal. PW-7 identified the handwriting of his son (PW11) on Ex.PW- 7/A. He also deposed that his son i.e. PW-11 had met him. He also deposed that since he did not want to pay the bribe due to which he did not meet Somvir. In his further examination-in- chief recorded on 31.03.2021, PW-7 deposed that he made the statement in respect of the limited scrutiny case for which notice dated 5th of March was issued and he was directed to appear on 13th of March but he was unable to recall the year. In answer to a leading question, PW-7 answered in affirmative that date of notice was 5th of March 2019 and subsequently he stated that he met the official on 13th of March 2019. He also stated that the concerned official had once again demanded Rs.1.5 Lacs and also asked for the meeting. He also deposed that he was threatened for the false implication in a case of tax evasion in the event of non-payment of Rs.1.5 Lacs. He further deposed that phone numbers were exchanged on 24.03.2019 and his son was called on 24.03.2019 when demand was made again. PW-7 further stated that phone numbers were exchanged with Somvir Dhanda (A-2) and his son i.e. PW-11 met Somvir Dhanda on 27.03.2019 after his son/PW-11 had obtained phone number of Somvir Dhanda. He further deposed that his son had refused the demand on 24.03.2019 and thereafter he asked his son to file a complaint against accused persons. A leading question was put to this witness to the effect that his son exchanged phone numbers on 22.03.2019 and his son met Somvir Dhanda on 25.03.2019 instead of 27.03.2019, to which PW-7 was unable to affirm or deny the same.
22. PW-7 in his cross-examination admitted that limited CBI Vs. Manas Kumar Kayal & Anr. Page 21 of 168 scrutiny case was initiated in July 2017 and he denied the suggestion that limited scrutiny cases were to be closed within a period of three years i.e. by 31 st December 2018. He also admitted that assessment in limited scrutiny case took place on 20.12.2018 and he had received the copy of assessment order through Online mode. He was unable to tell that he was required to appear before the Income Tax Authority on 10.01.2019 or that prior to filing his complaint, a demand of Rs.9,12,037/- including penalty and tax were already issued and he further accepted that his bank accounts were seized. He further stated that he appeared before A-1 only on 13.03.2019 and denied the suggestion that Manas Kumar had not threatened him or made any demand to him and he further denied the suggestion that no such threat was issued by Manas Kumar Kayal for implicating him in a tax evasion case in the event of non-payment of Rs.1.5 Lacs. He admitted that on 13.03.2019, his son had translated his statement in English vide Ex.PW-7/A which was in Hindi. He also expressed his inability to answer that post 20.12.2018, no help could have been given by Manas Kumar Kayal. The witness after perusing the letter dated 13.03.2019 vide Ex.PW-7/DB at Point-A, to which PW-7 stated that he was unaware of the fact that his request letter vide Ex.PW-7/DB was rejected and copy of the same was served through Online on 15.03.2019. He denied the suggestion that he was intentionally showing ignorance to the factum of non-filing of an appeal against assessment order dated 20.12.2018 or that filing of the appeal was the only methodology to challenge the assessment order. He denied the suggestion that statement Ex.PW-7/A was relating to the recovery of tax and penalty through assessment dated 20.12.2018 or that same has CBI Vs. Manas Kumar Kayal & Anr. Page 22 of 168 got nothing to do with limited scrutiny case. PW-7 also admitted that prior to 05.03.2019, he was not asked by the department to visit personally or through his representative. He also expressed his ignorance that notices were also sent by Manas Kumar Kayal for showing sale proceed of Shop No. 107 at Greater Noida. He also expressed his ignorance that notices were issued by earlier Income Tax Officers. He stated that no complaint was made by him in respect of the demand of Rs.1.5 Lacs by Manas Kumar Kayal (A-1) and voluntarily stated that he had not done anything in the present matter as he had authorized his son to do the requisite act and he further stated that his son never talked about the entire matter to him and he further expressed his ignorance that computation of income vide Ex.PW-7/DC belongs to him and was filed on his behalf with Income Tax Department. He further stated that no authority letter was signed by him in favour of his son to represent him before Income Tax Department and he has no knowledge in respect of the replies sent by Online.
23. PW-7 expressed his ignorance whether there was any direction for personal appearance on 17.12.2018 when his son Pushkar Jain visited the Income Tax Office. PW-7 also stated that no gate pass was taken from the Reception on 13.03.2019 and denied the suggestion that his son (PW-11) did not visit the accused on 13.03.2019. He also expressed his lack of knowledge in respect of the dismissal of his appeal against the assessment order. PW-7 denied the suggestion that his son i.e. PW11 did not personally visit the office of Income Tax Office on 17.12.2018. He also denied the suggestion that no demand was made from him or any threat was given by the Income Tax officials. He CBI Vs. Manas Kumar Kayal & Anr. Page 23 of 168 further denied the suggestion that Manas Kumar had no connection with limited scrutiny case after 20.12.2018. PW-7 was unable to tell whether any recovery of Rs.9,12,037/- was made from him. He further denied the suggestion that accused persons were falsely implicated to avoid payment of penalty and he further denied the suggestion that no demand was made by A- 2 Somvir Dhanda on behalf of A-1 Manas Kumar Kayal. Ld. Counsel for A-2 adopted the cross-examination conducted on behalf of A-1.
24. PW-11 Shri Pushkar Jain is the de-facto complainant in the present case and was a student of Law at the time of deposition. His testimony has material bearing in the case and therefore, for the sake of brevity the testimony shall be discussed in the later part of the judgment. He gave complaint Ex.PW11/A and deposed about the prosecution case.
25. PW-16 Shri Jyoti Kumar is an independent witness, working as an Inspector, CGST, Bhikaji Cama Place. He deposed that on 28.03.2019, he visited the office of CBI on the directions of his senior officer and was introduced to Pushkar Jain by Inspector Pramod Kumar Tanwar. A written typed complaint dated 28.03.2019 was shown to PW-16 in which there were allegations of demand of bribe by Manas Kumar Kayal from the father of PW-11. PW-16 further deposed that since the complainant did not want to pay the bribe so the complainant lodged the complaint. PW-16 also deposed that he made inquiries from the complainant Pushkar Jain and also identified CBI Vs. Manas Kumar Kayal & Anr. Page 24 of 168 the complaint dated 28.03.2019 vide Ex.PW11/A in which there was a demand of bribe of Rs.1,50,000/- for the settlement of the case of the father of the complainant. PW16 deposed that for the purposes of the verification of the complaint (vide Ex.PW11/A) he alongwith Inspector Pramod Kumar Tanwar, complainant Pushkar Jain and SI Umesh went to Civic Centre for verification of the complaint. DVR and memory cards were arranged. The memory card was inserted in the DVR and blankness of both of them was ensured and introductory voice of PW-16 was recorded. The DVR was handed over to Pushkar Jain in an Off Mode with the instruction to put the same on "switch on mode"
for the purposes of recording the conversation. PW16 deposed that when he entered the room of accused Manas Kumar Kayal, Manas Kumar Kayal asked about him and when he was introduced by Pushkar Jain (PW-11) as his cousin then accused Manas Kumar Kayal asked him to leave the room and therefore, he sat on the sofa lying outside the cabin of Manas Kumar Kayal and after some time, Pushkar Jain (PW-11) came out and proceeded towards the parking and sat in the vehicle and left for CBI office. In the vehicle, Pushkar Jain (PW-11) revealed as to what had happened in the meeting and Pushkar Jain told that he had apprised Manas Kumar Kayal that he had spoken to Somvir Dhanda and he further deposed that PW-11 Pushkar Jain also told that he (PW-11) had asked Manas Kumar Kayal "kam jyada kar lo", on which Manas Kumar Kayal told him "kam jyada kya karna, aap inspector se hi baat karo." PW-16 further deposed that the above recordings were heard in the CBI office and transcriptions were made on the paper. PW16 identified his signature on the verification memo dated 28.03.2019 which was CBI Vs. Manas Kumar Kayal & Anr. Page 25 of 168 made in his presence and other witnesses. PW-16 identified his signatures as well as signatures of other witnesses including the complainant on verification memo Ex.PW11/D. PW-16 further deposed that DVR was handed over to him after the same was put in an envelope after retrieving the memory card from the DVR and the memory card was sealed separately after preparation of the transcript and instruction was given to him to bring the same on 29.03.2019 as the verification is not complete as Manas Kumar Kayal had instructed Pushkar Jain (PW-11) to talk to Somvir Dhanda.
26. In respect of the verification dated 29.03.2019, PW-16 stated that on 29.03.2019, he reached the office of the CBI at about 10.00 AM where Pushkar Jain (PW-11) and Pramod Kumar Tanwar (PW-14) were present. PW-16 also deposed that he had immediately handed over the DVR to Inspector Pramod Kumar (PW-14). PW-16 further deposed that Pushkar Jain (PW-11) was asked to make a call to Somvir Dhanda by Inspector Pramod Kumar Tanwar (PW-14) in which Pushkar Jain (PW-11) showed his interest in meeting A-1 Somvir Dhanda and the said recording was made on the new memory card from the call made by Pushkar Jain (PW-11) to Somvir Dhanda and then they left for Civic Centre to meet Somvir Dhanda. PW-16 further deposed that upon reaching the office of Somvir Dhanda for the purposes of verification, he remained outside the cabin of Somvir Dhanda and Pushkar Jain (PW-11) went inside the cabin of Somvir Dhanda, whereas Inspector Pramod Kumar Tanwar (PW-14) and SI Umesh were sitting in the vehicle, parked in the parking. PW- 16 further deposed that after some discussion between Pushkar CBI Vs. Manas Kumar Kayal & Anr. Page 26 of 168 Jain and Somvir Dhanda, PW-11 Pushkar Jain came out after ten minutes from the cabin of Somvir Dhanda and then he and Pushkar Jain went to the parking place and met Inspector Pramod Kumar Tanwar and SI Umesh. PW-16 informed about the conversation which took place between him and Somvir Dhanda. PW-16 disclosed that he told Somvir Dhanda in respect of his meeting dated 28.03.2019 with Manas Kumar Kayal and in which he was instructed by Manas Kumar Kayal to meet Somvir Dhanda. PW-16 further deposed that Pushkar Jain (PW-11) told that Somvir Dhanda had asked him to bring the maximum possible amount by day time and the transcript of the said discussion between Pushkar Jain (PW-11) and Somvir Dhanda was made in the verification memo dated 29.03.2019 bearing his signature as well as signatures of complainant, Inspector Pramod Kumar Tanwar and SI Umesh Kumar vide Ex.PW11/C. PW16 deposed about sealing of memory card and the allied steps which were taken on that day. He further deposed that another independent witness Dharmendra Chaudhary was called and a trap team was prepared comprising himself, Inspector Pramod Kumar Tanwar, Inspector Harish Chandra, Inspector Vikas Pannu, SI Umesh and complainant besides 2/3 other officers of CBI whose names he is unable to recollect.
27. PW16 further deposed that after verification, the FIR alongwith verification memo and other material was handed over to the TLO. PW16 further deposed that after verification of the proposed bribe amount, the amount of Rs.40,000/- in the denomination of Rs.2,000/- each was noted on a plain paper sheet and the currency notes were treated by Phenolphthalein CBI Vs. Manas Kumar Kayal & Anr. Page 27 of 168 powder and demonstration was given by one of the team members and during the demonstration, he touched the currency notes and thereafter dipped his fingers in the solution of water and sodium carbonate which turned PINK. (No one has instructed PW16 not to go chamber of Somvir Dhanda at the time of initial demand). PW-16 also deposed that he was told the purpose of the trap. PW-16 further deposed generally about the items which were carried in a bag and are to be used in the trap proceedings. He stated that prior to departure from CBI office, frisking and personal search was taken and other instructions such as that complainant is to inform about giving the act of bribe to the accused and information thereof and the discreet signals which he had to give etc. PW-16 further deposed that he was asked to accompany the complainant and a fresh memory card was inserted in the DVR which was used for verification on 28.03.2019 and 29.03.2019 in the pocket of the complainant for the purposes of recording the conversation. PW16 further stated that PW-13 Dharmendra Chaudhary was told to remain with the team and to be watchful and he identified his signature on handing over memo vide Ex.PW11/B and identified the signatures of other persons. PW16 further deposed that at 02.30 pm, the team left the office of CBI and reached at Civic Centre at about 03.00 pm and during briefing, he was told to accompany Pushkar Jain. He further stated that TLO and other team members were following him and Pushkar Jain and the DVR was put in the pocket of Pushkar Jain by some one whose name he does not remember and PW16 further deposed that he was instructed not to enter the office with Pushkar Jain and Pushkar Jain went inside the cabin of accused Somvir Dhanda. PW16 CBI Vs. Manas Kumar Kayal & Anr. Page 28 of 168 and TLO sat on the sofa lying outside the cabin of accused Somvir Dhanda, whereas Dharmendra Chaudhary was standing at some distance. PW16 further deposed that after about ten minutes, Pushkar Jain (PW-11) came out of the cabin of Somvir Dhanda and was silently moving towards toilet and at that stage, TLO asked Pushkar Jain (PW-11) as to what had transpired during the meeting. Thereafter, Pushkar Jain (PW-11) signaled through hand and told that bribe amount was paid to accused Somvir Dhanda who was going towards the toilet and during this period when Pushkar Jain (PW-11) was telling the TLO about the same, Somvir Dhanda came out of his cabin and had moved towards the toilet and TLO Kuldeep Sharma followed Somvir Dhanda and he also followed and then TLO caught hold Somvir Dhanda and brought him near to his cabin and confirmation was again made from Pushkar Jain and he told that amount had been handed over to Somvir Dhanda and search of Somvir Dhanda was taken by Dharmendra Chaudhary, however, no amount was found from him and when TLO sternly asked Somvir Dhanda to which he told him to take into his cabin and had started crying and said "mujhe maaf kar do". PW-16 further deposed that Somvir Dhanda told that money was lying in his bag and Shri Dharmendra Chaudhary checked the bag but no money was found and upon further inquiry from Somvir Dhanda, he told that money was kept in the front upper pocket of the bag. The currency notes were matched with the handing over memo and the amount was kept in an envelope and sealed, which was signed by him, Dharmendra Chaudhary and TLO Kuldeep Sharma.
CBI Vs. Manas Kumar Kayal & Anr. Page 29 of 16828. PW16 further deposed that a solution of sodium carbonate with water was prepared in which left hand finger of the accused Somvir Dhanda was dipped and the solution remained unchanged. The solution was transferred in the bottle which was sealed and a cloth wrapper was also put on it after putting the requisite seals etc. A paper was also pasted on the bottle by marking it as "LHW" vide Ex.P-10/1. PW16 identified the same bearing his signature at Point-C. PW16 gave further statement in respect of the hand wash of right hand which turned slight PINK and the solution being transferred to another bottle. PW16 identified his signature on the bottle containing the hand wash of right hand vide Ex.P-10/2 (RHW). PW16 further deposed that hand washes of handkerchief was also taken and which turned slight PINK and the transfer of the solution in a bottle on which a paper was pasted and the same was marked as "HCW". PW16 identified his signatures on the glass bottle marked "HCW" vide Ex.P10/3.
29. PW-16 also deposed that a colourless solution of sodium carbonate with water in a glass was prepared and the CBI team members rubbed the inner front bag pocket with the help of a piece of white colour cloth and dipped the same in the colourless solution and thereafter, the solution turned 'PINK'. The contents of the solution was put into an empty clean glass bottle which was then wrapped with the white Coloured cloth and tied with the green tag and sealed with the CBI brass seal and on the said bottle a white paper was pasted and on the said paper mark 'Bag Wash' vide Ex.P10/4 and he identified the same as well as his signatures. A colourless solution was prepared and the shirt CBI Vs. Manas Kumar Kayal & Anr. Page 30 of 168 pocket was dipped in the colourless solution and on which the solution turned 'PINK'. The solution was poured in a glass bottle which was then wrapped with the white Coloured cloth and tied with the green tag and sealed with the CBI brass seal and on the said bottle, a white paper was pasted on the said paper mark "SPW" vide Ex.P10/5 and he identified the same as was his signature. PW-16 further stated that handkerchief, shirt and bag were seized. PW16 identified the handkerchief vide Ex.PW13/4, shirt of the accused vide Ex.PW13/6, bag vide Ex.PW13/2 and the same were taken from the respective envelopes at the time of recording of the statement of PW16 before the court. PW16 also identified the cash currency notes in the denomination of Rs.2,000/- which were taken out from a brown colour envelope vide Ex.PW11/H and compared it with handing over memo Ex.PW11/B and after comparison, PW16 stated that the GC currency notes were marked as Ex.P-13/1 to Ex.P-13/20.
30. PW16 further deposed that thereafter the team went to the office of Manas Kumar Kayal, but he was not present and Manas Kumar Kayal was apprehended when he was coming to his office. Search was conducted in his office space and the case file of Bharat Bhushan (father of the complainant) was found from the office of Manas Kumar Kayal and PW16 identified the two yellow coloured files vide Ex.P-2 and Ex.P-3 which were recovered from the office of Manas Kumar Kayal. PW16 was unable to recall whether complainant had disclosed as to what had happened between him and Somvir Dhanda when complainant went inside his cabin. The witness/PW-16 again stated that Pushkar Jain (PW-11) told that accused Somvir CBI Vs. Manas Kumar Kayal & Anr. Page 31 of 168 Dhanda after taking the money, put the same in his pocket and thereafter in his bag. PW-16 deposed that recovery memo Ex.PW-11/E was prepared in his presence and rough transcription dated 29.03.2019 is attached with the recovery memo vide Ex.PW13/A. PW16 identified his signature on the rough site plan and also identified his signature on the arrest-cum-personal search memos of accused Somvir Dhanda and Manas Kumar Kayal vide Ex.PW13/B and Ex.PW13/C respectively. PW16 further deposed that he visited the office of CBI on 24.04.2019 where conversations were played and heard by him, Dharmendra Chaudhary, complainant and DSP Shri Sushil Kumar. PW16 identified his signature on transcription-cum-voice identification memo dated 24.04.2019 vide Ex.PW11/F-1 to F-5 pertaining to Q-1 to Q-3. PW16 identified his signatures on office search- cum-seizure memo vide Ex.P-1. PW16 identified yellow colour envelope, brown colour envelope, cover of the memory card and plastic cover of the memory card. The different files as contained in the memory card were played. The witness identified the file 190328_1701 as his introductory voice and identified the file 190328_1737 as the voice of Pushkar Jain and he was unable to identify the voice on the other side because of lot of disturbance. The voice recording Q-1 was played and upon hearing the same, PW16 stated that the same was recorded when he was sitting outside on the sofa and the voice recording was heard by him when he was coming back from Civic Centre to the CBI office and the voice was of Pushkar Jain and Manas Kumar Kayal.
31. Memory card pertaining to Ex.Q-2 contained in the yellow CBI Vs. Manas Kumar Kayal & Anr. Page 32 of 168 envelope was opened and PW16 identified his signatures etc. and the said memory card was played in which the witness identified his voice at 190329_1032. The witness identified two voices in file no. 190329_1036 as between Pushkar Jain and Somvir. The file 190329_1139 was played and after hearing the same, PW16 confirmed that it is the voice of Pushkar Jain and Somvir Dhanda. Memory card pertaining to Ex.Q-3 as contained in the yellow envelope was opened and PW16 identified his initials etc. and the said memory card was played in which the witness identified his introductory voice at 190329_1430. The witness identified the voices in file no. 190329_1432 as the introductory voice of Dharmendra Chaudhary. The file 190329_1502 was played and after hearing the same, PW16 confirmed that it is the voice of Pushkar Jain and Somvir.
32. PW-16 identified the memory card vide Ex.P-9/8 and Ex.P-9/10 and all the envelopes and other trappings of memory card which contain his signatures. The memory cards are stated to be associated with S-1 and S-2 respectively. PW-16 identified the envelope vide Ex.PW-9/Q and upon opening the said envelope, another unsealed brown colour envelope was found containing his signature and the brown colour envelope contains a digital video recorder of make SONY vide Ex.P-9/11.
33. PW-13 Shri Dharmendra Chaudhary, another independent witness deposed that he went to the office of CBI on the direction of his senior officers on 29.03.2019 and met Inspector Kuldeep Sharma who apprised him that he (PW-13) is being made as part CBI Vs. Manas Kumar Kayal & Anr. Page 33 of 168 of the raiding team in respect of investigation against Somvir and Manas Kumar Kayal for catching them red handed while demanding and accepting bribe from Pushkar Jain (PW-11). PW- 13 deposed that raiding team was comprising six to seven members including Jyoti Kumar, formed by Kuldeep Sharma. The witnesses were introduced to each other and the purpose of the raid was also explained. PW-13 further deposed that currency notes of Rs.2,000/- were treated with a solution and money was kept in the custody of Pushkar Jain and who was provided with one SD card/memory card alongwith a voice recorder. He further deposed that the trap team was informed in respect of the receipt of the complaint against Manas Kumar Kayal and Somvir Dhanda, Income Tax officials. PW13 further stated that complaint, verification and the copy of the FIR was shown to him. PW13 further explained about the process carried out in the pre-trap proceedings etc. He further explained that pre-decided signal was also explained to complainant Pushkar Jain and he identified his signatures on handing over memo vide Ex.PW11/B. PW13 further deposed that about 02.30 PM, the CBI officials alongwith independent witnesses proceeded towards the Civic Centre and reached at 03.00 PM, the vehicles etc. were parked.
34. PW-13 further deposed that TLO directed that Jyoti Kumar shall act as a shadow witness to the complainant. PW-13 further deposed that DVR alongwith memory card was put in switch on mode in the pocket of the complainant before he went on lift for the office of accused. He further deposed that complainant/PW- 11 entered the cabin of Somvir, whereas Jyoti Kumar was not CBI Vs. Manas Kumar Kayal & Anr. Page 34 of 168 allowed and Jyoti Kumar sat outside on a sofa and after some time i.e. after 15 minutes, the complainant came out and after some time, Somvir came out and moved towards the bathroom. PW-13 further deposed that Somvir was followed by Jyoti Kumar and the TLO and Somvir washed his hands and came out and complainant told that he had handed over the amount inside the cabin of Somvir Dhanda, TLO then informed the trap team about the transaction and then trap team went inside the cabin of Somvir and Somvir was asked about the transaction. PW13 further deposed that the trap team alongwith Somvir Dhanda proceeded towards the cabin of Manas Kumar Kayal and Somvir was interrogated. He further deposed that he checked Somvir Dhanda on the instruction of TLO, but did not find any money in his pocket and thereafter Somvir asked them to take inside his cabin in respect of the money and Somvir pointed out towards the black colour bag in front pocket and upon instruction of the TLO, he opened the bag and found the money. The amount was tallied with the handing over memo (vide Ex.PW11/B) and it was found matching. PW13 identified his signature on handing over memo Ex.PW-11/B. PW13 identified the GC notes vide Ex.P- 13/1 to Ex.P-13/20. He further deposed that amount was kept in an envelope which was signed by the witnesses and the brass seal was put on it. He deposed in respect of the process of the hand washes of both the hand of accused Somvir and the solution turned slightly PINK when right hand of Somvir was rinsed, whereas the solution does not change its colour when left hand of Somvir was dipped in the sodium carbonate solution. He also deposed washes were taken in respect of the handkerchief, bag and shirt of Somvir Dhanda and the handkerchief, bag and shirt CBI Vs. Manas Kumar Kayal & Anr. Page 35 of 168 were seized and the DVR was switched off and it was also seized. He deposed in respect of the sealing process. PW13 further deposed that complainant detailed the proceedings to TLO as to what had happened inside the cabin of Somvir Dhanda in which complainant told that Somvir Dhanda made a demand and asked for the part payment and he received an amount of Rs.40,000/-. PW13 further deposed that Manas Kumar Kayal who had gone upstairs, came down from the stairs and when he was asked about his address, he did not tell his address correctly and the search team was asked to collect information about Manas Kayal. PW13 further deposed that since it was getting late and the office of the Income Tax was about to be closed, due to which the CBI team came to its office at about 07.15 PM and thereafter the memory card was taken out from the DVR and the transcription, rough site plan was prepared by him and a copy of the memory card was prepared for the Department and the memory card being put in its original cover and thereafter it was put in brown colour envelope which was sealed with the seal of CBI and he signed alongwith TLO and Jyoti Kumar. PW13 further deposed that after interrogation, both the accused persons were arrested and information in respect of both the accused persons were given to their father separately. PW13 further deposed that his introductory voice was recorded on SD card after ensuring its blankness and the voice of Manas Kumar Kayal was recorded. PW13 further deposed that similar process is repeated for recording the voice of Somvir Dhanda and his voice was also recorded. PW13 further deposed that articles in respect of the washes were kept in a box and on a blank paper, the specimen seal of CBI was taken and the seal was handed over to CBI Vs. Manas Kumar Kayal & Anr. Page 36 of 168 Jyoti Kumar. PW-13 identified his signature in recovery memo vide Ex.PW11/E and also deposed that other members of the trap team had signed on Ex.PW13/E after going through the same and the proceedings were concluded at about 04.00 AM on 30.03.2019.
35. PW13 further deposed that on 26.04.2019, his signature was taken on the already prepared rough transcription Ex.PW13/A {D-3(ii)} and the CBI official informed him about the entire happening. PW13 identified his signatures on transcription-cum-voice memo dated 24.04.2019 vide Ex.PW11/F-4 (D-9), Ex.PW11/F-5 and Ex.PW11/F-1 to F-3 (Part of D-9) (Hindi written transcripts). PW13 also identified his signature on rough site plan and arrest-cum-personal search memo of accused Somvir Dhanda as well as on the arrest-cum- personal search memo of accused Manas Kumar Kayal vide Ex.PW11/D-1, Ex.PW13/B (D-7) and PW13/C (D-8) respectively. PW13 identified his signatures on office-cum- seizure memo vide Ex.P-1 (D-10) by which assessment file of Bharat Bhushan Jain and complaint filed by Bharat Bhushan were seized. PW13 identified the envelope vide Ex.PW11/H in which particulars "Trap Money Rs.40,000/- in RC No. 09(A)/2019" was written and also identified the 20 GC notes after comparing it with the number which are mentioned in Ex.PW11/B and deposed that the currency notes were recovered from the front pocket of black colour bag. PW13 identified the different memory cards Ex.P-9/6, Ex.P-9/8 and Ex.P-9/10 and his signature on all the trappings/cover of the memory card. PW13 identified the digital voice recover of SONY make vide Ex.P-
CBI Vs. Manas Kumar Kayal & Anr. Page 37 of 1689/11 bearing his signature on a brown colour envelope vide Ex.PW9/R and the same was also covered with a yellow colour envelope which is marked as Ex.DVR.
