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8 Competent Authorities Were Requested ... vs P.K Bhaseer Decided By on 20 May, 2015

IN THE COURT OF SHRI SANJEEV JAIN: SPECIAL JUDGE 
   (PC ACT), CBI­03, SOUTH DISTRICT, SAKET COURT, 
                       NEW DELHI
                            

CC No. 50/12
RC No. CBI/AC­I/RC­A0003/10
U/s 120 B IPC and Section 7 of P.C Act, 1988


Central Bureau of Investigation 

         Versus 

A­1  Arun Kumar Gurjar
     s/o Sh. Shiv Dayal Gurjar
     r/o L­901, Girnar Apartments
     Kaushambi, Ghaziabad, UP


A­2  Baljeet Singh 
     s/o Sh. Maha Singh 
     r/o B­5/97­98, Sector­7, 
     Rohini, New Delhi


Date of FIR                    :     29.12.2010
Date of filing of Charge­sheet :     31.12.2011
Arguments completed on         :     05.05.2015
Date of judgment               :     20.05.2015
Appearance:
For prosecution  :       Sh. Deep Srivastava, Ld. PP for CBI.  
For accused            : Sh.  Sidharth Luthra, Ld.Sr. Advocate with


CC No. 50/12
RC No. CBI/AC­I/RC­A0003/10                                   1/110
                                     Sh. P.K. Dubey, advocate for accused Arun
                                    Kumar Gurjar.
                                    Sh. Anil Kumar, advocate for accused 
                                    Baljeet Singh. 
    JUDGMENT

Brief facts of the case:

1 As disclosed in report u/s 173 of Code of Criminal Procedure (in short "Cr.PC"), the brief facts of the prosecution case are as under:

Complaint . 1.1 Sh. Pawan Aggarwal, Partner, M/S Madhya Pradesh Vanijay Company submitted a written complaint to SP, CBI, ACU­I, New Delhi on 28.12.2010. Briefly, it is alleged in the complaint that complainant is running a partnership firm in the name and style of M/S Madhya Pradesh Vanijay Company at 3958/2, Naya Bazar, Delhi (herein after also referred as "complainant firm"). The income tax assessment case for the year 2008­2009 of complainant firm was pending in the office of accused Arun Kumar Gurjar (herein after at some places referred as A­1), Joint Commissioner of Income Tax in Ward no.29, Drum Shaped Building, IP Estate, New Delhi and A­1 was the Assessing Officer in this matter. Complainant received various notices from the department of income tax and he submitted CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 2/110 the desired documents/information to A­1 to finalize the scrutiny of the income tax case. Accused Baljeet Singh, Income Tax Inspector (hereinafter at some places referred as A­2) a subordinate of A­1 remained present during the meetings. In October, 2010, A­1 and A­2 asked the complainant to discuss his income tax case with them. Accordingly, complainant visited the office of A­1 and discussed the case with A­1 and A­2. A­1 and A­2 demanded an amount of Rs.5 lacs from the complainant to finalize the scrutiny of income tax case of his firm without any hurdle. A­1 issued notice to the complainant firm and asked to furnish various informations which had already been submitted by the complainant company. In response to the notice, a reply was also sent by complainant firm to A­1 on 24.10.2010. On 27.12.2010, complainant Sh. Pawan Aggarwal visited the office of A­1 to clarify the issues and he met A­1 and A­2. In meeting dated 27.12.2010, A­1 and A­2 told him that there were so many discrepancies in the documents and they again demanded Rs.5 lacs for finalization of income tax case of his firm without any hurdle.

Verification of Complaint.

1.2 Complaint dated 28.12.2010 of Sh. Pawan Aggarwal was verified by Sh. Ram Singh, the then Dy. SP, CBI, ACU, New Delhi (hereinafter referred at some places as "Trap Laying Officer" CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 3/110

or "TLO") in presence of two independent witnesses namely Sh. Jitender Bhardwaj and Sh. Hukam Chand (both from House Tax Department,MCD, Central Zone, New Delhi). During verification proceedings a conversation was arranged between complainant Sh. Pawan Aggarwal from his mobile phone no.9311067502 with A­2 Baljeet Singh over his mobile phone no.9873574750. The telephonic conversation between complainant and A­2 was recorded with the help of digital voice recorder (at some places referred as "DVR") and same was transferred in a CD (marked as Q­1). A verification memo was drawn by TLO. In the above mentioned telephonic conversation accused Baljeet Singh asked the complainant to come to his office in Drum Shaped building, IP Estate, New Delhi.

FIR 1.3 After verification of genuineness of written complaint, case FIR No.RC AC12010A0003 was registered by ACU­I, CBI, New Delhi against A­1 and A­2 and Sh. Ram Singh, the then Dy. SP was deputed as TLO.

1.4 Pre Trap proceedings

(i) During pre trap proceedings complainant Sh.Pawan Aggarwal produced an amount of Rs.2 lacs to be used as "trap money".

(ii) The trap money was smeared with Phenolphthalein powder (hereinafter at some places referred as "PP Powder") and same was CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 4/110 kept in an envelope which was also smeared with PP powder in presence of two independent witnesses Sh. Jitender Bhardwaj and Sh. Hukam Chand.

(iii) All precautions were taken during pre trap proceedings and the details of the entire proceedings were reduced in a doucment i.e "handing over memo" (in short "HOM") which was signed by all the members of the trap team including independent witnesses. A DVR was given to the complainant with direction to record the conversation likely to take place between him and accused officials during transaction of bribe amount . The envelope of trap money smeared with PP powder was also handed over to complainant. 1.5 Trap Proceedings

(i) Trap team reached at Drum Shaped building, New Delhi and complainant Sh. Pawan Aggarwal was asked by TLO to approach A­2 and to keep the DVR in switch "ON" mode.

(ii) Complainant Sh. Pawan Aggarwal entered into the Drum Shaped Building and he was followed by TLO and other members of the trap team. Complainant entered in room no.207, having name­ plate of Arun Kumar Gurjar, Joint Commissioner of Income Tax (A­1) on the door where accused Baljeet Singh was waiting for him. TLO alongwith independent witnesses and other team members took safe positions near room no.207.

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 5/110

(iii) After sometime, complainant came out of room no.207 and gave a pre decided signal by touching his shoes. In the mean time a person also came out from room no.207 and started moving towards stairs. On signal from complainant Sh. Pawan Aggarwal, TLO alongwith two independent witnesses and other members of the trap team rushed towards the said person and challenged him that he had accepted the bribe money from Sh.Pawan Aggarwal. The said person i.e A­2 Baljeet Singh tried to take his hand to inner left pocket but he was caught by TLO and other team members from his wrists. A­2 was taken to room no.207 by TLO and other members of the trap team. Sh. Jitender Bhardwaj (independent witness) took search of A­2 in presence of other independent witness and members of trap team and an envelope containing trap money was recovered from left side inner pocket of the coat of A­2 Baljeet Singh.

(iv) The recovered amount was counted and tallied with serial numbers of the GC notes mentioned in handing over memo and it was found that these were same GC notes amounting to Rs.2 lacs. A­2 Baljeet Singh in presence of independent witnesses disclosed that the bribe amount was accepted by him from Sh. Pawan Aggarwal on the direction of A­1 Arun Gurjar. He also stated that A­1 was sitting in the office of Income Tax Commissioner. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 6/110

(v) Sh. Arun Kumar Gurjar was also brought to his office room no.207 by TLO where accused Baljeet Singh reiterated his version in presence of independent witnesses and other members of trap team that he had accepted the bribe amount from the complainant on the direction of A­1. A­1 could not offer any explanation in response to plea taken by A­2 and therefore, both the accused were taken into custody. Entire post trap proceedings were mentioned in a recovery note which was signed by the complainant, independent witnesses and other members of the trap team.

(vi) DVR given to complainant was taken back from him by TLO and recorded conversation of complainant and A­2 was transferred in a CD (marked as Q­2). The hand and cloth washes of A­2 Baljeet Singh were taken and preserved for the purpose of investigation.

Search of office room of A­1 1.6 The office room of A­1 Arun Kumar Gurjar was searched by a team of CBI officers headed by Sh. Raja Chaterji, Inspector, in presence of Sh. Kamal Kapoor, Joint Commissioner, Income Tax and a cash amount of Rs.6 lacs was recovered which was taken into possession. No satisfactory explanation was given by A­1 about the recovery of amount of Rs.6 lacs from his office. 1.7 Other Material Facts

a) As per chargesheet, an amount of Rs.59000/­ was also CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 7/110 recovered from the inner pocket of trouser of A­2 Baljeet Singh apart from trap money of Rs.2 lacs and A­2 Baljeet Singh had not given any satisfactory explanation. A­1 Arun Kumar Gurjar joined as JCIT, Range 29, Drum Shaped Building , IP Estate in July 2010. A­2 Baljeet Singh was posted as Inspector in the office of JCIT, Range 29 from June 2006 to 31.10.2010. A­2 was transferred and joined new office i.e AIT­V, CIT (Audit)­I, CR Building, New Delhi on 01.11.2010. As per chargesheet, A­2 was assisting A­1 in the scrutiny case of complainant firm even after his transfer and joining in new office without any official order about his attachment to the office of A­1.

b) As per Chargesheet mobile phone no.9311067502 (reliance) was being used by complainant Sh.Pawan Aggarwal and mobile phone no.9873574750 (Vodafone) was being used by accused Baljeet Singh.

c) As per report of chemical examiner, CFSL the hand wash and cloth wash (of A­2 Baljeet Singh) gave positive result for presence of PP powder.

d) The report of forensic voice examination from CFSL revealed positive result in connection with matching of questioned voice of A­2 Baljeet Singh recorded in CD (marked as Q­2) with his specimen voice contained in CD (marked as S­I). Opinion of CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 8/110 handwriting expert from GEQD, Shimla vide his letter dated 31.3.2011 revealed that ordersheets of case file of complainant firm had been written in the handwriting of A­2 Baljeet Singh and bears the signatures of A­1 Arun Kumar Gurjar.

Sanction for prosecution 1.8 Competent authorities were requested by CBI for sanction for prosecution against A­1 Arun Kumar Gurjar and A­2 Baljeet Singh u/s 19 of P. C Act 1988 which was granted by competent authorities.

2 In chargeshet CBI concluded that prima facie commission of offence u/s 120B of Indian Penal Code (in short "IPC") and section 7 of Prevention of Corruption Act, 1988 ( in short "P. C Act") and its substantive offences thereof were made out. After completion of investigation chargesheet was filed before the court. Copies were supplied to both the accused as required u/s 207 Cr.PC.

3 After hearing arguments of prosecution and defence, order on charge was passed on 26.2.2013 and accordingly charges were framed against A­1 and A­2 for the offence u/s 120B IPC r.w. Section 7 of P.C Act and u/s 7 of P.C Act. Both the accused pleaded not guilty and claimed trial.

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 9/110

Prosecution Evidence 4 In order to prove its case prosecution has examined as many as 23 witnesses. The gist of statement of witnesses as under:

4.1 PW1 Sh. Pawan Aggarwal (Complainant), PW10 Sh.

Hukam Chand (independent witness), PW18 Sh. Jitender Bhardwaj (independent witness) and PW22 Dy. SP Sh. Ram Singh (TLO) are the most material witnesses of prosecution. Therefore, I will consider their testimony in some details during appreciation of evidence.

4.2 PW2 Sh. Narender Nahata is an income tax practitioner since 1993. He deposed that A­1 Arun Kumar Gurjar, Assistant Commissioner of income tax is known to him and PW2 met him in year 2000. He further stated that on 31.12.2010 at about 9.30 AM he alongwith his brother Sh. Hitender Kumar, advocate reached at CBI office and his statement was recorded by Sh. Ram Singh. He further stated that Sh.Ram Singh, Dy. SP told him that Rs. 6 lacs were recovered from office drawer of Sh. Arun Kumar Gurjar and clarified whether he had given said cash amount to Arun Kumar Gurjar. PW2 stated that he neither went to his office nor had given amount of Rs.6 lacs to Arun Kumar Gurjar. 4.3 PW3 Sh.Amitosh Kumar, SSO­II (Pysics), CFSL, CBI, New Delhi proved forwarding letter bearing signatures of Dr. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 10/110 Rajender Singh, Director, CFSL, CBI as Ex.PW3/A and his report/opinion dated 21.4.2011 as ex.PW3/B. 4.4 PW4 Sh. M.K Jain, SSA (Physics), CFSL, New Delhi proved memorandum dated 30.12.2010 prepared in his presence in respect of sample voice of accused Baljeet Singh as Ex.PW4/A. PW4 further proved envelope Mark S­1 (M­764/10­RC3/10) having specimen voice of Baljeet Singh as Ex.PW4/B. He proved inlay card of CD Mark S­1 as Ex.PW4/C and the CD mark S­1 (which contains the sample voice of A­2 Baljeet Singh) which bears his signatures at point A and proved as Ex.PW4/D. The envelope from which inlay card and CD mark S­1 were taken out is Ex.PW4/E. 4.5 Dr. N.M Hashmi (retired) is Sr. Scientific Officer­II, Chemical Examiner, Govt of India, CFSL, CGO Complex, New Delhi. He chemically examined Ex.LHW, Ex.RHW, Ex. LCPW and Ex.LSBSW which gave positive test for the presence of phenolphthalein. He prepared chemical examination report and same is proved as Ex.PW5/A. 4.6 PW6 Sh. Narender Kumar, Dy. GEQD, CFSL, Shimla proved questioned writing of A­2 Baljeet Singh and signatures of A­1 Arun Kumar Gurjar. He also proved his opinion/report as Ex.PW6/B. 4.7 PW7 Sh. Satish Kumar, Inspector, Income Tax CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 11/110 Department, CIT (Appeal)­III, Aykar Bhawan, Laxmi Nagar, Delhi deposed that A­2 Baljeet Singh was posted as Inspector,Income Tax in Range 29, Drum Shaped Building, ITO, New Delhi; A­1 Arun Kumar Gurjar was posted as Joint Commissioner, Income Tax in Range 29, Drum Shapped Building; and Smt. Arjoo Garodia was posted as Assistant Commissioner of Income Tax (ACIT) in Circle 29 (1) Range 29, Drum Shaped Building. He further deposed that A­2 Baljeet Singh was posted as Inspector in Range 29 till October/November 2010 and he was transferred from Circle 29 (1) to IAP­I in or around October/November, 2010. He stated that even after his transfer , accused Baljeet Singh used to come in Range 29 due to some time barred matters. He stated that according to his knowledge there was no attachment order in favour of accused Baljeet Singh to work in Range 29 even after his transfer. 4.8 PW8 Sh. Pramod Kumar, Chartered Accountant deposed that he applied for Vodafone mobile connection and was given sim of Vodafone in respect of mobile no.9873574750 which was prepaid mobile connection. He proved application form for vodafone bearing his photograph as Ex.PW8/A and copy of his passport annexed with it as Ex.PW8/B. He stated that mobile connection was in his name but same was taken for use of his son Late Sh. Rahul Gupta. PW8 deposed that he gave the sim card of CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 12/110 said mobile phone to A­2 Baljeet Singh immediately after taking the same from Vodafone because A­2 requested him that he needs a mobile sim of the mobile phone. He could not take it back from A­2 Baljeet Singh as his son was suffering from serious illness and expired on 17.10.2010.

4.9 PW9 is Sh. Anuj Bhatia, Nodal Officer, Vodafone Mobile Services Ltd. C­45, Okhla Phase­II, New Delhi­20. He deposed that he received requisition from Sh. Vijay Bahadur, Inspector, CBI and accordingly he provided call detail record (CDR) of mobile phone no.9873574750 having sim no.

