Delhi District Court
8 The Sanction For Prosecution Was ... vs Cbi on 17 December, 2013
IN THE COURT OF SHRI SANJEEV JAIN: SPECIAL JUDGE (PC ACT),
CBI3, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CC No. 49/12
RC No. DAI/2007/A/0005/CBI/ACB/New Delhi
Under Section 120B IPC r/w Sec. 7 and 13 (2) r/w 13 (1)(d) of Prevention of
Corruption Act, 1988
(Case UID No.02406R1110912008)
Central Bureau of Investigation
Versus
1. Samir Kumar Ghosh
S/o Late Shri B.K. Ghosh
R/o B605, Royal Towers,
Sector61, Noida, U.P.
2. Rajeev Kant Sharan
S/o Shri B.B. Sharan,
R/o 4B 602, Gurjinder Vihar,
AWHO Colony, Greater Noida,
Uttar Pradesh201308.
Date of FIR : 23.01.2007
Date of filing of Chargesheet : 29.03.2008
Arguments concluded on : 06.12.2013
Date of Judgment : 17.12.2013
DAI/2007/A/0005/CBI/ACB/New Delhi 1
Appearance:
For prosecution : Shri Raj Mohan Chand, Ld. PP for CBI.
For accused persons : Sh. Yogesh Verma, Advocate for accused Samir Kumar Ghosh.
Ms. Rebecca John, Sr. Advocate with Shri Yunus Malik,
Advocate for accused Rajeev Kant Sharan.
J U D G M E N T
Brief facts of the prosecution case are that:
1. Charge sheet was filed by Central Bureau of Investigation (in short "CBI") against accused Samir Kumar Ghosh (hereinafter also referred as "A1"), Senior Manager, MSTC Limited and accused Rajeev Kant Sharan (hereinafter also referred as "A2"), Coordinator of MSTC Limited for Defence. The present case was registered on 23/01/2007 on the basis of a written complaint of one Shri Piyush Luharuwalla (hereinafter referred as "complainant" or PW9) son of Shri Ajay Kumar Luharuwalla proprietor of M/s Karishma Enterprises (hereinafter referred as "firm") which was dealing in metal scrap. The firm of the complainant had participated in eauction of MSTC Ltd. for purchase of metal scrap of 5 lots on 17/01/2007 and out of said 5 lots, two lots were shown as sold to his firm and rest three lots were shown as STA (subject to approval) on 23/01/2007. 1.1 A1 called on mobile phone no.9868829057 from his mobile no. 9868225133 to Shri A.K. Ojha (staff of the complainant) and desired that the DAI/2007/A/0005/CBI/ACB/New Delhi 2 owner of firm should contact him on his mobile number 9868225133. Shri A.K. Ojha informed the complainant about the same. Thereafter, complainant contacted A1 on his mobile phone on 23/01/2007. A1 demanded Rs. three lacs to be paid as bribe on 23/01/2007 at his residence at Noida for showing favour in the matter of allotment of lots, as otherwise the same would be processed adversely.