36. PW13 identified his signature on the five glass bottles which contain the washes vide Ex.P-10/1 to Ex.P-10/5 (the washes are left hand wash, right hand wash, handkerchief wash, shirt pocket wash and bag wash). PW13 also identified the black colour bag (Ex.P-13/2), handkerchief (Ex.P-13/4) and check shirt (Ex.P-13/6) which were separately taken out from bag/envelope. PW13 identified his signatures on bag/envelope in which the respective exhibits were kept. During his examination-in-chief, memory card Q-3 vide Ex.P-9/6 was played in the Laptop and the same was found containing three different files namely 190329_1430, 190329_1432 and 190329_1502. All the three files were played separately and in respect of the file 190329_1430, PW13 deposed that this file contain the introductory voice of Jyoti Kumar, whereas in respect of file no. 190329_1432, he deposed that it contains his introductory voice and in respect of file no. 190329_1502, PW-13 deposed that this file contains the voice of complainant and accused Somvir Dhanda. On playing memory card marked S-1, PW13 deposed that it contains five files bearing nos. 190329_2012, 190329_2012-1, 190329_2015, 190329_2017 and 190329_2017- 01 and PW13 identified his voice in file nos. 190329_2012-1 & 190329_2017-01 and the voice sample of Manas Kumar Kayal in file no. 190329_2015, sample voice of Jyoti Kumar in file no. 190329_2017. On playing memory card marked S-2, PW13 deposed that it contains five files bearing nos. 190329_2235, CBI Vs. Manas Kumar Kayal & Anr. Page 38 of 168 190329_2236, 190329_2243, 190329_2250 and 190329_2251 and PW13 identified his voice in file no. 190329_2235 & 2251 and the voice sample of Jyoti Kumar in file nos. 190329_2236 & 2250 and sample voice of Somvir Dhanda in file no. 190329_2243.
37. PW13 further deposed that the brass seal was used by the CBI and the sealing material to seal the exhibits and impression of the brass seal with blue ink was taken on recovery memo and other relevant pages and the brass seal after its use, was handed over to Jyoti Kumar for safe custody with the directions to produce the same as and when asked by the court.
POLICE WITNESSES RELATING TO INVESTIGATION, VERIFICATION AND TRAP PROCEEDINGS.
38. PW14 Inspector Pramod Kumar Tanwar is the verification officer who deposed that on 28.03.2019, a complaint was marked to him for registration and verification by Shri N.M.P. Sinha, SP, CBI in the post lunch session. PW14 after perusing the contents of the complaint Ex.PW11/A identified the writing of his superior. PW14 further deposed that for the purposes of verification of the complaint, independent witness Shri Jyoti Kumar was arranged through Duty Officer and after introducing the independent witness Jyoti Kumar to Pushkar Jain, the complaint was discussed and arrangement for DVR and a sealed memory card of 8 GB San disk was made. Another officer Umesh Kaushik explained the functioning of the DVR and inserted the memory card on the DVR after ensuring its blankness. PW14 further deposed that for the purposes of the CBI Vs. Manas Kumar Kayal & Anr. Page 39 of 168 physical verification, a visit was made to the office of accused persons in his personal vehicle and the said vehicle was parked in the basement and he gave instructions to the complainant to visit Manas Kumar Kayal and instruction was also given to the complainant that Jyoti Kumar shall also accompany him. A DVR on switch on mode was provided to the complainant and after some time, complainant and Jyoti Kumar returned back and from the complainant, DVR was taken which was put on switch off mode. PW14 further deposed that upon inquiry, the complainant narrated the discussion which took place inside the office of Manas Kumar Kayal. PW-14 further deposed that complainant/PW11 Pushkar Jain told him that Jyoti Kumar was asked to go out of the office by the accused Manas Kumar Kayal and a discussion took place in respect of the case in which accused Manas Kumar Kayal was demanding Rs.1,50,000/- from him through Somvir Dhanda and to which the complainant was asking to reduce the same and the accused Manas Kumar Kayal instructed the complainant to meet his Inspector Somvir Dhanda. PW14 deposed that the said recorded conversation was heard from the memory card by using the write blocker and copy of the said conversation was made in the official Laptop for the purposes of investigation. PW14 deposed about the preparation of the entire verification proceedings vide Ex.PW11/D, containing the signatures of all persons as well as his signature. PW14 further deposed that since the demand was not clearly established on 28.03.2019 as Manas Kumar Kayal had instructed the complainant to meet Somvir Dhanda and therefore, on 28.03.2019, complainant and independent witnesses were directed to appear in the office of CBI on 29.03.2019 and at the CBI Vs. Manas Kumar Kayal & Anr. Page 40 of 168 relevant time, the brass seal of CBI as well as DVR was handed over to independent witness Jyoti Kumar for its safe custody.
39. PW14 further deposed that on 29.03.2019, the CBI team assembled in the CBI office at 10.30 AM and in order to ascertain the availability of Somvir Dhanda, a call was made on his mobile phone. PW14 further deposed that the call was recorded on a new sealed memory card which was inserted in DVR after ensuring its blankness and the call was made at about 10.35 AM and in the said conversation, complainant/PW11 Pushkar Jain told Somvir that on the previous date, accused Manas Kumar Kayal had instructed him to speak with accused Somvir Dhanda and during the said call, Somvir Dhanda told about his availability and asked the complainant to come to his office. The DVR was then switched off and it was decided that a physical visit of the Civic Centre would be made and accordingly, PW14 alongwith complainant/PW11 Pushkar Jain, Jyoti Kumar and Umesh Kaushik proceeded to Civic Centre, where the complainant/PW11 Pushkar Jain was instructed to visit the office of Somvir Dhanda on 16th Floor. DVR on switch on mode was handed over to the complainant/PW11 Pushkar Jain by Umesh Kumar and the independent witness Jyoti Kumar was asked to oversee the conversation between Somvir Dhanda and the complainant/PW11 Pushkar Jain. PW14 further deposed that complainant and Jyoti Kumar came back and DVR was also taken from the complainant/PW11 and it was put into switch on mode (Appears to be typographical error, it should be 'switched off mode') and on the way back to the CBI office, complainant/PW11 narrated the entire incident to PW14 in which CBI Vs. Manas Kumar Kayal & Anr. Page 41 of 168 the complainant/PW11 told that he met accused Somvir Dhanda and told him that accused Manas Kumar Kayal had asked him to meet him, in which the complainant/PW11 asked him to reduce the bribe amount from Rs.1,50,000/-, but the accused Somvir Dhanda told that Rs.1,30,000/- is for Manas Kumar Kayal and Rs.20,000/- for him. PW14 further deposed that complainant/PW11 told him that he had told accused Somvir Dhanda that he cannot arrange the money today. Thereupon, Somvir Dhanda asked him to make the maximum arrangement for today and directed him to meet at 03.00 PM and the said conversation was recorded in the DVR which was heard by the verification team. PW14 further deposed that memory card was taken off and the copy of the same was prepared by using write blocker and the necessary plastic packing and plastic cover of memory card was signed by him and the memory card was kept in an envelope marked as Q-2 which was signed by members of the verification team vide Ex.PW11/C. PW14 deposed that at the relevant time, the brass seal of CBI was handed over to independent witness Jyoti Kumar for its safe custody. PW14 further deposed that the verification dated 28.03.2019 and 29.03.2019 vide Ex.PW11/D and Ex.PW11/C has established the demand of bribe and accordingly, recommendation for FIR was made and the same was registered vide Ex.PW14/A, under section 120B r/w Section 7 of PC Act 1988, containing signature of Shri N.M.P. Sinha, SP, CBI on different pages. PW14 identified the brown colour envelope vide Ex.PW9/C from which memory card vide Ex.P-9/2 was taken out from a paper packet Ex.PW-9/D. The packet and brown colour envelope bear his signatures. PW14 identified the brown colour envelope vide CBI Vs. Manas Kumar Kayal & Anr. Page 42 of 168 Ex.PW9/F from which memory card vide Ex.P-9/4 was taken out from a paper packet Ex.PW-9/G. The packet and brown colour envelope bear his signatures.
40. PW14 deposed that on the asking of Shri Kuldeep Sharma, he joined the trap team which was approved by SP, CBI and the said trap team was comprising of TLO Shri Kuldeep Sharma, Inspector Anand Swaroop, Inspector Vikas Pannu, Inspector Nikesh Kumar Upadhyay, Inspector Harish Chandra, PW14, SI Umesh Kaushik, SI Dinesh Kumar and witness Dharmendra Chaudhary. PW14 further deposed that they all assembled in the CBI office at about 12.35 PM on 29.03.2019. The sealed envelope containing memory cards Q-1 and Q-2 and verification memo were handed over to the TLO Kuldeep Sharma. PW14 further deposed that briefing was given by Trap Laying Officer and the purpose of trap was also explained. PW14 further deposed in detail about the pre-trap proceedings which were noted in Ex.PW11/B. PW14 in detail has also explained as to how the demonstration was given and the treatment of phenolphthalein powder on currency notes of Rs.2,000/- (20 in numbers) i.e. Rs.40,000/- and he identified his signatures on pre-trap proceedings.
41. PW14 deposed that trap team including independent witnesses proceeded towards Civic Centre and after parking their vehicles, instruction was given by TLO to the complainant/PW11 that bribe should be given only on the specific demand and complainant was further reminded to give pre-decided signal CBI Vs. Manas Kumar Kayal & Anr. Page 43 of 168 after the transaction is over and Shri Jyoti Kumar was asked to follow the instructions already given to him. DVR on switch on mode was given to the complainant/PW11 and the complainant proceeded in the room of accused Somvir Dhanda at 16 th Floor, Civic Centre, New Delhi. The complainant/PW11 went inside the room of accused Somvir Dhanda and in the sofa outside the cabin of accused Somvir Dhanda, TLO and independent witness sat, whereas other members took their position in discreet manner on 16th Floor near the office of accused. After some time, the complainant came from the office of accused Somvir into the gallery, but did not give any pre-decided signal and after some time, Somvir Dhanda also came out from his office and proceeded towards toilet and thereafter, complainant followed the accused Somvir and both of them were followed by Trap Laying Officer Kuldeep Sharma and all of them went inside the toilet, whereas independent witness Jyoti Kumar was standing outside the toilet and after two to three minutes, Somvir came out of the toilet after washing his hands and wiping his hands by using handkerchief. In the toilet, the complainant told the TLO in respect of the transaction of bribe and why he did not give any pre-decided signal to TLO and then complainant told that the person who has just left the toilet is accused Somvir Dhanda. Complainant and TLO came out of the toilet and alerted team members in respect of the transaction. Thereafter, trap members including independent witness Jyoti Kumar and Dharmendra Kumar went inside the office of accused Somvir where TLO Kuldeep Sharma and one of the member of the CBI team apprehended accused Somvir Dhanda and challenged him that he took bribe. Accused Somvir became perplexed and admitted that CBI Vs. Manas Kumar Kayal & Anr. Page 44 of 168 he took bribe. The TLO took Somvir Dhanda to office cabin of Manas Kumar Kayal but he was not present as he had gone to 26th Floor of the same building. PW14 and Umesh Kumar were left at the office of Manas Kumar Kayal and after some time, Manas came and he was detained. PW14 further deposed that TLO alongwith independent witness came back to the office cabin of Manas Kumar Kayal and inquiries were made from him, but accused denied any participation in the demand of bribe. A search was made in the office cabin of Manas Kumar Kayal in the presence of the independent witnesses and the relevant file was traced and seized. PW14 further deposed that since public had gathered and thus, further proceedings were to be carried at the office of the CBI and accordingly, the CBI team took both the accused persons and seized articles and proceeded towards the office. PW14 further deposed that a rough site plan was prepared by the TLO with the consultation of complainant and other persons vide Ex.PW11/D-1. PW14 further deposed that cash amount was recovered from the front pocket of the bag in his presence. He also deposed that the same was counted and tallied with handing over memo and when the sealing process started, he moved towards the cabin of Manas Kumar Kayal. PW14 also deposed that DVR was collected and switched off in the gallery. PW14 further deposed that in the office of CBI, investigation copy of the memory card was made by using write blocker and the memory card was kept in a brown envelope and was sealed with the CBI seal. PW14 further deposed that in the office of CBI, a new memory card was arranged through Caretaker Branch and it was inserted in the DVR after ensuring its blankness and after recording the introductory voices of the independent CBI Vs. Manas Kumar Kayal & Anr. Page 45 of 168 witnesses, the specimen voice of accused Manas Kumar Kayal was taken vide memory card Ex.S-1 and which was sealed and kept in an envelope. PW14 reiterated the similar process of procuring another memory card in which sample voice of accused Somvir Dhanda was taken vide memory card Ex.S-2 and which was sealed and kept in an envelope. PW14 further deposed in respect of arrest of both the accused persons in the presence of the independent witnesses and he also deposed that initials were put on the DVR and the DVR was kept in a brown colour envelope, sealed with the CBI brass seal and was kept in a brown envelope which was marked as 'DVR' and initials of the witnesses were taken. PW14 also explained in respect of the miscellaneous proceedings such as sealed bottle, trap money, shirt and handkerchief of accused Somvir Dhanda, black colour bag and DVR being taken into the police possession and a memo being prepared in this regard vide Ex.PW11/E dated 29.03.2019, bearing his signature at Point-B. PW14 also elaborated that brass seal ink and lac impression was also taken on separate paper and the brass seal was given to independent witness Jyoti Kumar for safe custody with the direction to produce it as and when required by the CBI or by the court and the proceedings were completed at about 04.00 AM (30.03.2019).
42. PW17 Shri Kuldeep Sharma (Trap Laying Officer) deposed that in March 2019, an FIR was marked to him pertaining to the solicitation of the bribe amount of Rs.1,50,000/- by Somvir Dhanda and Manas Kumar Kayal. He called upon the verification officer Shri Pramod Tanwar who handed over him the complaint as well as verification report and on the instruction CBI Vs. Manas Kumar Kayal & Anr. Page 46 of 168 of the SP, raiding party was constituted having CBI officials and two independent witnesses and a briefing was given in respect of the complaint. PW17 gave description of the members of the raiding team and deposed that on 29.03.2019, the team assembled at the office of SP at about 01.00 PM. He further deposed that an English complaint vide Ex.PW11/A was shown to the team and as per the complaint, it was informed that there was some pendency of the tax and notice was issued for recovery of Rs.9,00,000/-. He further deposed about the contents of the complaint and the intention of the complainant not to pay the bribe due to which the complaint was lodged against both the suspects who were officials at Ward No. 54. PW17 further deposed that verification report, RC and other material pertaining to the FIR vide Ex.PW14/A was explained to independent witnesses. The currency notes of the denomination of Rs.2,000/-, totaling Rs.40,000/-, were treated with phenolphthalein powder after noting its numbers. PW17 further explained in detail in respect of the demonstration of phenolphthalein with sodium carbonate solution in his deposition. He also deposed that complainant was asked to give his search and the amount of Rs.40,000/- treated with phenolphthalein kept in right side front pocket of the pant by an independent witness Jyoti Kumar after ensuring that no incriminating thing is found from the pocket of the complainant and the instructions given by him to the complainant that amount is to be handed over only on demand. PW-17 further deposed that all persons including the independent witnesses appended their signatures on the pre-trap memo/handing over memo and it also contains his signature at Point-E vide Ex.PW11/B. PW17 further stated that Jyoti Kumar CBI Vs. Manas Kumar Kayal & Anr. Page 47 of 168 had also produced DVR of SONY make, CBI brass seal and memory cards Q-1 and Q-2 which were kept in a sealed envelope. PW-17 further deposed that a fresh memory card was inserted in the DVR by Jyoti Kumar after ensuring its blankness. PW17 further deposed that arrangement of various items such as Laptop, Printer and other documents like copy of FIR, three to four empty clean glass bottles, CBI brass seal, DVR, memory card on which the introductory voices of independent witnesses were recorded were kept in a bag called IO Kit and they left the CBI office at about 02.40 PM in two vehicles and reached the Civic Centre, New Delhi and on reaching the Civic Centre, Jyoti Kumar was asked to remain as shadow witness, whereas Dharmendra Chaudhary was asked to follow the complainant and the briefing in respect about the signals to the trap team by rubbing his cheeks with his both hands or by giving a miss call on his mobile.
43. PW-17 further deposed that on reaching 16th Floor of the Civic Centre by using the lift, the raiding party was divided into two parts, first part was comprising complainant, Jyoti Kumar, Inspector Harish Chandra and PW17. In the second part, the team was comprising Inspector Anand Swaroop, Inspector Nikesh Upadhyay, Inspector Vikas Pannu, Inspector Pramod Tanwar, SI Umesh, SI Dinesh and the independent witness Dharmendra Chaudhary and other subordinate staff.
44. PW-17 deposed that he went towards the office of accused persons from the toilet side, whereas the other party positioned CBI Vs. Manas Kumar Kayal & Anr. Page 48 of 168 opposite to the office of the accused persons and then complainant was instructed to enter into the transparent cabin/office of Somvir Dhanda as he did not allow any other person with the complainant. PW-17 alongwith Jyoti Kumar and Inspector Harish Chandra took position at Room No. 10 which was opposite to the office of Somvir Dhanda, which was at a distance of about 10 to 15 fts. and after about 10 to 15 minutes, the complainant and Somvir Dhanda came out one after other from the cabin. Somvir Dhanda was being followed by Pushkar Jain and both of them were at a distance of 2 steps and Somvir went inside the toilet, being followed by the complainant and he also followed them and the independent witness also came inside. Accused Somvir Dhanda was washing his hand and complainant had not given any signal and when accused Somvir Dhanda left the toilet, inquiry was made from the complainant who told that due to nervousness, he could not give any signal, although he had handed over the bribe amount to Somvir Dhanda which was kept by him in his shirt pocket. PW17 further deposed on 27.07.2022 that members of the team including independent witness rushed towards the chamber of Somvir Dhanda who was present in his chamber and he detained him and gave his introduction and challenged him qua the transaction and acceptance of the bribe amount of Rs.40,000/-, to which Somvir pleaded and sought forgiveness from the complainant, and identified Somvir. Complainant further told that after receipt of the bribe amount in his right hand, Somvir kept on his left chest pocket of the shirt. Complainant further disclosed that after the above transaction, he had gone to check the availability of Manas Kumar Kayal in Room No. 1601 and was followed by Somvir CBI Vs. Manas Kumar Kayal & Anr. Page 49 of 168 Dhanda and on seeing him, the complainant could not give the indication of transaction of the bribe and he had started moving towards the toilet. PW17 further deposed that trap team members moved towards Room No. 1601 alongwith Somvir Dhanda, but accused Manas Kayal was not found in his cabin and after inquiry from the staff, it was found that he had gone to meet CIT at 21st Floor. PW17 further deposed that Inspector Pramod Tanwar and Umesh were directed to detain Manas Kumar Kayal and the cursory search of Somvir was taken but no recovery was effected from his person. PW17 further deposed that he again challenged Somvir Dhanda and asked him to disclose about the amount to which he stated "Mujhe mere cabin main le chalo main wahan se recovery kara dunga" and thereafter Somvir was taken to his cabin in the presence of the independent witness and he pointed out towards black bag kept alongwith his chair and stated that amount was kept in the bag. Thereafter, on his direction, independent witness Dharmendra Kumar made search of the bribe amount from the bag and from the first pocket of the bag, an internal pocket was seen where the cash was kept. The amount was tallied by both the independent witnesses from the handing over memo. Pramod Tanwar and SI Umesh Kumar had detained Manas Kumar Kayal from his cabin No. 1601 after he had returned.
45. PW17 further deposed that the recovered amount was kept in a brown envelope and was sealed by the CBI and complainant also told him that Somvir Dhanda for himself and for Manas Kumar Kayal had demanded Rs.1,50,000/- out of which Rs.40,000/- was the bribe amount. PW17 identified the brown CBI Vs. Manas Kumar Kayal & Anr. Page 50 of 168 colour envelope in which the bribe amount was kept, bearing his signature vide Ex.PW11/H and from the envelope, 20 currency notes of denomination of Rs.2,000/- were taken out and the currency notes are Ex.P-13/A-1 to Ex.P-13/A-20. PW17 further deposed in respect of the hand washes of accused Somvir Dhanda. PW17 also deposed in respect of the dipping of the right and left hand of the accused Somvir Dhanda in the solution and the respective solutions being sealed in the glass bottles vide Ex.P-10/1 and Ex.P-10/2. PW17 deposed that when right hand was dipped in the solution, it turned slight PINK, whereas left hand did not show any change in the color. PW17 also deposed that accused Somvir Dhanda was asked to produce his handkerchief and the said handkerchief was dipped in the colourless solution of sodium carbonate and water and upon dipping the same, the handkerchief turned slightly PINK. The handkerchief was seized, packed and bottle was marked as "HCW" vide Ex.P-10/3. A fresh solution of sodium carbonate of water was also prepared. PW17 further deposed that on his directions, accused Somvir Dhanda dipped a cloth piece cut from a separate cloth which was then rubbed against the inner portion of the bag where the cash as kept and then the cut portion of the cloth so rubbed against the inner portion was dipped completely and left inside the solution. The solution alongwith the cut portion of the cloth were transferred into empty bottle and which was sealed with the CBI brass seal. The said solution which is also having a cloth dipped and marked as "Bag wash" vide Ex.P- 10/4. PW-17 further deposed that the pocket of the shirt of accused Somvir Dhanda which he was wearing at the time of accepting and keeping the amount was dipped in the solution CBI Vs. Manas Kumar Kayal & Anr. Page 51 of 168 which turned PINK and the solution was transferred in a glass bottle in which paper slip was pasted. The wash was also packed, seized and marked as "SPW vide Ex.P-10/5. PW17 also deposed that a fresh T-shirt was also provided to accused Somvir Dhanda as his shirt was removed. The handkerchief, shirt and bag of accused Somvir Dhanda were packed, seized and during the evidence, the same were exhibited as Ex.P-13/4, Ex.P-13/6 and Ex.P-2 respectively.
46. PW17 further deposed that DVR recording was prepared and a rough transcription vide Ex.PW17/A was also prepared bearing his signature as well as signatures of other witnesses vide Ex.PW17/A which was part of the recovery memo (Post Trap Memo vide Ex.PW11/E. PW17 deposed that both the accused persons were interrogated and Manas Kumar Kayal informed that file of Bharat Bhushan Jain was in his possession and upon which the office search of both the accused persons were made vide search memo Ex.P-1 dated 29.03.2019 and also identified his signature. PW-17 further deposed that the file pertaining to Bharat Bhushan Jain was recovered from the office cabin of accused persons and in further question, PW17 stated about the recovery of the files as one file each was recovered from both the cabins. He also deposed that a site plan was also prepared at the instance of the independent witness vide Ex.PW11/D-1.
47. PW17 further deposed that since it was closing time of the office and the public persons had also gathered due to which the trap team alongwith complainant, independent witnesses and both the accused persons were brought to the office of CBI. In CBI Vs. Manas Kumar Kayal & Anr. Page 52 of 168 the CBI office, memory card (Q-3) was removed from the DVR and requisite sealing process was undertaken in the presence of the witnesses. PW17 also deposed that voice samples of both the accused persons were taken after giving due warning to them on fresh memory card of 8 GB which was inserted in the DVR. The voice samples of both the accused persons were recorded after recording the introductory voice of independent witness and thereafter, the concluding voice was also recorded. PW17 identified the memory cards as Ex.P-9/8 and Ex.P-9/10. PW17 further identified all necessary packing including envelopes etc. from which the said memory cards were taken and packed and he broadly confirmed the procedural part of taking the memory cards. The voice samples of accused Manas Kumar Kayal and Somvir Dhanda were marked as S-1 and S-2 respectively. PW17 further deposed in respect of the sealing of the DVR which was seized and sealed with the CBI brass seal and thereafter the same was transferred to brown color envelope and was then marked as DVR in RC No. 09(A)/2019, which was signed by both the independent witnesses. The DVR was marked as Ex.P-9/11 and the brown envelope from which it was taken was marked as Ex.PW9/R and the yellow colour envelope was marked as Ex.PW9/Q. PW17 deposed that specimen seal was put on the recovery memo (Trap Memo) and the sample of the seal was also taken on white paper prior to forwarding it to CFSL. PW17 identified the recovery memo (Trap Memo) vide Ex.PW11/E, bearing his signature as well as signatures of other persons at different places and the contents of the recovery memo were explained to all the witnesses and the relevant exhibits of the case were handed over to the MHC(M) and the brass seal was handed CBI Vs. Manas Kumar Kayal & Anr. Page 53 of 168 over to Jyoti Kumar for producing the same as and when required. PW17 identified his signatures on the arrest memos of accused Somvir Dhanda and Manas Kumar Kayal vide Ex.PW13/B and Ex.PW13/C respectively in respect of their arrest.
48. PW19 Shri Sushil Kumar was the first investigating officer and he took over the investigation of the present case from TLO Kuldeep Sharma. He deposed that he sent the voice recording as well as sample voices to CFSL for examination and the respective washes collected during the trap proceedings to CFSL for analysis. He also collected the call detail record of the mobile phones of accused persons and the complainant/PW11. He also got identified the questioned and the specimen voices from the recorded conversation from the witnesses. He deposed about the transcription-cum-voice identification memo dated 24.04.2019 vide Ex.PW11/F-4 and Ex.PW11/F-5 bearing his signature at Point-D and also of other witnesses. He also stated that transcription vide Ex.PW11/F-1 to F-3 were signed and prepared in his presence. PW19 deposed that during investigation, the washes as well as memory cards and DVRs were sent to CFSL through forwarding letters vide Ex.PW20/B (Colly) and Ex.PW20/C (Colly). He deposed that call detail records, certificate under section 65-B of Indian Evidence Act and CAF of the accused persons were received from the Service Providers vide their forwarding letters Ex.PW4/A, Ex.PW4/1A, Ex.PW4/C, Ex.PW4/B, Ex.PW2/A, Ex.PW2/B, Ex.PW2/C and Ex.PW2/D. PW19 deposed that he had recorded the statements of witnesses as per their versions and no addition or deletion were made CBI Vs. Manas Kumar Kayal & Anr. Page 54 of 168 therein, and thereafter the investigation was transferred to Inspector S.S. Gill (PW20).