89911100000402114491 in the name ofSh. Pramod Kumar Gupta for the period from 01.12.2010 to 31.12.2010. The CDR was retrieved by him from the server through unique user name and password allotted to him. He proved forwarding letter dated 17.6.2011 as Ex.PW9/A. He forwarded the CDR and certified copy of application form and accompanying documents to Sh. Vijay Bahadur, Inspector, CBI with official stamp impression of his company and proved the same as Ex.PW9/B. 4.10 PW10 Sh. Hukam Chand, UDC, MCD, House Tax Department, Central Zone, Lajpat Nagar, New Delhi was an independent witness who joined the trap proceedings alongwith other independent witness Sh. Jitender Bhardwaj. PW10 proved CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 13/110 personal search memo of A­1 Arun Kumar Gurjar as Ex.PW10/A and personal search memo of A­2 Baljeet Singh as Ex.PW10/B. 4.11 PW11 Sh. Arjun Singh, Income Tax officer, CIT­X, Income Tax, Drum Shaped Building proved letter dated 13.1.2011 bearing signature of Sh. Feroz Khan and he identified his signature on letter Ex.PW11/A (D­19). PW11 further proved letter dated 06.8.2010 bearing signatures of Feroz Khan at point A and his signature at point B as Ex.PW11/B. He proved letter dated 02.8.2010 bearing signatures of accused Arun Kumar Gurjar at point A as Ex.PW11/C. 4.12 PW12 Sh. Lalit Kishore, ITO, (HQ), Audit­I, Income Tax, room no.201 A, C.R Building, New Delhi proved letter dated 18.01.2011 bearing his signatures at point A as Ex.PW12/A through which he provided service details/informations requested by CBI. He deposed that after transfer of A­2 Baljeet Singh from CIT­X, Drum Shaped building to IAP­V office, there was no order in respect of attachment of A­2 Baljeet Singh to the office of CIT­X, Drum Shaped Building.

4.13 PW13 Sh. Harvinder Singh Luthra, CTO, Punjab & Sind Bank, Sector­3 , Rohini, New Delhi participated as witness in the search conducted by CBI at the residence of A­2 Baljeet Singh at block B­5, Flat no.97­98, opposite Gurdwara, Sector­7, Rohini, New CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 14/110 Delhi on 29.12.2010. He proved search list dated 29.12.2010 as Ex.PW13/A (colly).

4.14 PW14 Sh. Manav Bansal, Asstt. Commissioner of Income Tax (HQ), CIT­X, Drum Shaped Building, IP Estate, New Delhi deposed about transfer and relieving of A­2 Baljeet Singh and proved relieving order of A­2 Baljeet Singh as Ex.PW14/A and Ex.PW14/B respectively. In cross examination, PW14 proved Ex.PW14/DX (part of D­27, internal page no.2). As per this letter a request had been made by Sh. Firoz Khan to Chief Commissioner of Income Tax, Delhi­6 to allow A­2 Baljeet Singh to continue at his present place of posting till 31.03.2011.

4.15 PW15 Sh. Kamal Kapoor, Retired Addl. Commissioner of Income Tax participated in search of office room of A­1 Arun Kumar Gurjar. He deposed that all the files, all the drawers and other places in the office room of accused Arun Kumar Gurjar were searched. During search, from the drawer, a polythene bag was taken out by the search team and cash amount about Rs.2 lacs was found in the said polythene bag. He proved search list dated 29.12.2010 as Ex.PW15/A (D­10).

4.16 PW16 Ms. Arju Garodia, Under Secretary, CBDT, North Block, New Delhi deposed that A­1 Arun Kumar Gurjar was posted as Joint Commissioner of Income Tax in range 29 CIT­X and CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 15/110 she had worked with A­1 Arun Kumar Gurjar. She further deposed that she had seen signatures of A­1 Arun Kumar Gurjar on various documents. PW16 deposed that A­2 Baljeet Singh was posted as Inspector Income Tax in circle 29 and worked with her and she had seen signatures of A­2 Baljeet Singh as well as his handwriting. PW16 had seen Ex.PW15/A which is scrutiny assessment folder of M/S Madhya Pradesh Vanijya Company and deposed that as per record, notices were also issued by her to M/S Madhya Pradesh Vanijya Company which bears her signatures at point A and thereafter assessment of M/S Madhya Pradesh Vanijya company was being looked after by A­1 Arun Kumar Gurjar. She stated that assessment of M/S Madhya Pradesh Vanijay Company was to be completed by 31.12.2010.

4.17 PW17 Sh. Sanjeev Lakra, Alternate Nodal Officer in Reliance Communication Ltd at Reliance Center, Old Ranjeet Hotel Building, Maharaja Ranjit Singh Marg, New Delhi proved letter dated 22.6.2011 as Ex.PW17/A which was written to Sh. Vijay Bahadur, Inspector. PW17 provided documents/information mentioned in Ex.PW17/A which were furnished by customer support department of their company from office record and said documents were collectively proved as EX.PW17/B. He also proved Call detail report of mobile phone no's 9311067502 and 9311067506 CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 16/110 as Ex.PW17/C colly. PW17 further proved letter dated 20.01.2011 written by h im to Sh. Vijay Bahadur, Inspector, CBI as Ex.PW17/D. PW17 stated that by said letter he sent complete CDR of mobile no. 9311067502to IO alongwith certificate under section 65 B of Indian Evidence Act, Customer application, documents and the CDR. PW17 proved certificate under section 65 B of Indian Evidence Act as Ex.PW17/E. He also proved CDR of telephone no.9311067502 running from internal page 1 to 68 as Ex.PW17/F (colly). 4.18 PW18 is Sh. Jitender Bhardwaj, Zonal Inspector, Property Tax Department , Central Zone, MCD, Lajpat Nagar, New Delhi. He was joined as independent witness and participated in the the trap proceedings on instructions of CBI officers. He deposed about the details of trap proceedings.

4.19 PW19 is Sh. S.M Asraf, Commissioner, Income Tax (CIT), Audit­I, C.R Building, IP Estate, New Delhi. He granted sanction for prosecution against A­2 Baljeet Singh and proved sanction order dated 10.04.2012 as Ex.PW19/A. 4.20 PW20 Sh. Suresh Sivanandan, Under Secretary (V & L­I), CBDT, Ministry of Finance, Department of Revenue, Govt of India, New Delhi proved sanction order dated 13.03.2012 as Ex.PW20/A vide which sanction for prosecution was granted against A­1 Arun Kumar Gurjar.

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 17/110 4.21 PW21 Sh. Raja Chatterjee, Inspector/CBI/AC­I, New Delhi deposed that he received telephonic direction from Sh. Ram Singh, the then Dy. SP of CBI to conduct the search of the office room of A­1 Arun Kumar Gurjar, the then Joint Commissioner of Income Tax. He deposed that Dy. SP Ram Singh gave him authorization in writing under section 165 Cr.PC to conduct the search. Thereafter, he alongwith SI G.S Meena and Sh. Kamal Kapoor, Joint Commissioner conducted the search of room no.207. 4.22 PW22 Sh. Ram Singh, Dy. SP, CBI, AC­I, New Delhi, was the Trap Laying officer of the case and deposed about the trap laid by him against A­1 Arun Kumar Gurjar and A­2 Baljeet Singh. He proved verification report as Ex.PW22/A and FIR as EX.PW22/B. 4.23 PW23 Sh. Vijay Bahadur, CBI, AC­I, New Delhi was Investigating Officer (IO) of the case. He deposed that initially investigation of this case was being carried out by Dy. SP Ram Singh who was TLO of this case. He received record of this case from TLO on transfer of investigation to him. He collected the documents from concerned departments and recorded the statement of witnesses. He proved envelope Ex.PW23/A containing four cloth wrappers proved as Ex.PW23/B­1, Ex.PW23/B­2 , Ex.PW23/B­3 and Ex.PW23/B­4. He proved Hindi transcript of conversation CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 18/110 contained in CD Q1 and CD Q2 and proved as Ex.PW23/C­1 and Ex.PW23/C­2.

Statement of accused

5. After prosecution evidence, statement of both the accused was recorded u/s 313 Cr.PC. The entire incriminating evidence was put to A­1 and A­2. Both the accused denied the incriminating evidence pertaining to their role in commission of offence and claimed their innocence.

5.1 A­2 Baljeet Singh mainly stated that being an Income tax official, he was one of the member of a survey team constituted by income tax department which conducted survey on 19.01.2010 at the godown/office of M/S Radha Krishan Banarsi Dass, a family concern of complainant Pawan Kumar Aggarwal. On account of survey, M/S Radha Krishan Banarsi Dass surrendered unaccounted stock of about Rs.2 Crores and on compounding of offence they had to pay tax liability/penalty of Rs.74 Lacs. Accused Baljeet Singh alleged that during said survey complainant Pawan Kumar Aggarwal had a quarrel with him and therefore, complainant threatened him to teach a lesson. Accused Baljeet Singh stated that he has been falsely implicated in the case by complainant due to grudge against him on account of survey. Further, it was stated by accused Baljeet Singh that case of Madhya Pradesh Vanijya company was going to be CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 19/110 barred on 31.12.2010 and nothing could be done against the said firm after 31.12.2010. Therefore, it was possible that to avoid substantial penalty/liability under Income Tax Act, the complainant might have lodged false case against him.

5.2 A­1 Arun Kumar Gurjar mainly stated that assessment case pertaining to firm of complainant was assigned to him which was previously dealt with by Ms. Arju Garodia, an Income Tax Officer. Ms. Arju Garodia had already issued detailed questionnaire for seeking information from the firm of the complainant. The complete information sought by income tax department was never submitted by the firm of the complainant. A­1 Arun Kumar Gurjar further stated that after getting charge, he also sought some information from the firm of the complainant which was still not submitted by complainant. The complainant was aware that his income tax matter was time bound case and therefore, on one or other pretext complainant was intentionally delaying the proceedings. A detailed questionnaire/show cause notice was issued to complainant firm to submit the information. A­1 Arun Kumar Gurjar alleged that in order to avoid completion of assessment of proceedings on or before 31.12.2010 this false case was registered by complainant on 29.12.2010 knowing fully well that income tax department could not take any action after expiry of limitation CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 20/110 period i.e on 31.12.2010. He denied the allegations pertaining to commission of offence and stated that he has been falsely implicated in the case.

Defence evidence 6 In defence evidence accused Baljeet Singh examined DW1 and DW2.

6.1 DW1 Sh. Shiv Swaroop Singh, Joint Commissioner of Income Tax, Range­7, Ludhiana deposed about the survey conducted by income tax department at the premises of M/S Radha Krishan Banarsi Dass at Naya Bazar, Delhi and other places at their godowns. He deposed that Sh. Banarsi Dass, one of partner of firm M/S Radha Krishan Banarsi Dass was an old aged person and he was represented by his son Sh. Pawan Aggarwal who was managing all the affairs of the firm at the time of their survey. He also deposed that during survey at Naya Bazar, information was given by some official that no one was present at the godown of Sirsaspur, Delhi and perhaps all concerned persons at said godown had disappeared intentionally. DW1 deposed that he requested A­2 Baljeet Singh to talk to Sh. Pawan Aggarwal and request him to cooperate. He also stated that accused Baljeet Singh went outside the room to talk to Sh. Pawan Aggarral and after some time some heated arguments were heard between Baljeet Singh and Pawan Aggarwal. DW1 CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 21/110 persuaded them to complete the work and not to indulge in heated arguments. DW1 further stated that as far as he remember, during said survey, undisclosed income of RS.2 Crores of the firm M/S Radha Krishan Banarasi Dass was revealed and tax of about Rs.75 lacs was imposed against the said firm.

6.2 DW2 Sh. Ravindra Pal, Junior Judicial Assistant at Record Room (Sessions), Patiala House Courts, New Delhi brought original record pertaining to RC no.AC1/2011/A0003/SPE/CBI/New Delhi bearing closure no.4/12 in case title as CBI Vs. Baljeet Singh & Anr. He proved FIR as Ex.DW2/A, Closure report as Ex.DW2/B and order dated 21.09.2012 as Ex.DW2/C. This report was in respect of a case of disproportionate assets against A­2 which was accepted by the court.

6.3 DW3 Om Parkash , Inspector at ITO, Ward no.47 (1), Drum Shaped Building, IP Estate, New Delhi produced the summoned record pertaining to assessment case of Madhya Pradesh Vanijya Company for the assessment year 2008­2009. He proved notesheet­(3 pages) as Ex.DW3/A, Copy of appeal­(13 pages) as Ex.DW3/B, remand report note sheet­(7 pages) as Ex.DW3/C and letter and annexure­(17 pages) as Ex.DW3/D. These record were pertaining to appeal in the income tax assessment case of complainant.

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 22/110 7 I have heard the ld. PP for CBI and Ld. Defence counsels for accused persons. I have carefully gone through the testimony of witnesses and documents proved on record. I have also considered the written submission submitted by parties as well as arguments advanced at bar.

8 Ld. PP for CBI submitted that in complaint Ex.PW1/A (D­2) there are clear allegations of payment of Rs.5 lacs to A­2 Baljeet Singh by complainant to settle the income tax assessment case. On 29.12.2010, PW1 called A­2 Baljeet Singh from his mobile phone no.9311067502 and the conversation was recorded in CBI office in a DVR in presence of independent witnesses and the same was transferred in CD Q­1 Ex.PW1/C. The details of calls recorded between mobile phone of PW1 (Complainant) and A­2 Baljeet Singh are proved by way of D­15 i.e CDR as well as testimony of PW9 (Nodal Officer, Vodafone) and PW17 (Relaince communication). A­2 Baljeet Singh was using above mentioned mobile phone which has been proved by testimony of PW8 Sh. Parmod Kumar. Verification memo was prepared by PW22 which has been supported by not only PW22 but also by PW10 who deposed that A­2 Baljeet Singh called the complainant over the mobile phone. Currency notes used as trap money provided by complainant were smeared in phenolphthalein powder and handed CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 23/110 over to complainant which was proved by handing over memo (D­5) and evidence of PW1, PW10, PW18 and PW22. At the time of trap on 29.12.2010 A­2 Baljeet Singh was sitting in the office of A­1 Arun Kumar Gurjar. A­2 discussed about case and stated that some penalty would be imposed even after payment of bribe and this fact is corroborated from the recorded conversation contained in CD Q­2 and transcript Ex.PW23/C­2 (D­26). The voice of A­2 Baljeet Singh was identified by PW1 and is corroborated by testimony of CFSL expert (PW3) and his report Ex.PW3/A and PW3/B ( D­24). 8.1 Ld. PP for CBI further argued that A­2 Baljeet Singh demanded and accepted the bribe from complainant in the office room of Arun Kumar Gurjar and on identification of PW1, he was caught by CBI team which has been corroborated by recovery memo dated 29.12.2010 and testimony of PW1, PW10, PW18 and PW22. A­2 Baljeet Singh disclosed to TLO that he had accepted bribe of Rs.2 lacs from complainant on the direction of A­1 Arun Kumar Gurjar who was sitting in the office of Commissioner, Income Tax. PW10 has confirmed about the disclosure made by A­2 Baljeet Singh. During cross examination, PW10 has confirmed the fact relating to payment and acceptance of bribe by Baljeet Singh and disclosure statement made by him and this fact has also been confirmed by TLO (PW22) who deposed that after disclosure of CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 24/110 A­2 Baljeet Singh, he himself went to office of Income Tax Commissioner and brought A­1 Arun Kumar in room no.207. Ld. PP contended that bribe amount of Rs.2 lacs was recovered from the pocket of A­2 Baljeet Singh. His hands and cloth washes collected at the spot had turned in pink colour and this fact is corroborated from recovery memo (D­61) and evidence of PW1, PW10, PW18 and PW22. The presence of phenolphthalein powder in the solution of hand, and cloth washes of A­2 Baljeet Singh is corroborated by Chemical Examiner Dr. N.H. Hashmi (PW5) in his testimony and report Ex.PW5/A (D­18) and this fact is also supported by PW18 Sh. Jitender Bhardwaj. Ld.PP eloberated his argument that recovery of bribe amount from possession of A­2 has been proved by material witnesses PW1, PW10, PW18 and PW22. A­2 Baljeet Singh failed to explain, how trap money came in his possession. There is presumption u/s 20 of P. C Act, 1988 and therefore, it was for A­2 to explain that how trap money came into his possession. It is not the case of A­2 that either TLO or witnesses had any enmity with him or the bribe amount was forcibly put into his hands or pocket. Ld. PP submitted that failure of accused to explain presence of phenolphthalein powder on his hands and cloths corroborates the testimony of prosecution witnesses. Once recovery is proved, presumption u/s 20 of P.C Act is raised for the offence u/s 7 of P.C CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 25/110 Act. Once, it is proved that accused has accepted the bribe consciously it is for him to rebut the presumption u/s 20 of P.C Act and in case he fails, the testimony of prosecution witnesses is required to be accepted. In support of his contentions, Ld. PP relied on Roop Singh Vs. State of Punjab AIR 1991 S.C 1125; Subu Singh Vs. State 2009 Cr.L.J 3433 S.C; Suresh Kumar Duggal Vs. State (NCT of Delhi) CBI decided by High Court of Delhi on 10.7.2013 in Criminal appeal no. 100/2003; Shri C.I. Emden Vs. State of U.P 1960 AIR 548 (SC); C.K. Damodaran Nagar Vs. Govt of India decided by Hon'ble Supreme Court of India on 08.01.97; and M. Narsingha Rao Vs. Sate of Andhra Pardesh decided by Hon'ble Supreme Court of India on 12.12.2000 in appeal (Criminal) 719/1995 . On the question of presumption u/s 20 P. C Act, Ld.PP relied on Dhanwantri Desai Vs. State of Maharashtra AIR 1964 SC 575; Swroop Chand Vs. State of Punjab AIR 1987 SC 4114; State of Andhra Pardesh Vs. Vasudev Rao AIR (SC)­2004­0­960; State of West Bengal Vs. Kailash Chand Pandey, AIR 2005 SC 119; Narayan VS. State of Karnataka, 2011 Cr.L.J 969 SC; T. Shanker Prasad Vs. State of Anadhra Pardesh, AIR 2004 (SC) 1242; and Bhupinder Singh Sikka Vs. CBI decided by Hon'ble High Court of Delhi in Criminal appeal no. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 26/110 124/01 on 25.3.2011.