1.2 The complaint was entrusted to Shri Rajesh Chahal, Inspector, CBI, ACB, Delhi (hereinafter referred as "TLO") for verification and laying a trap. For the purpose of verification, presence of two independent witnesses namely Shri Piyush Kumar Gupta (shadow witness/PW11) and Shri D.K. Mittal (recovery witness/PW10), both Managers of Vijaya Bank, Regional Office, Barakhamba Road, New Delhi was secured. Thereafter, on 23/01/2007 at about 11.00PM, in the presence of independent witnesses, the complainant, on the instruction of TLO, contacted A1 from his mobile no.9968294590 on the mobile phone no. 9868225133 of A1 and the conversation that took place was recorded with the help of a digital voice recorder (hereinafter referred as "DVR"). The conversation so recorded confirmed demand of illegal gratification of Rs.three lacs by A1 from the complainant. A1 directed the complainant to come on 24/01/2007 at 10.00AM in his office at Tolstoy Marg, New Delhi with the bribe amount of Rs. three lacs. The conversation so recorded was transferred from the DVR to an audio cassette after ensuring its blankness, with the help of audio cassette DAI/2007/A/0005/CBI/ACB/New Delhi 3 recorder. The audio cassette was marked as Q1 and sealed with the seal of CBI. Before sealing Q1, another copy of the conversation was also prepared for the purpose of investigation. Facsimile impressions of the CBI was obtained in ink and lack on separate sheets of paper and witnesses signed thereon. The CBI seal (after use) was handed over to Shri D.K. Mittal for custody and to bring the same the following day for use in the further proceedings. The aforesaid proceeding of the verification was recorded in a "Pre Trap Verification Memo". It was decided to lay a trap on the accused A1 on 24/01/2007. 1.3 On 24/01/2007, the complainant, shadow witness, recovery witness and trap team members reached at CBI/ACB office. The complainant produced a sum of Rs.two lacs in the form of 200 GC notes of denomination of Rs.1000/ each. Numbers of GC notes were noted in the handing over memo. A leather bag containing empty clean glass bottles, tumblers, sodium carbonate powder, CBI seal, sealing material was arranged. Phenolphthalein powder was also arranged separately from the CBI Malkhana. The GC notes were treated with phenolphthalein powder and a practical demonstration was given regarding the reaction between phenolphthalein powder and the colourless solution of sodium carbonate. Independent witness Shri D.K. Mittal was asked to touch the tainted GC notes with his right hand fingers and wash them in the colourless solution of sodium carbonate. On doing so by him, the colourless solution turned pink in colour and this pink coloured solution was thrown away after explaining the DAI/2007/A/0005/CBI/ACB/New Delhi 4 significance of the reaction. The remaining phenolphthalein powder was returned back to the Malkhana. Personal search of complainant was taken by Inspector Raj Singh and he was not allowed to keep anything incriminating on his person except his mobile phone. The bribe amount of Rs.two lacs mentioned above duly treated with phenolphthalein powder was kept in the right side pant pocket of the complainant. Complainant was directed to hand over the tainted bribe amount to the accused on his specific demand and not otherwise or on his specific direction to some other person. All the members washed their hands with soap and water to ensure that there was no traces of phenolphthalein powder on their hands. Independent witness Shri Piyush Kumar Gupta was asked to act as a "shadow witness" and to remain close to the complainant and try to overhear the conversation and to see the bribe transaction between complainant and accused. Shadow witness Shri Piyush Kumar Gupta and the complainant were directed to give signal of completion of transaction of bribe by scratching their head with their both hands. Other witness Shri D.K. Mittal was asked to remain with the other members of the trap team. A Cenix make digital recorder (DVR) was arranged and it was ensured that it did not contain any prerecorded voice. Thereafter, the introductory voices of both the independent witnesses were recorded in DVR in its beginning. It was decided to hand over the DVR to the complainant after reaching at the spot with direction to switch it on before meeting the accused at the spot. All the members except complainant mutually searched each other to ensure that they do not carry any incriminating document/article except their ID DAI/2007/A/0005/CBI/ACB/New Delhi 5 cards and personal belongings. Witness Shri DK Mittal was allowed to carry the brass seal to the spot. The aforesaid proceeding started at 8.30AM and completed at 9.30AM and was recorded in "handing over memo". 