49. PW-20 Inspector Saminder Singh Gill is the Investigating Officer who filed the charge sheet and recorded the statement of the witnesses and also sent material exhibits to CFSL for examination. He deposed that he recorded the statements of the versions given by the witnesses and he received the investigation from Sushil Kumar, Dy. SP on 15.05.2019 pursuant to order passed by SP, CBI. PW20 deposed that he recorded the statement of Bharat Bhushan Jain vide Ex.PW20/A as per the version given by him. PW20 deposed that he took the specimen signatures of Hemant Jain vide Ex.PW5/B. He also proved the letter alongwith certificate vide Ex.PW20/B which was addressed to Director, CFSL, New Delhi for examining solution/washes for expert opinion with a request for sending back the reminiscent of the solutions. PW20 also proved the forwarding letter vide Ex.PW20/C vide which a request was made to examine the questioned and specimen voices, DVR for expert opinion. PW20 further deposed that a letter was written to Income Tax Department for providing the original complaint dated 28.01.2019 from Shri C.P. Meena vide Mark PW20/1. PW20 further deposed that he also took specimen signatures of Hemant Jain and confronted him with complaint Ex.PW6/B which was denied by Hemant Jain (PW-5). PW20 further stated that seizure memo vide Ex.PW-5/D, certified copy of PAN card and gate pass vide Ex.PW5/A were prepared and after obtaining these materials, the same were sent to CFSL. PW20 further deposed that FSL report dated 09.07.2019 in respect of the specimen CBI Vs. Manas Kumar Kayal & Anr. Page 55 of 168 signatures of Hemant Jain was received vide forwarding letter of CFSL vide Ex.PW20/D, bearing the stamp of CBI. PW20 also deposed to the effect that a letter dated 20.05.2019 addressed to the Principal Commissioner of Income Tax was also received in the office of CBI on 23.05.2019 having signature of Hemant Jain vide Ex.PW20/E alongwith registered envelope and speed post vide Ex.PW20/E-1 and Ex.PW20/E-2 respectively. PW20 further deposed that vide letter dated 23.05.2019, documents were received from the Office of SP, CBI in respect of tax evasion petition by Hemant Jain vide Ex.P-4. PW20 further deposed that vide seizure memo dated 22.05.2019, the copy of instructions were seized from Shri N.B. Joshi, bearing his signature at Point- B vide seizure memo Ex.P-6 (Colly - total 7 pages).
50. PW20 further deposed that he collected print out of services of OLA cab dated 25.03.2019 through seizure memo and the print outs vide Ex.PW11/G and Ex.PW11/G-1. PW20 further deposed that the documents indicate that on 25.03.2019, complainant went to Income Tax Office, Minto Road as he was called by accused Somvir Dhanda. PW20 also deposed in respect of recordings of statements of Pushkar Jain on 21.05.2019 and 18.09.2019 and the necessity of collecting the documents from OLA since in his statement dated 21.05.2019, the complainant/PW11 had inadvertently mentioned in his statement dated 28.03.2019 (i.e. complaint vide Ex.PW11/A) the date as 22.03.2019 and therefore, the statement under section 161 Cr.P.C. was recorded on 21.05.2019 and 18.09.2019 in this respect and the seizure memo of OLA document was also prepared.
CBI Vs. Manas Kumar Kayal & Anr. Page 56 of 16851. PW20 further deposed that he had collected the Income tax notices, replies by father of the complainant/PW11 and the statement of the father of the complainant was recorded by Manas Kumar Kayal on 13.03.2019 vide Ex.PW7/A. PW20 further deposed that the statement was in the handwriting of Manas Kumar Kayal and the last page of the statement was against the accused Manas Kumar Kayal. However, same was changed, but complainant/PW11 took the initial statement in his mobile phone and provided the print out to the IO which was seized by him. The original statement was also identified by the complainant/PW11 bearing his signature. The set of Income tax notices and statement as above, were seized vide seizure memo dated 21.05.2019 vide Ex.P-5 (Colly). The original statement of Bharat Bhushan Jain is Ex.PW7/A. PW20 further stated that the last page of the photocopy, part of admitted documents (Ex.P-5) of the statement dated 13.03.2019 provided to him vide aforesaid seizure memo (which is at page 110 of Ex.P-5) (D-19), is different from the last page of the original complaint lying in the file D-11 which is Ex.PW7/A at page six. PW20 also deposed that reports of solution/washes and exhibits were collected from CFSL. PW20 also obtained the prosecution sanction against both the accused persons and recorded the statement of the witnesses and filed the charge sheet.
WITNESSES FROM THE INCOME TAX DEPARTMENT
52. PW3 Smt. Laxmi Barathwal was predecessor of accused Manas Kumar Kayal. She deposed that she had issued notice CBI Vs. Manas Kumar Kayal & Anr. Page 57 of 168 dated 13.08.2022, under section 142 of I.T. Act and identified her signature on the same vide Ex.PW3/A. She also deposed that limited scrutiny cases are the cases which are picked by system in random manner and the notice was issued in a routine manner by seeking basic details. PW3 was not cross-examined on behalf of the accused persons.
53. PW8 Shri C.P. Meena, posted in the Office of PCIT-18 till July 2019, deposed that a tax evasion petition was received in the office and which was put by him vide Ex.PW8/A to the Principal Commissioner of Income Tax, who made a note vide Ex.PW6/B. PW8 identified the signature of Shri Prashant Bhushan, PCIT. (It appears that relevant marking was not done on Ex.PW6/B i.e. in Black Ink on the left side above the bottom of the page). PW8 was not cross-examined on behalf of the accused persons.
54. PW21 Shri Gaurav Sharma was posted as Joint Commissioner of Income Tax from September 2018 to July 2019. He deposed that a demand made by the Income Tax Department can be stayed by the Assessing Officer after payment of 20% of the tax, as per CBDT Circular vide Ex.PW21/A. He also placed on record another office memorandum dated 29.02.2016 Ex.PW21/B relating to the stay of demand.
55. PW21 deposed that during the investigation, he handed over the copy of the letter dated 23.05.2019 alongwith letter dated 28.02.2019 written by him to the Income Tax Officer. He further deposed that a letter dated 28.01.2019 was written by one CBI Vs. Manas Kumar Kayal & Anr. Page 58 of 168 Hemant Jain to the Principal Commissioner of Income Tax regarding evasion of tax by Bharat Bhushan Jain and letter dated 14.02.2019 written by him to the Income Tax Officer, a letter dated 13.02.2019 written by Manas Kumar Kayal to the Principal Commissioner of Income Tax, letter dated 20.03.2019 written by Shri C.P. Meena, the Income Tax Officer (HQ) to Joint Commissioner of Income Tax, Range 54 and other letter dated 14.03.2019 vide Ex.P-4 (D-16) during the investigation. PW21 deposed that if an Assessing Officer wants to increase or decrease the conditional amount of 20% of tax demand then he is required to refer the matter to the Principal Commissioner, Income Tax alongwith the reasons and this decision does not lie in the hand of Assessing Officer since only competent authority i.e. Principal Commissioner of Income Tax has the power to increase the conditional amount of 20% to stay the tax demand. PW21 further explained the meaning of TEP i.e. Tax Evasion Petition and he further stated that in cases of limited scrutiny, the Assessing Officer can make certain specified limited questions and he further deposed that questionnaire dated 04.10.2018 vide Ex.P-2 (Colly) of the Assessing Officer were beyond the scope of the limited scrutiny and the hand written statement of Bharat Bhushan vide Ex.PW7/A from Page 4 to 6 of Ex.P-2.
SANCTIONING AUTHORITY
56. PW-18 Ms. Parminder is the Principal Commissioner of Income Tax and she granted sanction for prosecution under section 19 of the PC Act against A-1 Manas Kumar Kayal and A- 2 Somvir Dhanda vide Ex.PW18/A. She deposed that she CBI Vs. Manas Kumar Kayal & Anr. Page 59 of 168 considered various material, statement of witnesses and evidences and found it to be a fit case for grant of sanction for prosecution against the accused persons. She also identified the signature of Shri G.P. Sharma who forwarded the same vide Ex.PW18/B. WITNESSES FROM FORENSIC DEPARTMENT
57. PW-6 Ms. Lavang Lata is is the Forensic Expert and she tendered her report vide Ex.PW6/A. She examined the questioned document Q-1 as well as admitted document vide Ex.PW5/A, Ex.PW5/C and Ex.PW5/D and specimen S-1 to S-60 vide Ex.PW5/B (Colly) and opined that the questioned document could not be attributed to the writer of Specimen English signature i.e. Hemant Jain. She also deposed that signatures appearing on A-1 to A-3 and S-1 to S-60 are of the same person.
58. PW-9 Shri Surbat Kumar Choudhury is the Forensic Expert who furnished his opinion in respect of the voice recordings vide report Ex.PW9/A. He deposed that he examined the exhibits containing the questioned audio recording with specimen voices and found that specimen voices contained in S-1 and S-2 were tallying with respective questioned voices contained in Q-1, Q-2 and Q-3. He further stated that no tampering was detected in the exhibits. He deposed in respect of the condition in which the exhibits were received in the office of CFSL and the procedure for its return to the Authority which sent it for examination.
CBI Vs. Manas Kumar Kayal & Anr. Page 60 of 16859. PW-10 Shri V.B. Ramteke is the Principal Scientific Officer (Chemistry)-cum-Ex.Officio Assistant Chemical Examiner and he examined contents of five sealed bottles marked as Ex.LHW, Ex.RWH, Ex.HCW, Ex.Bag Wash and Ex.SPW and proved the chemical examination report dated 30.04.2019 Ex.PW10/A. PW10 was not cross-examined by the Ld. Counsels for the accused persons.
MISCELLANEOUS WITNESSES
60. PW-1 Smt. Anuradha Jain identified her signature in Customer Application Form and the addresses mentioned in Ex.PW-1/A (D-7). She deposed that Mobile No. 9811036311 stands in her name and the same is used by her son Pushkar Jain (PW-11). PW1 was not cross-examined on behalf of the accused persons.
61. PW-4 Shri Saurabh Aggarwal, Nodal Officer brought CDR of Mobile No. 9811036311 alongwith certificate under section 65-B of Indian Evidence Act vide Ex.PW4/A and Ex.PW4/B in respect of Smt. Anuradha Jain for the period 13.03.2019 to 29.03.2019. He also deposed that as per CDR, a call was made from 9811036311 to 9958568880 on 29.03.2019 for 45 seconds at 10:34:49.
62. PW12 Shri Bhushan Agarwal identified his signature in Customer Application Form and the addresses mentioned in Ex.PW-2/C, bearing his photograph. He deposed that Mobile No. 9958568880 stands in his name and after purchasing the CBI Vs. Manas Kumar Kayal & Anr. Page 61 of 168 SIM, he gave the same to his friend accused Somvir Dhanda when he was residing with him as PG and forgot to collect back the SIM. PW12 was not cross-examined on behalf of the accused persons.
63. PW2 Shri Ajay Kumar, Nodal Officer brought CDR of Mobile No. 9958568880 alongwith certificate under section 65-B of Indian Evidence Act vide Ex.PW2/B and PW2/D in respect of Shri Bhushan Aggarwal for the period 13.03.2019 to 29.03.2019. He also deposed that as per CDR, a call was made from 9811036311 to 9958568880 on 29.03.2019 for 45 seconds at 10:34:49. PW2 was not cross-examined on behalf of the accused persons.
64. PW5 Shri Hemant Jain is the uncle of the complainant. The purported tax evasion petition/complaint was shown to him wherein he denied that same bears his signature at Point-A. (The complaint/purported tax evasion petition dated 28.01.2019 was sent to the Income Tax Office in the name of Hemant Jain against Bharat Bhushan Jain). He also deposed that the complaint was shown to him when he visited the CBI office and denied about making any such complaint to the CBI. PW5 identified his signature on gate pass vide Ex.PW5/A (D-15) {Ex.PW5/A was sent to CFSL for analysis containing the admitted signature of Hemant Jain}. PW5 also identified his signatures from S-1 to S- 60 in six pages vide Ex.PW5/B. PW5 also deposed that vide seizure memo Ex.PW5/D, he furnished the copy of PAN card and original visitor gate pass. He also deposed that the copy of PAN CBI Vs. Manas Kumar Kayal & Anr. Page 62 of 168 card bears his signature at Point-A-2.
65. PW15 Shri Narender Pal is the Crime Assistant in CBI, ACB, New Delhi and he identified signature of Shri N.M.P. Sinha, the then SP on the FIR Ex.PW15/A (FIR Book containing the office copy of the FIR - OSR) and deposed that the FIR was sent to the court vide dispatch no. 3439 dated 02.09.2019.
66. The prosecution had alleged that Pushkar Jain (PW11) had used mobile bearing no. 9811036311 which was in the name of Smt. Anuradha Jain (PW-1) and she identified her signature on the Customer Application Form. The testimony of PW1 to the effect that Pushkar Jain was a user of mobile bearing no. 9811036311 is not disputed and similarly the mobile bearing no. 9958568880 was used by A-2 Somvir Dhanda, was in the name of Bhushan Aggarwal. The said fact was also not disputed by the accused persons and no cross-examination was done on this aspect.
67. Prosecution has also placed on record the CDR of mobile no. 9811036311 and mobile no. 9958568880 vide Ex.PW4/B and Ex.PW2/D respectively. A perusal of the deposition of PW2 and PW4 the respective Nodal Officer would indicate that there was a conversation of 45 seconds at 10:34:49 on 29.03.2019 and effectively, there was no cross-examination by the defence on this aspect and thus, it can be safely said that there was a voice call on mobile no. 9811036311 and 9958568880 on 29.03.2019. It is also relevant to mention that A-2 has not given any CBI Vs. Manas Kumar Kayal & Anr. Page 63 of 168 suggestion to the effect that there was no conversation between A-2 and complainant and the testimony of PW-11 to the effect that he had spoken to A-2 Somvir Dhanda remained un-rebutted and unchallenged. It is to be considered and seen whether there was any demand by A-2 in the purported conversation.
STATEMENT OF ACCUSED PERSONS
68. After conclusion of prosecution evidence, statement of accused persons were recorded under section 313 Cr.PC. In their statements, while denying all the incriminating evidence put to them, accused persons claimed innocence and false implication in the present case. A-1 Manas Kumar Kayal stated that he had considered the replies which were sent by PW7 while passing assessment order in December 2018 and replies were prior to the issuance of summon to PW7 in March 2019 i.e. during the period of assessment. He further submitted that bank account were already ordered to be attached prior to the recovery of tax amount and penalty prior to appearance of PW7 on 13.03.2019. A-1 also stated in his statement under section 313 Cr.P.C. that after passing of the assessment order, he was taking action for recovery of tax demand and penalty under the provisions of Income Tax Act 1961. A-1 also took the plea that Tax Evasion Petition (TEP) was not ordered to be started as approval from the competent authority was not received by him through proper channel. A-1 further stated in his statement under section 313 Cr.P.C. that he did not demand any amount from Bharat Bhushan Jain and Pushkar Jain. A-1 further stated that he was not empowered to reduce the amount of tax demand and Penalty amount raised through Assessment Order. A-1 stated that Bharat CBI Vs. Manas Kumar Kayal & Anr. Page 64 of 168 Bhushan Jain was left with remedy of filing appeal against the Assessment Order of this case, which was filed even before 13.03.2019 when his statement was recorded in the recovery proceedings. A-1 stated that Bharat Bhushan Jain sought stay on recovery proceedings, but A-1 dismissed his application as A-1 was not competent to grant stay on the recovery proceedings without deposit of 20% of tax demand and Penalty. A-1 stated that the appeal filed by Bharat Bhushan Jain before CIT (Appeal) against Assessment Order was dismissed by CIT (Appeal) upholding A-1's Assessment Order. Therefore, Bharat Bhushan Jain approached ITAT against the order of CIT (Appeal). A-1 stated that Bharat Bhushan Jain and Pushkar Jain were afraid of recovery proceedings initiated by the department and as such they had utilized CBI as a tool to put pressure upon the department. A-1 stated that A-2 is not his cousin nor he had ever referred Pushkar Jain to A-2 for discussion in any money matter. A-1 further stated that he was not competent to reduce the tax demand and penalty imposed through Assessment Order of December 2018 and issue of Tax Evasion Petition (TEP) was not the subject matter of the complaint filed by Pushkar Jain before CBI and it was confined only to the Limited Scrutiny Case and hence, the falsity of the complaint is apparent as A-1 was not capable of doing any favour or dis-favour to Bharat Bhushan Jain after passing of the Assessment Order in December 2018. A-1 stated that he is innocent and he was not aware about any conversation between Pushkar Jain and A-2, if any had actually taken place.
CBI Vs. Manas Kumar Kayal & Anr. Page 65 of 16869. A-2 Somvir Dhanda denied all the incriminating evidence against him. He had also stated in his statement recorded under section 313 Cr.P.C. to the effect that he came out of his cabin to wash his hand with the handwash in the washroom when complainant had followed him in the same washroom. A-2 also took the plea that the black colour bag does not belong to him and no money was recovered from it. A-2 also denied that any conversation took place between him and the complainant. He further stated that in order to avoid tax liability, Pushkar Jain has falsely implicated him in the present case. A-2 further stated that he had never demanded any bribe from Pushkar Jain or his father and he never accepted any bribe from Pushkar Jain. A-2 further stated that no bribe money was recovered from his bag. A-2 also took the plea that prosecution sanction was granted without application of mind.
DEFENCE EVIDENCE
70. D1W1 Shri Rohit Kumar Anand, Inspector of Income Tax, Office of the Principal Chief Commissioner of Income Tax, ITO, New Delhi had brought the summoned record i.e. promotion order no. 195/GO/2015-16 dated 09.10.2015 vide Ex. D1W1/A (OSR) in which name of Manas Kumar Kayal is mentioned at serial no. 26 at Page 2. He deposed that present promotion order vide Ex.D1W1/A was approved in Departmental Promotion Committee meeting dated 09.10.2015 in which name of Shri Manas Kumar Kayal was mentioned vide Ex.D1W1/B (OSR) and he further deposed that the same was put before the Principal Chief Commissioner of Income Tax, ITO, New Delhi who had signed at Point-A on the noting sheet vide Ex.D1W1/C. CBI Vs. Manas Kumar Kayal & Anr. Page 66 of 168
71. D2W1 Shri Gaurav, Income Tax Inspector (Investigation- II), Civic Centre, Minto Road New Delhi deposed that on 29.03.2019 he was present in D-Block, Civic Centre and at around 02.30/3.00 pm, he was taking lunch with Somvir in the cabin of Somvir at E-II Block, Civic Centre as they were posted at PCIT-12 and after finishing the lunch, one person came inside the cabin (the witness also states that it was an open cabin) and started speaking with Somvir. D2W1 further deposed that he do not recall the exact conversation but the conversation was about some case relating to Income Tax matter. D2W1 further deposed that the conversation/discussion between them took for about 5 to 10 minutes and thereafter, D2W1 took the leave of Somvir and Somvir asked him to wait for 2 minutes and thereafter, witness was sitting in the cabin when Somvir was talking to that person. D2W1 further deposed that after about five minutes, Somvir came out of the cabin and the person who was speaking to Somvir also came out of the cabin. D2W1 further deposed that the same person and Somvir had proceeded towards the washroom and D2W1 was carrying his tiffin bag with him and on the way to the washroom, he met his colleague Shri Ayush and gave his tiffin bag to him and the D2W1 also proceeded towards the washroom and started following Somvir. D2W1 further deposed that when he reached inside the washroom, Somvir was washing his hands with soap from the soap dispenser and D2W1 also started washing his hands with soap and thereafter, accused Somvir came out of the washroom first and after about 10-15 seconds, witness also came out from the washroom. D2W1 further deposed that when he came out of washroom, he noticed Somvir being caught by 2 to 3 persons and he asked Ayush as to CBI Vs. Manas Kumar Kayal & Anr. Page 67 of 168 what had happened with Somvir as Ayush was standing close to Somvir at that place. D2W1 further deposed that the above- mentioned 2-3 persons who had caught Somvir, took him to the room of Shri Manas Kayal, Income Tax Officer and D2W1 further deposed that after making inquiries, someone told that they were from CBI. D2W1 further deposed that when he tried to go inside the room of Manas Kr. Kayal, he was stopped by CBI officials and asked CBI officials to take care of Somvir as he was ill and was suffering from fever and had some ailment relating to pancreas. D2W1 further deposed that he alongwith Ayush and other persons remained standing in different places in the corridor. D2W1 further deposed that CBI officials who took Somvir inside the room of Manas Kumar Kayal had brought Somvir outside at the corridor and took him to his (Somvir) cabin. D2W1 further deposed that he do not remember after how much time, Somvir was taken to his cabin. D2W1 further deposed that when Somvir was taken to the room of Manas Kumar Kayal, some of the CBI officials had remained inside the cabin of Somvir and Somvir was also taken inside his cabin by 2 to 3 CBI officials and 2-3 CBI officials/persons were already present in the cabin of Somvir. D2W1 further deposed that crowd had gathered and the CBI officials asked them to move away by making hand gesture and D2W1 further deposed that he did not go inside the cabin of Somvir.
72. D2W1 was unable to recall the colour of bag in which Somvir used to put his tiffin box, later on said it might be of maroon colour and in which he used to carry medicines.
CBI Vs. Manas Kumar Kayal & Anr. Page 68 of 16873. D2W1 Shri Gaurav further deposed that when Somvir was inside his cabin, the CBI officials were doing some work and after about 20-25 minutes, he noticed that Somvir was sitting adjacent to his cabin without his shirt and the D2W1 deposed that he asked the CBI officials to give Somvir a shirt and the D2W1 gave his T-Shirt to Somvir from his bag and he also asked the CBI official to provide the medicines to Somvir and thereafter CBI officials told that Somvir is in their custody. D2W1 also deposed that CCTV Cameras were installed in the 16th Floor where cabin of Somvir was located.
74. D2W2 Shri Aayush Yadav, Inspector in Central Circle-27, Jhandewalan, Delhi deposed that in March 2019, his office was in E-2 Block, 14th Floor, Civic Center, New Delhi. He further deposed that he knew Somvir as he is his batch mate and a close friend of D2W1 Shri Gaurav and he was posted in the same CIT-
18. D2W2 deposed that on 29.03.2019, he was on 16th Floor of E-2 Block around 3.00 pm to 3.30 pm for some work and he was talking to some officer named Deepak (Tax Assistant). D2W2 further deposed that he saw Somvir coming out of his cabin as he was talking to Deepak which is about 10-15 steps away from the cabin of Somvir and he and Somvir greeted each other and D2W2 further deposed that Somvir was going to washroom to wash his hands since he had lunch and he saw someone coming out of Somvir's cabin and he also saw Gaurav coming out of the same cabin. D2W2 further deposed that Gaurav used to take lunch with Somvir and sometime he/D2W2 also used to take lunch with both of them probably for once or twice in a week. D2W2 further deposed that Gaurav was also going to wash his CBI Vs. Manas Kumar Kayal & Anr. Page 69 of 168 hands in the washroom and he requested him to hold his bag which is of black colour and even today he uses the same bag.
75. D2W2 further deposed that after Somvir came out of the washroom, two people nabbed Somvir near the pillar in the lobby and he further deposed that he was standing 5-6 steps away from Somvir by the side of some almirah and thereafter the people who caught hold of Somvir, took him to the room of Income Tax Officer (Kayal Sir). D2W2 further deposed that he get to know that the people who took Somvir to the room of Kayal Sir were from CBI and they asked D2W2 and Gaurav to keep away, while they were making request to not to hold Somvir tight as he used to remain sick. D2W2 further deposed that he and Gaurav, kept waiting outside and after 5 to 7 minutes, the CBI officials took Somvir to his cabin and witness further deposed that he and Gaurav noticed some people were also present in the cabin of Somvir as the same could be seen as Somvir's cabin was of glass. Witness further deposed that he and Gaurav entered the cabin of Somvir by following the persons carrying Somvir and they heard and saw people saying that there is money in the bag and D2W2 further deposed that Somvir never said about the money in the bag and thereafter, CBI officials pushed him out of the cabin and thereafter he and Gaurav, were standing 5-10 steps away from the cabin of Somvir. The witness deposed that Somvir used to carry a red bag and again said the colour was reddish.
76. D2W2 further deposed that after the area was being insulated by CBI officials and no one was allowed to come near the cabin of Somvir and thereafter the crowd gathered and after CBI Vs. Manas Kumar Kayal & Anr. Page 70 of 168 some time they saw that Somvir was sitting on the chair on the door of his cabin, wearing a sandow baniyan. D2W2 further deposed that Gaurav requested the CBI officials to allow Somvir to wear something as he used to remain sick and thereafter, Gaurav gave his extra T-Shirt which he usually carried to wear. D2W2 further deposed that at around 06.00 pm - 07.00 pm, Somvir was taken away by CBI officials. D2W2 further deposed that CCTV cameras were installed in the corridor when Somvir was taken by the CBI officials.
77. D2W2 on being shown the bag Ex.P-13/2 and asked whether the bag belongs to Somvir or not to which D2W2 deposed that the bag does not belong to Somvir and he/D2W2 further deposed that the bag which was being used by Somvir was of the make "Jansports" and the said fact was told by Somvir to the witness when they used to travel in Metro together.
SUBMISSIONS OF THE PROSECUTION
78. Ld. PP for CBI contended that in the present case prosecution has proved its case beyond reasonable doubt. It is also contended that PW 11 in the present case has deposed that bribe was demanded and therefore, the bribe money was accepted by Accused no. 2 for himself and for A-1 Manas Kumar Kayal.
79. It is also contended that the bribe amount was directly recovered at the instance of accused no. 2 for himself and for Accused no. 1. It is also contended that prosecution has successfully established the factum of demand of bribe and part CBI Vs. Manas Kumar Kayal & Anr. Page 71 of 168 payment and the complainant had deposed as per the version recorded during the investigation. It is also contended that minor discrepancy in the statement of the complainant was because of the fact that gap between the incident and the examination of the complainant is about two years. It is also contended that audio recordings made during verification and trap proceedings would reveal that accused Somvir Dhanda had demanded money for himself as well as for A-1 Manas Kumar Kayal. It is also contended that complainant had also clearly stated in his deposition that he handed over Rs.40,000/- to Somvir Dhanda. It is also contended that on the directions of Manas Kumar Kayal, the complainant met Somvir Dhanda. It is also contended that after duly satisfying itself in respect of demand of bribe during verification proceedings, the FIR was registered and subsequently, after preparing handing over memo/pre-trap proceedings, the final trap was laid in which Somvir Dhanda was arrested and subsequently Manas Kumar Kayal was also arrested. It is also contended that as per FSL report, the audio recording contained the voices of accused Manas Kumar Kayal and Somvir Dhanda. It is also contended that chemical examination report had also revealed the presence of phenolphthalein powder in the hand washes, shirt pocket, handkerchief and black bag.