8.2 Ld. PP further argued that it has been proved on record that A­1 Arun Kumar Gurjar was dealing with the Income Tax assessment case of the firm of complainant and A­2 Baljeet Singh was working as Inspector, Income Tax even after his formal transfer orders and this fact has been corroborated from the testimony of PW19, PW1, PW14 and PW16. The fact that A­2 Baljeet Singh was working in the office of A­1 Arun Kumar Gurjar is corroborated from his handwriting in ordersheets contained in file D­12 and signature of A­1 Arun Kumar Gurjar on ordersheets i.e D­21. PW12 has clearly deposed that there was no order in respect of attachment of A­2 Baljeet Singh to the office of CIT­X and to his knowledge there was no instance in Income tax department where particular official was being called by any superior officer (to work with him due to urgency of work) even after transfer. Ld. PP tried to make out the circumstances that A­2 Baljeet Singh was working in the office of A­1 Arun Kumar Gurjar even after his transfer and without any order of attachment which proves criminal conspiracy between them. Ld. PP also submitted that on 29.10.2010 A­2 Baljeet Singh was sitting in the office of A­1 Arun Kumar Gurjar despite the fact that A­1 Arun Kumar Gurjar was present in the same building and his confidence to sit in the office of his Sr. officer and to deal with CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 27/110 complainant proves the criminal conspiracy between both the accused.

8.3 Ld. PP submitted that testimony of complainant in respect of demand, acceptance and recovery of bribe is corroborated by the recorded conversation contained in CD Q­1 and CD Q­2 as well as by PW10, PW18, PW22 and the testimony of these witnesses cannot be discarded on the basis of minor contradictions. Ld. PP submitted that where the circumstances justifies, court may refuse to accept the uncorroborated testimony of trap witness. On the other hand,court may be justified in acting upon the uncorroborated testimony of trap witnesses, if the court is satisfied from the facts and circumstances of the case that witness is witness of truth. In support of his arguments, Ld. PP relied on Rakesh Chand VS. State ( Delhi Administration) AIR 1979 SC 400. Ld. PP also argued that requirement to have independent witness to corroborate the evidence of police official is to be viewed from realistic angle and in support of his arguments he relied on State of UP Vs. Zakaullah decided by Hon'ble Supreme Court of India on 12.12.97.

8.4 In support of prosecution case Ld.PP submitted that payment of bribe may be proved by surrounding circumstances and CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 28/110 sequence of events and evidence may be accepted even without direct evidence. In support of his contentions, Ld. PP relied on Bhupinder Singh Sikka Vs. CBI decided by Hon'ble High Court of Delhi 25.3.2011, in criminal appeal no.124/01; State of UP Vs. Zakaullah, 1982 AIR SC 511; Gagan Singh Vs. State of Punjab 1974 Crl.L. J 789; Hazari Lal Vs. State (Delhi Administration), 1980 Crl. L.J 564 SC; and State of Bihar Vs. Basawan Singh 1958 AIR 500 SC.

8.5 Ld. PP pointed out circumstances that during search of office room of A­1 Arun Kumar Gurjar an amount of Rs.6 lacs was seized which is corroborated from document (D­10) Ex.PW15/A i.e search list dated 29.12.2010, testimony of PW15 Kamal Kapoor and PW21 Raja Chatterji. PW2 Narender Nahata has clearly stated that he had not given any cash amount to accused Arun Kumar Gurjar. Ld. PP submitted that recovery of cash amount of Rs.6 lacs could not be satisfactorily explained by A­1 Arun Kumar Gurjar which reflects that he had indulged in corrupt practices. 8.6 Ld. PP also submitted that it is settled law that hostility of witnesses may be due to various reasons and such witnesses are not always unworthy of reliance. The testimony of official witnesses of CBI should not be suspected. The established position CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 29/110 of law is that testimony of police officials should be considered on the same parameters like testimony of any other witness (Som Parkash Vs. State of Delhi AIR 1989). Ld. PP argued that it is settled law that testimony of witnesses are required to be considered as a whole in the entire facts and circumstances of the case. Testimony of a natural witness is bound to suffer from contradictions. Every witness of same incidence cannot narrate the incidence in the same words. Hence, the evidence of witnesses may be analyzed in the background of the witnesses and circumstances of the case. As per Ld. PP analysis of testimony of PW1, PW10, PW18, PW22 and other material witnesses has clearly established that despite minor contradictions and deficiencies they have supported the prosecution case on material facts which finds support from the documents and the circumstances of the case and therefore, testimony of prosecution witness should not be discarded which has proved the prosecution case beyond reasonable doubt. In support of his argument on hostile witnesses, Ld. PP relied on Kesho Ram Vohra Vs. State of Assam AIR 1978 SC 1096; Bhagwan Singh Vs. State of Haryana AIR 1976 SC 202; D. Hanumanta Rao Vs. State of A.P 1992 (SCR) (2) 358. Ld. PP submitted that mere suggestion in cross examination have no evidentiary value unless accepted by witness or proved by other CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 30/110 evidence and therefore, mere denial of evidence by defence by way of suggestions to the Pws has no value and in support of his argument, ld. PP relied on Guru Singh Vs. State of Rajasthan 1984 Cr.L. J 1423 (Rajasthan). On the question of combined effect of proved facts, ld. PP cited State of Andhra Pardesh Vs. I.B.S Parsada Rao and others 1970 Cr.L.J 733 (Vol. 76, C.N 176) SC. On the question of contradictions and improvements by the witnesses from their earlier statement u/s 161 Cr.PC, Ld. PP relied on Rangi Lal & Ors Vs. State of UP 1991 Cr.L.J 916 (Allahabad) wherein it was held that "mere improvements and contradictions do not cast reflection on the evidentiary value of the witnesses if the same are otherwise trustworthy". Ld. PP submitted that testimony of police officials should be treated at par as the testimony of any other witness and should be appreciated accordingly and in support of his contentions he relied on Karamjeet Singh Vs. State decided by Hon'ble Supreme Court on 26.3.2003 in Criminal appeal no.11/2000. Ld. PP also submitted that court may act upon the single testimony of a witness and there is no legal impediment in convicting the accused on the testimony of single witness if the same is found wholly reliable. In support of his contentions, Ld. PP cited Sunil Kumar Vs. State decided by CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 31/110 Hon'ble Supreme court of India on 15.10.2003 in criminal appeal no.263/2003. In this case while relying on the case of Vadivelu thevar Vs. State of Madras 1957 (AIR) SC 614, the court has divided nature of witnesses in three categories namely wholly reliable, wholly unreliable, lastly neither wholly reliable nor wholly unreliable. In the first two categories, the court held that these testimonies caused little difficulty, but in case of third category of witness, corroboration would be required when the testimony is neither wholly reliable nor wholly unreliable. Ld. PP submitted that evidence of Trap Laying Officer (TLO) who is police officer does not require any corroboration if his testimony is found entirely trust worthy and there is neither any such rule of law nor rule of prudence. In support of argument, Ld. PP relied on Hajari Lal Vs. State ( Delhi Administration) 1980 Crl.L.J 564 (1) SC. 8.7 Ld. PP contended that even if there is some defect in investigation, the same does not by itself vitiate the trial based on such defective investigation and in support of his contention, Ld. PP referred Paramjeet Singh @ Muthu Singh Vs. State of Punjab through Secretary (Home) 2007, 13 SC cases 530. 8.8 Ld. PP argued that every "acceptance" of illegal gratification whether preceded by demand or not is covered by CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 32/110 section 7 of P.C, Act. Demand is not an essential ingredient of section 7 of P.C Act and it is sufficient if acceptance of illegal gratification is proved. In support of his contention, Ld. PP relied on Krishna Ram Vs. State of Rajasthan decided by Hon'ble Supreme Court on 17.3.2009 in criminal appeal no.402/01.

9. In order to prove criminal conspiracy, prosecution is required to prove:­

(a) That both the accused agreed to it, or caused to be done an illegal act or an act which is not illegal by illegal means:

The elements of criminal conspiracy may be stated as:­ An object to be accomplished;

(a) A plan or scheme embodied means to accomplish that object;

(b) An agreement or understanding between two or more of the accused persons whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in agreement, or by any illegal means;

(c) The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it is necessarily following that unless the statute so requires, CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 33/110 no overt act need to be done in furtherance of the conspiracy, and that the object of the combination need not to be accomplished, in order to constitute an indictable offence.

For reference - Devender Pal Singh Vs. State of NCT of Delhi, 2002 SCC (Cri) 978; Noor Mohammed Yusuf Momin Vs. State of Maharashtra, AIR 1971 SC 885; State Vs. Nalini, AIR 1999 SC 2640 may be referred.

9.1 In the case of Hira Lal Hari Lal Bhagwati Vs. CBI, 2003 SCC (Cri) 1121 it was held that...

"To bring home the charge of conspiracy within the ambit of Section 120B, it is necessary to establish that there was an agreement between the parties for doing unlawful act. It is difficult to establish conspiracy by direct evidence"

10 In order to prove charge u/s. 7, prosecution is required to prove the following ingredients of the offence:

(i) The accused was a public servant or expected to be a public servant at the time when the offence was committed.

(ii)The accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person for himself or for any other person.

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 34/110

(iii)Such gratification was not a remuneration to which the accused was legally entitled.

(iv)The accused accepted such gratification as a motive or reward for:­

(a) doing or forbearing to do an official act, or

(b) doing or forbearing to show favour or disfavour to someone in the exercise of his official function, or

(c) rendering or attempting to render any service or disservice to some one with the Central or any State Government or Parliament or the Legislature of any State, of with any local authority, Corporation or Government company referred to in Sec. 2 clause (c) or with any public servant, whether named or otherwise.

11 In order to bring home guilt of the accused persons, prosecution is required to prove:

a) That there was criminal conspiracy between accused Arun Kumar Gurjar and Baljeet Singh.

b) That bribe was demanded by accused persons from the complainant or offered by complainant.

c)       That bribe was accepted by accused. 

d)       That   bribe   amount   was   recovered   from   the   possession   of 

accused.



CC No. 50/12
RC No. CBI/AC­I/RC­A0003/10                                              35/110
                               Sanction for prosecution

12               It was submitted by ld. Counsel for A­1 Arun Kumar 

Gurjar that A­1 has been charged for the offence u/s 120 B IPC.

However, no sanction for prosecution u/s 197 Cr.PC was obtained prior to taking cognizance and initiating prosecution. Ld. Defence counsel submitted that trial is vitiated due to mandatory sanction for prosecution u/s 197 Cr.PC for the offence u/s 120 IPC. In support of his arguments ld. Counsel for A­1 relied on following judgments:

i) P. Sirajuddin Vs. State of Maharastra (1970) 1 SCC 595.

ii) R. Balakrishna Pillai Vs. State of Kerla (1996) 1 SCC 478.

12.1 Both the accused have been charged for the offence u/s 120 B IPC r.w. Section 7 of P.C Act as well as for substantive offence u/s 7 of P.C Act.

12.2 PW19 Sh. S.M Ashraf, Commissioner of Income Tax, CIT, Audit­I, C.R Building, IP Estate, New Delhi granted sanction for prosecution against A­2 Baljeet Singh and proved the same as Ex.PW19/A. PW20 Sh. Suresh Sivanandan, Under Secretary (V & L­I), CBDT, Ministry of Finance, Department of Revenue, Govt of India, New Delhi proved sanction dated 13.3.2012 as Ex.PW20/A granted against A­1 Arun Kumar Gurjar by him on the basis of approval by the then Finance Minister, Govt of India. In the case of A­2 Baljeet Singh, PW19 S.M Ashraf was the competent authorities CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 36/110 and in the case of A­1 Arun Kumar Gurjar, Hon'ble the President of India was the sanctioning authority. Under the delegated powers, the Minister of Finance was competent to grant sanction for prosecution. Sanction order Ex.PW19/A against A­2 Baljeet Singh and sanction order Ex.PW20/A against A­1 Arun Kumar Gurjar clearly reflects that detailed facts and evidence was discussed and in my opinion these orders can not be said without application of mind. There is nothing on record to accept that sanction was granted without application of mind or the sanctioning authority were not competent.

12.3 The contention for ld. Counsel for A­1 Arun Kumar Gurjar was that separate sanction u/s 197 Cr.PC was required for prosecution of A­1 for the offence u/s 120 B IPC. In case of P.Sirajuddin (Supra), the case was pertaining to year 1970 wherein the accused was prosecuted for the offence u/s 161 and 165 IPC and under section 5 (1) (a) and (d) of P.C Act. Before prosecution, a vigilance inquiry was initiated and matter was reported to the Ministry concerned of the department. In these facts, it was held by Hon'ble Supreme Court that by conducting full fledged inquiry before prosecution of appellant, prejudice was caused to the appellant. This case was decided by Hon'ble Supreme Court much prior to the amendments in provisions of P.C Act in the year 1988. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 37/110 In my view, this case is not at all applicable in the present case. 12.4 In the case of R. Balakrishna Pillai (Supra), accused was the Minister for Electricity in Govt of Kerla. He was prosecuted for the offence u/s 120 B IPC on the allegations that he entered into a criminal conspiracy with a private company and in violation of applicable rules allowed the mis­use of electricity to the said private company and thereby caused unlawful gain to private company and unlawful loss to public exchequer/government. In these facts it was held that grant of electricity to private company by the Minister was related to his official work and therefore, sanction for prosecution u/s 197 Cr.PC was required. In my view, the facts of the present case are entirely different. Here both the accused are facing charge for the offence u/s 7 of P.C Act, 1988 and conspiracy to commit offence u/s 7 of P.C Act. Conspiracy to take bribe within the meaning of P.C Act cannot be connected to the official discharge of duty by any imagination.

12.5 In view of the observations, in my opinion, the sanction for prosecution has been validly granted and proved against both the accused.