1.4 The trap team reached near Prakash Deep Building, Tolstoy Marg, Connaught Place, New Delhi at about 10.30AM. The complainant was directed to contact A1 on his mobile phone to find out his whereabouts. Accordingly, complainant contacted A1. Thereafter, complainant disclosed that A1 had directed him to come to his office at 7th Floor of Prakash Deep Building along with money. Thereafter, it was decided that as a matter of additional precaution, shadow witness will either give a call or missed call on the mobile phone of TLO as soon as the transaction is over. Thereafter, the DVR was handed over to complainant with the direction to switch it on before proceeding to the office of A1. Then complainant and shadow witness were directed to proceed to office of accused Samir Kumar Ghosh (A1). Rest of the team members including independent witness Shri DK Mittal also followed them and took suitable positions at the staircase leading to 6th and 7th floor of Prakash Deep Building. 1.5 At about 11.20AM, TLO received a call from the complainant and immediately after the call, another call was received from shadow witness. Both the calls were made as a signal of the completion of the bribe transaction between complainant and accused. Immediately on the receipt of the aforesaid DAI/2007/A/0005/CBI/ACB/New Delhi 6 signal, the CBI team along with PW10 Shri D.K. Mittal rushed towards the office premises of MSTC at 7th floor and enquired about the whereabouts of A1. It was learnt that A1 was sitting in the chamber of Shri Ashok Kumar, Regional Manager on the same floor. Accordingly, CBI team along with the above said independent witness entered the said chamber of Regional Manager. It was found that the complainant and shadow witness were sitting on a three seater sofa and the other person who was later on identified as accused Samir Kumar Ghosh (A1), Senior Manager was sitting on the other single seater sofa. A1 was challenged for demanding bribe of Rs.three lacs and accepting Rs.two lacs as bribe from complainant for extending favour in the matter of processing of auction bids of the complainant's firm. Sub Inspector Sandeep Chaudhary and Sub Inspector Surajit Dass had caught hold right and left wrist respectively of A1. Shri Ashok Kumar, Dy. GM/Regional Manager, MSTC Ltd. was out of station to Amritsar. In the meantime, Shri B.S. Saini, Sr. Manager (Domestic Trade), MSTC Ltd. also entered in the chamber of the Regional Manager/DGM and he was requested to remain present throughout the remaining post trap proceeding, which he did. DVR was taken back from the complainant and heard. The conversation which took place between A1 and complainant confirmed the demand and acceptance of bribe on the part of A1 from the complainant. Copies of recorded conversation were made into two blank audio cassettes with the help of Sony compact cassette recorder. One of the said cassette was sealed with the seal of CBI (after taking the seal from witness Shri DK Mittal) and was marked as DAI/2007/A/0005/CBI/ACB/New Delhi 7 Q2. The second cassette was kept unsealed for the purpose of investigation. 1.6 On enquiry, shadow witness Shri Piyush Kumar Gupta stated that when he along with complainant entered the office premises of MSTC at 7 th floor and reached in the cabin of A1 in Hall, the complainant did Namaskar which was reciprocated by A1, and on enquiry from A1, the complainant introduced him (shadow witness) as his assistant Shri Ojha. Thereafter on the instructions of A1, the complainant and the shadow witness followed him to the chamber of Regional Manager and all the three took seats on sofa set available in that chamber. After some conversation regarding auction of metal scraps with the complainant, when complainant disclosed that he could not arrange the full (demanded) amount of Rs.three lacs but he had arrange only Rs.two lacs, A1 asked the complainant to hand over the same. On this, the complainant took out the bribe amount of Rs.two lacs from his right side pant's pocket with his right hand and extended the same towards A1, who accepted the same with his right hand and directly kept the same in his right side pocket of the pant worn by him. The version of shadow witness was also confirmed by complainant. 1.7 A colourless solution of sodium carbonate and water was prepared in a clean glass tumbler and A1 was directed to wash his right hand fingers in the same. On his doing so, the said colourless solution turned pink in colour. The said pink coloured solution was then transferred into a clean glass bottle, which DAI/2007/A/0005/CBI/ACB/New Delhi 8 was then tightly capped and marked as "RHW" and was sealed with CBI seal. 1.8 On the direction of TLO, witness Shri DK Mittal recovered the tainted bribe amount from the right side pocket of the pant worn by A1 and with the assistance of independent witness Shri Piyush Kumar Gupta tallied the numbers of the recovered tainted GC notes with the numbers already recorded in the handing over memo.