80. It is also contended that the prosecution has successfully established the foundational facts constituting the commission of offence i.e. demand, acceptance and recovery of tainted money. It is also contended by Ld. PP that the case of the prosecution apart from the direct evidence, the prosecution case is also supported with corroborative piece of evidence as well as CBI Vs. Manas Kumar Kayal & Anr. Page 72 of 168 scientific evidence in the form of audio recordings and chemical examiner report. It is also contended that both the accused persons have failed to rebut the presumption under section 20 of PC Act 1988.
81. The Ld. PP for the CBI has relied following judgements, i) M. Narsinga Rao Vs State of AP, Supreme court 2001CRI. LJ.515, ii) State of UP Vs M.K. Anthony, AIR 1985 SC 48, iii) Chaturdas Bhagwandas Patel Vs State of Gujarat, AIR 1976 SC 1497, iv) Syed Ahmed Vs State of Karnataka, 2012(8)SCC 527, V) Bhogni Bhai Vs State of Gujarat, AIR 1983 SC 759, vi) Faquira Vs State of UP AIR 1976 SC 915, vii) Iqbal Musa Patel Vs State of Gujarat,2011 AIR SCW 884, 2011 (2) SCC 198, 2011 CRI. L. J., viii) C M Sharma Vs State of AP, (2013) 2 SCC 9(Cri) 89, ix) K. Ramajayam Vs Inspector of Police, Chennai, 2016,Cr.L.J 1542, x) State of UP Vs Zakaullah, 1997 SC, 12.12.2007, xi) Indu Bhushan Chatterjee Vs. West Bengal AIR 1955 CAL 430, xii) 12. Navjot Sandhu vs. NCT of State 2005 Cril. L. J. 3950, xiii) Kalpnath Rai Vs. State (through CBI)1997 (8) SCC 732.
SUBMISSIONS ON BEHALF OF A-1
82. It is contended by the Ld. Counsel for A-1 that prosecution sanction was granted by PW-18 without due application of mind. It is further contended that complete documents including statement of witnesses and the copy of the recordings were not sent to the sanctioning authority. It is also contended that PW18 was not competent to grant prosecution sanction against A-1 as he is promoted from the post of Inspector to Income Tax Officer CBI Vs. Manas Kumar Kayal & Anr. Page 73 of 168 after approval by Principal Chief Commissioner of Income Tax Authorities, whereas prosecution sanction was granted by PW18 Principal Commissioner of Income Tax and accordingly, PW18 was not competent to grant the prosecution sanction.
83. It is also contended that no offence is made out as accused persons have no capacity to favour or disfavour in the limited scrutiny case. It is also contended that when the limited scrutiny case does not exist then, there is a disappearance of the cause to render any public duty and therefore, no case is made out against A-1 Manas Kumar Kayal.
84. It is also contended that prosecution has miserably failed to prove that there was any criminal conspiracy between the accused persons to commit any offence. It is also contended that mere fact that accused no. 1 had asked accused no. 2 to meet PW11 is not sufficient to bring home the guilt of accused. It is also contended that there is no evidence or material available on record to indicate that there was any demand on 13.03.2019 and 25.03.2019 or thereafter by A-1 Manas Kumar Kayal.
85. It is also contended that PW-7 Bharat Bhushan Jain/Assessor has expressed his ignorance in reference to filing of the Petition/Appeal against Assessment Order. It is also contended that PW-7 had also made material improvements in its case and also deposed facts which are contrary to the case of prosecution. It is also contended that prosecution has miserably failed to establish or prove that there was any demand by A-1 Manas Kr. Kayal. It is also contended that complaint vide CBI Vs. Manas Kumar Kayal & Anr. Page 74 of 168 Ex.PW11/A is vague and false and it is also contended that material improvements in his deposition. It is also contended that there are inherent contradictions in the testimonies of PW-7 and PW-11 with respect of the demand. It is also contended that admittedly on 28.03.2019, there was no demand and therefore, there could not have been any contradiction by the prosecution. It is also contended that CFSL report vide Ex.PW9/1 cannot be relied as CFSL is not notified u/s 79A of IT Act by the Central Government and PW9 is also not an Chemical Examiner. It is also contended that voice examination parade was not conducted by the prosecution and PW9 did not demand sample voices which were mixed up with the unknown voices. It is also contended that prosecution did not follow the SOP recording the sample voice as per the CBI Manual. It is also contended that CFSL expert has failed to physically examine the SD memory card. It is also contended that audio recordings cannot be admitted in evidence as no person from the office of accused persons was called for identification of the voice of the accused persons. It is also contended that independent witnesses neither overheard the conversation nor witnessed the acceptance of the bribe by any of the accused persons and therefore, their testimonies are of no avail as they neither witnessed the demand nor accepted the bribe amount. It is further contended that alleged recovery of the so called bribe amount is suspect and doubtful. It is also contended that complainant/PW-11 is not a credible witness and his testimony is liable to be ignored. It is also contended that prosecution has failed to establish the demand or acceptance of bribe either by direct or indirect evidence or by substantial evidence. It is also contended that CBI Vs. Manas Kumar Kayal & Anr. Page 75 of 168 since the substantive evidence does not indicate the involvement of accused no. 1 in the present case and therefore, the corroborative evidence cannot be relied. It is also contended that corroborative evidence in the form of CFSL report and the voice examination report cannot be taken into consideration as CBI has failed to establish the safe custody of material exhibits. It is also contended that CBI did not examine the material witnesses and also did not conduct the investigation in proper and fair manner. It is also contended that the arrest of the accused is in violation of D.K. Basu Vs. State in AIR 1997 (SC) 610.
86. Ld. Counsel for A-1 also relied upon on the follwing judgments, i) Punjab Rao Vs. State, III (2001) SLT 353, ii) State Vs. Dnyaeshwar Rao, 2009 (4) RCR (Cr.) 217 SC, iii) Om Prakash vs. State 2014 (1) CCC (HC) 161, iv) State Vs. Sohan Singh, 2009 (3) RCR (Cr.) 971, v) Raj Kishore Vs. State, 2023 (2) LRC 712 Delhi, vi) Mahal Singh Vs. State, 2023(2) LRC 712 Delhi, vii) Roshan Lala vs. State, 2011 (1) JCC 102 Delhi, viii) State Vs. Sukh Dev Singh, 1993 (1) CCC 5557 SC, ix) Mahavir Prasad Vs. Dr. Suman Rai, AIR 1982 SC 1043, x) Ashish Kumar Dubey Vs. State, 2014 (IV) AD Delhi 473, xi) Nileshdinkar Dinkar Pradhkar Vs. State, (2011) 4 SCC 143, xii) Sudhir Chaudhary Vs. State, AIR 2016 SC 3772, xiii) Ajay Gupta Vs. State, Crl. A. No. 469/2023 DOD 28.10.2022 (Delhi High Court), xiv) Panna Lal Rathi vs. State, 1980 SCC (Cr) 121, xv) Surajmal Vs. State AIR 1979 SC 1408, xvi) K. Santhamma Vs. State (2020) 4 SCC 574, xvii) Sudesh Kaushik Vs. CBI, Cr. A 629/2009 (DHC) DOD- 08.12.2022, xviii) Ashok Kumar Vs. State, 2000 (1) JCC Delhi 21, xix) Ram Singh Vs. Colonel Ram CBI Vs. Manas Kumar Kayal & Anr. Page 76 of 168 Singh AIR 1986 SC 3, xx) P.C. Mishra Vs. CBI, 2021 (1) LRC 301 Delhi, xxi) Jahan Singh Vs. State (Supra) 2020 (2) RCR (Cr.) 794 Delhi, xxii) State Vs. Daulat Ram, 1980 SCC (Cr.) 683, xxiii) State Vs. Hans Raj, 2018 (4) RCR (Cr.) 813 SC, xxiv) Surinder Singh Vs. State 2014 (8) LRC 177 Delhi, xxv) Mehraj Singh Vs. State, 1994 (4) SCC (Cr.) 1390, xxvi) Tomaso Vs. State 2015 (2) JCC 884 SC, xxvii) State Vs. Lallu Ram 2016 (4) LRC 304 Delhi, xxviii) S.K. Bhatia Vs. CBI 2019 (4) JCC 3424 Delhi, xxix) State Vs. Bhawani & Ors. 2003 (3) JCC 1343 SC, xxx) D.K. Basu Vs. State AIR 1997 (SC) 610, xxxi) Janardhan Sada Vs. State 2012 (2) JCC 1435 Delhi (DB), xxxii) V. Sejappa vs. State 2016 (2) RCR (Cr.) 860 SC, xxxiii) Sita Ram vs. State, 2020 (2) RCR (Cr.) 801 Delhi, xxxiv) Niamuddin Vs. State 2013 (4) LRC 116 Delhi, xxxv) Kailash Gaur Vs. State 2012 (2) LRC 81 SC, xxxvi) CBI Vs. Thommandru Hannah Etc. 2001 (4) RCR (Cr.) 469 SC, xxxvii) Subodh Anand Vs. CBI. Crl. A. 768/2013 DOD 27.05.2024.
SUBMISSIONS ON BEHALF OF A-2
87. Ld. Counsel for A-2 contended that A-2 is falsely implicated in the present case and it is further contended that prosecution has failed to prove its case beyond reasonable doubt. Ld. Counsel for A-2 has advanced similar contention as that of Ld. Counsel for A-1. Ld. Counsel for A-2 contended that there are inherent contradictions in between the testimonies of the prosecution witnesses in respect of the alleged chain of events which occurred on 29.03.2019. It is also contended that prosecution has failed to prove or establish that there was any CBI Vs. Manas Kumar Kayal & Anr. Page 77 of 168 demand or acceptance of bribery.
88. It is also contended that no money was recovered from A-2 and the tainted money was planted on A-2. It is also contended that black bag from which the alleged tainted bribe amount was recovered does not belong to A-2 and prosecution has miserably failed to establish its ownership with that of A-2. Ld. Counsel at the fag end of his arguments contended that prosecution sanction granted against A-2 is invalid as the appointing authority of A-2 is Chief Principal Commissioner of Income Tax, whereas prosecution sanction was granted by Principal Commissioner of Income Tax. It is also contended that audio recordings contained in memory cards are tampered and hence, it cannot be looked into. It is also contended that prosecution has failed to identify the audio recording of A-2 from those persons who are conversant with the voice of A-2 Somvir Dhanda. It is further contended that there are contradictions between the audio recordings and the transcript vide Ex.PW11/F-1 to Ex.PW11/F-5. It is also contended that investigating agency has deliberately switched off the recording of audio at a relevant point of time which could have exposed the case of prosecution as regards the alleged recovery/acceptance. It is further contended that bare reading of the statement of PW-11 would reveal that he was not consistent in his deposition and did not narrate the facts in proper and coherent manner. It is also contended by the Ld. Counsel for A-2 that A-2 was apprehended after he came out of the washroom after washing his hands from hand wash and thus, the very question of the solution turning 'PINK' does not arise. It is also contended that there was no recovery of bribe amount from CBI Vs. Manas Kumar Kayal & Anr. Page 78 of 168 A-2 and moreover, A-2 was taken to the chamber of A-1 Manas Kumar Kayal and after sometime, the recovery is alleged to have been shown from his chamber. It is also contended that defence witnesses are entitled for the equal treatment similar to that of prosecution witnesses.
89. Ld. Counsel for A-2 has relied on the judgments, i) Dasrath Singh Chauhan Vs. CBI(2019) 17 SCC 509, ii) M.K. Harshan Vs. State of Kerala(1996) 11 SCC 720, iii) B. Jaya Raja Vs. State of Andhra Pradesh (2015) 13 SCC 55, iv) Mukhtiar Singh Vs. State of Haryana (2017) SCC Online SC 742, v) E Rama Rao Vs. State of Andhra Pradesh Criminal Appeal No. 442 of 2013 Andhra High Court (Date of Decision : 26.04.2024), vi) CBI Vs. DR. A.S. Naryan Rao 2019 SCC Online DEL 8956, vii) Ram Swarup Vs. State 2014 SCC Online DEL 980, viii) State of Lokayukt Police Vs. N.C. Nage Gowda (2012) SCC Online KAR 2429, ix) State of Maharashtra Vs. Kundlisugandrao Aravade (2017) SCC Online BOM 756, x) V. Sejappa Vs. State by Police Inspector(2016 )12 SCC 150, xi) State of Kerala Vs. C.P. Rao(2011) 6 SCC 450, xii) Pannalal Damodar Rathi Vs. State of Maharashtra (1979)4 SCC 526, xiii) The State of Maharashtra Vs. Anandrao Rajram Patil (2020) ALL MR (CRL) 237, xiv) P. Satyanaryan Murthy Vs. District Inspector of Police.(2015) 10 SCC 152,xv) C.M. Girish Babu Vs. CBI (2009) 3 SCC 779, xvi) Meena W/o Balwant Hemke Vs. The State of Maharashtra (2005) 5 SCC 21, xvii) Subhash Chand Chauhan Vs. CBI (2005) 79 DRJ 644, xviii)Surajmal Vs. State (1979) 4 SCC 725, xix) MIR Mustafa Ali Hashmi Vs. CBI (2024) SCC Online SC 1689, xx) Subodh Anand Vs. CBI (2024) SCC Online DEL 4123, xxi) CBI Vs. Manas Kumar Kayal & Anr. Page 79 of 168 Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, xxii) P.C. Mishra Vs. CBI 2021 SCC Online DEL 82, xxiii) CBI Vs. Ashok Kumar Aggarwal (2014) 14 SCC 295, xxiv) State of Karnataka Vs. Ameerjan (2007) 11 SCC 273, xxv) V. Venkata Subbarao Vs. State (2006) 13 SCC 305, xxvi) Shri Anand Murlidhar Salvi Vs. State of Maharashtra CRI. Appeal No. 1107 of 2004, xxvii) Arun Kumar Gujar Vs. CBI 2024 SCC Online DEL 2483, xxviii) Joginder Malik Vs. CBI 2022 SCC Online DEL 4298, xxix) Abdul Kathar Vs. State Represented by Inspector of Police 2018 SCC Online MAD 14058, xxx) State of H.P Vs. Pradeep Kumar S/o Sh. Paras Ram CR. Appeal No. 290 of 2008, xxxi) SK Faiyaz Vs. State of Orissa 2010 SCC Online ORI 95, xxxii) Ajay Gupta Vs. State Thr. CBI 2022 SCC Online DEL 3549 xxxiii) CBI Vs. Ram Lal Delhi District Court (29 April 2015), xxxiv) Rohit Jain vs. State of Chattisgarh ACQA no. 219 of 2012, xxxv) Mahendra Singh & Anr Vs. State of Madhya Pradesh (2022) 7 SCC 157, xxxvi) State (Govt. Of NCT of Delhi) Vs. Jitendra Kumar & Anr 2017 SCC Online DEL 9195, xxxvii) Tomaso Bruno Vs. Anr Vs. State of Uttar Pradesh (2015) 7 SCC 178, xxxviii) P. Parasurami Reddy Vs. State of Andhra Pradesh (2011) 12 SCC 294, xxxix) Jitendra Kumar Jain Vs. CBI 2014 SCC Online BOM 1798.
90. I have heard the submissions advanced by both the sides and perused the record of the case.
ANALYSIS AND FINDINGS.
WHETHER PROSECUTION SANCTION UNDER SECTION 19 OF THE PREVENTION OF CORRUPTION ACT (AMENDED) WAS VALIDLY GRANTED AGAINST A-1 CBI Vs. Manas Kumar Kayal & Anr. Page 80 of 168 MANAS KUMAR KAYAL AND A-2 SOMVIR DHANDA
91. PW-18 Ms. Parminder, Principal Commissioner of Income Tax had granted prosecution sanction against A-1 Manas Kumar Kayal and A-2 Somvir Dhanda vide Ex.PW18/A.
92. The grant of prosecution sanction against A-1 was challenged on two counts, (i) on the ground of incompetence and
(ii) on the ground of non-application of mind and non- consideration of material on record.
93. The first issue is whether PW18 Ms. Parminder was competent to grant prosecution sanction under section 19 of the PC Act.
94. Ms. Parminder (PW18) deposed that she was posted as Principal Commissioner, Income Tax and is the competent authority to remove Income Tax Officers and Income Tax Inspectors and in the year 2019, she was posted as Principal Commissioner of Income Tax. PW-18 in her deposition stated that Addl. Commissioner of Income Tax is junior to Principal Commissioner of Income Tax. During her cross-examination, a photocopy of promotion order no. P-314/7/Promotion/ITO/2014- 15/7892 dated 09.10.2015 was put to the Sanctioning Authority on behalf of A-1 to which the witness answered as under :
"I cannot comment upon the said promotion order as I have never come across this order."CBI Vs. Manas Kumar Kayal & Anr. Page 81 of 168
95. PW-18 further expressed her ignorance whether approval for promotion of Inspectors to the rank of Income Tax Officers is given by the Principal Chief Commissioner of Income Tax. She had also stated that Principal Chief Commissioner of Income Tax and Chief Commissioner of Income Tax are senior to Principal Commissioner of Income Tax.
96. D1W1 Shri Rohit Kumar, Inspector, Income Tax, Office of the Principal Commissioner of Income Tax, ITO, New Delhi brought the copy of promotion order no. 195/GO/2015-16 dated 09.10.2015 vide Ex.D1W1/A (OSR). He also stated that the promotion order was approved pursuant to the Departmental Promotion Order No. 195/GO/2015-16 held on 09.10.2015 for promotion to the cadre of Income Tax officers during the recruitment rules 2014 and 2015 vide Ex.D1W1/B (OSR) and the same was put before Principal Chief Commissioner of Income Tax who had signed at Point-A on the noting sheet vide Ex.D1W1/C.
97. Vide Ex.D1W1/B i.e. Order No. 195/GO/2015-16 dated 09.10.2015, Income Tax Inspectors were promoted as Income Tax Officers in the pay scale of Revised Pay Band Rs.9300- 34800; Grade Pay Rs.4800 with immediate effect and the name of A-1 appears at Sr. No. 26 in the said order and Paragraph Nos. 5 and 6 of the order are as under :-
5. On promotion, all the officers would report on duty to the office of Pr. Chief Commissioner of Income-tax, New Delhi and would function as officer on Special Duty till further orders.
6. This issue with the approval of Principal Chief CBI Vs. Manas Kumar Kayal & Anr. Page 82 of 168 Commissioner of Income-tax, New Delhi.
(Abha Rani Singh) Addl. CIT (Hqrs-Pers.) New Delhi
98. D1W1 was cross-examined by the Ld. PP for the CBI and the witness answered that Commissioner of Income Tax is the competent authority to appoint Income Tax Officers and Income Tax Inspectors. On court question, D1W1 answered that "The Commissioner of Income Tax is the competent Authority on the basis of the notification issued by Department of Revenue vide Column No. 13 vide notification Ex.D1W1/P-1." D1W1 in response to the court query stated that Ex.D1W1/P-1 provides the rules in respect of the appointment of the Income Tax Officers in the Department of Revenue, Ministry of Finance. D1W1 also stated that as per the notification, Commissioner of Income Tax is not the competent authority. D1W1 further stated that from the record, Principal Commissioner of Income Tax is the competent authority. D1W1 was cross-examined by the Ld. PP for the CBI and the witness stated that after reading of the notification as well as the noting made in Ex.D1W1/C "In pursuance of Pr. CC's kind approval on note sheet 5 of the promotion file, the Group 'B' DPC held its meeting on 9th October 2015 for promotion to the grade of Income Tax Officer for the Recruitment Year 2014-
15. The minutes of the DPC are placed contra for kind approval of Pr. CCIT, New Delhi. D1W1 also stated that Central Government Employees are governed by CCS Rules and the Commissioner, Income Tax is the appointing authority.
CBI Vs. Manas Kumar Kayal & Anr. Page 83 of 16899. A perusal of Ex.D1W1/C and Ex.D1W1/P-1 would reveal that the Departmental Promotion Committee had recommended the name of A-1 Manas Kumar Kayal for promotion from the post of Income Tax Inspector to Income Tax Officer and the note was approved by the Principal Chief Commissioner of Income Tax, meaning thereby that the seal of approval for appointment as Income Tax Officer was given by the Principal Chief Commissioner of Income Tax.
100. The Ld. PP for the CBI has contended that as per rules, Commissioner of Income Tax is the authority who can remove Income Tax Officers and as such it is the competent authority to grant prosecution sanction under section 19 of the Prevention of Corruption Act 1988 (Amended).
101. It has come in the evidence of PW18 that Principal Chief Commissioner of Income Tax is superior to Addl. Chief Commissioner of Income Tax and Chief Commissioner of Income Tax.
102. The question for consideration is whether Chief Commissioner of Income Tax was the competent authority to grant prosecution sanction under section 19 of the Prevention of Corruption Act 1988 (Amended).
103. The relevant portion of Article 311 of the Constitution of India is being reproduced as under :-
CBI Vs. Manas Kumar Kayal & Anr. Page 84 of 168Dismissal, removal or reduction in rank of persons employed in civil capacity under the Union or a State:-
(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
104. The Constitutional mandate under Article 311 of the Constitution of India is that no person can be removed from his post by the Authority subordinate to the appointing Authority.
105. In "Krishna Kumar Vs. Divisional Assistant Electrical Engineer", AIR 1979 SC 1912, the petitioner was appointed by Chief Electrical Engineer, whereas he was removed from the service by Divisional Asstt. Engineer. In the said case, Hon'ble Supreme Court was pleased to observe that no person who is a member of the service of union or hold a civil position, no union shall be dismissed or removed by an authority subordinate to that by which he was appointed. It was also observed in para 6 that besides delegation of the power to make a particular appointment does not enhance or improve the hierarchical state of the delegate. An officer subordinate to other will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter's power to make appointments to certain posts has been delegated to him.
106. In "Gopal Bhai Mahonbhai Nagoda Vs. State of Gujarat", IV (1993) CCR 3288 (DB), Hon'ble Gujarat High Court was CBI Vs. Manas Kumar Kayal & Anr. Page 85 of 168 pleased to observe by taking into consideration the observation of "N. Somasundram Vs. State of Madras", AIR 1956 (43) Madras 419 that the competence of the Authority to order removal or dismissal will have to be determined with reference to the requirements of Art. 311(1) of the Constitution; and one of the requirements is that the authority that orders the dismissal or removal should not be one subordinate in rank to that by which the civil servant in question was appointed. It was also observed that "Where an authority, higher than the one entitled under statutory rules to order an appointment, in fact orders a valid appointment, it is factum of that appointment that controls the scope of the guarantee conferred by Art. 311(1) of the Constitution and, if such a civil servant is dismissed or removed from service by an authority, no doubt, competent under the rules to order the appointment and also to order the dismissal, which, however, is lower in rank than the authority in fact ordered the appointment, such an order would contravene the provisions of Art. 311(1) of the Constitution."
107. In the backdrop of mandate of Article 311 of the Constitution of India, it would be pertinent to take note of the judgment delivered by the Division Bench of Hon'ble Delhi High Court in "Davinder Singh Vs. State", Indian Law Reports, (1974) II 400 and in the said case, one Davinder Singh was promoted and appointed as Sub Inspector by Dy. Inspector General of Police, however, prosecution sanction under Prevention of Corruption Act was accorded by SP. In the said case, it was observed that SP was competent to promote Asstt. Sub Inspector CBI Vs. Manas Kumar Kayal & Anr. Page 86 of 168 to Sub Inspector. It would be apt to refer to the observations made by the Division Bench for the reference to the present case;
"The irresistible conclusion from the perusal of the notification issued by the Deputy Inspector General of Police is that it was he who appointed Davinder Singh to officiate as Sub Inspector and ordered that he be posted in Hissar District. That being so, Davinder Singh could not be dismissed from the post of the Sub Inspector by the Superintendent of Police, being an authority subordinate to the appointing authority, viz. Deputy Inspector General of Police, Ambala Range. No doubt, according to the Police Rule, the Superintendent of Police of a District is competent to appoint a Sub Inspector but what has to be considered in the instant case is the factum of appointment and not the competent authority who could have appointed Davinder Singh to the rank of a Sub Inspector. The competency of authority to order removal or dismissal has to be determined with reference to the requirements of Article 311(1) which postulates that the authority that orders dismissal or removal should not be subordinate in rank to the authority which appointed the civil servant."
108. In light of the provisions as referred above and the observations of the superior court in relation to the grant of prosecution sanction that in terms of Section 19 of Prevention of Corruption Act is sine qua non for taking cognizance of the offence under Prevention of Corruption Act. Sanction to prosecute a public servant can be given only by an Authority who has appointed such a public servant and the prosecution sanction cannot be granted by an Authority which is inferior to the appointing Authority.
109. In view of the above discussion, it is held that prosecution sanction under section 19 of PC Act was not granted by the CBI Vs. Manas Kumar Kayal & Anr. Page 87 of 168 competent authority and the competent authority would be the Principal Chief Commissioner of Income Tax and therefore, it is held that prosecution sanction against A-1 Manas Kumar Kayal was not granted by the Competent Authority.
110. In so far as the grant of prosecution sanction against A-2 Somvir Dhanda, it is observed that so far as the question of the competence of PW-18 to grant prosecution sanction was not seriously challenged and A-2 had merely adopted the cross- examination of A-1. A-2 is the Income Tax Inspector and the appointing authority and removal authority as per Income Tax Act is Commissioner of Income Tax and PW18 is the competent authority to grant prosecution sanction against A-2. During the last stage of the final argument, Ld. Counsel for A-2 has filed a document obtained through RTI in respect of appointment of some persons by the Principal Chief Commissioner of Income Tax and submitted that court may take the same into the consideration. The document has been perused but the same would reveal that same does not relate to A-2 and moreover, in a criminal trial, any document which is sought to be placed on record is either required to be brought into record during evidence in the manner known to the law and such document cannot be taken into consideration. Another document purported to be the joining letter of A-2 has also been placed on record and from that document, the question whether the prosecution sanction under section 19 of PC Act was validly granted or not cannot be granted. A-2 has not put a single question to the sanctioning authority i.e. PW18 or any of the relevant witnesses that because of defect in the sanction, he is being wrongly CBI Vs. Manas Kumar Kayal & Anr. Page 88 of 168 prosecuted. A-2 has failed to establish that prosecution sanction against him was wrongly granted by PW-18.