Admissibility of telephonic conversation contained in CD Q­1 and CD Q­2 13 It was submitted by ld. Counsel for A­2 Baljeet Singh CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 38/110 that telephonic conversation allegedly contained in CD Q­1 and CD Q­2 are alleged recorded conversation at the time of pre trap and post trap proceedings and these recorded conversation are not admissible in evidence. Ld. Defence counsel submitted that conversation was originally recorded in DVR and as per prosecution case, recorded conversation was transferred in CD Q­1 and Q­2 from the DVR. Original DVR has not been produced and the CDs prepared from DVR is electronic evidence within the meaning of Evidence Act and therefore, certificate u/s 65 B of India Evidence Act is mandatory requirement to prove the same. It is submitted that admittedly certificate u/s 65 B of Evidence Act was neither issued nor produced before the court.

13.1 In support of his arguments, ld. Defence counsel has relied mainly on the case of Anwar P.V Vs. P.K Bhaseer decided by Hon'ble Supreme Court of India on 18.9.2014 in civil appeal no. 4226/2012. It was the case pertaining to corrupt practices in elections. Question was whether the speech, songs and announcement etc recorded by using other instruments and feeding them into the computer was admissible evidence (when the same were produced before the court in the form of CDs which were made from computer) without proving certificate u/s 65 B of Indian Evidence Act. In clear terms , it was held by Hon'ble Supreme CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 39/110 Court that "in the case of CD, VCD, Chips etc, same shall be accompanied by a certificate in terms of section 65 B of Evidence Act obtained at the time of checking document without which secondary evidence pertaining to electronic evidence is inadmissible".

13.2 In the present case, admittedly the alleged recorded conversation contained in CD Q­1 and CD Q­2 were originally recorded in DVR and then with the help of laptop the same were transferred in CD Q­1 and CD Q­2. CD Q­1 and CD Q­2 were sent to CFSL for examination and only CDs have been produced in evidence. Admittedly, no certificate u/s 65 B of Evidence Act have been proved by the prosecution.

13.3 It was submitted by Ld. PP that the case of Anwar P.V Vs. P.K Basheer is not applicable in the present case as the same was related to the election laws and not to the case of P.C Act. In my view, the contention of Ld. PP is without any substance as section 63 B is equally applicable on Civil as well as Criminal cases. The law laid down by Hon'ble Supreme Court is the law of the land and is binding upon all courts in India.

13.4 It was also contended by Ld. PP that in respect of call detail report certificate u/s 65 B has been proved and the conversation contained in CD Q­1 is the same recorded telephonic CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 40/110 conversation. In my view this argument is mis­conceived. Certificate u/s 65 B which is related only to the call detail records is different from the electronic evidence produced in the form of CD Q­1 which was allegedly prepared by CBI officers with the help of their laptop.

Therefore, certificate u/s 65 B was required from the person who prepared the CD Q­1 and CD Q­2 with the help of laptop/computer from the DVR.

13.5 In support of his contentions , Ld. Defence counsel has also cited following judgments:

Sanjay Singh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and ors. (Crl Appeal No.97 of 2015 decided by Supreme Court of India on 16.01.2015; Ashish Kumar Dubey Vs. State Thr. CBI (Crl Appeal no.124/2008 decided by Delhi High Court on 04.04.2014); Jagdeo Singh @ Jagga Vs. The State (Crl appeal no.527 of 2014 with other two appeals decided by the Hon'ble High Court on 11.02.2015; Nilesh Dinkar Paradkar Vs. State of Maharastra, 2011 STPL (LE) 44905 SC; and Mahabir Prasad Verma Vs. Dr. Surinder Kaur (1982) 2 SCC 258. 13.6 In view of above findings, in my opinion, the recorded conversation contained in CD Q­1 and CD Q­2 is not admissible in CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 41/110 evidence.

13.7 It was also argued by Ld. Defence counsels that apart from the admissibility, the recorded conversation contained in CD Q­1 and CD Q­2 is neither properly identified nor possibility of tempering is removed. Ld. Defence counsel submitted that recorded conversation contained in CD Q­1 and CD Q­2 is not reliable evidence as the necessary safeguards are not taken. It was also submitted that from the testimony of PW1 and transcripts of recorded conversation proved on record it is clearly established that in several portions, the voice could not identified by PW1; there is background voices of vehicles and the crowd; and the recorded conversation is either not clearly audible or is over powered by the background voices. Therefore, ld. Defence counsels submitted that recorded conversation is not at all reliable evidence. Ld. PP controverted the submissions and stated that PW1 has clearly supported the recorded conversation contained in CD Q­1 and CD Q­2 and the testimony is supported by the expert of CFSL. 13.8 In the case of Nilesh Dinkar Paradkar v. State of Maharashtra (JT 2011 (3) SC 429 = 2011 (3) SCALE 473) it was held that:­ "that evidence of voice identification is at best suspect, if not, wholly incredible­ Accurate voice identification is much more difficult than visual identification­ it is prone to such extensive and sophisticated tampering, doctoring and editing that the CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 42/110 reality can be completely replaced by fiction­ The Courts have to be extremely cautions in basing conviction purely on the evidence of voice identification". 13.9 The guiding principles have been laid down in the case of Ram Singh Vs. Col. Ram Singh, AIR 1986, SC 3. It was held by the Hon'ble Supreme Court that...

"A tape recorded statement is admissible in evidence subject to the following conditions:­ (1) The voice of the speaker must be identified by the maker of the record or other person recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.

(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial. (3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.

(4) The tape recorded statement must be relevant. (5) the recorded cassette must be sealed and must be kept in safe of official custody.

(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances"

From the evidence on record, it is reflected that at CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 43/110 some places the recorded conversation could not be properly identified by PW1; many portions are not audible; some portions are not clearly audible; and there are loud background voices in some portions. In CFSL report proved by PW3 Sh.Amitosh Kumar, SSO­ II (Pysics), CFSL, CBI, New Delhi, there is no finding to eliminate the possibility of tempering in recorded conversation.

In view of law laid down in above mentioned cases, in my opinion, apart from the admissibility of this evidence on account of certificate u/s 65B of Indian Evidence Act, it is not safe to rely on such a recorded conversation,even if, for the sake of argument it is presumed as admissible evidence.

Complaint

14. As per prosecution case FIR was registered on the basis of complaint Ex.PW1/A (D­2). Ex.PW1/A is the typed complaint signed by complainant Sh. Pawan Kumar Aggarwal. It was submitted by ld. Defence counsels for both the accused that complaint Ex.PW1/A is a fabricated document. It was typed by CBI officials in CBI office itself. It was also argued that original complaint is not produced by prosecution which creates a serious doubt about the genuineness of prosecution case. Ld. Defence counsels also argued that as per testimony of complainant (PW1) original complaint was typed in his office by Sh. Hanish Bansal. Sh. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 44/110 Hanish Bansal was necessary witness who has not been examined and therefore, adverse inference is required to be taken against the prosecution.

14.1 In support of his arguments, Ld. Defence counsel for A­1 Arun Kumar Gurjar relied on Sevi and Anr. Vs. State of Tamil Nadu and anr and Koodakkal Karian @ Alagappan & ors. Vs. State of Tamil Nadu and anr, 1981 (Supp) Supreme Court cases 43:­ In this case, the argument was that the original FIR was different than FIR placed before the court. The counterfoil of the FIR was also not produced before the court. In these circumstances, it was held by Hon'ble Supreme Court that in the circumstances of the case, the entire prosecution case become suspect. 14.2 Ld. Defence counsel for A­1 Arun Kumar Gurjar also cited Viji Vs. State (Madras) decided in Crl. R.C. No.393 of 2006 dated 24.11.2011:­ In this case facts were that date of birth of prosecutrix was different and there was arguments of suppression of original complaint. There was no explanation from the side of prosecution, therefore, it was held that prosecution case suffers from an incurable defect.

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 45/110 14.3 The above­mentioned two cases were decided by the Hon'ble Courts in different facts but the underline principle is that if there is some fabrication in the complaint/FIR, in given circumstances, it creates doubt about the genuineness of prosecution case.

14.4 In the present case, it is established on record that the original complaint was typed in the office of PW1 (complainant) and was given to CBI. In CBI office, another complaint Ex.PW1/A was prepared which became the basis for registration of FIR. Original complaint was not produced by prosecution during trial. During his testimony, explanation was given by PW1 that the complaint was retyped in CBI office because it was not properly addressed. There is no dispute to the legal preposition laid down in above mentioned cases cited by ld. Defence counsels. The effect of change in complaint is required to be seen in the facts and circumstances of the particular case. In the present case, PW10 has given the explanation; he has admitted his signature on the complaint; and he has supported the material allegations of his complaint. There is nothing on record to accept that any material allegation of complaint was changed. In these circumstances, in my opinion, in the facts and circumstances of the present case, no importance can be given to this aspect of complaint. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 46/110

Delay in FIR 15 Ld. Defence counsels for both the accused argued that as per complaint EX.PW1/A both the accused allegedly demanded bribe of Rs.5 lacs from complainant in October 2010 and the complainant refused to pay the bribe. As per complaint Ex.PW1/A the bribe was again demanded by accused persons in December, 2010. Ld. Defence counsel submitted that complainant approached the CBI on 28.12.2010 only because of the reason that income tax assessment case of his firm was going to be time barred on 31.12.2010. Ld. Defence counsels also argued that there is no explanation by the complainant or the prosecution that why complainant did not approach investigating agency or any other authority in October/November 2010 i.e immediately after the demand of bribe. Ld. Defence counsels submitted that there is unexplained delay in reporting the matter which creates a serious doubt about the genuineness of the complaint and testimony of complainant Sh. Pawan Kumar Aggarwal.

15.1 It is established preposition of law that delay in FIR is not fatal in each and every case. The delay in FIR may have different effects in different cases depending upon the facts of the case and the explanation in respect of delay in FIR. In the present case, as per PW1, first demand was made by accused person in October 2010 but CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 47/110 complainant approached CBI on 28.12.2010. There is nothing on record to accept that due to delay in FIR there had been any material change in the allegations. Furthermore, PW1 (complainant) is a business man who was required to deal with income tax department in relation with assessment cases of his firm. In this type of cases, generally a ordinary person thinks many times to lodge a complaint against senior public servants. In my opinion, there is no unusual delay in lodging the FIR in this case.

Testimony of Complainant (PW1) 16 PW1 Sh. Pawan Aggarwal (complainant) deposed that he was one of the partner of M/S Madhya Pradesh Vanijya Company, 3948/2, Naya Bazar, Delhi. His younger brother Sh. Anil Jindal was another partner of said firm. He stated that firm was registered with income tax department and being income tax assessee used to file regular income tax returns. His firm for the purpose of income tax was under the jurisdiction of ward no.29, Drum Shaped Building, ITO, New Delhi and senior officer of income tax Sh. Arun Kumar Gurjar and assessing officer Sh. Baljeet Singh were dealing with income tax assessment of their firm for assessment year 2008­2009. He deposed that in October, 2010, in response to notice of income tax office pertaining to assessment year 2008­2009, he met A­2 Baljeet Singh in his office and CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 48/110 submitted some documents required by income tax department for assessment of income tax. He stated that Baljeet Singh told him to submit some other documents and he again met Baljeet Singh in mid of December, 2010 in his office. Baljeet Singh took him to the office of Arun Kumar Gurjar and they discussed about some confusions/clarifications pertaining to assessment of his firm. He further stated that Arun Kumar Gurjar was not ready to accept turn over of about 5­6 crores shown in income tax return of his firm and stated that he will impose tax penalty. He stated that he came out of the room of Arun Kumar Gurjar and met Baljeet Singh who demanded bribe of Rs.5 lacs to be paid to Arun Kumar Gurjar to settle the matter. He further stated that when he met A­2 Baljeet Singh in October, 2010 he had demanded bribe of Rs.1,50,000/­ but in December, 2010 (in their meeting) he demanded Rs.5 lacs. He requested Baljeet Singh to settle the matter in less than Rs.5 lacs but Baljeet Singh refused to settle in lesser amount. On 28.12.2010, he lodged complaint in the office of CBI, New Delhi which is proved as Ex.PW1/A. PW1 further deposed that he was called by CBI officer Sh. Ram Singh with currency notes of Rs.2 lacs in the morning of 29.12.2010 and thereafter trap proceedings were organized. PW1 proved envelope containing CD as Ex.PW1/B and CD as Ex.PW1/C. PW1 also proved verification memo dated 29.12.2010 as Ex.PW1/D CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 49/110 (regarding complaint made by Sh. Pawan Kumar Aggarwal) and handing over memo dated 29.12.2010 Ex.PW1/E which was prepared in CBI office. PW1 further proved sealed bottles bearing seal of CFSL with endorsement of LHW and RHW as Ex.PW1/F­1(LHW) and Ex.PW1/F­2 (RHW). He also proved another bottle bearing seal of CFSL with endorsement "LCPW" as Ex.PW1/F­3. He proved envelope Ex.PW1/F containing dark colour coat having blue and black strips (of A­2 Baljeet Singh) as Ex.PW1/F­5. He also proved bottle bearing seal of CFSL containing endorsement of "LSBSW" as Ex.PW1/F­6 and envelope Ex.PW1/F­7 (from which half sleaves brown colour like woolen sweater was taken out) and same is proved as Ex.PW1/F­8. PW1 proved envelope Ex.PW1/F­9 containing GC notes as Ex.PW1/F­10. He also proved envelope Ex.PW1/F­11 having CD (marked Q­2) proved as Ex.PW1/F­12 and recovery memo as Ex.PW1/G. Further, CD (Q­1) Ex.PW1/C was played in the court and PW1 identified some voice portions marked A to A (D­25) to portion A19 to A19 (D­25). Further, CD (Q­2) Ex.PW1/F­12 was played and PW identified some voice portion marked B to B (D­26) to portion B­79 to B­79 (D­26). PW1 further proved application form for applying Reliance Communication mobile phone number as Ex.PW1/K. PW1 authorized Sh. Hanish Bansal to represent M/S CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 50/110 Madhya Pradesh Vanizya Company before the Income Tax Authority and same is Ex.PW1/K­1. He also proved his signatures as well as signatures of his nephew Sh. Hanish Bansal on photocopy of proceedings of the file of income tax department relating to assessment of M/S Madhya Pradesh Vanizya Company as Ex.PW1/K­2. PW1 was cross examined at length by ld. defence counsels of both the accused.

16.1 Ld. Defence counsels disputed the testimony of star prosecution witness, PW1 Sh. Pawan Kumar Aggarwal (complainant)on the basis of following discrepancies, improvements and contradictions:­

i) PW1 stated that A­1 was the Assessing Officer in the matter pertaining to his Company and he received various notices from the department on several occasions. A­1 desired certain documents/information from the complainant to finalize the scrutiny. PW1 also stated that A­2 also remained present during said meetings with A­1. In complaint, PW1 stated that documents were submitted to A­2. In complaint it is also mentioned that in the month of October 2010, PW1 visited in the office of A­1 where A­2 was also present and both the accused demanded Rs.5 lakhs but PW1 refused to pay the same. Ld. Defence counsel pointed that complainant does not mention any date and time of alleged meetings CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 51/110 and demand of bribe by A­1 and A­2. The complainant refers to only one meeting in October, 2010.

ii) In his examination in chief on 03.6.2013, PW1 stated that in October, 2010 he met A­2 in his office and submitted some documents required by the income tax department and A­2 told him to submit some other documents. Further, PW1 deposed that again he met A­2 in mid of December, 2010. In his deposition on 03.6.2013 PW1 did not speak about any demand of bribe either by A­1 and A­2 but he again changed his version about the meeting of A­1 and submission of documents/information to A­1.