1.9 Another colourless solution of sodium carbonate and water was prepared in a glass tumbler. A1 was provided a "Payjama" and directed to put off the pant worn by him in privacy, which he did. Then the wash of the inner lining of the right side pant's pocket of A1 was taken in the said colourless solution. On doing so, the said colourless solution turned pink. The said pink solution was then transferred into a clean glass bottle, which was then tightly capped and marked as "RSPPW" denoting "Right Side Pant's Pocket Wash" of A1. The bottle was sealed with the seal of CBI. The inner lining of the said pant's pocket of A1 was signed by both the independent witnesses. A rough site plan of the trap site was prepared.
1.10 With the help of DVR, the specimen voice of A1 was taken/recorded with his consent. The recorded conversation of the DVR was transferred into a blank audio cassette. The said cassette was sealed with the DAI/2007/A/0005/CBI/ACB/New Delhi 9 seal of CBI and marked as S1 and seized. The tainted recovered bribe amount of Rs.two lacs, two sealed glass bottles marked as RHW and RSPPW, two sealed audio cassettes marked as Q2 and S1 and one brown colour pant of A1 were seized vide recovery memo. The proceedings of recovery memo concluded at 5.30PM. The CBI brass seal was handed over to witness Shri DK Mittal for safe custody with direction to hand over or produce the same on the orders of the competent authority.
1.11 Relevant documents of MSTC relating to eauction of the metal scraps pertaining to the lots in question were taken over. A1 was not authorised to access the bid sheets, whereas the same was also recovered from him during his office search.
1.12 After completion of the proceedings as set out in the recovery memo at about 5.30PM, A1 was interrogated and he disclosed that one Retired Colonel Shri Rajeev Kumar Sharan (A2) who is a Coordinator of MSTC for Defence, had directed him (A1) to contact the bidders who had participated in the eauction process of metal scrap including M/s Karishma Enterprises and to obtain illegal gratification from such firms whose bids were under STA category if they wanted to get their bids confirmed in their favour. A1 contacted M/s Karishma Enterprises and demanded the bribe. On further interrogation, A1 disclosed that he had demanded a bribe of Rs. three lacs from complainant and DAI/2007/A/0005/CBI/ACB/New Delhi 10 accepted Rs. two lacs from complainant on today i.e. 24/01/2007 in his office and the said amount was to be further delivered to the said Col. Rajeev Kant Sharan (A2). Accordingly, it was decided to further lay a trap on the A2. Thereafter, A1 was asked to contact from his mobile phone to the mobile phone of A2 and to talk to him about the said matter of bribe. A1 contacted from his mobile phone no.9868225133 to the mobile phone no.9810833823 of A2. In the same process, complainant had also talked to A2 from the mobile phone of A1. The said conversation was recorded in DVR in the presence of above mentioned two independent witnesses. The above conversations were then heard at the spot immediately and it was revealed that A2 was a party to the demand of bribe and had agreed to accept the said bribe amount on that day at about 7.00PM. A2 asked the complainant to come to his residence i.e. flat no.A904, Rajasthan CGHS, Sector4, Dwarka, New Delhi along with A1 to deliver the said bribe amount of Rs. two lacs. Accordingly, it was decided to lay a trap on A2 for demanding the said bribe. The seized pant of A2 was given back to him to put on the same in order to avoid any suspicion.
1.13 Witness Shri DK Mittal was asked to put the said tainted amount in the right side pocket of the pant worn by the complainant, which he did. A1 was directed to accompany the complainant and remain in normal condition and to talk to A2 as per situation. Then shadow witness/PW11 was asked to remain along with the complainant and A1 in order to overhear the conversation DAI/2007/A/0005/CBI/ACB/New Delhi 11 between complainant, A1 and A2 and to see the transaction of the bribe between complainant and A2, if any. All the team members were suitably briefed. DVR was given to complainant in "off" mode with direction to switch it "on" immediately on reaching near the said residence of A2 and then to contact A2 over mobile phone to ascertain his presence as per the situation. A1 was also asked to contact A2 on reaching near his apartment over his mobile phone, if required. Both were directed to record the conversation in the said digital recorder, if any, between complainant and A2 or between A1 or A2. Thereafter, the team members along with both independent witnesses, complainant and A1 left MSTC office for Dwarka by vehicles at around 6.45PM. 1.14 After reaching near the said apartment of A2 in Sector 4, Dwarka, New Delhi all took suitable positions. The complainant put DVR in "on" mode. On directions, A1 contacted (from his mobile phone to A2) over his mobile phone. On this A2 declined to meet them and to accept the said bribe amount. Accordingly, it was decided to come back in the CBI, ACB, Delhi office to conclude the proceedings as there was no sufficient light and convenient place in Dwarka to do so. Then the said digital voice recorder was given to witness Shri DK Mittal.