111. The grant of prosecution sanction against accused persons was also challenged on other grounds that competent authority has not independently applied its mind while granting the prosecution sanction as sanctioning authority has merely reproduced the draft sanction order in mechanical manner and the facts narrated therein are mere reproduction of the draft sanction order. It is also contended that incomplete documents were sent to the Sanctioning Authority, specially the copy of recordings Q- 1, Q-2, Q-3, Q-4 and S-1 and it is further contended that other documents on the basis of which the sanction was granted did not contain the complete documents including statement of witnesses and the draft charge sheet was also not sent to the competent authority. It is also contended that SP Report was sent to the competent authority due to which the competent authority did not apply its mind. Ld. Counsels for the accused persons have relied upon Om Prakash Vs. State, (2009) Part III RCR, Anand Murlidhar Salvi Vs. State of Maharashtra CRI. Appeal No. 1107 of 2004 (Bombay High Court), CBI Vs. Ashok Kumar Aggarwal (2014) 14 SCC 295, State Vs. Amir Jaan, AIR 2008 SC 108 etc. Ld. PP for the CBI has relied upon Indu Bhushan Chatterjee Vs. West Bengal, AIR 1955 CAL430, 1955 CRI LJ 433, AIR 1955 CALCUTTA 430, Navjot Sandhu vs. NCT of State 2005 Cril. L. J. 3950 and Kalpnath Rai Vs. State (through CBI)1997 (8) SCC 732 to the effect that sanctioning authority is only required to consider whether prima-facie case disclose the commission of offence or not. The actual production of tapes etc. is a matter of CBI Vs. Manas Kumar Kayal & Anr. Page 89 of 168 trial and not necessarily to be undertaken at the time of consideration for the grant of prosecution sanction. Ld. PP for the CBI had in particular relied upon Indu Bhushan Chatterjee (supra) in respect of the fact that draft sanction order was sent to the Sanctioning Authority.
112. In the present case, prosecution sanction vide Ex.PW- 18/A was granted by PW-18 Ms. Parminder. PW-18 also deposed that she had granted the prosecution sanction after going through the relevant documents including statements of the witnesses etc. Perusal of cross-examination of PW-18 would reveal that witness was unable to recall whether any voice recording was sent to her or not, but she voluntarily stated that some conversation was played. She admitted that it was not mentioned in the sanction order as to when the audio recordings were heard by her.
113. It would be appropriate to refer and rely upon "Vinod Kumar Garg Vs. State", (NCT of Delhi), (2020) 2 SCC 88 in which it was observed by the Hon'ble Supreme Court as under :-
"25. On the said aspect, the later decision of this Court in State of Maharashtra Vs. Mahesh G. Jain, (2013) Part 8 SCC 119 has referred to several decisions to expound on the following principles of law governing the validity of sanction:
"14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.CBI Vs. Manas Kumar Kayal & Anr. Page 90 of 168
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity." The contention of the appellant, therefore, fails and is rejected.
28. This Court in Ashok Tshering Bhutia Vs. State of Sikkim, (2011) 4 SCC 402 referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial.
114. Hon'ble Supreme Court of India in "C. S. Krishnamurthy v. State of Karnataka", 2005 CRI. L.J. 2145, while dealing with the issue regarding validity of sanction, observed as under :
".......It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant from harassment. But, the sanction should not be taken as a shield to protect corrupt and dishonest public servant." "The sanction itself CBI Vs. Manas Kumar Kayal & Anr. Page 91 of 168 shows that there is something to be accounted by the accused. When the sanction itself is very expressive, then in that case, the argument that particular material was not properly placed before the sanctioning authority for according sanction and sanctioning authority has not applied its mind becomes unsustainable. When sanction order itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind."
115. PW-18 categorically deposed that she had considered various materials, statement of witnesses and upon scrutinizing the same, she had found it to be a fit case for grant of prosecution sanction. PW18 in her cross-examination had stated that she was unable to recall whether copies of the audio recordings and CFSL report was sent to her or not, but she had categorically deposed that conversation was played before her while granting the prosecution sanction. Mere say of PW18 that she was unable to recall whether draft sanction order was provided to her or not would not make much difference as perusal of statement of PW18 would indicate that all material facts constituting the offence is sufficiently disclosed and the sanction order clearly specifies and mentions the same in Ex.PW18/A and, therefore, the prosecution sanction was validly granted after due application of mind. The judgments cited on behalf of the accused persons are distinguishable in reference to the present case. The judgment "Om Prakash Vs. State", (2009) Part III RCR is clearly distinguishable and is not applicable in reference to the present case as in the said case, the competent authority had stated that he signed the draft proforma which was received from the Subordinate office and he had merely put his signature and name on it and the competent authority was not able to disclose what CBI Vs. Manas Kumar Kayal & Anr. Page 92 of 168 material was perused by him. It is vivid from the sanction order Ex.PW18/A as well as the testimony of PW18 that she had applied her mind. V. Venkata Suba Rao (supra) and CBI Vs. Ashok Kumar Aggarwal (supra) are also not applicable in the present case to give any benefit to the accused persons and accordingly, it is held that prosecution sanction was validly granted after due consideration of material available on record against the accused persons without prejudice to the effect that PW18 was not competent to grant prosecution sanction against A-1 Manas Kumar Kayal.
NON-COMPLIANCE OF SECTION 157 Cr.P.C.
116. An objection is also taken on behalf of accused persons that CBI has failed to prove that copy of FIR was sent to court in compliance of Section 157 Cr.P.C. In this regard, it is observed that the copy of the FIR was sent to the court within a period of 24 hours and an endorsement does exists in the copy of FIR which is sent to the court. A bare reading of Ex.PW15/A would reflect that captioned FIR in relation to the present case was received in the court at 11.20 AM on 30.03.2019 and thereafter, it was marked to the court and accordingly, argument for delayed receipt of FIR is rejected.
PROVISIONS & CASE LAWS.
117. In order to properly appreciate the respective contention of the parties, it would be appropriate to refer to the provisions invoked against the accused persons.
7. Offence relating to public servant being bribed.
CBI Vs. Manas Kumar Kayal & Anr. Page 93 of 168- Any public servant who,-
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, 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.
Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.Illustration. - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2. - For the purpose of this section,- i) the expressions "obtains" or "accepts" or "attempts to obtain"
shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
7A. Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence.- 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 CBI Vs. Manas Kumar Kayal & Anr. Page 94 of 168 which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
118. Section 120A of the Indian Penal Code defines Criminal Conspiracy as follows:
When two or more persons agree to do, or cause to be done, (1) an illegal act, (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation ; It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120B, which prescribes in sub-section (1) the punishment for criminal conspiracy provides: Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
119. Substantive charges under section 7 & 7A of PC Act framed against A-1 Manas Kumar Kayal and A-2 Somvir Dhanda are to the effect that on 17.12.2018, 25.03.2019 and 29.03.2019, a bribe of Rs.1,50,000/- was demanded and there was an acceptance of bribe amount of Rs.40,000/- on 29.03.2019 from the complainant for settling/closing the case of limited scrutiny.
It is also the case of the prosecution that both accused persons in conspiracy with each other have obtained an undue advantage for the improper and dishonest performance of their public duties by demanding an amount of Rs.1,50,000/-, failing which the father of the complainant would be implicated in a false case.
CBI Vs. Manas Kumar Kayal & Anr. Page 95 of 168120. The Prevention of Corruption Act (Amendment Act 2018 came into effect on 26.07.2018 and perusal of the amending Act would reflect that by way of amendment, number of provisions were amended by the Parliament. The present case is in relation to the offences committed after 26.07.2018 and accordingly, the amended Prevention of Corruption Act is applicable to the present case. An offence under section 7 of Prevention of Corruption Act is said to be committed when a public servant obtains or accepts or attempts to obtain from any person any undue advantage, by improper or dishonest performance of the public duty or such public servant forebears or causes forbearance. Although Section 7 has been amended, however, Section 7(a) and 7(b) r/w Explanation-I are almost similar to Section 13(1)(d)(i) and (ii) of the unamended PC Act.
121. For the prosecution to establish the charge for the offence under section 7A of the Prevention of Corruption Act 1988, the requirement is first to prove that accused had accepted or had obtained or had attempted to obtain any undue advantage from the complainant or any other person. 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 cause performance of a public duty improperly or dishonestly or its forbearance by such public servant or by another public servant.
CBI Vs. Manas Kumar Kayal & Anr. Page 96 of 168122. Section 2(d) of PC Act defines undue advantage as any gratification whatever, other than legal remuneration. The gratification is explained in Explanation (a) to Section 2(d) i.e. which is not limited to pecuniary gratifications or to gratifications estimable in money.
123. Section 20 of PC Act was also amended vide Amended Act 16 of 2018, the notable feature of the Amended Section 20 of PC Act is with respect to invocation of presumption under section 7 of PC Act. Prior to amendment in Section 20 of PC Act, the same is only invoked when Section 7 or 11 of PC Act are invoked. After amendment, now Clause (i)&(ii) of 13(1)(d) of unamended Act are part and parcel of the amended Section 7 of the PC Act, meaning thereby that if the prosecution is able to establish that undue advantage or a pecuniary advantage has been obtained by a public servant then presumption under section 7 of PC Act can be invoked in a given case.
124. Before proceeding to analyze the material available on record i.e. oral evidence and documentary evidence as led by the prosecution, it would be appropriate to reminisce the principle of the criminal jurisprudence that an accused is presumed to be an innocent unless proven guilty and the suspicion howsoever strong cannot take the place of proof. It is the bounden duty of the prosecution to establish its case beyond reasonable doubt. The Hon'ble Supreme court of India in "P. Sathyanarayana Murthy v. District Inspector of Police, State AP and another (2015) 10 SCC 152" after relying upon the judgment Sujit CBI Vs. Manas Kumar Kayal & Anr. Page 97 of 168 Biswas Vs. State of Assam, (2013) 12 SCC 406 was held that "suspicion, however, grave cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be"
true in order to steer clear of any possible surmise of conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. The prosecution is required to establish its case beyond reasonable doubt, but this doctrine cannot be stretched to such an extent that prosecution is required to prove the impossible in respect of the facts and issues before the court and, therefore, in accepting the version given by the prosecution witnesses, the question is whether the witness is able to pass the test of the credibility vis-a-vis to the case of the prosecution.
125. In analyzing the evidence led during the trial, specially oral testimonies of the witness(s) has a substantial bearing in the case and more so in trial of offences under PC Act where the allegations are that bribe was attempted to be obtained or accepted by a public servant in cases which in usual parlance is called as "Trap case". The complainant is perhaps one of the most material witness apart from other witnesses. In evaluating the testimony of the complainant or such witness, the credibility and the manner in which he or she narrates the facts of the case is critical in determining the case projected by the prosecution. In appreciating the oral evidence, the testimony of the witness should be truthful, consistent and trustful. When court is CBI Vs. Manas Kumar Kayal & Anr. Page 98 of 168 considering the inter se testimonies of the witnesses, the minor contradictions and slight exaggeration in the testimonies of the witnesses are liable to be ignored and what is to be considered whether the version given by the witness(s) is consistent and the testimonies of the witnesses leads to one conclusion that an offence has been committed by the accused persons.
126. Indisputably, in order to make out an offence under Section 7/7A of the PC Act, 1988, the demand of illegal gratification is a sine qua non and for arriving at the conclusion as to whether all the ingredients of the offence viz. demand, acceptance and recovery of amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Further while invoking the presumption under Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is to call upon to explain as to how the amount in question was found in his possession and presumption in respect of demand and acceptance or obtainment of illegal gratification CBI Vs. Manas Kumar Kayal & Anr. Page 99 of 168 could only be made if the prosecution has established the foundational facts by way of evidence and it is the discretion of the court to raise such a presumption of facts which is subject to the rebuttal by the defence and rebuttal can be made either by pointing out inconsistencies in the case of the prosecution or bringing to fore either material or facts during cross-examination. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case, the court may look for independent corroboration before convicting the accused persons. Reliance in this regard is placed on Mukut Bihari & O rs. Vs State of Rajasthan, (2012)11 SCC 642.
127. In P. Sathyanarayana Murthy (supra) it is observed that :
"23. the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)
(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."
128. In Neeraj Dutta Vs. State (Govt. of NCT of Delhi), (2024) INSC 503: (2023) 4 SCC 731, it was held by the Apex Court that proof of demand and acceptance of illegal gratification is sine- qua-non for establishing the guilt under section 7 of Prevention of Corruption Act 1988. The Constitution Bench after surveying number of judgments was pleased to hold as follows :-
CBI Vs. Manas Kumar Kayal & Anr. Page 100 of 16868. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant CBI Vs. Manas Kumar Kayal & Anr. Page 101 of 168 when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
129. In the offences involving the applicability of Section 7 and Section 7A of PC Act, the testimony of the complainant/PW11 i.e. the bribe giver is of the utmost importance and hence, the testimony of PW11/complainant is being narrated to understand the entire prosecution case.
CBI Vs. Manas Kumar Kayal & Anr. Page 102 of 168TESTIMONY OF THE COMPLAINANT/PW11
130. For easy understanding of the deposition of PW11/complainant which was spread to few dates and in order to maintain the chronology, the deposition of PW11/complainant is being narrated by mentioning the date on which he (PW11) deposed the facts since PW11 deposed about some events on a particular day and some events on other day.
131. PW-11 Shri Pushkar Jain is the de-facto complainant in the case. In his deposition dated 16.03.2020, PW11 deposed that on 28.03.2019 he went to the Office of CBI as A-1 Manas Kumar Kayal and Somvir Dhanda, both Officers in Ward No. 54(2), Income Tax Department were demanding bribe. He also elaborated that on 14.12.2018, a notice was served by the accused persons on his father requiring his personal appearance. PW11 deposed that pursuant to the said notice, he on behalf of his father went to the Income Tax on 17.12.2018 where a demand of Rs.1.5 Lacs was made for settling the case of limited scrutiny and the same was refused by him. PW11 also stated that he alongwith his father/PW7 met A-1 Manas Kumar Kayal on 13.03.2019 pursuant to the summon/notice dated 05.03.2019 (vide Ex.P-2 - Page 11) for making the statement before A-1 Manas Kumar Kayal. PW11 further deposed that he wrote the answers to the questions which were replied by his father and did writing work at the instructions of A-1 Manas Kumar Kayal and A-2 Somvir Dhanda was also present PW11 also deposed that A- 1 demanded the bribe and also threatened for false implication.
CBI Vs. Manas Kumar Kayal & Anr. Page 103 of 168PW-11 further deposed that A-1 Manas Kumar Kayal had asked him to meet A-2 Somvir Dhanda and both i.e. PW11 and A-2 Somvir Dhanda exchanged number with each other and PW11 further deposed that he also went to the office (referring to cabin) of A-2 Somvir Dhanda since he told that some cases are pending. PW11 also deposed that on 22.03.2019, Somvir Dhanda made a call on Mobile No. 9811036311 at about 05.00 pm wherein he asked him to meet him in connection with the complaint, failing which a tax evasion case shall be filed against his father and thereupon on 25.03.2019, he met both the accused persons wherein both of them had demanded bribe of Rs.1.5 Lacs and accordingly, a complaint vide Ex.PW11/A dated 28.03.2019 was filed by him and pursuant to which the CBI arranged witnesses for conducting verification of the complaint vide Ex.PW11/A.
132. PW-11 further deposed that one Inspector alongwith Jyoti Kumar and Umesh accompanied him for the verification of his complaint (to the Income Tax Office at Civic Centre) and when he reached alongwith Jyoti Kumar and met A-1 Manas Kumar who told that no other person is allowed. PW11 also deposed that Jyoti Kumar/PW16 was asked to leave the room of A-1 Manas Kumar Kayal. He further deposed that Manas Kumar Kayal asked from him whether he wanted to increase or decrease the demand. PW11 further deposed that he told accused Manas Kumar Kayal that he had spoken to A-2 Somvir Dhanda and then A-1 Manas affirmed that A-2 Somvir Dhanda was his cousin and he was further instructed to speak with Somvir Dhanda only.
133. PW-11 further deposed that he called A-2 Somvir Dhanda CBI Vs. Manas Kumar Kayal & Anr. Page 104 of 168 from Mobile No. 9811036311 who asked him to meet in his office and thereafter he accompanied the CBI team i.e. Pramod Tanwar, Jyoti Kumar and Umesh to the office of A-2 Somvir Dhanda. PW-11 further deposed that Somvir Dhanda told that Rs.1.30 Lacs are for A-1 Manas Kumar Kayal and Rs.20,000/- for him. PW-11 further stated that Somvir Dhanda had instructed for meeting him at 03.00 pm and thereafter all of them went back to the office of CBI. PW-11 identified his signatures on the verification memo dated 29.03.2019 vide Ex.PW11/C (Part of D-
1).
134. PW-11 deposed in respect of the pre-trap proceedings/handing over memo at the office of CBI i.e. currency notes of Rs.40,000/- being treated with phenolphthalein powder and demonstration, arrangement of DVR etc. PW11 also deposed that TLO Kuldeep Sharma instructed him to hand over the said amount to accused Somvir Dhanda only on demand and not otherwise and he was also instructed not to shake hand with anybody. PW11 further deposed that he was also instructed that after the transaction of the bribe, he had to give a signal by putting his both hands on his head or by giving a miss call to TLO/PW17 Kuldeep Sharma. PW11 also deposed that Shri Jyoti Kumar was instructed to act as a shadow witness to observe the transaction of bribe. PW-11 was unable to recall about the instruction given to other witness Dharmendra Chaudhary. He also identified his signature at Point-A on pre-trap proceedings/handing over memo vide Ex.PW11/B (D-2). PW11 in his deposition dated 16.03.2020 also stated that at the CBI office, the team prepared itself and currency notes of Rs.40,000/-
CBI Vs. Manas Kumar Kayal & Anr. Page 105 of 168brought by him was treated with phenolphthalein powder and its demonstration was given.
135. In his deposition dated 15.02.2021, PW-11 after referring to the proceedings vide Ex.PW11/B (D-2) deposed that he and the CBI team reached Income Tax Office, Civic Centre and thereafter he alongwith shadow witness Jyoti Kumar and TLO Kuldeep Sharma reached in the office of A-2 Somvir Dhanda at 16th Floor. PW11 further deposed that TLO/PW17 Kuldeep Sharma sat on the sofa, outside Room No. 1610. PW11 further stated that PW17 TLO/Kuldeep Sharma had asked Jyoti Kumar to sit stand outside the cabin of A-2 Somvir Dhanda as on 28.03.2019 accused Manas Kumar Kayal did not permit Jyoti Kumar in his room.
136. PW11 in his deposition dated 16.03.2020 stated that he was carrying his mobile phone, one DVR and currency notes i.e. the trap money. He also deposed that at the office of the CBI, he was told about the indication after handing over the amount and at the office of Income Tax inside the cabin of Somvir Dhanda, he gave a bribe amount of Rs.40,000/-, but did not give any indication as he thought the indication was to be given when the bribe money is handed over to Manas Kumar Kayal. PW11 also deposed that he went to the washroom where he met PW17 Kuldeep Sharma who was a member of the trap team and told him that he handed over the amount to Somvir Dhanda and then PW17 rushed to the chamber of accused Somvir Dhanda where checking was carried out.
CBI Vs. Manas Kumar Kayal & Anr. Page 106 of 168137. In his deposition dated 15.02.2021, PW-11 deposed that TLO rushed to the cabin of Somvir Dhanda (A-2) and asked him about the bribe amount, to which Somvir Dhanda told TLO Kuldeep Sharma "Muje maaf kar do meri naukri hai" and the above-said fact was stated when Somvir was returning from the washroom and outside his cabin. He further stated that accused Somvir took the TLO to his cabin wherein he told that bribe amount was kept in front pocket of the black colour bag lying on the ground underneath the table and thereupon Kuldeep Sharma (TLO) instructed the independent witness Dharmendra Chaudhary to recover the bribe money from the front pocket of the black bag and independent witness recovered the same and tallied the GC notes with the handing over memo and same was found to be matching. PW-11 further deposed that 20 GC notes of denomination of Rs.2,000/- were sealed with the CBI brass seal in a brown colour envelope, signed by him, TLO & both the independent witnesses.
138. Relevantly, in his deposition dated 15.02.2021, PW-11 deposed in relation to the pre-trap proceedings/handing over memo whose reference which he had indicated in his deposition dated 16.03.2020. PW11 narrated that in the office of CBI, a memory card was inserted in a DVR in which the introductory voice of both the independent witnesses were recorded and the same is required to remain with him during the trap proceedings in Switch On mode. PW11 further deposed that DVR was handed over to him for the purpose of recording the conversation to be held during the trap. PW-11 initially stated that the DVR was on Off mode and again said when they left the CBI office, it CBI Vs. Manas Kumar Kayal & Anr. Page 107 of 168 was in switch on mode and later on the DVR was in switch off mode when all the trap proceedings were completed. He further stated that he did not hear the conversation recorded on the DVR but seen its preparation. PW-11 further deposed that solutions were prepared for taking left hand fingers of accused and after dipping, the same did not show any colour and the solution was poured in an empty glass bottle and thereafter, it was sealed in the presence of independent witnesses. The paper was also pasted on the said bottle and it was marked as "LHW". He also reiterated the similar steps for the right hand of the accused and the fingers were dipped in the solution which turned the solution PINK and the solution was put in a bottle and the said bottle was marked as "RHW". PW-11 further deposed about the preparation of colorless solution in which the handkerchief having lining of border of accused Somvir was dipped and the solution turned PINK. He deposed about the pouring of the solution in a glass bottle and the same being sealed in the presence of independent witnesses and a paper was pasted on the bottle and marked as "HCW" and he further stated that the handkerchief was dried and was kept in a yellow colour envelope sealed with the CBI brass seal and the envelope was marked as "Handkerchief of accused Somvir" which was signed by independent witnesses. PW-11 also deposed that a colorless solution of sodium carbonate with water in a glass was prepared and the CBI team members rubbed the internal front bag pocket by marking clothes and dipped the same in the colorless solution and thereafter, the solution turned PINK. The contents of the solution was put in a bottle and was sealed in the presence of independent witnesses and the TLO and the bottle was marked as "Bag Washing" for identification. PW-
CBI Vs. Manas Kumar Kayal & Anr. Page 108 of 16811 further deposed that the bag was dried for some time and thereafter same was kept in a yellow colour envelope and was sealed with the CBI brass seal and the yellow colour envelope was marked as "Bag of accused Somvir". PW-11 further deposed that a T-shirt was arranged from the market and the accused Somvir Dhanda was asked to remove his shirt and was given said T-shirt. A colorless solution was prepared and the shirt pocket was dipped in the colorless solution and on which the solution turned slight PINK. The solution was poured in a glass bottle and after sealing the same, a paper mark for identification i.e. "SPW". The shirt was dried and was kept in a yellow envelope and sealed with the CBI brass seal and the yellow colour envelope was marked as "Shirt of accused Somvir". PW-11 further stated that because of the closing time, the TLO decided to conduct further proceedings at the CBI office as lot of people had gathered and it was not possible to continue with the proceedings. PW-11 further stated that when Manas Kumar Kayal (A-1) was coming to his office, he was arrested by SI Umesh Kaushik and Inspector Pramod Kumar Tanwar outside his cabin. PW-11 further deposed that search of file of tax evasion petition by Bharat Bhushan Jain, however the said tax evasion file was found in the cabin of accused Somvir Dhanda which was seized vide memo and vide the said memo two files were seized, one of limited scrutiny and another was of tax evasion. PW-11 further deposed that the tax evasion file contains the fake complaint of Hemant Jain and this was the complaint by which the accused persons were threatening for making false complaint and for the demand of bribe from him on behalf of his father. PW-11 further stated that accused Manas Kumar Kayal CBI Vs. Manas Kumar Kayal & Anr. Page 109 of 168 demanded bribe of Rs.1,50,000/- regarding the settlement of tax evasion case on 13.03.2019 and 25.03.2019 which was refused by him. PW-11 further deposed that after arrest, the accused told the CBI that there was a complaint of Hemant Jain against his father for tax evasion and he was unable to recall the further conversation to the CBI team.
139. PW-11 further stated that he handed over the DVR in switch off mode to independent witness Jyoti Kumar as per instruction of the TLO. The DVR was sealed in the presence of the independent witness and the memory card used in the DVR during the trap proceedings by the CBI in two different envelopes. PW-11 further stated that the memory card used in the verification proceedings of accused Manas Kumar Kayal on 28.03.2019 was marked as "Q-1", the memory card used during verification dated 29.03.2019 against accused Somvir Dhanda was marked as "Q-2" and the memory card used for recording the transaction of bribe was marked as "Q-3". PW-11 further deposed about the signing of verification memo by him and different witnesses. PW-11 identified the verification memo dated 28.03.2019 in respect of A-1 Manas Kumar Kayal vide Ex.PW-11/D (Part of D-1) and recovery memo dated 29.03.2019 vide Ex.PW-11/E (Part of D-3).
140. PW-11 further deposed that in the office of CBI, the voice sample of A-1 Manas Kumar Kayal was taken on a DVR after checking the blankness of the memory card as well as DVR. The said memory card was sealed as "S-1" and the signature of Manas Kumar Kayal, independent witnesses as well as signatures CBI Vs. Manas Kumar Kayal & Anr. Page 110 of 168 of TLO were obtained. PW-11 reiterated the similar steps for taking the voice sample of A-2 Somvir Dhanda being taken on a memory card and the memory card was marked as "S-2".
141. PW-11 further deposed in respect of his visits to the CBI in May and September 2019 and for submitting the documents regarding Income Tax against his father. He also deposed that in September 2019, for the purpose of doing correction in the complaint vide Ex.PW11/A as the date was mentioned as 22.03.2019, whereas it should have been 25.03.2019 and PW-11 further provided the screen shot of OLA booking which was handed over by him to Inspector Saminder Singh Gill. PW-11 was unable to recall whether he heard the conversation recorded on the memory card Q-1, Q-2 and Q-3 but deposed that transcription was prepared in the office of the CBI and after going through the same, he put his signature. He identified the transcriptions of memory card Q-1, Q-2 and Q-3 as Ex.PW11/F-1 to F-3 respectively. He identified the voice identification memos vide Ex.PW11/F-4 and Ex.PW11/F-5 at Point-A.