(iii) In his examination in chief, PW1 further improved his earlier deposition that when he met A­2 in October 2010, he (A­2) had demanded bribe of Rs.1,50,000/­. Ld. Counsel submitted that there is no reference of such demand of Rs.1,50,000/­ by A­2 in any document filed on record. Ld. Defence counsel further submitted that in his examination in chief on 04.6.2013, PW1 further improved/changed his earlier deposition and stated that in the first week of October, 2010, he (PW1) received a phone call from A­2 who told that his income tax assessment case has come in scrutiny and accordingly he met A­2 in his office, who took PW1 in the office of A­1 where PW1 talked to A­1, Assessing Officer and A­1 told PW1 to complete the documents and other formalities. No CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 52/110 demand of bribe was alleged by PW1 during such meeting. PW1 further improved his version in his examination in chief dated 04.6.2013 and stated that alongwith A­2, PW1 again met him in his office in the end of October, 2010 around 25th/26th October, 2010 and in the said meeting both A­1 and A­2 demanded Rs.5 Lacs although in the initial meeting, A­2 demanded Rs.1,50,000/­.

(iv) As far as, the demand of October, 2010 is concerned there is reference of one meeting in the complaint but in his deposition dated 04.6.2013, PW1 stated about two such meetings in October, 2010. In his first deposition on 03.6.2013, PW1 did not mention any date about demand of bribe in October, 2010 but in his deposition dated 04.6.2013 he suddenly mentioned the date of meeting and demand of bribe as 25th and 26th October 2010. In his statement u/s 161 Cr.PC, PW1 has also mentioned about demand of Rs.2,50,000/­ by A­2 in October, 2010 but nothing is stated in this regard in his deposition.

(v) In complaint (D­2) PW1 has mentioned only about one meeting with A­1 and A­2 on 27.12.2010. However, in his examination in chief, he created new story and stated that he met A­2 in his office in mid o f December 2010 where A­2 took him to office of A­1 and there was some discussion pertaining to assessment case of his firm. PW1 further changed his stand and CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 53/110 stated that after coming out of office A­1, A­2 demanded Rs.5 lacs to be paid to A­1 to settle the case. PW1 further deposed that he met A­2 on 22nd and 23rd December, 2010 in the office of A­2 and there was again demand of Rs.5 lacs by A­2. PW1 further deposed that he again met A­2 in his office on 27.12.2010 and requested A­2 to settle the case for lesser amount of bribe but A­2 did not consider the same. Ld. Defence counsel submitted that this part of deposition is contrary to complaint where there is reference of only one visit by PW1 on 27.12.2010 to the office of A­1 and his meeting with A­1 and A­2. In his deposition PW1 has referred about three such visits and did not tell anything about any demand of bribe in the said visits/meetings.

(vi) In his deposition on 04.6.2013, PW1 stated that in December, 2010, he firstly met A­2 and then A­1 alongwith A­2 where both A­1 and A­2 demanded Rs.5 lacs. In this deposition, he referred only one visit in December, 2010 and does not refer to his visit dated 27.12.2010 which is contrary to his earlier stand.

(vii) PW1 was confronted with his statement u/s 161 Cr.PC Ex.PW1/DA in his cross examination in respect of above mentioned contradictions and improvements.

16.2 Ld. Defence counsels submitted that testimony of PW1 should not be believed due to following reasons:­ CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 54/110

i) Diversent and contradictory statement in respect of previous demand of bribe; amount of bribe; date of bribe; number of meetings ; and sequence of meetings with accused persons.

ii) There is no version of alleged meetings/demands of October, 2010 during investigation.

iii) CD Q­1 and Q­2 containing alleged conversation between complainant and accused is inadmissible in evidence.

(iv) There is no evidence either by PW1 or any other witness showing payment of bribe to accused Baljeet Singh at the spot. Even no such payment is reflected in recorded conversation in CD Q­2.

(v) The testimony of PW1 is doubtful about his attendance in CBI office on 28th and 29th December, 2010.

(vi) Doubtful testimony of PW1 about going into room no. 207 alongwith shadow witness (PW18); duration of his stay in room no.207; going to other room apart from room no.207; time of his entrance in room no.207; time of apprehension of accused; and time and place of preparation of recovery memo.

(vii) Contradiction in the testimony of PW1 about presence of Hanish Bansal on 29.12.2010 in CBI office or at Drum Shaped building.

(viii) Evasive replies and conduct of PW1 during his CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 55/110 testimony. He used words "I do not remember for about 75 times" in his testimony.

16.3 Ld. Defence counsels submitted that above mentioned contradictions, improvements and deficiencies in the testimony has discredited PW1 and his testimony cannot be relied. It was also submitted by Ld. Defence counsels that complainant was interested in the success of the prosecution to avoid heavy tax penalties and therefore, his testimony should be strictly scrutinized and may not be accepted on material points unless corroborated by the independent witness. Ld. Defence counsels further argued that testimony of PW1 does not find any corroboration from the independent source on the material facts of demand, acceptance and recovery of bribe from the possession of accused or on the aspect of alleged criminal conspiracy between the accused persons. In support of his arguments, Ld. Counsel for A­1 Arun Kumar Gurjar relied on Sat Paul Vs. Delhi Administration (1976) 1 Surpeme Court cases

727. In this case, it was held by Hon'ble Supreme Court that "generally trap witnesses are the interested witnesses. Though there is no absolute rule that evidence of interested witnesses cannot be accepted without corroboration, but where witnesses have poor moral fibre and history of bad antecedents with a CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 56/110 positive motive to harm accused, it would be hazardous to accept the testimony in the absence of corroboration from independent sources".

16.4 Ld. PP for CBI submitted that PW1 (complainant) has supported the prosecution case on material allegations pertaining to the demand, acceptance and recovery of bribe. The deficiencies and contradictions suggested by ld. Defence counsel are related to the minor aspects of the case and does not go to root of the matter. Ld. PP submitted that testimony of PW1 appears to be natural and truthful and same cannot be discarded due to minor contradictions or deficiencies. PW1 (complainant) is business man who has attended the court on different dates for his examination in chief and cross examination. PW1 was grilled by ld. PP and ld. Defence counsels with all their professional excellence. No doubt that contradictions and deficiencies have been pointed out by ld. Defence counsels in the testimony of PW1 but on core issues his testimony is consistent.

16.5 As per ld. Defence counsels PW1 has motive to falsely implicate A­1 Arun Kumar Gurjar and A­2 Baljeet Singh. PW1 has a scuffle/quarrel with A­2 Baljeet Singh at the time of survey of his firm in another income tax case and therefore, he has motive against A­2. The income tax assessment case of the firm of PW1 was going CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 57/110 to be barred by limitation on 31.12.2010 and therefore, PW1 was delaying the assessment of the case by all means to avoid huge financial penalty against his firm. ld. Defence counsel also submitted that if the testimony of PW1 may be taken as a whole, the same does not inspire any confidence.

16.6 After careful consideration of testimony of PW1, in my opinion though his testimony suffers from contradictions and improvements on different aspect of the prosecution case but in substance he has supported the prosecution case on material allegations like his meeting with both the accused person in income tax office, demand of bribe by both the accused person, acceptance of bribe by A­2 Baljeet Singh and different steps of pre trap and post trap proceedings. PW10 supported the prosecution case in respect of material documents i.e handing over memo and recovery memo etc and has admitted the signature on the same. In my view, on most of the material aspect PW1 has deposed consistently in a natural manner and his testimony could not be discredited during cross examination on material aspects of the case. Keeping in view the fact that testimony of PW1 suffers from some contradictions, improvements and deficiencies and he may be an interested witness, his testimony is required to be scrutinized with caution. In my view, the testimony of PW1 cannot be said wholly reliable or wholly CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 58/110 unreliable. Testimony of PW1 is required to be seen in the facts and circumstances of the case and may be acted upon on material facts of the case if the same is corroborated atleast on some material facts of the case.

16.7 In the case of Jamir Ahmed Vs. State, 1996 Crl. Law Journal 2354 it was held that:

" It would be a hard not to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnessed with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words, according to his own perception and in proportion to his intelligence power of observation".

The testimony of witness may be considered in view of the law laid down in this case.

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 59/110 16.8 The thrust of the arguments of ld. Defence counsel was that PW1 has a motive to falsely implicate the accused person. On record there is an evidence that at the time of survey of his firm in another income tax assessment case , A­2 Baljeet Singh had some dispute with complainant. As per proved facts A­2 was assisting A­1 in the income tax assessment case of Madhya Pardesh Vanijya Company and was even writing the ordersheets. As per testimony of PW1, A­2 Baljeet Singh was continuously in the touch in respect of demand of bribe and this fact is corroborated by the call detail record that PW1 and A­2 had telephonic conversation. In these circumstances, in ordinary course of events, it is hard to believe that PW1 (complainant) will go to the extent of lodging false case against A­2 on account of minor argument much prior to this case. As far as the other argument is concerned it has been established on record that the case of Madhya Pardesh Vanijaya Company was going to be barred on 31.12.2010. The question is, whether PW1 or his firm was going to be benefited by lodging a false complaint with CBI against A­1 and A­2. It has been established by way of evidence that after the raid in this case original files of Madhya Pardesh Vanijaya Company were seized but still, in advance assessment, case of the firm of PW1 was taken up by income tax department and penalties were imposed. In ordinary course of events, I do not find it CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 60/110 probable that PW1 would have lodge the false complaint against A­1 and A­2 just to delay the time bound income tax assessment case of his firm. Moreover, if there was any motive of PW1 to frame A­2 due to previous dispute, there was no reason for PW1 to implicate A­1 Arun Kumar Gurjar. If the motive of PW1 would have been only to derail the income tax assessment case of his firm, his purpose could have been served only by lodging complaint against A­2 Baljeet Singh and there was no reason of false implication of A­1. After careful consideration, in my opinion, the plea of false implication of A­1 and A­2 by PW1 (complainant) does not inspire any confidence and there is no convincing material on record to accept the plea of false implication.

Testimony of PW10­ Hukam Chand 17 PW10 Hukam Chand was involved in the trap team as independent witness who was working as UDC in House Tax Department, Central Zone, Delhi. PW10 supported the prosecution case on the broader story of pre trap and post trap proceedings but he did not support the prosecution on some of the material facts, therefore, he was cross examined by Ld. Sr.PP for CBI at length. Thereafter , he was cross examined by Ld. Defence counsels. In his cross examination by Ld. Sr.PP, he stated that he does not remember whether envelope containing Rs.2 lacs was recovered in his presence CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 61/110 by Sh. Jitender Bhardwaj from the inner side pocket of coat of A­2 Baljeet Singh. In his cross examination by Sh. Anil Kumar, advocate, he stated that he cannot tell in whose possession, GC notes (trap money) was, when he entered in room no.207. He further stated that he does not remember whether complainant Pawan Kumar Aggarwal was present in room no.207 when he entered in said room. PW10 also stated in h is examination in chief that during the trap proceedings in income tax office when they reached in the room, currency notes were already recovered by CBI officer. As per testimony of PW10, he was not present inside the room no.207 alongwith complainant at the time of alleged dealing of bribe between complainant and accused Baljeet Singh. On the question of recovery of bribe amount also he did not support the prosecution. His testimony does not appear be reliable on the question of recovery of trap money from the possession of accused Baljeet Singh. PW10 admitted his signatures on recovery memo and handing over memo and supported other facts.

Testimony of PW18 Jitender Bhardwaj 18 PW18 Jitender Bhardwaj was also included in trap team as independent witness who was posted as Zonal Inspector (ZI), Property Tax Department, Central Zone, MCD, New Delhi. PW18 also stated that he participated in pre trap and post trap proceedings. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 62/110 On some material points he did not support the prosecution and therefore, he was cross examined by ld. Sr.PP. He was also cross examined at length by Ld. Defence counsels. As per testimony of PW18, the name of complainant was not told to him; the complaint against income tax officers was not shown to him; and he did not remember whether any step was taken by TLO to verify the genuineness of the complaint. PW18 further stated that as per instructions of IO he took his position near stairs and TLO was waiting at a distance while sitting on the bench. PW18 also deposed that from his position he was able to see the TLO but not Sh. Pawan Kumar Aggarwal. He further stated that he could not see that after turning on his right side on second floor in which room Pawan Kumar Aggarwal had entered. PW18 deposed that TLO Ram Singh gave him a signal and he followed him with other members of trap team. CBI officers were pushing one person towards second floor from the side of first floor. PW18 supported the prosecution that on the instruction of TLO he searched the person caught by CBI officer and recovered an envelope containing same GC notes which were handed over to complainant in CBI office. PW18 deposed that TLO did not instruct him to act as a shadow witness and to remain close to complainant to over hear the conversation between complainant and accused. In this regard he was confronted with his statement u/s CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 63/110 161 Cr.PC Ex.PW18/A from portion A4 to A4.

18.1 Careful perusal of testimony of PW18 reflects that broadly he supported the prosecution case about his participation in pre trap and post trap proceedings but he failed to support prosecution on some material facts. During his cross examination by Ld. Sr.PP he was confronted with several portions of his statement u/s 161 Cr.PC. In substance, testimony of PW18 is not related to the demand or acceptance of bribe by accused Baljeet Singh as he did not act as shadow witness. He supported the prosecution on the aspect of recovery of trap money from the possession of one of the accused but failed identify both the accused in the court. If the testimony of PW18 is taken as whole, it is clear that his testimony suffers from some contradictions and improvements. His testimony cannot be altogether discarded but can be relied only on those material facts which are otherwise corroborated from other evidence.

19 Ld. Defence counsel further argued that PW10 & PW18 were the stock witnesses of CBI and therefore, their testimony should not be believed. In support of his contentions, Ld. Counsel relied on State of Gujrat through CBI Vs. Kumad Chandra Pranjivan Shah, 1995 Cr.L.J 3632 SC.

19.1 Merely, because witness participated in proceedings of CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 64/110 CBI once or twice does not make them stock witness or the interested witness. PW10 and PW18 turned hostile on some points and were cross examined by Ld. PP. It appears that if PW10 and PW18 would have been the stock witnesses of the prosecution, their testimony would have been more supportive towards prosecution case. The way PW10 and PW18 have deposed, I believe that they were not the stock witnesses or the interested witnesses. 19.2 Further, it was argued by ld. Defence counsels that PW10 and PW18 could not identify A­1 and A­2 during their testimony in the court. In my opinion, if PW10 and PW18 would have been the interested witnesses, in all probabilities they would have identify the accused persons in the court and it appears that they are the natural independent witnesses. As far as the identification of A­1 and A­2 is concerned, their identity is not disputed even by A­1 and A­2. With the passage of time uninterested independent witnesses may forget the faces of the persons whom they had seen once or twice for a very short duration of time. In my view this argument does not help the defence. 3 19.3 In my view, the testimony of PW10 and PW18 is required to be seen in the facts and circumstances of this case. PW10 and PW18 are government officers who were working in House Tax Department, MCD. There is nothing on record to CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 65/110 conclude that PW10 and PW18 had any enmity with A­1 and A­2 or they have any motive to falsely depose against A­1 and A­2. PW10 and PW18 both turned hostile on some facts and were cross examined by Ld. PP which itself reflect that they were neither the tutored witnesses nor the interested witnesses. Testimony of PW10 and PW18 appears to be natural and straight forward which supports the prosecution case on some material facts. The testimony of PW10 and PW18 also suffers from contradictions and improvements. Therefore, their testimony can not be either fully accepted or completely discarded. Testimony of these two witnesses may be relied on those aspects wherever it finds corroboration and inspire confidence.

Testimony of PW­20 (TLO) 20 Ld. Defence counsels argued that testimony of PW22 (TLO) is full of contradictions, improvements and deficiencies and therefore, cannot be believed due to following reasons:­

(i) PW22 being TLO was an interested witness who was interested in the success of trap by all means.

(ii) PW22 deposed that during telephonic conversation (in pre trap proceedings) it was revealed that A­2 demanded bribe of Rs.5 lacs but PW1 had shown his inability by saying that he could arrange only Rs.2 lacs for which A­2 asked to pay bribe on that day CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 66/110 itself at 3 PM in his office located at ITO i.e room of accused Arun Kumar Gurjar. Though the recorded conversation contained in CD Q­1 and its transcript Ex.PW23/C1 (D­25) is inadmissible in evidence, but this conversation also does not contain any such conversation to support the testimony of PW22 which reflects that PW22 has given false statement to secure successful prosecution of the case.