1.15 In the office of CBI/ACB/Lodhi Road, New Delhi, the DVR was taken back from witness Shri DK Mittal. The same was again heard and the entire DAI/2007/A/0005/CBI/ACB/New Delhi 12 recorded conversation was transferred into a cassette by using a cassette recorder. Thereafter the cassette was sealed and marked as Q3. The facsimile of the said CBI seal were also taken on the further "Handing Over cum Trap Memo" prepared on computer in CBI, ACB, Delhi with regard to the aforesaid proceeding. Said CBI seal was again given to witness Shri DK Mittal. A1 was asked to put off the said seized pant which was given back to him during the said proceeding. Accordingly, he put off the pant worn by him and the same was taken back in possession. Then the said cassette was also taken into possession by TLO.
1.16 The sealed bottles marked "RHW" and "RSPPW" containing right hand finger wash and right side pant's pocket wash of A1 were forwarded to CFSL vide letter dated 31/01/2007 for chemical examination. CFSL expert gave chemical examination report dated 19/02/2007 and opined that exhibits RHW and RSPPW gave positive test for presence of phenolphthalein and sodium carbonate. Similarly, sealed cassette marked Q1, Q2, Q3 and S1 were sent to CFSL vide letter dated 05/02/2007 for voice comparison and opinion. Thereafter, the specimen voice of A2 was recorded and sealed cassette mark S2 was sent to CFSL vide letter dated 02/01/2008 for comparison of the voice with the voice contained in the cassette marked Q3. The CFSL vide its opinion dated 13/03/2008 had confirmed that the audio cassette mark Q1, Q2, Q3 and S1 revealed that the same are probable voice of the persons (A1) whose specimen DAI/2007/A/0005/CBI/ACB/New Delhi 13 voice is marked S1 and that the said cassettes have not been tempered with. Similarly, CFSL vide opinion dated 14/03/2008 has confirmed that the voice contained in exhibit Q3 are the probable voice of the person (A2) whose specimen voice is mark S2 and that the same have not been tempered with. 1.17 During investigation, call detail records (hereinafter referred as "CDRs") of mobile phone of A1(the mobile phone is in the name of his wife Smt.Runa Ghosh), A2 and complainant (phone is in the name of M/s Karishma Enterprises) were collected from the service providers which reflect that the aforesaid calls/conversation took place between them. Statement of complainant, independent witnesses and members of the trap team were recorded u/s 161 CrPC.
1.18 The sanction for prosecution was obtained against A1 from the competent authority. A2 had since resigned from the service of MSTC, therefore, sanction against him was not obtained. Thereafter, chargesheet was filed after completion of investigation.
2. Vide order dated 24.10.2009, charge was framed against both the accused u/s 120 B of the Indian Penal Code (hereinafter referred as "IPC") r/w Sec. 7 and 13(2) r/w Sec. 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter DAI/2007/A/0005/CBI/ACB/New Delhi 14 referred as "PC Act") and u/s 7 of P.C. Act and u/s 13(2) r/w Sec. 13(1)(d) of the PC Act.