142. PW-11 deposed that vide seizure memo dated 21.05.2019 Ex.P-5 (D-19), he had handed over the documents mentioned therein and procured these documents from the Income Tax site and he had signed these documents in token of handing over the same to the CBI. PW-11 further deposed that vide seizure memo dated 18.09.2019 Ex.PW11/G (D-22), he had provided the two print out of service availed by him of OLA cab on 25.03.2019 and had signed this document in token of handing over the same CBI Vs. Manas Kumar Kayal & Anr. Page 111 of 168 to CBI vide Ex.PW11/G-1 (Part of D-22). PW-11 identified the envelope containing the bribe amount of Rs.40,000/- vide Ex.PW11/H, bearing his signature at Point-A and the envelope was opened after the permission of the court and from the said envelope, 20 GC notes of denomination of Rs.2,000/- were taken out and the same were compared with handing over memo Ex.PW11/B by the witness/PW-11 and he stated that the same currency notes were recovered from the front pocket of black colour bag. A yellow colour envelope vide Ex.PW9/B was opened and from which another brown colour envelope Ex.PW- 9/C which was already cut opened and contains the memory card Q-1 and its cover bearing the signatures of the witnesses. PW-11 identified his signatures on the brown colour envelope. Another yellow colour envelope vide Ex.PW9/E was opened and from which another brown colour envelope Ex.PW-9/F which was already cut open and contains the memory card Q-2 and its cover bearing the signatures of the witnesses. PW-11 identified his signatures on the brown colour envelope.
143. The memory card Q-1 (Ex.P-9/2) was played in the court and the same contained two files namely 190328_1701 and 190328_1737. Both the files were played separately and in respect of the file 190328_1701, PW-11 attributes it to be the introductory voice of PW16 Jyoti Kumar, whereas in respect of the file 190328_1737, he attributes it to be the voice of Manas Kumar Kayal. Memory card Q-2 (Ex.P-9/4) was played in the court and the same contained three files namely 190329_1032, 1903329_1036 and 190329_1139. All the three files were played separately and in respect of the file 190329_1032, PW-11 CBI Vs. Manas Kumar Kayal & Anr. Page 112 of 168 deposed that this file contains the introductory voice of Jyoti Kumar, whereas in respect of file bearing nos. 1903329_1036 and 190329_1139, he deposed that these files are the recordings of phone call made between him and accused Somvir Dhanda. Memory card Q-3 (Ex.P-9/6) was played in the court and the same contained three files namely 190329_1430, 190329_1432 and 190329_1502. All the three files were played separately and in respect of the file 190329_1430 and 190329_1432, PW-11 deposed that these files contain the introductory voices of Jyoti Kumar and Dharmendra Chaudhary respectively, whereas in respect of file bearing nos. 190329_1502, he deposed that it contains his voice and the voice of accused Somvir Dhanda. PW-11 further stated that so far as he can recall, the conversation during verification of both the accused persons and during trap, was heard by him through Laptop and not by DVR.
DISCUSSION/ANALYSIS PRIOR TO THE LODGMENT OF THE COMPLAINT EX.PW11/A IN THE CBI OFFICE
144. A careful perusal of the testimony of PW11 would reflect that allegations are to the effect that A-1 Manas Kumar Kayal demanded bribe from PW11 on 17.12.2018, 13.03.2019, 22.03.2019/25.03.2019 (It is stated that date was 25.03.2019 but it was inadvertently mentioned as 22.03.2019 in the complaint) and 28.03.2019 in respect of the limited scrutiny case which was pending against his father/PW7. Notably, in respect of the allegations that bribe was demanded on 17.12.2018, 13.03.2019, 22.03.2019/25.03.2019, except for the statement of the complainant, no other material or evidence is available against CBI Vs. Manas Kumar Kayal & Anr. Page 113 of 168 Manas Kumar Kayal or Somvir Dhanda. Written complaint vide Ex.PW11/A only referenced that bribe was being demanded and the same was refused. In the complaint Ex.PW11/A, it was alleged that on 22.03.2019 (which was later on changed to 25.03.2019) A-1 demanded the bribe of Rs.1.5 Lacs, failing which a false case would be made against him i.e. PW7/father of PW11 and on 22.03.2019, he was directed to speak to Somvir Dhanda. Pertinently in the written complaint vide Ex.PW-11/A, there is no specific reference to any Tax Evasion Petition against father of PW11.
145. PW-7 Shri Bharat Bhushan Jain i.e. father of PW11 and assessor of Income Tax identified the accused Manas Kumar Kayal in the court and stated that the inquiries were made from him in respect of the profit received from the sale of the property and he further deposed that accused Manas Kumar Kayal asked him to do setting and demanded Rs.1.5 Lacs which was refused and he was also asked to contact Somvir and he provided the contact number of Somvir to his son. PW-7 appeared in the court after about one year on 31.03.2021 (Covid-19 period) and stated that bribe of Rs.1.5 lac was demanded from him and he was threatened that he would be implicated in a case. He also stated that phone numbers were exchanged on 23.03.2019 and his son was called on 24.03.2019 and the bribe was demanded. He also stated that his son met Somvir Dhanda on 27.03.2019 and thereafter he asked his son to file complaint against the accused persons. Further leading questions were asked by Ld. PP for the CBI that PW11 met A-2 Somvir Dhanda on 25.03.2019 instead of 27.03.2019 and to which PW7 was unable to offer any CBI Vs. Manas Kumar Kayal & Anr. Page 114 of 168 comment as he did not visit (the office of Income Tax). PW7 in his deposition had also stated that his statement vide Ex.PW7/A was recorded by Manas Kumar Kayal and identified his signature and the writing of his son i.e. PW11 Pushkar Jain.
146. A composite reading of the statements of PW-7 and PW-11 would reflect that the statement of PW-11 that bribe was demanded on 17.12.2018, 22.03.2019/25.03.2019 is not established except the say of the complainant/PW11 and even no date of 17.12.2018, 13.03.2019 is mentioned in the complaint Ex.PW11/A.
147. Notably, in complaint vide Ex.PW11/A, it was alleged that on 22.03.2019 the bribe was demanded from him/PW11 to settle the case and he was also threatened. Later on, during the course of the investigation, a supplementary statement of complainant was recorded under section 161 Cr.P.C. on 21.05.2019 in which he stated that the date of meeting was 25.03.2019 instead of 22.03.2019 and accordingly on the said day, the bribe was demanded by Manas Kumar Kayal.
148. In their depositions, both PW-7 and PW-11 stated that they had visited the Income Tax Office on 13.03.2019 pursuant to the notice dated 05.03.2019 and the statement of PW7 vide Ex.PW7/A was recorded. The recording of the statement in question/answer forms was not seriously challenged by any of the accused persons, although it is contended that it is not established that the answers were written by PW11. PW11 had CBI Vs. Manas Kumar Kayal & Anr. Page 115 of 168 alleged that on 13.03.2019, the bribe was demanded by Manas Kumar Kayal, however, the date of 13.03.2019 is conspicuously missing in the written complaint vide Ex.PW-11/A dated 28.03.2019. Testimony of PW7 would reveal that he visited the office of Income Tax only once and his statement was recorded on that day and he alleged that bribe was demanded by Manas Kumar Kayal when he enquired about the reason of his visit. Thus, it can be safely said that on 13.03.2019, complainant and his father had visited the office of Income Tax, but it is to be seen whether any bribe was demanded or not. PW-7 visited Income Tax Office only on 13.03.2019 and his further statement that bribe was demanded from his son i.e PW-11 on 24.03.2019 is contrary to the case of prosecution as it was not the case of the prosecution that on 24.03.2019 the bribe was demanded from his son (PW11). The allegations are vague and general in nature. The statement of PW-7 that his son had made met Somvir Dhanda on 27.03.2019 and the bribe was demanded from his son on 24.03.2019 is also not substantiated. Further leading questions were asked by Ld. PP for the CBI that his son met Somvir Dhanda on 25.03.2019 instead of 27.03.2019 to which the witness was unable to offer any comment as he did not visit the Income Tax Office, therefore testimony of PW-7 in respect of the allegations of demand of bribe against any of the accused persons are not substantiated. It is also necessary to mention that PW11 had alleged that on 13.03.2019, Somvir Dhanda was present at the time of recording of the statement of his father i.e. PW7, but PW7 did not utter even a single word about Somvir Dhanda and moreover, PW7 had also categorically stated that he never met Somvir Dhanda. PW11 had deposed that he went to CBI Vs. Manas Kumar Kayal & Anr. Page 116 of 168 the office of Somvir Dhanda on the same day. PW7 did not depose that either he or his son i.e. PW11 had visited Somvir Dhanda in his office on the day on which his statement was recorded i.e. 13.03.2019 by Manas Kumar Kayal.
149. One of the allegation against the accused Manas Kumar Kayal is to the effect that complainant (PW11) alongwith his father (PW7) went to Income Tax Office on 13.03.2019 when accused put certain questions and which were answered by the father of the complainant, however, its answer was written by the complainant. The statement was signed by father of the complainant vide Ex.PW7/11 and the complainant had also alleged that the last page of the statement was torn by A-1 as it was against him. PW20 Saminder Singh Gill in his deposition stated that a document dated 13.03.2019 was provided to him vide seizure memo and the same was different from the last page of the original complaint (statement as recorded on 13.03.2019) and in cross-examination on behalf of Ld. Counsel for A-1, PW20 stated that he prepared the seizure memo regarding taking into possession the last two pages of the statement was seized through seizure memo or through the statement recorded under section 161 Cr.P.C. and the same was captured by the complainant in his mobile phone and the print out of the same was provided to him which was seized vide seizure memo and the said original statement bears the handwriting of the complainant. What follows from the deposition of PW20 that complainant provided the print out of the document taken out from his mobile phone. Even, no certificate under section 65B of Indian Evidence Act was taken either from PW7 or PW11, since CBI Vs. Manas Kumar Kayal & Anr. Page 117 of 168 the last two pages are taken out from the mobile phone and the so called print out is basically an electronic document which cannot be admitted in evidence unless certificate under section 65B of Indian Evidence Act is filed and this fact was recorded for the first time in the statement under section 161 Cr.P.C. of the complainant and even mobile phone of the complainant/PW11 was not seized and was also not sent to Forensic Science Laboratory for analyzing. It is also relevant to mention that in respect of the visit of PW11 to the Income Tax Office, the prosecution has relied upon the print out of OLA Cab traveling vide Ex.PW11/G-1 to indicate that PW11 had met accused persons and PW20 had stated that he had not verified about the same and even no certificate under section 65B of the Indian Evidence Act was obtained or procured by the Investigating Agency at any point of time and, therefore, both these documents had to be excluded from consideration. In Arjun Pandit Rao Vs. Kailash Kushanrao Gorantyal & Ors., (2020) 7 SCC 1 in paragraph no. 31 and 32, it was observed as under :-
31. The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf - Section 62 to 65 being irrelevant for this purpose. However, Section 65B(1) clearly differentiates between the "original" document - which would be the original "electronic record" contained in the "computer" in which the original information is first stored
- and the computer output containing such information, which then may be treated as evidence of the contents of the "original" document. All this necessarily shows that Section 65B differentiates between the original information contained in the "computer" itself and copies made therefrom - the former being primary evidence, and the latter being secondary evidence.CBI Vs. Manas Kumar Kayal & Anr. Page 118 of 168
32. Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where "the computer", as defined, happens to be a part of a "computer system" or "computer network" (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. (supra) which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act...". This may more appropriately be read without the words "under Section 62 of the Evidence Act,...". With this minor clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
150. It is, therefore, apparent that there are contradictions inter se between the testimonies of PW7 and PW11 about the presence and meeting of accused Somvir Dhanda on 13.03.2019 and the prosecution has also failed to establish that any statement of father of PW11 was changed by A-1 Manas Kumar as alleged. No material was placed by the prosecution that accused persons had met PW11 on 25.03.2019 at Income Tax Office and the question of any attempt to obtain bribe by accused persons are not substantiated.
EVENTS/HAPPENING DATED 28.03.2019
151. It is further the case of the prosecution that after receipt of the complaint vide Ex.PW11/A, the verification of the complaint was done vide Ex.PW11/D i.e. the complainant/PW11 visited the CBI Vs. Manas Kumar Kayal & Anr. Page 119 of 168 office of Income Tax alongwith independent witnesses by carrying a voice recorder with memory card in a clandestine manner so as to record the conversation between him and the suspect officers who were demanding bribe from him. Further case of the prosecution was that on 28.03.2019, the complainant/PW11 met Manas Kumar Kayal in his cabin/room.
152. PW11 deposed that A-1 Manas Kumar Kayal told that no other person is allowed in his room and accordingly Jyoti Kumar had to leave the room (of Manas Kayal). He further deposed that Manas Kumar Kayal asked from him whether he wanted to increase or decrease the demand. He also deposed that Manas Kumar Kayal confirmed that Somvir Dhanda was his cousin and whatever Somvir would tell that would be correct.
153. It is evince from the deposition of PW11 that independent witness Jyoti Kumar was not in the room/cabin of Manas Kumar Kayal during the conversation of PW11 and Manas Kumar Kayal on 20.03.2019 and, therefore, independent witness cannot tell as to what had transpired in the meeting between PW11 and Manas Kumar.
154. Testimony of PW-16 Shri Jyoti Kumar is only qua the fact that on 28.03.2019 he visited the office of CBI on the direction of his superior officer and the complaint vide Ex.PW11/A was shown and read over to him and he proceeded for the verification to the Civic Centre with the CBI team and he accompanied the complainant/PW11 in the room of Manas Kumar Kayal and CBI Vs. Manas Kumar Kayal & Anr. Page 120 of 168 during conversation, Manas Kumar Kayal asked him to leave the room, whereas PW11/complainant remained in the room of Manas Kumar Kayal.
155. It is reflected from the testimonies of the complainant/PW11 and the shadow witness/PW16 that complainant/PW11 met Manas Kumar Kayal but PW16 was unable to hear any conversation or discussion as he was waiting outside the room of Manas Kumar Kayal.
156. Without going into the admissibility of the recorded conversation (Q-1) and the transcript Ex.PW11/F-1, it is clearly reflected that recorded conversation also do not indicate that there was any direct demand by Manas Kumar Kayal from the complainant/PW11.
157. In the recorded conversation, the complainant/PW11 was telling that he was asked 1.5, whereas in reply to the said question, the accused Manas Kumar Kayal telling that Wo baad ki baat hai and he asked complainant whether he had brought any other document. It is apparent from reading of the transcript vide Ex.PW11/F-1 and the recorded conversation that it was the complainant/PW11 who spoke about 1.5 Lacs, but there is no demand of bribe by Manas Kumar Kayal.
158. The verification memo dated 28.03.2019 vide Ex.PW11/D was prepared in which it was noted "The verification revealed that no clear/specific demand of bribe money could be confirmed CBI Vs. Manas Kumar Kayal & Anr. Page 121 of 168 during this verification process and the Suspect Officer asked the complainant to meet and talk with his subordinate Sh. Somvir, Inspector, Income Tax in this matter. In view of the above the verification process has been kept open and the complainant and the independent witness were directed to report again on Friday i.e. 29.03.2019 at 10:00 Hrs for further proceedings."
159. Relevantly, in the recorded conversation (Q-1), there is not even a reference or indication to the effect that PW-16 Jyoti Kumar had entered the room of Manas Kumar and even if one assumes that voice of Manas Kumar Kayal was not picked in the recorded conversation but there is no voice that complainant PW- 11 introduced Jyoti Kumar as his cousin.
160. In order to bring home a charge/guilt under section 7 of PC Act, the demand has to be made in conscious manner. The loose words or something spoken by some other person to which an accused is either not responding or stating in a clear manner would not come within the fold of demand. Moreover, testimony of PW11 further reflects that there are no clear allegations in respect of the demand of bribe by Manas Kumar Kayal on 28.03.2019.
EVENTS/HAPPENING DATED 29.03.2019
161. As noted above, verification vide Ex.PW11/D was kept pending and as usual, another verification vide Ex.PW11/C was prepared after making requisite arrangement of DVR and CBI Vs. Manas Kumar Kayal & Anr. Page 122 of 168 Memory Card. It is further the case of the prosecution that a call was made on mobile phone bearing no. 9958568880 (accused Somvir Dhanda is user of this connection) from Mobile No. 9811036311 (Complainant/PW11 is user of this connection) which was duly recorded and during the said call, it is revealed that complainant/PW11 told that he had spoken to Manas Kayal and wanted to speak with Somvir Dhanda. There was no demand of money during the aforesaid conversation as noted in the transcript memo vide Ex.PW11/F-2 (relating to Folder no 2) and thereafter it was decided to make a physical verification.
162. It is the case of the prosecution that on 29.03.2019, the CBI team along with complainant and independent witnesses reached Civic Centre in which the complainant was carrying DVR alongwith memory card in a clandestine manner at about 03.00 PM. PW11/the complainant of the case, in respect of his verification dated 29.03.2019 deposed that he went to the office of Somvir and in the office of Somvir, Somvir told that bribe of Rs.1,30,000/- is for Manas Kumar Kayal and Rs.20,000/- is for him and he asked the complainant to come at 03.00 PM. PW16 did not go inside the room/cabin of Somvir Dhanda and remained outside the room/cabin of Somvir Dhanda. It is therefore, apparent that conversation between the complainant/PW11 and accused Somvir Dhanda happened without the presence of independent witness Shri Jyoti Kumar/PW16. Both complainant/PW11 and PW-16 Shri Jyoti Kumar came to parked vehicle and it was decided that trap would be laid and accordingly, CBI team, complainant and other persons went back to the CBI office and thereafter, recommendation for registration CBI Vs. Manas Kumar Kayal & Anr. Page 123 of 168 of FIR was made and trap team was constituted and Shri Kuldeep Sharma is appointed as Trap Laying Officer.
163. Without going into question of admissibility of audio recording Q-2 and Transcript Ex.PW11/F2 and more specifically Folder No. 3, it would reveal that there was conversation between A-2 and the complainant/PW11, in which the complainant/PW11 was telling that they had asked Rs.1.5 Lakhs and he further enquired from A-2 as to what to be done. The discussion between both complaint and A-2 would reveal that both of them were negotiating in respect of the some monetary transaction. It is not palpable in the conversation as transcribed in Ex. PW11/F2 for what purpose they were negotiating and A-2 Somvir Dhanda was also talking about Manas Kumar Kayal. The conversation between A2 and the complainant would create a ground for suspicion and the reason for the monetary transaction could only be clarified since the complainant/PW11 was called in the post-lunch session. The impugned conversation only raises strong suspicion on A-2 Somvir Dhanda that he was attempting to obtain the bribe and the prosecution is also required to establish that in pursuance of the aforesaid negotiation whether there was any further demand or acceptance of the bribe by accused Somvir Dhanda. It is also reflected from the conversation that the complainant is also prodding the accused to negotiate in respect of the transaction and from the conversation, further steps are required to be undertaken to fortify the demand and and acceptance to bring the case within the fold of section 7 of PC Act and the same depends on the final trap which CBI proposes to lay down in the post-lunch session.
CBI Vs. Manas Kumar Kayal & Anr. Page 124 of 168164. In respect of the actual trap which was laid at about 03.00 PM on 29.03.2019, the statements of the witnesses and other documentary evidences are being perused to consider whether there was any demand and acceptance of bribe by the accused persons.
165. In respect of the issue qua the demand and acceptance, the version of PW11 was to the following effect :
"At the office of Income Tax, Civic Centre inside the cabin of Somvir, I gave the bribe amount of Rs.40,000/- which was the trap money. I did not give indication thinking that the amount is meant for Manas Kumar Kayal and to give indication after the amount is handed over to Manas Kumar Kayal. I went to the washroom where Kuldeep met me who was part/trap officers of CBI team. He asked me about the amount I told him that I had handed over the amount to Somvir. Kuldeep then rushed to the cabin of Somvir where the checking was carried out."
166. It is evident from the statement of PW-11 that he did not give any pre-determined signal after handing over the bribe money thinking that, signal is to be given after Manas Kumar Kayal had accepted the bribe amount. Admittedly, PW-16 Jyoti Kumar did not go inside the room of accused Somvir Dhanda and waited outside the room/cabin of accused Somvir Dhanda on a sofa. The issue whether accused Somvir Dhanda had obtained the bribe is hinges on the statement of PW11/complainant as shadow witness i.e. PW16 Jyoti Kumar was unable to over hear the actual conversation and the delivery of the bribe amount.
167. Another issue is whether the prosecution is able to prove CBI Vs. Manas Kumar Kayal & Anr. Page 125 of 168 the obtainment of bribe by accused Somvir Dhanda either for himself or for A-1 Manas Kumar Kayal through other witnesses and from the circumstantial evidence.
168. As per the recovery memo vide Ex.PW11/E, complainant/PW11 came out of the room/cabin of Somvir Dhanda and then complainant followed the accused Somvir Dhanda (in the gallery/corridor). Complainant/PW11, Somvir and TLO/PW17 went inside the toilet which is attached in the lift lobby area outside Room No. 1601. Accused Somvir Dhanda was apprehended and was taken to the room of accused Manas Kumar Kayal and it was revealed that Manas Kumar Kayal was not available and cursory search of the accused Somvir Dhanda was taken inside the room of Manas Kumar Kayal, but no trap money was found and thereafter Somvir Dhanda was brought to his own room/cabin and thereafter accused Somvir Dhanda was again challenged in respect of the bribe amount and accused Somvir Dhanda pointed out toward the black bag lying on the floor beside his chair containing the bribe amount.
169. PW11/complainant deposed in respect of the acceptance of the bribe amount of Rs.40,000/- by accused Somvir Dhanda but did not give any signal and he met Kuldeep Sharma/PW17 and told him that he had handed over the bribe amount and he also did not state that at the time of final trap, there was any demand by A-2. He deposed that accused Somvir Dhanda was taken to his cabin when he was returning from the washroom and told that bribe amount was kept in a black colour bag and the bribe amount was taken out from the black colour bag. During cross-
CBI Vs. Manas Kumar Kayal & Anr. Page 126 of 168examination, PW11 after perusing the site plan stated that there were two washrooms on the same floor and he further deposed that he went to the washroom near Cabin No. 1601 and further stated that he met TLO Kuleep Sharma in the same bathroom. PW11 was unable to disclose whether Somvir came to the same bathroom. PW11 was unable to tell whether there were other items/things in the black bag. PW11/complainant did not depose in categorical manner that A-2 Somvir Dhanda went inside the same bathroom in which he met PW17/Trap Laying Officer or in the different bathroom.
170. In his chief-examination dated 10.11.2021, PW16 Shri Jyoti Kumar stated that he was sitting with TLO/PW17 Kuldeep Sharma outside the room/cabin of accused Somvir Dhanda, then PW16 made inquiries from PW11 Pushkar Jain who was going towards the toilet, conveyed by way of signal through his hand that the amount had been paid to Somvir Dhanda who was going towards the toilet. Meaning thereby that the information in respect of the delivery of bribe amount was conveyed when both i.e. PW11/complainant and accused Somvir Dhanda were moving towards the toilet.
171. PW16 in his cross-examination dated 22.03.2022 further stated that PW11 Pushkar Jain and accused Somvir Dhanda came out of the cabin but PW11 Shri Pushkar Jain did not interact with anyone immediately after coming out from the cabin and TLO/PW17 also went inside the toilet where information of handing over the trap money was divulged by PW11 Pushkar CBI Vs. Manas Kumar Kayal & Anr. Page 127 of 168 Jain to TLO/PW17 while being inside the toilet. PW16 also deposed that he did not go inside the toilet and TLO caught hold Somvir Dhanda after coming out from the toilet. PW16 identified Point-Y as the place where accused Somvir Dhanda was apprehended. The deposition of PW16 to the effect that information was divulged inside the toilet by the complainant/PW11 cannot be taken into consideration as he has never heard the said part since he did not go inside the bathroom and moreover, PW16 had also deposed that complainant/PW11 had already informed about the delivery of the bribe amount when he was moving towards the toilet/washroom. PW16 had identified the place of apprehension at Point-Y on the site plan Ex.PW11/D-1.
172. PW-17 Shri Kuldeep Sharma/TLO deposed that on 29.03.2019, he alongwith PW16/Jyoti Kumar and Inspector Harish Chandra took position at Room No. 10 opposite to the office of Somvir Dhanda. Somvir Dhanda and complainant/PW11 came out of the room and went towards the toilet/washroom and he also followed them in washroom and independent witness i.e. Jyoti Kumari also came inside the toilet.
Somvir Dhanda was washing his hands and the complainant/PW11 did not give any signal and after Somvir Dhanda had left the bathroom, complainant/PW11 told that he forgot to give signal, although he had handed over the bribe amount to Somvir and Somvir had kept the same inside his shirt pocket. PW17 further deposed that he gesticulated to the other members of the trap team. He further deposed that members of the trap team including independent witness rushed towards the CBI Vs. Manas Kumar Kayal & Anr. Page 128 of 168 chamber of Somvir Dhanda who was inside the chamber and he detained him physically with his right hand and gave his introduction. Complainant confirmed the identity of accused Somvir Dhanda and further disclosed that Somvir Dhanda accepted the bribe for himself and for Manas Kumar Kayal. PW17 further deposed that PW11/Complainant had also disclosed to him that after the above-said transaction i.e. delivery of bribe amount, he had gone to check the availability of Manas Kumar Kayal in Room No. 1601. PW17 further deposed that they had moved towards Room No. 1601 alongwith Somvir Dhanda and search of accused Somvir Dhanda was taken but nothing was found from his person and thereafter Somvir Dhanda was brought to his chamber where recovery of the bribe amount was made from the black bag kept alongwith his chair in the cabin.
173. PW-13 Shri Dharmendra Chaudhary in respect of the apprehension of accused Somvir Dhanda and recovery of the bribe amount stated that on 29.03.2019, the complainant/PW11 entered in the cabin of Somvir Dhanda and came after 15 minutes and he moved towards washroom and behind Somvir, Jyoti Kumar and TLO were following him. Somvir Dhanda had washed his hands and came out. The complainant was asked about the transaction who informed that he had handed over the amount inside the cabin of Somvir Dhanda. TLO informed the trap team about the transaction. Trap Team went inside the cabin of Somvir Dhanda and asked about the transaction. The trap team alongwith Somvir Dhanda then proceeded to the cabin of Manas Kumar Kayal. Somvir Dhanda then was interrogated and CBI Vs. Manas Kumar Kayal & Anr. Page 129 of 168 PW-13 checked Somvir Dhanda on the instructions of the TLO, but no amount was found and thereafter Somvir Dhanda told that he be taken to his cabin where he would disclose about the money and pointed out towards the black colour bag lying in his cabin and from its pocket, the bribe amount was recovered and some other articles were also found in the bag. In his cross- examination, PW-13 deposed that Somvir went to the washroom which was near the cabin of Manas Kumar Kayal.