(iii) That it is revealed from the evidence that the proceedings/documents were fabricated by PW22 and CD Q­1 was sealed twice, once in verification proceedings/memo (D­4) and then at the time of HOM (D­5).

(iv) That the testimony of PW22 to the effect that envelope containing GC notes was kept in left side pocket of PW1 by PW10 is not supported by PW10, PW18 and PW1. Moreover, PW22 has not deposed about keeping said envelope in inner left pocket of coat of PW1 as per the case of CBI shown in documents.

(v) PW22 deposed that PW1 informed him that person wearing navy blue coat is Baljeet Singh, Income Tax Officer who has demanded Rs.2 lacs from him. However, this part of conversation does not get any support from independent witnesses. No such talk is reflected in CD Q­2 and its transcript Ex.PW23/C­2 (D­26).

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 67/110

(vi) PW22 deposed that PW1 informed him that the bribe amount demanded and accepted by A­2 Baljeet Singh was kept by him in upper pocket of coat and was seen by him which is contrary to the case of CBI because as per CBI case, it was left inner pocket of the coat.

(vii) PW22 improved his statement about disclosure statement of A­2 in respect of demand and acceptance of amount of Rs.2 lacs.

(viii) PW22 deposed that PW18 recovered GC notes from the pocket of A­2 Baljeet Singh but did not depose about recovery of GC notes from inner left side coat pocket. Further, PW22 has deposed about said recovery after A­1 was brought to room no.207 whereas as per case of prosecution the said recovery was already effected when A­1 was brought to room no.207.

(ix) PW22 in his examination in chief dated 21.08.2014 deposed that GC notes of Rs.2 lacs was sealed by him in envelope with the seal of CBI and said envelope was also signed by him but he did not depose that said GC notes were kept in another envelope and said envelope containing GC notes was seized which is the case of CBI as per documents. During his further examination in chief on 21.08.2014, the sealed envelope Ex.PW1/F­9 was opened and then he deposed that plain envelope taken out from Ex.PW1/F­9 is CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 68/110 perhaps the envelope in which GC notes were given to PW1 for trap proceedings. The said envelope does not bear any marking/sign of any person nor any investigation has been done concerning this plain envelope. The deposition of PW22 on this aspect is doubtful.

(x) PW22 deposed that seal was given by him to PW18 at about 11­11.30 PM after preparation of recovery memo in CBI office which has established that the seal remained with him till that time and there was scope for tempering/manipulation of CDs, hand washes, cloth washes etc.

(xi) PW22 gave false and evasive replies about his knowledge of CBI Crime Manual on the aspect of giving registration number on all complaints before taking up for verification which reflects that he intentionally did not follow CBI Crime Manual.

(xii) Testimony of PW22 about meeting of independent witnesses in CBI office on 28.12.2010 is not supported by PW10.

(xiii) Testimony of PW22 about meeting of PW1 in CBI office at about 10.30 AM on 29.12.2010 is false in view of call detail record of PW1 which is showing the location of PW1 at Barakhamba road till 11.20 AM.

(xiv) Testimony of PW22 is contradicted by PW1 in his cross examination about absence of Sh. Hanish Bansal on 28.12.2010 and CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 69/110 29.12.2010.

(xv) As per testimony of PW22, he instructed PW1 to bring trap money of Rs.2 lacs at about 10.30 Am on 29.12.2010 even before the verification proceedings and decision of trap. (xvi) As per case of CBI, introductory voices of witnesses were taken in DVR but same was not found in recorded conversation contained in CD Q­1 and CD Q­2.

(xvii) No reasonable explanation has been given for not preserving /sealing the DVR/memory chip of DVR which reflects the intention of manipulation.

(xviii) PW22 introduced false story in his testimony about the typing of HOM by copy/paste method only to explain the timings because the proceedings and the typing of 9 sheets could not be humanly possible within 45 minutes.

(xix) PW22 could not explain any reason for not making any departure entry. His reply about departure entry in the registers of CBI and in malkhana register in respect of issuance of seal is evasive which creates doubt in the prosecution case. As per testimony of PW1, in advance he was knowing that he was required to go to room no.207 for the trap which is contrary to the documents on record as none of the document prepared in pre trap proceedings mentioned about it.

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 70/110 (xx) Testimony of PW22 to the effect that PW1 directly went to room no.207 is contrary to the deposition of PW1. (xxi) The contradiction about the place of apprehension of A­2 from second floor or first floor in his cross examination is fatal to the prosecution case. The absence of stains of pinkish shade/washes on the inner lining of the coat and sweater of A­2 reflects that washes were not taken from the coat and sweater. (xxii) PW22 could not satisfactorily explain the site plan and locations of different members of trap team and failed to give any explanation about the difference of timings of arrest of A­1 and A­2. (xxiii) PW22 could not give any proper reason in his testimony to justify the shifting of place of proceedings from ITO to CBI office. It was only to facilitate fabrication of proceedings and documents. PW22 gave evasive answers about not observing the modified time/date in CD Q­1 and CD Q­2 which reflects the falsehood of trap proceedings and documents.

(xxiv) PW22 did not take any permission from the court for taking sample voice and sample handwritings of accused. (xxv) PW22 moved an application for police remand on 30.12.2010 Ex.PW22/DX­1A in the court wherein he mentioned that A­2 was caught inside the chamber of A­1 which is contrary to the case of CBI.

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 71/110 (xxvi) His explanation for not sending shadow witness with PW1 at the time of alleged transaction is neither logical nor reflected in any document.

20.1 Ld. Defence counsels submitted that testimony of PW22 (TLO) is full of material contradictions and improvement which reflects that being the TLO of the case he was bent upon the success of trap. Testimony of PW22 reflects that the testimony is neither credible nor reliable. Ld. PP on the other hand submitted that PW22 being the TLO of the case has supported the prosecution case on material points and contradictions suggested by ld. Defence counsels are hyper technical on minor aspects which does not go to the root of the matter.

20.2 It was argued by ld. Defence counsels that testimony of PW22 (TLO) is the testimony of interested witnesses as being TLO he was interested in the success of trap and keeping in view the material contradictions and improvements in his testimony, his testimony does not appears to be trust worthy. Ld. PP for CBI argued that testimony of a police officer is required to be appreciated on the same footings as the testimony of any other witness and his testimony cannot be discarded merely because he is a police officer.

20.3 In my opinion, both the contentions are relevant and CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 72/110 have no conflict. It has been consistently held that some time TLO is the interested witness and his testimony should be accepted with caution. On the other hand, it has also been held in various judgments that testimony of police official is required to be considered on the same parameters applicable on the testimony of any other witness. Therefore, testimony of PW22 (TLO) should be considered as the testimony of police officer who may be interested in success of trap. Testimony of PW22 requires appreciation with care and caution and as a rule of prudence, court should seek some corroboration before accepting the testimony of TLO. Number of contradictions have been counted by ld. Defence counsels in the testimony of TLO. Careful perusal of the entire testimony of PW1 with reference to the contradictions, improvements and deficiencies pointed out by ld. Defence counsels reflects that testimony of PW22 supports the prosecution case on material facts pertaining to pre trap and post trap proceedings, preparation of documents and various steps taken in investigation. PW22 has also faced cross examination on almost each and every minor aspect. In my opinion PW22 has withstood the cross examination and his creditability could not be impeached on core issues. Though being TLO he may be interested in the success of the trap, but there is nothing on record to conclude that he had any reason to favour the complainant or to falsely CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 73/110 implicate the accused person. There is no evidence to accept that PW22 has any previous friendship/relation with the complainant or enmity with any accused. Keeping in view the contradictions, improvements and deficiencies in the testimony of PW22, in my opinion, his testimony may be relied on those fact which otherwise find corroboration.

Proceedings reflected in handing over memo (in short "HOM")Ex.PW1/E (D­5) 21 In respect of handing over memo, Ld. Defence counsels submitted about following discrepancies/contradictions:­

(i) In his cross examination dated 18.09.2013, PW1 stated that he does not remember who dictated HOM EX.PW1/E; who typed the same; whether HOM was typed directly or on dictation; who tallied the denomination of currency notes and serial number mentioned in Ex.PW1/E.

(ii) PW1 further deposed that he does not remember whether two independent witnesses has signed the documents during the verification proceedings.

(iii) PW1 stated that independent witness Sh. Jitender Bhardwaj was asked to touch GC notes in pre trap proceedings during demonstration process but as per CBI case, it was PW Hukam Chand who was asked to touch the GC notes.

CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 74/110

(iv) PW10 Hukam Chand in his cross examination stated that he does not remember whether number of GC notes were noted in handwriting or by typing or in the same room or in other room. PW1 further stated that he does not know who typed HOM Ex.PW1/E and how much time was taken in its typing.

(v) PW1 in his cross examination stated that he does not remember the exact time but it was forenoon time when they started from CBI office for Drum Shaped building which is contrary to CBI case.

(vi) PW18 in his examination in chief stated that he did not remember whether complainant had his mobile phone in CBI office. He also deposed that he did not have any conversation with complainant (PW1) and he was not aware who produced GC notes of Rs.2 lacs.

(vii) PW18 also stated in his examination that he does not remember who typed verification memo Ex.PW1/D; or by whom same was typed. PW18 also stated that dictation of verification memo was not given in his presence.

(viii) PW18 in his examination in chief stated that he could not notice if the documents were prepared in CBI office and no such document was signed by him.

(ix) PW18 in his cross examination stated that he does not CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 75/110 remember whether envelope containing trap money of Rs.2 lacs was handed over to PW1 in CBI office or during transport or in drum shaped building.

(x) PW22 TLO in his cross examination stated that it would have taken 7­8 minutes to read over the HOM to the members of trap team and further 5­7 minutes in obtaining signatures of trap team members on HOM. PW1 also stated that he did not make any departure entry in record of CBI. PW22 deposed that he did not remember whether any entry was made by him in malkhana register of CBI in respect of issuance of brass seal , IO kit or other material including PP powder. Ld. Defence counsel stated that it was not humanly possible to complete the typing of HOM and other document within the limited time shown in Chargesheet. As per deposition of PW22 (TLO), number of GC notes were typed by Sh. Deepak Purohit, Inspector , CBI separately and were incorporated in HOM. However, no certificate u/s 65 B of Indian Evidence Act was issued by the Inspector Deepak Purohit. Ld. Defence counsel contended that keeping in view various contradictions and circumstances of the case, it is doubtful that handing over memo Ex.PW1/E (D­5) was prepared in pre trap proceedings as stated by the IO and is not a reliable document.

21.1 Ld. PP submitted that all the material PWs proved their CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 76/110 signature on HOM and in substance has supported the prosecution case. Therefore, the minor contradictions in the testimony of witnesses cannot be given any weightage.

21.2 After careful consideration, in my opinion, all the Pws have admitted their signatures on HOM and supported the prosecution about preparation of HOM. The document cannot be doubted and the contradictions are natural and insignificant. Certificate u/s 65 B of Evidence Act was not required as original document signed by witness is proved by Pws.

Attendance of PW1 (complainant) in CBI office on 28.12.2010 and 29.12.2010 and the timing of preparation of documents. 22 It was submitted by Ld. Counsels for both the accused that presence of complainant (PW1) in CBI office on 28.12.2010 and 29.12.2010 is doubtful. The contention of ld. Counsels is based on the contradictions pertaining to timing of arrival of complainant (PW1) as well as independent witnesses PW10 and PW18. It is submitted that as per PW1, he reached in CBI office on 28.12.2010 and after submission of his complaint, left the CBI office at about lunch time. As per testimony of PW22 (TLO), complainant was introduced to him by SP, CBI at about 5­5.30 PM on 28.12.2010. Similarly, the contradictions were pointed in respect of the timing of arrival of PW1, PW10 and PW18 in CBI office on 29.12.2010. Ld. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 77/110 Defence counsels submitted that as per prosecution case PW1 was using mobile phone no.9311067502 on 29.12.2010. The call detail record (CDR) of his mobile phone has been proved by PW17 Sanjeev Lakra, Nodal officer of service provider as Ex.PW17/F ( D­15). As per CDR, the location of mobile phone of complainant is shown in area of Hotel Intercontinental near Barakhamba Road at about 11.20 AM which is far away from the office of CBI at Lodhi Road. As per testimony of PW17 the range of particular mobile tower is about 800­900 meter. On the basis of contradictions and the CDR, ld. Defence counsels tried to convince that PW1 could not reach in CBI office on 29.12.2010 till 12 PM. If he had reached in CBI office at about 12 PM, lengthy documents i.e handing over memo etc running into several pages could not be typed within the span of about 1 or 2 hour and pre trap proceedings could not be completed.

Ld. PP controverted the submissions and argued that details of timing cannot be remembered by the witnesses and therefore, the contradictions are minor in nature. 22.1 After careful consideration of material on record, it appears that there are some contradictions in the testimony of PW1, PW10, PW18 and PW22 pertaining to timings of arrival in CBI office and preparation of documents. When there are four witnesses CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 78/110 pertaining to these type facts, they can not be expected to co­relate each other in respect of different timings of proceedings. In this case, pre trap proceedings had been conducted on 29.12.2010 between span of 2­4 hours. TLO (PW22) was assisted by team of CBI officers. When proceedings are conducted with a pace in short span of time, it is always difficult for the witnesses to remember timings of each and every steps. As far as the arguments pertaining to the timings and location of mobile phone of complainant shown in CDR is concerned, in the facts and circumstances of the case, that cannot be given undue importance. Even if, it is assumed that complainant was near Intercontinental Hotel, Bara Khamba Road at about 11.20 AM, he could reach in CBI office at Lodhi Road within 10­15 minutes as the distance between two places may be hardly 6­7 KM. It has come in evidence that documents were prepared with the help of laptop by the CBI team on the instructions of TLO. When 3­4 persons are simultaneously working on laptops/computers, by using computer technics like cut and paste they may prepare documents at a very high speed. In the given facts and circumstances, it will not be reasonable to draw a conclusion that proceedings /documents were not prepared in pre­ trap proceedings or the same were fabricated at the later stage. The fact of the matter is that PW1, PW10, PW18 and PW22 have supported the facts that CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 79/110 they were present in CBI office on 29.12.2010 and pre trap proceedings were conducted. In view of consistent testimony of these witnesses, the facts pertaining to presence and timing cannot be doubted. Similarly, testimony of PW1 and PW22 is consistent on the point that on 28.12.2010 the complainant/PW1 appeared in CBI office and submitted his complaint. Therefore, contradictions in respect of timing in the testimony of PW1 and PW22 are minor in nature.

Timing of leaving of CBI office for trap on 29.12.2010 23 Ld. Counsel for A­1 Arun Kumar Gurjar argued about his doubts in the prosecution case on the basis of contradictions in respect of timing of leaving the CBI office for trap on 29.12.2010. Ld. Defence counsel submitted that as per testimony of PW1, trap team left the CBI office at about 1 PM; PW10 says that it was fore noon on 29.12.2010; as per PW18 the trap team left about 12­12.15 PM; and PW22 deposed that it was about 2.40 PM. Contradictions pointed by ld. Defence counsel are required to be seen in the facts and circumstances of the case. In my opinion, these type of contradictions are natural in the testimony of witnesses. Witnesses cannot exactly remember details of the timings about proceedings conducted within the span of few hours. All the above mentioned witnesses have consistently deposed that after pre trap proceedings, CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 80/110 trap team left the CBI office somewhere between 12 PM to 2.50 PM.

Trap proceedings in room no.207, Drum Shaped Building 24 Ld. Defence counsels vehemently argued about contradictions in respect of trap proceedings allegedly conducted in room no.207 of Drum Shaped Building. On the basis of some contradictions they expressed their doubts in the genuineness of prosecution case.

24.1 It was submitted that as per prosecution case PW1 went inside the room no.207 to meet accused Baljeet Singh where accused Baljeet Singh allegedly demanded and accepted the bribe. After delivery of trap money to A­2 Baljeet Singh , as per instructions given by TLO (PW22) , PW1 came out of room no.207 and gave pre decided signal . In the meantime, accused Baljeet Singh also came out of room no.207 and proceed towards first floor through stairs. He was immediately caught by CBI team and was brought to room no.207.