PW11/Complainant and PW16/Jyoti Kumar were also present in the bathroom. PW-13 was unable to recall whether the complainant was asked about exchange of bribe money inside the bathroom. He was also unable to recall that Somvir had washed his hands inside the washroom. PW-13 stated that he was standing at a little distance from washroom when he saw Somvir, Jyoti and TLO coming out of it and he was at a distance of about 5 feet from the washroom. It is evident from the deposition of PW13 that accused Somvir Dhanda was apprehended from his cabin and thereafter he was taken to the cabin of accused Manas Kumar Kayal. PW13 had shown the presence of PW16 Jyoti Kumar inside the washroom, however, PW16 Jyoti Kumar had never gone inside the washroom/bathroom.
174. PW-14 Shri Pramod Kumar Tanwar/Verification Officer deposed that complainant went inside the room of accused Somvir and in the sofa outside the cabin of accused Somvir Dhanda, TLO and independent witness sat, whereas other members took their position in discreet manner on 16 th Floor near the office of accused. After some time, the complainant came from the office of accused Somvir into the gallery, but did not CBI Vs. Manas Kumar Kayal & Anr. Page 130 of 168 give any pre-decided signal and after some time, Somvir Dhanda also came out from his office and proceeded towards toilet and thereafter, complainant followed the accused Somvir and both of them were followed by Trap Laying Officer Kuldeep Sharma and all of them went inside the toilet, whereas independent witness Jyoti Kumar was standing outside the toilet and after two to three minutes, Somvir came out of the toilet after washing his hands and wiping his hands by using handkerchief. In the toilet, the complainant told the TLO in respect of the transaction of bribe and why he did not give any pre-decided signal to TLO and then complainant told that the person who has just left the toilet is accused Somvir Dhanda. Complainant and TLO came out of the toilet and alerted team members in respect of the transaction. Thereafter, trap members including independent witness Jyoti Kumar and Dharmendra Kumar went inside the office of accused Somvir where TLO Kuldeep Sharma and one of the member of the CBI team apprehended accused Somvir Dhanda and challenged him that he took bribe. Accused Somvir became perplexed and admitted that he took bribe. The TLO took Somvir Dhanda to office cabin of Manas Kumar Kayal but he was not present as he had gone to 26th Floor of the same building. PW14 and Umesh Kumar were left at the office of Manas Kumar Kayal and after some time, Manas came and he was detained. PW14 further deposed that TLO alongwith independent witness came back to the office cabin of Manas Kumar Kayal and inquiries were made from him, but accused denied any participation in the demand of bribe. A search was made in the office cabin of Manas Kumar Kayal in the presence of the independent witnesses and the relevant file was traced and CBI Vs. Manas Kumar Kayal & Anr. Page 131 of 168 seized. PW14 further deposed that since public had gathered and thus, further proceedings were to be carried at the office of the CBI and accordingly, the CBI team took both the accused persons and seized articles and proceeded towards the office. PW14 further deposed that a rough site plan was prepared by the TLO in consultation of complainant and other persons vide Ex.PW11/D-1. PW14 further deposed that cash amount was recovered from the front pocket of the bag in his presence. He also deposed that the same was counted and tallied with handing over memo and when the sealing process started, he moved towards the cabin of Manas Kumar Kayal.
175. All the prosecution witnesses i.e. PW11, PW13, PW14 and PW16 deposed that PW-11 went inside the cabin/room of Somvir Dhanda and after coming outside the cabin of Somvir, PW11 did not give any pre-determined signal. TLO deposed that because of nervousness, PW11 Pushkar Jain was unable to give pre- determined signal, whereas PW11 Pushkar Jain stated that signal was to be given after handing over bribe amount to Manas Kumar Kayal.
176. The information in respect of the delivery of the bribe amount was purported to be given by the complainant (PW-11) to Shri Kuldeep Sharma (PW-17). The different version has appeared in the testimonies of the witnesses on this aspect. As per the complainant/PW-11 Shri Pushkar Jain, he informed the TLO Kuldeep Sharma to the effect that he had handed over the bribe amount to Somvir Dhanda (In his examination-in-chief CBI Vs. Manas Kumar Kayal & Anr. Page 132 of 168 dated 16.03.2020 when he went inside the washroom). Interestingly, in his cross-examination dated 01.03.2021, PW11 upon being shown the site plan in which there are two bathrooms/washrooms and PW11 categorically deposed that he was unable to recall he went inside which bathroom and met PW- 17 Kuldeep Sharma and he was also unable to recall whether A-2 Somvir Dhanda had gone in the same bathroom. The site plan vide Ex.PW11/D1 indicates that there are two bathrooms.
177. PW-11 Shri Pushkar Jain also deposed that when he informed the TLO/PW17 about the delivery of bribe amount, then TLO/PW17 alerted other members of the trap team and they rushed to the chamber of A-2 Somvir Dhanda. He had also deposed that TLO caught hold the hand of A-2 Somvir Dhanda. PW-11/complainant in his cross-examination had indicated that he met Somvir Dhanda at Point-Y on the site plan Ex.PW11/D-1 i.e. near the gallery. He had also deposed that TLO Kuldeep Sharma rushed to the cabin of Somvir Dhanda and asked him about the bribe amount. He had also deposed that accused Somvir Dhanda told Kuldeep Sharma " Mujhe maaf kar do meri naukri hai", when he was returning from the washroom and outside the cabin. He further deposed that accused Somvir Dhanda took TLO to his cabin and told that bribe amount was kept in the front pocket of black colour bag, lying underneath the table.
178. A reference to testimony of PW-14/Verification Officer Pramod Kumar Tanwar would clearly reflect that he had not gone inside the toilet and yet in his examination-in-chief, PW14 stated that information about the delivery of the bribe amount by the CBI Vs. Manas Kumar Kayal & Anr. Page 133 of 168 complainant in the washroom to TLO and also stated that accused Somvir Dhanda came out of the bathroom after washing his both hands and wiping it with the handkerchief. The witness cannot depose about the fact which he had not witnessed. It appears that PW14 is either exaggerating the case or is trying to make improvement in the case of the prosecution. PW14 had also deposed to the effect that "Thereafter, the TLO Shri Kuldeep Sharma took the accused Somvir Dhanda to the office cabin of accused Manas Kumar Kayal, but he was not found in his office, the trap team was told that Manas Kumar Kayal had gone to visit the Commissioner office at 26th floor of the same building and he alongwith Umesh (SI) were left at the office of Manas Kumar Kayal while the trap team alongwith him moved towards his office and after about 25 minutes when Manas Kumar came back he was detained." PW14 in his cross-examination dated 30.03.2021 which raises doubt on the actual sequence of events relating to recovery and acceptance since PW14 had voluntarily stated that "As initially the complainant stated that the cash was kept in the pocket by Somvir Dhanda, which was not found, the team took Somvir towards the cabin of Manas Kumar Kayal, thinking that he may have dropped the cash somewhere during the way and after having been brought back to his cabin."
179. It appears from the deposition of PW14 Shri Pramod Kumar Tanwar/verification officer that accused Somvir Dhanda was apprehended in his chamber and secondly Somvir Dhanda being taken to the chamber of accused Manas Kumar Kayal. PW14 also deposed that he was left at the office of Manas Kumar Kayal alongwith Sub Inspector Umesh Kumar and Manas Kumar CBI Vs. Manas Kumar Kayal & Anr. Page 134 of 168 Kayal was detained after he came to his office after about 25 minutes and then information was given to TLO/PW-17 Kuldeep Sharma. Kuldeep Sharma and SI Umesh came to the cabin of Manas Kumar Kayal and search of the office of Manas Kumar Kayal was conducted where file etc. were seized. PW14 had stated in his examination-in-chief that recovery of the cash amount from the front pocket of the bag was made in his presence. The story put forward by PW14 in his deposition was that after apprehension of accused Somvir Dhanda, he was taken to the chamber of accused Manas Kumar Kayal and thereafter, accused Somvir Dhanda was brought to his office/chamber. It has further come in deposition of PW14 that he waited for Manas Kumar Kayal for about 25 minutes and when accused Manas Kumar Kayal came to his chamber, TLO/PW17 was informed and search of the cabin of accused Manas Kumar Kayal was also made. PW14 attributes that recovery of bribe money/tainted money was made in front of him. The testimony of PW14 becomes doubtful for the reason that PW14 was waiting for accused Manas Kumar Kayal in his chamber who came after about 25 minutes and the search of the file etc. was made from chamber of Manas Kumar Kayal. The aforesaid narration of facts would indicate that either witness had forgotten the relevant facts or he had not witnessed the transaction in the manner as alleged by the prosecution or the story in respect of the recovery of the bribe/tainted amount is not credible. If the recovery of the bribe amount/tainted amount is made in his presence (in the presence of PW14), then question arises as to what happened during 25 minutes plus when search of the file etc. was made in the chamber of Manas Kumar Kayal. Interestingly, in his cross-
CBI Vs. Manas Kumar Kayal & Anr. Page 135 of 168examination, the witness (PW14) had stated that the cash was recovered inside the cabin of Somvir Dhanda and the bag was lying on the table of the Somvir Dhanda, however, the case of the prosecution in the charge sheet as well as in the statement of witnesses recorded under section 161 Cr.P.C. that bag was underneath the table. A reference to his oral evidence before the court is that witness is trying to show his presence in both the places i.e. in the chamber of Manas Kumar Kayal and in the cabin of Somvir Dhanda which is not possible as the distance between the cabin of Somvir Dhanda and chamber of Manas Kumar Kayal is about 5 to 7 feet. It appears either PW14 is not disclosing the complete facts or had not witnessed the transaction in the manner as alleged by the prosecution.
180. PW17 Shri Kuldeep Sharma was Trap Laying Officer and in his deposition before the court with respect to the apprehension of accused Somvir Dhanda, had stated that accused Somvir Dhanda was apprehended in the gallery and he was taken to his cabin and upon his direction, PW13 Dharmendra Kumar found the bribe amount in the internal pocket of the black bag. PW17 had also deposed that Manas Kumar Kayal was detained by Pramod Kumar and SI Umesh Kumar in his chamber. It seems from his deposition that whatever the recovery that was required to be affected was already done. PW17 Kuldeep Sharma had stated in his cross-examination that he made search of the shirt pocket of accused Somvir Dhanda in his office, however, in his examination-in-chief, PW17 had stated that the search was made with the help of independent witness and in which no money was found and the accused took him to his CBI Vs. Manas Kumar Kayal & Anr. Page 136 of 168 cabin. Both the versions are contrary to each other. Interestingly, when a positive suggestion was given by the Ld. Defence counsel that accused Somvir Dhanda was apprehended in the corridor/gallery, the witness had clearly denied the same.
181. PW-16 Jyoti Kumar/independent witness deposed that A-2 Somvir Dhanda was caught hold by the TLO/PW17 Kuldeep Sharma and confirmation about the delivery of bribe money was made from the complainant/PW11 Pushkar Jain and search of A- 2 Somvir Dhanda was made but no money was found from him and then A-2 took them to his chamber/cabin and disclosed that money is in upper front pocket of the bag. It is necessary to mention that PW16 Jyoti Kumar did not depose that after apprehension accused Somvir Dhanda was taken to the chamber of A-1 Manas Kumar Kayal and the same is contrary to the statements of PW17 and PW14.
182. In the present case, most of the witnesses such as PW13, PW14 and PW16 had deposed in respect of the events/facts which were not witnessed by them.
183. It is also necessary to observe that PW14 Pramod Kumar Tanwar had also stated in his cross-examination dated 30.03.2021 that accused Somvir Dhanda was taken to the chamber of accused Manas Kumar Kayal as no money was found from him and it was thought that he might had dropped the cash somewhere during the way. In this regard, it is also necessary to observe that accused Somvir Dhanda being taken to the chamber CBI Vs. Manas Kumar Kayal & Anr. Page 137 of 168 as he had dropped the cash during the way was neither recorded in Ex.PW11/E or in the statement recorded under section 161 Cr.P.C.
184. It is the case of the prosecution that on 29.03.2019, PW-11 went inside the cabin/office of accused Somvir and thereafter, both of them came out of the office/cabin of Somvir Dhanda and complainant/PW-11 was tailing Somvir Dhanda to washroom. Members of the trap team were stationed near the cabin/office of accused Somvir Dhanda and some members of the team were stationed near the toilet located at Room No. 1601. After Somvir Dhanda had come out of his chamber, he was always within the sight of PW11 Pushkar Jain. Neither complainant nor any of the witnesses, present at the spot on 29.03.2019, had ever stated that accused Somvir Dhanda had strayed in the chamber of accused Manas Kumar Kayal as such in the given circumstances of the case, it seems quite incongruous as to why Somvir Dhanda was taken to the chamber of accused Manas Kumar Kayal for the search of the bribe money as stated by few witnesses. It is the specific case of the prosecution that bribe was paid in the chamber/cabin of accused Somvir Dhanda.
185. The conduct of PW11 in not giving pre-determined signal seems implausible as he thought that bribe amount is to be delivered to Manas Kumar Kayal as there was no direct demand and acceptance by Manas Kumar Kayal on 29.03.2019 and even PW-11 had not seen Somvir Dhanda entering the room of Manas Kumar Kayal from his cabin and the only way by which the bribe CBI Vs. Manas Kumar Kayal & Anr. Page 138 of 168 money could have reached Manas Kumar Kayal, if the same was given by accused Somvir Dhanda or by the complainant/PW11 and none of them had gone to deliver the bribe amount to Manas Kumar Kayal.
186. Different versions in respect of recovery of money from the black bag had come in the depositions of the witnesses. Some of the witnesses had deposed to the effect that black colour bag was lying on the table and some of the witnesses had deposed that black colour bag was lying underneath the table and some of the witnesses had deposed to the effect that the black colour bag was lying on the corner. Although, one might say that these inconsistencies are insignificant, but if one co-relate with other circumstances and facts of the case, it would indicate that prosecution version as regards the recovery of money from the black bag is under cloud, specially in reference to the fact that some of the witnesses had deposed that accused Somvir Dhanda after his apprehension was taken to the chamber of accused Manas Kumar Kayal and thereafter brought to his own chamber. The black bag containing the bribe amount was seemingly left unguarded in the chamber of Somvir Dhanda and what makes the recovery of money from the black bag as doubtful as except the money, no other item is found in it and even no inventory in respect of any article in the black bag was prepared by the Investigating Agency.
187. In the present case, the black bag was recovered first and thereafter the disclosure statement of the accused Somvir Dhanda CBI Vs. Manas Kumar Kayal & Anr. Page 139 of 168 was recorded which further makes the entire recovery quite suspect, if the accused had pointed out toward the black bag containing the bribe amount, the proper course of action would have been to prepare a pointing out memo in respect of the black bag which the prosecution has failed to do so in the instant case.
188. During trial, neither shirt nor bag in which Somvir Dhanda had allegedly put the tainted money was shown to the complainant/PW11 during trial and even the handkerchief was not shown to complainant/PW11 during his evidence.
189. It has also come in the deposition of the witnesses that bribe amount was not recovered in person from the accused Somvir Dhanda. It appears from the statements of the witnesses that recovery of the bribe amount from the bag was not very spontaneous and it took a fairly long period of time. The cabin of accused Somvir Dhanda was open and number of prosecution witnesses were either present near the cabin of Somvir Dhanda or inside his cabin and prosecution has miserably failed to link the black bag with accused Somvir Dhanda. Moreover, some of the prosecution witnesses have deposed about their presence in the chamber of accused Somvir Dhanda, however, this version becomes doubtful for the reason as the chamber of accused Somvir Dhanda was very small to accommodate such a large number of persons. In cases involving the recovery of bribe/tainted amount, time is an essence as to when the bribe amount was recovered and the surrounding circumstances associated with it, specially in a situation when at the time of apprehension of accused Somvir Dhanda, no tainted bribe CBI Vs. Manas Kumar Kayal & Anr. Page 140 of 168 amount was found in the person of accused Somvir Dhanda.
190. It is a well settled law that in offences involving Section 7 of Prevention of Corruption Act 1988 (As amended) and if the prosecution alleges that there was a demand and acceptance of bribe by the public servant, the acceptance of bribe by a public servant has to be established beyond doubt. In trap cases, the acceptance of the bribe amount is required to be proved by the prosecution beyond reasonable doubt and as such the prosecution is duty bound to prove the acceptance of the bribe amount and the consequent recovery of the bribe from accused Somvir Dhanda. PW14 i.e. Verification Officer remained in the chamber of accused Manas Kumar Kayal for about 25 minutes and thereafter he stated that recovery of bribe money was made in front from him which is not possible as discussed in the earlier paragraphs.
191. Q-3 contains an audio recording to cover the final demand as well as the acceptance and recovery of the bribe amount. Needless to say that Q-3 was disputed on behalf of the accused and it is submitted that a perusal of the audio recording i.e. Q-3 would reflect that there was no demand of bribe by A-2 and whatever be the conversation, it was basically initiated by the complainant and in the absence of the specific evidence pointing the demand and acceptance of the bribery, the Q-3 cannot be read against the accused Somvir Dhanda. It is also contended that the transcript containing the conversation between A-2 Somvir Dhanda and the complainant was written and typed in such a manner as if there was demand and acceptance by Somvir CBI Vs. Manas Kumar Kayal & Anr. Page 141 of 168 Dhanda. The audio recording was heard and a careful perusal of the recording would reveal that complainant was stating that he had made an arrangement of Rs.40,000/- as bribe. It is not very much clear whether recording which indicate that accused Somvir Dhanda had had accepted an amount of Rs.40,000/- and the entire conversation in respect of the demand and acceptance of the bribe is totally amiss in the recording Q-3. It is also transpired from audio recording Q-3 that when trap was laid for Somvir Dhanda, CBI team alongwith independent witness and complainant went to the Income Tax Office at 16 th floor. The DVR containing the memory card was in switched on mode and the specific case of the prosecution is that complainant went to the room of accused Somvir Dhanda, however, Q-3 i.e. audio recording as well as the transcript vide Ex.PW11/F-1 would indicate that complainant Pushkar Jain/PW-11 did not firstly go to the cabin of Somvir Dhanda and rather, he went to the chamber of Manas Kumar Kayal.
192. In trap case, the testimony of a complainant/bribe giver is of utmost importance. In assessing the testimony of such a witness, the version offered by the witness after separating inconsistencies and exaggeration should be consistent, truthful and reliable. It is not expected from any person be it a witness or any other person to give a parrot like deposition in the court or to reproduce the facts before the court as if the events were photographed and etched in the memory. The credibility and reliability of the witness could be adjudged after taking into consideration as to how he/she had deposed before the court and whether he is able to withstand the cross-examination in order to CBI Vs. Manas Kumar Kayal & Anr. Page 142 of 168 enable the court to put its confidence on such a witness to convict an accused. As referenced above, while evaluating the testimony of PW11, it is evident that he had jumbled facts and events in such a manner that he deposed on different dates by mixing up the facts. He also did not state about the demand and acceptance in precise manner. What is intriguing to note that after complainant/PW-11 Pushkar Jain came out of the cabin of accused Somvir Dhanda, he did not go to the washroom as deposed by some of the prosecution witnesses, rather, he went to the chamber of Manas Kumar Kayal and from the chamber of Manas Kumar Kayal, either he went to washroom or in the gallery wherein he met the trap laying officer. The conduct of PW11 Pushkar Jain in not giving any pre-decided signal and going into the chamber of Manas Kumar Kayal or making an inquiry about him was not noticed by 10 to 11 persons of the CBI team on the day of trap creates a serious doubt on the story of the prosecution. The chain of circumstances as brought to the fore creates doubt in respect of the actual turn of events which occurred on the day of trap i.e. 29.03.2019. The testimony is not very coherent so much so that deposition made on different dates have to be linked to understand as to what PW11 is deposing in the court. Considering the testimony of PW11 being an interested witness, his testimony in respect of the demand and bribe cannot be accepted at its face value and independent witness PW16 Shri Jyoti Kumar was unable to hear the conversation of demand and eye witnessed the acceptance of the bribe by A-2 as he was sitting outside. The conviction can certainly be based on the uncorroborated testimony of the complainant/PW11 provided that witness is reliable truthful and CBI Vs. Manas Kumar Kayal & Anr. Page 143 of 168 consistent in his deposition.
193. PW11 has made material improvements and also tried to conceal number of facts while deposing as a witness. PW11 also did not disclose about the entire conversation which he had with Manas Kumar Kayal on 28.03.2019 and rather he choose to pick up the selective facts that accused Somvir Dhanda demanded bribe of Rs.1,30,000/- for Manas Kumar Kayal and Rs.20,0000/- for himself. A cursory reading of the deposition of PW11 would reveal that he did not disclose the entire conversation occurred between him and accused Somvir Dhanda in the morning of 29.03.2019 and rather concentrated on the fact that Somvir Dhanda had demanded bribe from him. More specifically, in respect of the incident at the time of final trap at about 03.00 PM, the demand for the bribe was also not mentioned in the testimony of PW11 when he went for the final trap of accused Somvir Dhanda. PW11 had stated that when statement of his father was recorded vide Ex.PW7/A dated 13.03.2019, the bribe was demanded, surprisingly in his examination in chief he did not disclose about the bribe amount. The testimony of PW11 would indicate that in his examination-in-chief, only the procedural aspect in regard to the verification, handing over memo and recovery memo were put to PW11 and the witness was unable to narrate the events on 29.3.2019.
194. In view of the contradictory versions offered by the different witnesses on the crucial aspect relating to the aspect of acceptance and recovery of bribe amount from the bag from the CBI Vs. Manas Kumar Kayal & Anr. Page 144 of 168 room of Somvir Dhanda which was accessible to prosecution witnesses and other members of the team, the plea of defence that black bag containing the money was planted upon him cannot be ruled out. It is also relevant to note that PW14 Pramod Kumar Tanwar in his cross-examination had also stated that after A-2 Somvir Dhanda had been detained, he was asked to handover the cash to A-1 Manas Kumar Kayal and when Manas Kumar Kayal was apprehended, he denied his involvement in the present case. The version of PW14 further creates doubt on the story of the prosecution in respect of the demand and acceptance of the bribe by A-2 Somvir Dhanda and the probability of planting the money from the black bag on A-1 Manas Kumar Kayal. Except the say of PW11 that accused accepted the amount, there is no other reliable evidence in the present case. It was observed in "M.K. Harshan Vs. State of Kerala," (1996) 11 SCC 720 :
"In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important."
195. In "K.P. Kolanthai Vs. State by Inspector of Police", Crl. A. No. 693 of 2008 dated 09.08.2019, it is observed by Kerala High Court after analyzing number of judgments in relation to a trap case ;
12. ......
(i) To succeed in such a case, the Prosecution is obliged to prove the demand of bribe before and at the time of trap, its acceptance and the recovery of tainted money.
CBI Vs. Manas Kumar Kayal & Anr. Page 145 of 168(ii)The demand can be proved by testimony of the complainant as well as from the complaint made by him and other witnesses if proved in accordance with law and if it is corroborated in material particulars.
(iii) A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption, of course, is rebuttable under Section 20 of the Prevention of Corruption Act, 1988.
(iv)If the accused gives some defence, that can be scrutinized by the test of preponderance of probability, while the Prosecution must prove its case beyond all reasonable doubt."
13.The genesis of a trap lies in the previous demand of bribe made by the accused from the complainant, which becomes the basis of laying a trap by the investigating agency. Then, it is for the Prosecution to, again, prove the demand at the time when the trap was laid and thereafter, the question of acceptance and recovery of bribe money also is required to be proved beyond all reasonable doubts.
196. It is vehemently contended on behalf of the accused persons that accused persons were not in a position to favour or dis-favour the complainant as bare reading of the complaint vide Ex.PW11/A would reveal that assessment order was already passed against the father of the complainant/PW11 and PW11 had also admitted that an appeal was filed against the assessment order passed by A-1 and A-1 was not in a position to waive of the penalty against the father of the complainant i.e. PW7. It is also contended that complaint Ex.PW11/A pertains to a limited scrutiny case and the limited scrutiny case gets over once the assessment order is passed by the Assessing Officer.
197. The submissions basically revolved around the fact that since assessment order was passed by A-1 and the said order could only be modified by the Appellate Authority and reference CBI Vs. Manas Kumar Kayal & Anr. Page 146 of 168 was made to the statement of PW-21 Shri Gaurav Sharma. The Ld. PP for the CBI has opposed the submissions of the Ld. Counsels for the accused persons and submitted that mere fact that accused persons were not in a position to favour or dis- favour the complainant is not the criteria to determine the culpability of the accused persons. It is submitted that what is of essence was to consider whether accused persons had demanded any bribe. Ld. PP for the CBI has relied upon judgment of "M. Narsinga Rao Vs. State of A.P.", Supreme Court 2001 CR. LJ 515 and "Chaturdas Bhagwandas Patel Vs. State of Gujarat", AIR 1976 SC 1497 and contended that the requirement of the law is not whether such a public servant was capable of doing or intending to do any favour or dis-favour, but whether he has used official position to extract illegal gratification or undue favour or not. Ld. Counsels for the accused persons have relied upon "State of Punjab Vs. Sohan Singh", (2009) III RCR Crl. 971 etc. and on the basis of cited judgment, it is contended that once accused persons are not in a position to favour or dis-favour then accused persons are liable to be acquitted.
198. With respect to the respective contentions advanced by the parties, the issue is whether accused persons had demanded any bribe in relation to the public duty enshrined upon them. The question could only be answered by looking into the peculiar facts and circumstances of the case. In essence, Section 7 of the Prevention of Corruption Act 1988 (as amended) provides that when a public servant obtains or agrees to accept or accept any undue advantage in the performance of his public duty then such an act would be a punishable offence. In this regard, if one CBI Vs. Manas Kumar Kayal & Anr. Page 147 of 168 peruse the complaint vide Ex.PW11/A and the charge sheet filed by the prosecution, it would reflect that in Ex.PW11/A i.e. the first complaint, the complainant had alleged that bribe was demanded for settling a case of limited scrutiny and at a subsequent stage it was also found that an anonymous tax evasion petition is also pending with the Income Tax Department failing which a false case would be filed against the complainant/PW11 or his father/PW7. It is also necessary to mention that in Ex.PW11/A, the complainant had stated that accused persons were demanding Rs.1.5 lacs to settle the matter and the accused persons had raised tax demand of Rs.9,12,037/-. The available evidence on record as well as the deposition of PW11 would reveal that in so far as the raising of tax demand of Rs.9,12,037/- is concerned, the same was raised by A-1 Manas Kumar Kayal as an Assessing Officer after giving due opportunity to the father of complainant/PW11. It is also a matter of record that against the assessment order which was passed by A-1 Manas Kumar Kayal, an appeal is/was also pending before the CIT. It has also come on record that accused Manas Kumar Kayal had rejected the application for stay of recovery of Rs.9,12,037/- vide Ex.P-2 (Colly at page no. 7 of D- 11 and the same was sent through post pursuant to the application dated 13.03.2019 vide Ex.PW7/DB) prior to the alleged date of demand as necessary circular and directions points out that unless and until 20% of the tax raised amount is deposited, the stay cannot be granted. Interestingly, PW11/complainant had admitted in his cross-examination that an appeal was pending and both the accused persons are not in a position to favour or dis-favour in respect of the assessment order. PW-7 deposed in respect of CBI Vs. Manas Kumar Kayal & Anr. Page 148 of 168 filing of an appeal before the Income Tax Commissioner. PW-7 was shown letter dated 07.02.2019 Ex.P-2 (D-11) in which he denied his signatures vide Ex.PW-7/DA. PW-7 also expressed his ignorance that he made a request to the department for stay of the penalty and was asked to deposit 20% of the demand.