24.2 Ld. Defence counsel submitted that there are material contradictions in the testimony of Pws in respect of facts i.e whether complainant entered in room no.207 alone or shadow witness accompanied him; whether complainant firstly went to room no.110 at first floor and then went to room no.207 at second floor; whether CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 81/110 A­2 Baljeet Singh was apprehended in room no.110; and whether after apprehending A­2 Baljeet Singh from room no.110/first floor he was brought in room no.207. Ld. Defence counsels argued that in fact accused Baljeet Singh was apprehended from no.110 at the first floor and then he was brought to room no.207. To support his contentions, ld. Defence counsel submitted that in CD Q­2, there are background voices of vehicles and birds which could not be possible if PW1 would have talked to A­2 Baljeet Singh only in room no.

207. 24.3 As per evidence of witnesses, there was room no.110 at first floor of Drum Shaped building meant for staff of income tax department. Room no.207 was the office of A­1 Arun Kumar Gurjar at second floor. There were stair­case between first floor and second floor. The office of PW Arju Gidodia was located at first floor near room no.110 and the stair case. PW1 and PW22 has consistently deposed that after transaction of trap money, complainant (PW1) came outside room no.207 to give pre decided signal to TLO and in the meantime A­2 Baljeet Singh started moving towards first floor through stairs where he was apprehended by PW22 (TLO) with the help of other members of trap team. Testimony of witnesses is required to be seen in these circumstances. At one side there is consistent evidence of PW1 and PW22 supported by other witnesses CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 82/110 in respect of proceedings in room no.207. On the other hand, there is testimony of PW Arju Gidodia and other income tax officials that there was huge noises near the stairs and CBI officers were pushing one person towards second floor. In my opinion, in view of consistent testimony of PW1, PW22 and other witnesses, it cannot be concluded that accused Baljeet Singh was firstly arrested from room no.110/first floor and thereafter, brought to room no.207 . The other aspect of matter is that PW1, PW22 andPW18 have consistently stated that when complainant went to meet accused , other trap team members took their positions at the second floor or in the stairs between first and second floor which corroborates the prosecution version. In my opinion, some contradictions have surfaced in the testimony of witnesses only because A­2 Baljeet Singh was apprehended by trap team somewhere near the stairs between first and second floor. Thereafter , there was some crowd and noises and he was brought to room no.207. In view of consistent testimony of PW1 and PW22, I do not find any substance in the contention of Ld. Defence counsels in respect of the arrest of accused Baljeet Singh from room no.110 or from the first floor. 24.4 The another contention of ld. Defence counsels was in respect of background voices of vehicles and crowd in CD Q­2. In my opinion, if the background voices were possible at first floor of CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 83/110 Drum Shaped building, the same could be possible in room no.207 at second floor also. There is no clinching evidence in this regard but because of any window or opening in room no.207, the background voices could have been recorded in DVR and importance cannot be given to this fact to doubt the genuineness of the prosecution case. As far as contradictions in respect of shadow witness is concerned, it is consistent case of CBI that PW1 entered in room no.207 alone and shadow witness was not present during the conversation between complainant with A­2 Baljeet Singh in room no.207. In my opinion, the contradictions are minor in nature and prosecution case cannot be doubted on this count. 24.5 Another contention of ld. Counsel for A­2 Baljeet Singh was that in pre trap proceedings, PW18 Jitender Bhardwaj was instructed by TLO (PW22) to act as shadow witness and to remain close to (PW1) complainant to over hear the conversation and see the transaction of bribe amount. As per CBI case, PW18 did not accompany the complainant as shadow witness and remain outside room no.207 alongwith other members of trap team. Ld. Defence counsel submitted that no explanation has been given in any document pertaining to absence of shadow witness at the time of alleged transaction of bribe.

24.6 During testimony of (PW22) TLO a court question was CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 84/110 put and PW22 clarified that PW1 told him that he had always met accused persons alone and by presence of shadow witness, accused person might be suspicious. In the given facts and circumstances of the case, in my view,it appears to be reasonable explanation from (PW22) TLO in respect of absence of shadow witness from the proceedings. In these type of cases, TLO is always required to maintain secrecy to avoid any suspicion in the mind of accused to ensure detection the crime and its reliable proof.

Contradictions in respect of signing of documents by independent witnesses and fabrication of site plan. 25 It was submitted by Ld. Defence counsels that there are material contradictions in the testimony of two independent witnesses in respect of places and timings of preparation and signing the document in trap proceedings and the site plan has been fabricated. After going through the testimony of these witnesses, in my opinion, though there are some minor contradictions in the testimony of witnesses but all the witnesses have consistently admitted that material documents were prepared in trap proceedings and same were signed by them. In my opinion, due to lapse of time, any witness may forget the minor details. Sometime, witnesses are not able to depose correctly in respect of minor details of the case particularly relating to timing, dates, years, facts and figures. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 85/110 Witnesses have also consistently proved that site plan was prepared which is correct according to the site of the crime.

Material contradictions regarding recovery of bribe amount from the possession of accused no.2 Baljeet Singh 26 Ld. Defence counsels pointed following contradictions/improvements/deficiencies on the aspect of recovery of bribe amount allegedly recovered from the possession of A­2 Baljeet Singh:­

i) PW1 (complainant) did not remember which independent witness took the search of A­2 after his apprehension. As per his testimony, recovery was effected outside room no.207 whereas in recovery memo, it is reflected that recovery was effected in room no.207. PW1 in his cross examination stated that he did not remember whether A­2 Baljeet Singh was apprehended by CBI officers inside room no.207 or outside the said room or at any other place.

ii) PW10 deposed in examination in chief that when they reached in room, currency notes were already recovered by CBI officers. He further stated that he was not able to remember about recovery of trap money by Jitender Bhardwaj. PW10 did not support prosecution case in respect of these facts even in his cross examination by Ld. Sr.PP. Further, PW10 could not tell in whose CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 86/110 possession GC notes were when he entered in room no.207. He could not remember whether complainant was present in room no. 207 when he entered in room no.207. AS per PW10 he remained in room no.207 for about 15­20 minutes.

Iii) PW18 in his examination in chief deposed that GC notes were not compared to check whether the same notes were given to complainant. He did not support the prosecution case even in cross examination by Ld. PP.

iv) PW22 (TLO) in his examination in chief stated that PW1 informed him that trap money was kept by A­2 in upper pocket of his coat whereas the case of CBI is that it was recovered from the inner pocket of the coat of A­2. Further, PW22 stated that recovery was made by PW Jitender Bhardwaj from the pocket of A­2 but he does not mention whether it was recovered from inner pocket of his coat. As per PW22, the recovery was effected after Arun Kumar Gurjar (A­1) was brought by him to room no.207 which is contrary to the recovery memo.

26.1 Ld. Defence counsels also disputed the correctness of recovery of bribe amount on the basis of contradictions and improvements in the testimony of material witnesses pertaining to the hands and cloth washes and the seal used in sealing the bottles pertaining to hand washes and cloth washes. It was submitted by ld. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 87/110 Defence counsel that in the case of Meena (SMT) wife of Balwant Hemka Vs. State of Maharastra (2000) 5 SC 21, it was held that, "mere recovery of currency notes and positive result of phenolphthalein is not enough to establish the guilt of the accused on the basis of perfunctory nature of materials and privaricating type of evidence. The testimony of trap witnesses needs corroboration".

In case of Akshay Kumar Dubey Vs. State through CBI (in criminal appeal no.124/2008) decided by Hon'ble High Court of Delhi on 04.4.2014 it was held that "the mere fact that the shirt pocket wash turned pink may itself not be sufficient to held that the appellant consciously accepted the bribe and kept it in his left side pocket".

Ld. Defence counsel also relied on the case of Anand Parkash Vs. State of Haryana, Crl. Appeal no.780­SB/1996 decided by Hon'ble High Court of Punjab and Haryana on 10.01.2008 wherein it was held that "positive result of phenolphthalein test is not enough to establish guilt of appellant. Giver of bribe is normally treated as accomplice. Court may look for independent corroboration before recording conviction". CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 88/110

Ld. Defence counsel cited the case of C. Kumaran Vs. State of Kerla decided by Hon'ble Supreme Court of India on 19.1.2015 in criminal appeal no.192/2015. In this case it was ruled that " phenolphthalein test cannot be said to be conclusive proof against the appellant because the colour of solution with regard to sample were pink colour. Moreover, the sample of the shirt wash by appellant which was produced before trial court did not show any colour change of the shirt pocket section where the bribe money was allegedly kept by him after the complainant had allegedly given him bribe money".

26.2 Ld. Defence counsels submitted that testimony of PW1, PW10, PW18 and PW22 is contradictory in respect of alleged recovery and place of recovery. In view of material contradictions, the testimony of these witnesses on the aspect of recovery cannot be accepted. On the contrary, Ld. PP for CBI contended that PW1, PW18 and PW22 has supported the prosecution case on the facts of recovery which also finds support from the recovery memo and therefore, their testimony cannot be discarded on this aspect due to minor contradictions.

26.3 On the question of recovery, ld. Defence counsel argued that mere recovery of tainted money divert from circumstances CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 89/110 under which it is paid, it is not sufficient to convict accused when the substantive evidence in the case is not reliable. In the absence of any evidence to prove payment of bribe and to show that accused voluntarily accepted the money knowingly, conviction cannot be sustained. Ld. Defence counsel argued that payment of illegal gratification is sine qua non to constitute the offence u/s 7 of the Act and mere possession of recovery of currency notes cannot constitute the offence u/s 7 of the P.C Act unless it is proved beyond reasonable doubt that accused voluntarily accepted the money. It is only the proof of acceptance of illegal gratification beyond reasonable doubt that the presumption can be drawn u/s 20 of P.C Act that such gratification was received for any favour in official act. Proof of acceptance of illegal gratification can follow only if the payment of bribe is proved. In support of his contention, Ld. Counsel cited State of Kerla and Another Vs. C.B Rao (2010) 6 SC cases 450 and B. Jaya Raj Vs. State of AP (2014) Crl.L.J 2433 SC. 26.4 Ld. Defence counsel further eloberated his arguments that complainant is an interested and partisan witness concerned with the success of trap and his evidence must be tested in the same way as that of any other interested witness and should not be accepted without corroboration on material facts of payment, acceptance and recovery of bribe. In respect of his contentions, ld. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 90/110 Counsels cited State of Punjab Vs. Madan Mohan Lal Verma (Crl. Appeal no.2052/2012) decided by Hon'ble Supreme court on 12.08.2013.

26.5 Ld. Defence counsel further contended that neither "payment" nor "acceptance" alone is sufficient to establish the offence and in support of his arguments, Ld. Counsel relied on Om Parkash Vs. NCT of Delhi, Crl. Appeal no.765/01 decided by Hon'ble High Court of Delhi on 16.01.2013. Ld. Counsel also submitted that in the case of Parmanand Vs. CBI, Crl appeal no. 1332/04 decided by the High court of Delhi on 03.7.2012, it was held by Hon'ble High Court that " when there are contradictions in the testimony of complainant and demand of bribe was not proved at the time of raid beyond reasonable doubt, the presumption u/s 20 of P.C Act cannot be raised. It was also held that recovery memo is not substantive piece of evidence and statement made by accused to police is not admissible in evidence except to the extent it leads to discovery of new facts".

26.6 Ld. Defence counsel referred the case of Mehar Chand Vs. State of Himachal Pardesh, 2011 Cr.L.J 499 ( Himachal High Court). It was held that " the witness stated that the sample of seal CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 91/110 used was sent to the chemical analyst alongwith sample, although there is reference in the report that the impression of the seal tallied with the sample of seal used in the sealed material, but in the absence of aforesaid evidence it cannot be said that it is the same seal which was used on the spot. Therefore, in the absence of link evidence, it cannot be said that hand wash cannot be tempered with or it was same hand wash of appellant which was sealed on the spot". It was held that, "in totality of the circumstances, there is contradictory evidence with respect to currency notes, hence, legal presumption u/s 20 of the Act cannot be drawn".

26.7 Ld. Defence counsel submitted that in the present case as per testimony of witnesses the seal was handed over to one of the independent witness by TLO PW22 in CBI office at about 11­11.30 PM. It means seal remained with the TLO and therefore possibility of tempering in hand washes cannot be ruled out. It was also argued that seal handed over to independent witnesses was never produced before the court which also creates doubt in the genuineness of the case and alleged recovery of bribe from the possession of A­2.

Ld. PP argued that testimony of complainant (PW1), TLO (PW22) is consistent that GC notes i.e trap money was CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 92/110 recovered from the pocket of the coat of accused Baljeet Singh and this fact is also supported by PW18 Jitender Bhardwaj (independent witness). The testimony of this witness is corroborated PW10 Sh. Hukam Chand (independent witness) to the limited extent that recovery was made in room no.207 and the GC notes were counted in his presence. Ld. PP submitted that in view of consistent testimony of witnesses, the contradictions suggested by Ld. Defence counsel cannot be given any weightage.

26.8 It has been consistently deposed by PW1, PW10, PW18 and PW22 that in pre trap proceedings, GC notes of Rs.2 Lacs were produced by complainant and same were used as trap money. PW1 and PW22 has supported the prosecution case that number of GC notes of trap money were noted and recorded in handing over memo; GC notes were smeared with phenolphthalein powder; and the envelope was handed over to complainant to deliver the same to the accused which also find corroboration to some extent from testimony of PW10 and PW18. Witnesses consistently deposed that trap money recovered from the possession of A­2 was tallied with distinctive number of GC notes already recorded in handing over memo and it was same GC notes which were used for trap. Though there are some contradictions, but in substance, witnesses have clearly deposed that hand washes and cloth washes of accused CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 93/110 Baljeet Singh were taken at the spot and bottles of washes were seized. As per testimony of PW22, the bottles were later on sent to CFSL in sealed condition. The expert from CFSL gave positive report in respect of presence of PP powder in the washes. In my opinion, without any doubt, it has been proved that GC notes used in trap money were recovered from the pocket of coat of A­2 Baljeet Singh and PP powder was found in his hand washes and cloth washes which has been confirmed by the report of CFSL expert. 26.9 There is no dispute to the legal preposition that mere recovery of bribe amount from the possession of accused is not sufficient to raise presumption against him u/s 20 of PC Act unless conscious acceptance of bribe amount is proved by the prosecution. PW1 has clearly stated that in room no.207, accused accepted the bribe amount and put the same in the pocket of his coat. There was no other witness present with complainant at the stage of delivery of bribe amount to A­2 Baljeet Singh. However, the fact that immediately after the delivery of bribe amount, accused Baljeet Singh was apprehended and same GC notes with same distinctive number recorded in handing over memo were recovered from his possession is enough to corroborate testimony of PW1 (complainant) about the conscious acceptance of bribe amount by A­2. Therefore, it was for the A­2 Baljeet Singh to rebut the CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 94/110 presumption u/s 20 of P.C Act. A­2 Baljeet Singh denied the acceptance and recovery of bribe amount and failed to give any convincing explanation. His mere denial of acceptance and recovery of bribe amount cannot be accepted in view of the above mentioned observations.

26.10 It was submitted by Ld. Defence counsel that mere presence of PP powder on the cloths of the accused is not enough to establish the guilt of accused. It was also argued that no stain mark was observed on the coat produced before the court. If washes would have been taken from the portion of inner pocket of A­2 Baljeet Singh, in all probabilities there should have been stain marks in the inner lining of the coat.

Coat of accused Baljeet Singh produced before the court was of dark blue colour having lining of similar colour with synthetic like fabric. The incident took place in year 2010 and coat was produced in the court after 3­4 years. In these circumstances, there may not be stain marks available in the inner lining of the coat or the same may not be visible at all. Therefore, case of prosecution on the question of recovery cannot be doubted.