199. The so called tax evasion petition cannot be taken up into consideration as same was not approved by the superior officer of A-1 Manas Kumar Kayal. Moreover, a perusal of the complaint Ex.PW-11/A would reveal that there was no reference to the fact that bribe is demanded in relation to the tax evasion petition. It is also relevant to note that on 13.03.2019 when A-1 had recorded the statement of PW7 Shri Bharat Bhushan Jain (father of the complainant), it appears that his inquiries were directed for recovery of the exact amount. If one considers the case of prosecution in light of the charges framed against the accused persons, the charge against accused persons was that accused persons had demanded Rs.1.5 Lacs for settling the case. In this regard, it is necessary to observe that when accused Manas Kumar Kayal had passed an assessment order and as per the deposition of PW11/complainant, accused Manas Kumar Kayal was not in a position to do anything with regard to the assessment order then question of accused Manas Kumar Kayal being in a position to favour or dis-favour father of the complainant does not appear to be probable and the tax evasion petition can also not be taken up as the same was not approved by the superior officers.
200. Another contradiction has appeared in the case of the CBI Vs. Manas Kumar Kayal & Anr. Page 149 of 168 prosecution when Gaurav Sharma (PW-21) was examined by the prosecution who deposed that inquiries pursuant to the assessment order were not properly dealt by A-1 Manas Kumar Kayal and he went beyond his remit. The contention urged on behalf of the prosecution is contradictory as the assessment order was being relied by the prosecution as well as Income Tax Department and if any fault is pointed out on the assessment order then question would arise as to how and on what basis, the income department could claim any relief against the father of the complainant. It seems that prosecution is blowing hot and cold at the same time and the submission in this regard is liable to be rejected and moreover, PW21 Shri Gaurav Sharma in his cross-examination dated 03.10.2023 stated that statement vide Ex.PW7/A was not shown to him during investigation. If the said statement is not shown then as to how he/PW21 could comment about the questions which are to be put while considering the limited scrutiny case. PW21 had also failed to consider that assessment order was already passed. Moreover, perusal of the file of Income Tax would reveal that prior to Manas Kumar Kayal, other officers were also dealing the file of PW7 Shri Bharat Bhushan Jain. Interestingly, PW21 had also clarified in his cross-examination that for the purpose of discovery of other assets of the assessee the Assessing Officer can examine the assessee. Interestingly, during the cross- examination when attention of the witness/PW21 was drawn on Ex.PW3/A in respect of the queries put to the assessee, the witness/PW21 was unable to offer any comment and the statement of PW21 would indicate that he is not disclosing the complete facts and is just imputing the fault without disclosing CBI Vs. Manas Kumar Kayal & Anr. Page 150 of 168 the reasons.
201. As per prosecution, it was also found during the investigation that a complaint/tax evasion petition was purported to be received in the Income Tax Office under the name and signature of one Hemant Jain. The application/tax evasion petition was marked by Principal Commissioner, Income Tax to Joint Commissioner, Income Tax vide Ex.PW8/A alongwith tax evasion petition. It was also found during the investigation that the said tax evasion petition was marked to A-1 and A-1 prepared the proposal to initiate inquiry under section 133(6) of Income Tax Act against father of the complainant, but PW21 did not grant any such permission. It was found during the investigation that tax evasion petition/complaint against father of the complainant which was under the consideration of the accused persons was not authored by PW5 Hemant Jain in his statement before the court denied the authorship in respect of complaint/tax evasion petition vide Ex.PW6/B and during the course of the investigation, PW5 Shri Hemant Jain provided his specimen signature as well as admitted documents i.e. gate pass dated 13.03.2019 vide Ex.PW5/A and copy of PAN card vide Ex.PW5/C. Vide report Ex.PW-6/A, PW-6 Ms. Lavang Lata opined that admitted signature on document Mark Q-1 does not match/tally with questioned documents i.e. purported tax evasion petition and, therefore, it can be safely said that Ex.PW6/B was a fake document. The other point for consideration is whether both the accused persons or any of the accused person had any role in its preparation. The material available on record, deposition of the witnesses as well as the total absence of any documentary CBI Vs. Manas Kumar Kayal & Anr. Page 151 of 168 evidence, no evidence was brought to the fore by the prosecution to establish that both the accused persons had any role in the preparation of the tax evasion petition vide Ex.PW6/B and rather facts of the case would reveal that the tax evasion petition vide Ex.PW6/B was marked to A-1 for further necessary action and a perusal of Ex.PW6/B would reveal that he had marked the tax evasion petition vide Ex.PW6/B to A-2 for further necessary action. It is pertinent to mention that tax evasion petition was forwarded by A-1 to A-2 for putting up the proposal etc. and in this regard, it is observed that when no formal permission has been granted and as well as the fact that there was no clear demand of bribery in the final trap dated 29.03.2019, the prosecution has failed to establish the case of demand and acceptance of bribe by A-2 Somvir Dhanda.
202. Two independent witnesses namely PW16 Shri Jyoti Kumar and PW13 Dharmendra Chaudhary were joined in the investigation. The CBI Manual provides that independent witnesses are to be joined at the time of verification and trap. Ld. PP for the CBI had relied upon "C.M. Sharma Vs. State of AP", AIR (2011) SC 608 and contended that in the said case, it was observed that bribe is not taken in a public view and, therefore, there may not be any position to see as to who is giving and taking the bribe as the shadow witness did not accompany and the court must take into consideration the facts and circumstances of the case. It is also contended that the CBI Manuals are only for the purposes of guidelines and what is to be seen whether the prosecution has established its case and it is also contended that the CBI Crime Manual is only for the purpose of guidance and if CBI Vs. Manas Kumar Kayal & Anr. Page 152 of 168 some of the provisions are not complied, it would not make much difference and it is also contended that prosecution has furnished reasons as to why independent witness was unable to witness the conversation and the actual transaction in respect of the acceptance of the bribe amount on 28.03.2019 and 29.03.2019.
203. The purpose of joining independent witnesses in the trap case is to ensure that a person who is unconnected with the complainant reports either to the Investigating Agency or to the court as to what had transpired between the complainant or the public servant as it is seen that normally demand and acceptance of the bribe is done in a clandestine manner or in such a way that other persons are not aware as to what is happening between the bribe giver and bribe taker. In the present case, the case of prosecution is to the effect that two independent witnesses were joined in the investigation and on 28.03.2019, PW16 Jyoti Kumar was unable to go to the room of accused Manas Kumar Kayal as he was asked to wait outside the room of Manas Kumar Kayal and therefore, he was unable to hear any conversation between Manas Kumar Kayal and Pushkar Jain. A finding on this aspect is already returned by the court. On the date of trap i.e. on 29.03.2019, PW16 Jyoti Kumar did not go inside the chamber of Somvir Dhanda, although he was not stopped by accused Somvir Dhanda at any point of time and yet it was mentioned that since accused Manas Kumar Kayal had not permitted the independent witness, so the independent witness/Shri Jyoti Kumar did not go and overhear the conversation between Somvir Dhanda and Pushkar Jain. A close perusal of handing over memo vide Ex.PW11/B (D-2) would CBI Vs. Manas Kumar Kayal & Anr. Page 153 of 168 reveal that in the said memo, it was mentioned that Jyoti Kumar shall follow Pushkar Jain and shall overhear the conversation and the transaction of the bribe amount which might take place between the accused and complainant. There is no material or evidence on record to indicate that A-2 had stopped the independent witness to go inside his cabin/room. For the reasons best known to the TLO, he had stopped Jyoti Kumar from going inside the room. The reason for joining the independent witness is to obtain the first hand information as to what had happened between the bribe giver and bribe taker and when the alleged bribe taker (A-2 Somvir Dhanda) had not stopped the independent witness, there could not be a reason to dispense the independent witness from joining as a shadow witness. It seems quite odd that independent witness would merely accompany the CBI team just witness the procedural formalities. It is true that mere absence of a witness would not itself wipe of the proceedings, however, in trap cases, apart from the testimony of the complainant, some corroboration as a matter of rule is required from the independent witness and as such there is a need of independent witness to witness the transaction.
204. There is no dispute to the proposition as laid down in C.M. Sharma's case (supra). Different situation and fact require different treatment. The judgment cited in reference to the present case is not applicable in view of the discussion as made in the preceding paragraph.
205. The prosecution has also relied upon Call Detail Report of A-2 Somvir Dhanda as well as the complainant/PW11 (Mobile No. 9811036311 belongs to mother of PW11/complainant and CBI Vs. Manas Kumar Kayal & Anr. Page 154 of 168 mobile no. 9958568880 belongs to friend of A-2) and through the said CDR, it is shown that A-2 Somvir Dhanda and complainant/PW11 were talking to each other. Needless to say, mere fact that two persons were speaking or talking to each other would not be a ground to infer any criminality and even otherwise the recorded mobile conversation between A-2 and complainant/PW11 did not show that any offence was committed.
AUDIO RECORDING/ ELECTRONIC EVIDENCE/ FSL REPORT IN RESPECT OF AUDIO RECORDING AND HAND WASHES : CORROBORATIVE PIECE OF EVIDENCE
206. One of the ground for challenging the legality and admissibility of CFSL report vide Ex.PW9/1 is to the effect that CFSL is not notified under section 79-A of Information & Technology Act (hereinafter referred to as 'IT Act') by Central Government of India although request to act as an expert of electronic evidence was moved by CFSL, but it has still not been granted. It is also contended that a reading of Section 79-A IT Act and Section 45A of Indian Evidence Act would indicate that a gazette notification is required for examination of electronic evidence and since CFSL has not been notified as examiner of the record and therefore it cannot examine electronic evidence i.e. memory card containing audio recordings and DVR.
207. In order to consider the submission of the Ld. Counsel for the accused persons, it would be apt to refer to Section 79-A of IT Act:-
CBI Vs. Manas Kumar Kayal & Anr. Page 155 of 168[79A. Central Government to notify Examiner of Electronic Evidence.--The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.
Explanation. For the purposes of this section, "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.]
208. While considering Section 79-A of IT Act, the word used is "may". Meaning thereby that a discretion is vested with the Central Government to designate any lab/expert as expert of electronic evidence. However, the same does not mean that if an expert has examined the electronic record and furnished his opinion, the report filed by such an expert is liable to be rejected. Acceptance of such an argument would lead to chaos and would make the expert evidence obtained for electronic document redundant. It is also observed that when a statute is to be interpreted, the meaning thereof should be given in expansive manner and the word used i.e. 'may' indicates it non-mandatory character. There is nothing in Section 79-A of IT Act which bars the admission of a report given by an expert who had examined the electronic record. The provision does not say that in the absence of notification an opinion given by a person cannot be admitted in evidence. It would be profitable to refer and rely upon K. Ramajayam @ Appu Vs. Inspector of Police, Chennai, 2016 CRLJ 1542 in which it was observed as follows :
"It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued CBI Vs. Manas Kumar Kayal & Anr. Page 156 of 168 notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW-23) and Pushparani (PW-24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."
209. It is also contended by the Ld. Counsels for the accused persons that PW-9 was also not qualified to act as an expert of electronic evidence as he did not possess any qualification in the field of voice examination, linguistic and phonetics, although the witness has stated that although he had undergone training. It is also contended that training would not mean that a person is qualified to act as an expert. It is also contended that no material has been placed on record to indicate that PW-9 was ever designated as Assistant Chemical Examiner to Government of India under section 293 Cr.P.C.
210. A perusal of Section 293(4) Cr.P.C. would indicate that a report per-se filed by an Assistant Chemical Examiner could be used as an evidence during the trial. Section 293 Cr.P.C. further provides that such an expert could be examined or if the court deems fit and proper. PW-9 has given sufficient details in respect of his qualification by deposing that he has examined number of exhibits and PW-9 had also provided the details of his job profile and the accolades earned by him. The profile of PW9 indicates that he has sufficient qualification to examine the exhibits. It is also relevant to mention that PW9 has also provided the details of the specialized course undergone by him.
CBI Vs. Manas Kumar Kayal & Anr. Page 157 of 168211. Section 45 of the Indian Evidence Act itself permits the acceptance of an opinion of an expert in the court proceedings. It is altogether is a different matter that while appreciating the electronic evidence, certain precautions and certain checks are followed. In the present case, objection has no force as PW9 was examined as a witness in the present case and therefore, report filed by him can be taken into consideration subject to other objection and, therefore, objection on the ground that CFSL was not notified under Section 79A of Indian Evidence Act and PW-9 has not been notified as examiner under section 293(4) Cr.P.C. is rejected.
212. The prosecution has relied upon audio recording Q-1, Q-2 and Q-3 in support of its case. Prior to considering the voice in audio recording, it would be apt to refer to the observation in "Ram Singh Vs. Col. Ram Singh", 1985 Supp SCC 611" in which it was held that every possibility of tampering should be avoided and care must be taken that the recorded cassette must be carefully sealed and kept in proper custody. It is also held that the voice of the speaker must be duly identified. In the present case, the prosecution has tried to get identify the voice of accused persons identified through independent witnesses Shri Jyoti Kumar and Dharmendra Kumar and admittedly, both these two witnesses have not over heard the conversation between the accused Somvir Dhanda and the complainant/PW11 Pushkar Jain. Both these witnesses have merely identified their signatures on the transcript. Since these two witnesses have not heard the voice of accused persons either on 28.03.2019 and 29.03.2019 although both of them had visited the Income Tax CBI Vs. Manas Kumar Kayal & Anr. Page 158 of 168 Office and also there is no evidence that they were ever acquainted with the voice of the accused persons at any point of time and yet they identified the voice of accused in their deposition in the court and hence their testimonies in respect of voice identifications of the accused persons do not inspire confidence and is thus, rejected.
213. PW11/complainant Shri Pushkar Jain deposed that he had signed the transcription after going through the same but was unable to recall whether he had heard the conversation or not. He also did not depose that at the time of preparation of the transcription, he had identified the voice. It seems that he had merely signed the transcriptions. PW13 Shri Dharmendra Chaudhary in his deposition has merely stated that he signed on the transcriptions and the facts were told by some CBI officers. He did not depose that he heard the voice recording on 26.04.2019 (although transcriptions were stated to be prepared on 24.04.2019). PW13 Shri Dharmendra Chaudhary and PW16 Shri Jyoti Kumar did not depose that during investigation at the time of preparation of the transcript, PW11 had identified the voice of accused persons. Neither PW11/complainant Shri Pushkar Jain nor independent witnesses i.e. PW13 and PW16 had indicated from which source, they had heard the conversation which was identified by PW11/complainant. Although, PW19 Shri Sushil Kumar had stated that complainant had identified the voice of accused Manas Kumar Kayal and Somvir Dhanda and thus, there is a contradiction in respect of the identification of the voice of accused persons.
CBI Vs. Manas Kumar Kayal & Anr. Page 159 of 168214. PW-11 Shri Pushkar Jain in his examination-in-chief deposed that voice sample of Manas Kumar Kayal was taken on DVR and the said DVR was arranged from the Caretaking Branch of CBI by CBI team and memory card etc. were also arranged by the CBI officer. PW11 in his earlier examination-in- chief had stated that the DVR used in the proceedings was sealed after the arrest of Manas Kumar Kayal and other sealing process was carried out. The case of the prosecution was that only one DVR was used in the verification proceedings and trap proceedings, however, PW11 deposed about the existence of more than one DVR in the case. No explanation was obtained from PW11 in this regard. PW13 deposed in respect of the sealing of DVR at the spot and he had also stated that the DVR was separately sealed and in his examination-in-chief, he deposed that the DVR was separately sealed in an envelope which was sealed with the brass seal. PW13 deposed twice about the sealing of DVR on the same day, whereas PW16 Jyoti Kumar had not even uttered a word that after the trap proceedings, the DVR was sealed.
215. A cursory reading of the deposition of the Verification Officer Shri Pramod Kumar Tanwar (PW-14) and Trap Laying Officer Shri Kuldeep Sharma (PW-17) would reveal that both of them had not explained as to whose custody memory card Q-1 remained after 28.03.2019 till it is purported to be sent to CFSL for examination. Similar thing had also happened with Q-2 and Q-3 and it becomes important as the exact whereabouts of the seal after its use was not stated by Jyoti Kumar.
CBI Vs. Manas Kumar Kayal & Anr. Page 160 of 168216. In " Amarjit Singh & Anr. Vs. State of Delhi, 1995 CR. LJ 1623, it was held that the prosecution has to establish that the seal remained intact till it reaches CFSL and the independent witness has not disclosed about the seal. The case of the prosecution is to the effect that the seal which was used in the verification and the trap proceedings remained with PW-16 Jyoti Kumar. In the present case, the case property more specifically, audio recordings etc. were sealed with the help of CBI seal and as per prosecution, the said seal was handed over to Shri Jyoti Kumar. However, during the trial, Jyoti Kumar had neither produced the seal after its use nor he also did not give any account for the same and, therefore, in these circumstances, when the seal in question has not been produced or accounted by the prosecution, the audio recordings cannot be taken into consideration in view of the susceptibility of electronic record to the tampering and consequently, the FSL report vide Ex.PW-9/A (D-14/ii) is not of much help to the prosecution. Even otherwise, in "Mahabir Prasad Verma Vs. Dr. Surender Kumar", (1982) 2 SCC 258, it was held by Hon'ble Supreme Court of India that a tape recorded evidence can only be used as a corroborative piece of evidence. The substantive evidence in the form of deposition of the complainant/PW11 and the attendant circumstances are such that testimony of the complainant/PW11 was not accepted qua the demand and acceptance and therefore, the corroborative evidence in the form of audio recording be read in favour of the prosecution.
217. The voice examination report could only have a bearing with the substantive evidence is available on record and, CBI Vs. Manas Kumar Kayal & Anr. Page 161 of 168 therefore, simply on the basis of the voice recorded conversation, the guilt of the accused can be determined.
218. As per prosecution, the accused persons had demanded bribe in pursuance to the criminal conspiracy. Criminal conspiracy defines when two or more persons agree to do, or cause to be done, (1) an illegal act, (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
219. In order to make accused persons culpable for the offence under the charge of conspiracy under section 120B IPC, the prosecution is duty bound to establish that there was an agreement between the parties for doing an unlawful act. Section 120B IPC is also the substantive offence and in order to prove an offence under section 120B IPC, the requirement is to establish the ingredients of the offence like any other charge. Like any other substantive offence, the charge of conspiracy is to be established by way of cogent evidence. Since conspiracies are usually hatched in secrecy and, therefore, in order to establish the charge of conspiracy, the indirect circumstances are taken into consideration subject to the consideration that circumstances are conclusive in nature and points out to one hypothesis that there was an agreement to commit an illegal act. Needless to say, to prove the charge of conspiracy in most of the cases, different sets of circumstances are taken into consideration. It is true that conspiracies are hatched in secrecy and is to be inferred from the circumstances and the peculiar facts and even in order to draw an inference that there was a conspiracy, there has to be some CBI Vs. Manas Kumar Kayal & Anr. Page 162 of 168 external manifestation to infer that there was conspiracy between two persons and the material available on record qua both the accused persons is extremely deficient.
220. The testimonies of the witnesses have been detailed in the earlier part of the judgment and role of both the accused persons are considered in detail. The only allegations leveled against A-1 Manas Kumar Kayal is to the effect that he demanded bribe and thereafter in pursuance of the criminal conspiracy A-2 had demanded and accepted the bribe for himself and for A-1 Manas Kumar Kayal. The statement of complainant/PW11 is perused and in reference to the criminal conspiracy, the only allegation is that A-1 had asked PW11/complainant to speak to A-2 and admittedly, as per verification memo vide Ex.PW11/C (Part of D-
1), there was no demand of bribe by A-1. Even if one considers the allegation to the effect that A-2 had demanded bribe in pursuance to the criminal conspiracy, then some material showing external manifestation of the conspiracy is to be brought into record by the prosecution against A-1 Manas Kumar Kayal. However, in the present case, the prosecution has miserably failed to prove that there was any conspiracy between A-1 and A- 2 and even otherwise, in view of the findings as recorded above, no substantive offence is made out against them and therefore, no offence under section 120 B IPC is made out against the accused persons.
221. There is another disquieting fact which is observed in relation to A-1 Manas Kayal. The facts of the case would reveal that as per prosecution, the first verification dated 28.03.2019 did not show any criminality on his part and after second verification CBI Vs. Manas Kumar Kayal & Anr. Page 163 of 168 and recovery proceedings/trap proceedings dated 29.03.2019 the conversation, if any, was between A-2 Somvir Dhanda and PW- 11 Shri Pushkar Jain, and if there is any statement, it was between them, then same would not be admissible against A-1 Manas Kumar Kayal, specially in a situation when there is no direct evidence available against A-1 Manas Kumar Kayal, except that A-2 Somvir Dhanda was subordinate and no material was available against A-1 Manas Kumar Kayal.
222. A charge under section 7A of PC Act was also framed against both the accused persons. It is clearly borne from the record that the prosecution case is to the effect that both the accused persons had demanded and accepted the bribe from the complainant/PW11 and going by the case of the prosecution, when the prosecution alleges that there was a direct demand of bribe and acceptance of bribe by the accused persons, the very question of applicability of Section 7A of PC Act does not arise as in terms of Section 7-A of PC Act, the acceptance, obtainment or attempt to obtain bribe by any other person to induce a public servant and both the accused persons are public servant and they cannot induce themselves.
223. Accused Somvir Dhanda has taken a stand in his statement under section 313 Cr.P.C. that he has been falsely implicated in the present case. It is submitted that accused Somvir Dhanda was caught from the gallery after he had come out of the washroom after washing his hand and the said fact was brought into record by examining D2W2 Shri Aayush Yadav and the accused was taken to the chamber of A-1 Manas Kumar Kayal CBI Vs. Manas Kumar Kayal & Anr. Page 164 of 168 and in his absence, independent witness and CBI team remained in his chamber where money etc. had been planted on the accused persons and the accused Somvir Dhanda has also examined defence witnesses.
224. It is a settled law that both prosecution and defence witnesses are entitled for the equal weight. In this regard, reference can be had to the judgment of State of Haryana vs Ram Singh, Criminal Appeal No. 78 of 1999 dated 15.1.2002, it was observed by Hon'ble Supreme Court "the evidence tendered by defence witnesses cannot always be termed to be a tainted one
- the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution.
225. In Dudhnath Pandey Vs. State of U.P., 1981 CrLJ 618, it was held by the Hon'ble Supreme Court that: " Defence witnesses are entitled to equal treatment with those of the prosecution. And courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often they tell lies, but so do the prosecution witnesses."
226. It is a well settled law that in an offence triable under section 7 & 7A of PC Act, the accused is only required to probablised his defence either by cross-examining the witness or examining such witnesses to disprove the case of the prosecution and It is a well settled law that when accused sets up a defence, he has to probablise the defence in the form of suggestions or CBI Vs. Manas Kumar Kayal & Anr. Page 165 of 168 from the material elicited during the cross examination.
227. In the present case, hand wash of the bag and other article is unreliable for the reason as the prosecution has failed to prove the demand and acceptance of the bribe, the washes could be the supporting piece of evidence as the prosecution has failed to establish that accused Somvir Dhanda had voluntarily accepted the bribe and considering the fact that considerable time was lost when the bribe money is stated to have been accepted and found in the bag. Even otherwise, mere recovery of money divorced from the circumstances in the absence of the demand cannot be relied against the accused. In "Om Prakash Vs. State of NCT of Delhi", Crl. Appeal No. 765/2001 dated 06.11.2013 it was held that neither demand nor the acceptance alone is sufficient to establish the offence and mere recovery of tainted money divorced from the circumstances is not sufficient to convict the accused persons.
228. In "Sharad Birdhichand vs State of Maharashtra", AIR 1984 SC 1622, it was observed that the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. The court while laying emphasis on the above legal principle relied on a judgment of the Supreme Court in " Shiva Sahabrao Bobade and another v. State of Maharashtra", (1973) 2 SCC 793 where it was observed that "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and CBI Vs. Manas Kumar Kayal & Anr. Page 166 of 168 'must be' is long and divides vague conjectures from sure conclusions.
229. The substantive evidence in the form of deposition of complainant/PW11, independent witnesses and other witnesses are inconsistent and contradictory so much so that essential ingredients of offences under section 7 and 7A of PC Act are not made out against the accused persons and corroborative evidence alone cannot form the basis for the conviction as the testimonies of PW-11 and other witnesses are contradictory and full of infirmities. The prosecution has miserably failed to establish the chain of events which happened on 29.03.2019 beyond reasonable doubt in respect of the demand and voluntary acceptance of the bribe.
230. In view of the above-mentioned discussion and taking into consideration the oral and documentary evidence, the benefit of doubt is given to the accused persons as prosecution has failed to prove the charges framed against them and accordingly, accused Manas Kumar Kayal and Somvir Dhanda are acquitted of the charges under section 120-B IPC r/w Section 7 & 7A of Prevention of Corruption Act 1988; under section 7 of Prevention of Corruption Act 1988 and under section 7A of Prevention of Corruption Act 1988.
231. The bail bonds and sureties stand discharged. The accused persons are directed to furnish personal bond in the sum of Rs.1,00,000/- with one surety of the like amount under section 481 of Bharatiya Nagarik Suraksha Sanhita 2023.
CBI Vs. Manas Kumar Kayal & Anr. Page 167 of 168(Corresponding section 437A Cr. PC).
232. Case property, if any, be destroyed as per rules. File be consigned to Record Room. Digitally signed by HASAN (Announced in the open court HASAN ANZAR today i.e. on 05.10.2024) ANZAR Date:
2024.10.05 17:26:53 +0530 (Hasan Anzar) Special Judge (PC Act) CBI-03, Rouse Avenue District Court, New Delhi/05.10.2024.CBI Vs. Manas Kumar Kayal & Anr. Page 168 of 168