26.11 It was also argued by ld. Defence counsels that as per the evidence on record after using the seal in Drum Shaped Building, the same was handed over by TLO (PW22) to one of the CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 95/110 independent witness at about 11­11.30 PM. Ld. Defence counsel tried to convince that seal kept by IO till 11­11.30 PM on the day of trap could be mis­used to temper with hand and cloth washes.

Even if the contention is taken as correct that the seal remained with PW22 till 11­11.30 PM on the day of trap , the theory of tempering of hand wash/cloth wash cannot be accepted unless there is some positive evidence on record to create doubt. The witnesses consistently stated that hand wash and cloth wash were sealed at the spot by TLO. None of the witness stated that till 11­11.30 PM the bottles of the washes were reopened or were tempered with in any manner. In a criminal trial, doubt in testimony of witnesses cannot be assumed but it has to be supported by the facts and circumstances of the case. In my opinion, there is nothing on record to accept tempering in bottles of hand wash/cloth wash. 25.12 In totality of the circumstances, chain of events and testimony of PW1, PW10, PW18 and PW22, in my view prosecution has been able to establish the "conscious acceptance" of bribe by A­2 Baljeet Singh from complainant PW1 and its recovery from his possession i.e inner pocket of his coat. It is not the case of A­2 Baljeet Singh that trap money was forcibly planted in his pocket or was received by him under some mis conception. Therefore, his denial about the acceptance and recovery of bribe amount is neither CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 96/110 convincing nor acceptable.

Alleged disclosure statement by A­2 Baljeet Singh and the admissibility of such statement.

27 As per prosecution case when A­2 Baljeet Singh was apprehended, he disclosed that he had accepted the bribe amount of Rs.2 lacs from complainant on the instructions of A­1 Arun Kumar Gurjar. Ld. PP for CBI submitted that disclosure statement made by A­2 and silence of A­1 about the disclosure of A­2 proves circumstances about the complicity of A­1 and A­2. 27.1 Ld. Defence counsels contested the submissions of Ld. PP on various grounds. Firstly, it was argued that no such disclosure statement of A­2 is placed on record and the verbal disclosure of A­2 has not been proved by the prosecution. Further, it was argued that admittedly A­2 was already apprehended by the CBI (police) and therefore, statement made by him before police was hit by section 25 of the Evidence Act. His disclosure statement does not lead to the recovery of any new fact, therefore, it was also hit by section 27 of Evidence Act. It was also contended by Ld. Defence counsel for A­1 that confessional statement ,if any by A­2 cannot be read against A­1 and at the maximum it can be used only as a reassurance if case of prosecution is otherwise proved. It was also argued that silence of A­1 Arun Kumar Gurjar can not be used CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 97/110 against him as every suspect/accused has a right to remain silent and cannot be compelled to give incriminating evidence against himself. 27.2 In case of Haricharan Kurmi Vs. State of Bihar (AIR) 1964 SC 1184 and in Param Hans Yadav Vs. State of Bihar (1987) 2 SCC 197, it was held by Hon'ble Supreme Court that "confession by co­accused carried lesser probative value and cannot be considered substantive evidence". Similarly, in the case of Emperor Vs. Hari Singh (1910) 12 Bomb L.R 899 it was held by the Hon'ble Court that statement made in custody by accused after his arrest/apprehension is hit by section 26 of the Evidence Act. Section 25 prohibits use of confession against accused. In case of Sat Paul Vs. Delhi Administration (1976) 1 SCC 727 it was held by the Hon'ble Supreme Court that " suffice it to say that even at the assumption that it was admissible as conduct and not as a "statement" u/s 8 of Evidence Act, its value in the circumstances of this case would be almost nil". In case of Krishna Pillai Vs. State (1960) MWM Cr. no.67; Vikram Singh Vs. State of Punjab (2010) 3 SCC56; and Dharamdev Yadav Vs. State of UP (2014) 5 SCC 509 it has been held by the Hon'ble courts that, "formal arrest need not precede police custody in every case. The word "custody" in 27 of the Evidence Act, does not mean "formal custody", but CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 98/110 included any kind of surveillance, restrictions or restrain by the police. Even if , the accused was not formally arrested at the time when accused gave information, the accused was , for all practical purposes in custody of police".

27.3 After careful consideration, in my opinion, there are material contradictions in the testimony of witnesses in respect of alleged disclosure/confessional statement made by A­2 and therefore, it is difficult to accept the case of the prosecution on this aspect. Furthermore, even if it is assumed that A­2 made any disclosure /confessional statement, admittedly he was already apprehended by CBI and therefore, he was in the custody of police. Being the statement before the police, it was hit by section 25 of the Evidence Act. As the disclosure does not lead to the recovery of new fact, same is hit by section 27 of the Act. Therefore, in my opinion, the alleged disclosure statement of A­2 is neither proved nor can be used for any purpose.

28 Ld. Defence counsels tried to discredit the prosecution case and argued that as per testimony of PW22 (TLO) provisions of chapter 8.1 of CBI manual provides that "every complaint from whatever source received will be entered in the complaint sub­ module of crime module or in the temporary complaint register maintained in the branch office. Each complaint received whether CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 99/110 directly or from any other branch or head office will be assigned a temporary number". As per PW22 the complaint in this case was not registered as per CBI manual due to secrecy of the trap. Ld. Defence counsels also submitted that as per Chapter 8.1 of CBI manual no verification of any complaint shall be initiated except it has been assigned any regular number with the approval of competent authority. Further, PW22 stated that he did not make any verification in respect of A­1 Arun Kumar Gurjar in presence of two independent witnesses.

28.1 Ld. PP submitted that though the provisions of CBI manual are required to be followed but any deficiency in this regard does not discredit the prosecution case. The prosecution case cannot be disbelieved due to some mistake of the TLO in following CBI manual.

28.2 After careful consideration, in my opinion, the provisions of CBI Manual are rules of procedure and any mistake on the part of TLO in this regard cannot be used for the benefit of accused unless it is proved that some prejudice has been caused to the accused. In this case, keeping in view the nature of allegations, the secrecy was required to be maintained. Nothing has been established on record that there was any manipulation by TLO by not following the relevant provisions of CBI manual. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 100/110 28.3 The verification proceedings are not detailed inquiry but it is only discreet inquiry for the satisfaction of investigating agency so that public servant may not be unnecessarily harassed. The nature of verification proceedings depends on the facts and circumstances of a particular case. In this case the allegations were that A­2 Baljeet Singh was demanding the bribe on behalf of himself and A­1 Arun Kumar Gurjar. In my opinion, detailed inquiry about A­1 from his office or otherwise could have leak the information about the proposed trap and therefore, TLO was justified in not conducting verification proceedings against A­1 Arun Kumar Gurjar. In my view, accused cannot claim any benefit on this count.

29 Ld. Defence counsel further argued that Sh. Hanish Bansal who was associated with the complainant during the course of investigation and typed the original complaint was a material witness but he was not examined by the prosecution. Similarly, Sh. Firoz Khan, Commissioner of Income Tax from whose office A­1 Arun Kumar Gurjar was brought by TLO was not examined by the prosecution. As per testimony of PW22 (TLO) Inspector Deepak Purohit prepared site plan and noted down the number of GC notes etc but he was also not examined by prosecution. PW23 (IO) stated that he did not record the statement of any official of Malkhana of CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 101/110 CBI­AC­I regarding deposit of case property in malkhana or CFSL. Evidence of these witnesses were necessary to eliminate the possibility of tempering in the proceedings.

29.1 It is correct that material witnesses of the case should be examined and an adverse inference may be taken if the best evidence is not produced before the court. In this case, nothing has been brought on record by the defence to establish that due to non examination of above mentioned witnesses any prejudice has been caused to the accused. Even no effort was made by defence to summon this witness in defence.

30 Ld. Defence counsels further argued that there were justified reasons that A­2 Baljeet Singh was assisting A­1 in his official work even after his transfer. Ld. Defence counsels submitted that as per letter dated 22.10.2010 (part of D­27) written by A­1 to the Commissioner, Income Tax, a request was made for staying operation of order of transfer of A­2 till 31.3.2011 due to the reasons that A­2 was looking after the time bound cases. Ld. Defence counsels also referred the testimony of PW16 Ms. Arju Gidodia to show that even after transfer, the assistance of officials, were being taken by the Senior officers as and when required in important or time bound cases. On similar lines, ld. Defence counsel referred testimony of DW1 Sh. Shiv Swroop Singh, Joint Commissioner of CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 102/110 Income tax. Ld. Defence counsel pointed that PW23 (IO) stated that he did not notice any illegality in the ordersheets recorded by A­2 pertaining to the case M/S Madhya Pardesh Vanijya Company. 30.1 As per Ld.PP, A­2 Baljeet Singh was working in the office of A­1 Arun Kumar Gurjar even after his transfer without any formal order only because there was criminal conspiracy between them. Defence tried to prove that there was nothing unusual in the assistance of A­2 even after his transfer. There are contradictory testimony of witnesses on the aspect whether there was any practice in income tax department to call the officials even after their transfer for assistance of Senior officer. The fact of the matter is that it is proved by prosecution and even admitted by the accused persons that A­1 Arun Kumar Gurjar was posted as Joint Commissioner of Income Tax and accused Baljeet Singh, Inspector in income tax was assisting A­1 even after his transfer and was dealing with the case of Madhya Pardesh Vanijya Company. It is proved that A­2 Baljeet Singh have written some ordersheets in the case file of Madhya Pardesh Vanijya Company. In my opinion, material question is whether A­1 and A­2 entered into a criminal conspiracy to demand and accept the bribe which has to be seen only in totality of evidence on record irrespective of fact whether there was any justification for A­2 to assist A­1 after his transfer. CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 103/110 31 Ld. Defence counsels further argued that essential ingredient of criminal conspiracy u/s 120 B IPC and offence u/s 7 of P.C Act are not established. The testimony of PW1, PW10, PW18 and PW22 are not trust worthy and cannot be believed. There are material contradictions/improvements in the testimony of above mentioned witnesses which goes to the root of the matter and there was motive of PW1 (complainant) for false implication of accused persons. Therefore, Ld. Defence counsel argued that prosecution has failed to prove its case beyond the shadow of reasonable doubt. 32 As far as the legal prepositions argued by Ld.PP and Ld. Defence Counsels in view of the law laid down by Hon'ble Superior courts in different cases is concerned, there is no dispute. However, each case has its own facts and circumstances and the legal preposition held in the facts and circumstances of particular cases may be considered accordingly.

33 In the case of Inder Singh Vs. State of Delhi AIR, 1978 (SC) 1091 wherein it was held that " Creditability of testimony, oral and circumstantial depends considerably on a judicial evaluation of the totality , not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 104/110 case is proved too perfectly then argued that it is artificial; if case has some flaws; inevitable because humans are prone to error, it is argued that it is too imperfect. One wonder whether a meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty man must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers from some infirmity when projected through some human processes. Judicial quest for perfect proof often accounts for police presentation of fool­proof concoction. Why fake up? No, we must be realistic".

34 In view of above discussion, testimony of witnesses, documents proved on record and the circumstances of the case it may be concluded that:­

i) A­1 was posted as Joint Commissioner of Income Tax and A­2 as Inspector, Income Tax and this fact has not been disputed even by accused persons.

ii) A­2 was assisting A­1 in the case of firm of the complainant even after the transfer.

iii) Income tax assessment case of Madhya Pardesh Vanijaya Company, the firm of the complainant was pending before CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 105/110 A­1 which was time bound case and the limitation was going to be expired on 31.12.2015.

iv) Sanction for prosecution was duly granted by competent authorities for prosecution of A­1 and A­2.

v) Complaint was lodged by complainant in CBI and the FIR was registered.

vi) In pre trap proceedings PW1, PW10, PW18 and PW22 participated with some other officials of CBI and the proceedings of pre trap has been supported by all the witnesses. In pre trap proceedings, complainant talked to A­2 over the phone and A­2 called the complainant to income tax office. This fact is supported by PW1, PW18 and PW22 and is corroborated by call detail record (CDR) and the oral testimony of these witnesses.

vii)The recorded conversation contained in CD Q­1 and CD Q­2 pertaining to pre trap and post trap proceedings; and the disclosure made by A­2 in the custody of CBI are not required to be taken into consideration being inadmissible evidence.

viii)PW1 Complainant Sh. Pawan Kumar Aggarwal has supported the allegations of demand of bribe by A­1 and A­2 in income tax office; the acceptance of bribe by A­2; and CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 106/110 recovery of the same from possession of A­2 from room no.

207. On the question of demand by A­1 and A­2 and the acceptance of bribe by A­2, PW1 is the only witness but he has consistently supported these allegations during his testimony and his creditability could not be impeached on these aspects. Testimony of PW1 inspires confidence and finds corroboration from the circumstantial evidence followed by recovery of bribe amount from A­2. The fact of recovery of bribe amount from possession of A­2 is fully supported by PW1, PW18 and PW22. PW10 has supported only to the extent that some recoveries were made in post trap proceedings.

ix) There is nothing on record to accept that PW1 and PW22 had any motive to falsely implicate A­1 and A­2. PW10 and PW18 are the independent witnesses and there is no evidence to accept that they had any reason to falsely depose against A­1 and A­2. In totality of circumstances, the testimony of PW1, PW10, PW18 and PW22 has supported by each other on the material aspects of the case which find corroboration from the documents i.e recovery memo and handing over memo etc.

x) It has been supported by PW1, PW10, PW18 and PW22 that CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 107/110 time and place of meeting in income tax office was fixed during telephonic conversation between PW1 and A­2 in pre trap proceedings. In ordinary course of events, A­2 has no reason to call PW1 to meet him in income tax office and no explanation has been given by A­2 in this regard.

xi) A­2 met PW1 in room no.207 of income tax office which was office room of A­1. In ordinary course of events there was no reason for A­2 to meet a litigant in the office of his senior officer (A­1) when A­1 himself was present in the same complex. It corroborates the story of prosecution.

xii)A­1 being the Joint Commissioner of Income Tax was the Assessing Officer of Income tax case of firm of PW1 and A­2 was assisting him. In the facts and circumstances of the case, A­2 could not demand bribe from PW1 without instructions of A­1. A­2 himself was in no position to give any favour to firm of PW1 without aid and help of A­1 which has clearly established the criminal conspiracy between A­1 and A­2 for demanding and accepting the bribe in lieu of favours in income tax assessment case of firm of PW1.

xiii)The essential ingredient of offence i.e demand of bribe by A­1 and A­2; acceptance of bribe by A­2 from PW1 and recovery of bribe amount from the possession of A­2 is CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 108/110 proved by prosecution beyond any doubt. The entire chain of facts and circumstances proves that demand and acceptance of bribe was by A­1 and A­2 in conspiracy with each other. A­2 has failed to give any convincing explanation about possession of bribe amount and therefore, he has failed to rebut presumption under section 20 of P.C Act.

xiv)Entire chain of circumstances and the facts established on record proved the guilt of A­1 and A­2 without any doubt. There is no reasonable hypothesis established on record to suggest the innocence of A­1 and A­2. In totality the testimony of PW1, PW10, PW18 and PW22 and other Pws inspires confidence about truthfulness of material allegations.

xv)Defence plea of A­1 and A­2 about their false implication is not proved on record even in preponderance of probability and does not inspire any confidence. Therefore, the defence plea of false implication cannot be accepted.

35 In view of the above findings, I am of the considered view that prosecution has successfully established its case and all essential ingredient of offence u/s 120 B IPC r.w. Section 7 of P. C Act and section 7 of P. C Act against A­1 Arun Kumar Gurjar and A­2 Baljeet Singh beyond any reasonable doubt. Therefore, A­1 Arun Kumar Gurjar and A­2 Baljeet Singh are convicted for the CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 109/110 offence u/s 120 B IPC r.w. Section 7 of P. C Act and section 7 of P.C Act. Let they be heard on quantum of sentence separately. Announced in the open court on 20.05.2015.

(SANJEEV JAIN) Special Judge, CBI­03 (PC Act), South, Saket New Delhi/20.05.2015 CC No. 50/12 RC No. CBI/AC­I/RC­A0003/10 110/110