3. In order to prove its case, prosecution has examined as many as 15 witnesses.
3.1 PW1 Shri B.S. Saini, Sr. Manager, MSTC, Jeevan Vikas Building, Asaf Ali Road, New Delhi has deposed that he went to the room of Shri Ashok Kumar, Regional Manager in order to fax some documents and saw that A1 was sitting on a sofa and two persons (CBI officials) were holding his hands by wrists. They told him that they had caught A1 while taking some money. He further deposed about: taking right hand wash of A1 in a bottle and sealing the same; recovery of Rs.two lacs from right side pant pocket of A1; taking pant pocket wash of A1 and playing some recording. He proved recovery memo dated 24/01/2007 as Ex.PW1/A and arrestcumpersonal search memo of A1 as Ex.PW1/B. 3.2 PW2 Shri Anil Sapru, Assistant General Manager, FSNL, MSTC, New Delhi has deposed about his visit to CBI office on 19/12/2007 and recording of specimen voice of A2 vide memo Ex.PW2/A. He identified cassette S2 as Ex.P1 and its cloth wrapper as Ex.P2. Cassette Ex.P1 was played in the court and PW2 identified his voice and stated that after recording voices of Ms. Bhanu DAI/2007/A/0005/CBI/ACB/New Delhi 15 Kumar and himself, voice of A2 was recorded.
3.3 PW3 Shri Surya Shankar Chaudhary, Chief General Manager, MSTC, Head Office, Kolkatta has proved various documents pertaining to A2 i.e. productioncum seizure memo Ex.PW3/A vide which he had handed over the documents mentioned therein to CBI; attested copy of the duplicate offer of appointment to A2 as Ex.PW3/B; attested copy of joining report as Ex.PW3/C; attested copy of renewal of appointment on the same terms and conditions as Ex.PW3/D; attested copy of inter office memo of reporting officer of A2 as Ex.PW3/E; request of renewal of appointment of A2 as Ex.PW3/F; attested copy of request for termination of contract of appointment as Ex.PW3/G; acceptance of his request regarding termination of contract of employment as Ex.PW3/H; original/file copy of offer of appointment dated 25/02/2005 as Ex.PW3/J and office copy of renewal of appointment of A2 as Ex.PW3/K. He also deposed that A2 used to receive Rs.15,000/ (as pay) per month.
3.4 PW4 Dr. N.M. Hashmi, Senior Scientific Officer, CFSL, CGO Complex, New Delhi has deposed that vide letter dated 31/01/2007 Ex.PW4/B two sealed bottles were received in CFSL for chemical examination and opinion of experts. He further deposed that chemical examination of both exhibits i.e. "RHW" and "RSPPW" gave positive tests for the presence of Phenolphthalein in them. He prepared his report and the same was verified by HOD and forwarded DAI/2007/A/0005/CBI/ACB/New Delhi 16 by Director, CFSL, New Delhi to forwarding officer i.e. SP, CBI along with the remnants of exhibits. He proved his report as Ex.PW4/A. He also identified exhibits "RHW" and "RSPPW" contained in two bottles as Ex.P3 and Ex.P4. 3.5 PW5 Mrs. Bhanu Kumar, Sr. Manager, MSTC Ltd, New Delhi has deposed about process of eauction and proved bid sheets for eauction as ex.PW5/A and Ex.PW5/B. She further deposed that on 19/12/2007 she was called in CBI office regarding recording of specimen voice of A2. She proved specimen voice recording memo as Ex.PW2/A and seizure memo Ex.PW5/C vide which certain documents were produced by her before CBI. She further deposed that A2, being Defence Coordinator, was to coordinate with various offices of Ministry of Defence and ensure smooth working. 3.6 PW6 Shri R.S. Yadav, Junior Telecom Officer, MTNL, Delhi has proved letter dated 10/01/2008 as Ex.PW6/A and stated that vide this letter the call details (Ex.PW6/B) of mobile phone nos.9868225133 and 9968294590 were furnished to CBI.
3.7 PW7 Shri D.K. Tanwar, Senior Scientific Officer GradeI (Physics), CFSL, CBI, New Delhi has deposed that their office received four sealed parcels and specimen seal impression. The parcels were marked as Q1 to Q3 and F1. Parcel Q1, Q2, Q3 and S1 were opened and each was found to contain normal DAI/2007/A/0005/CBI/ACB/New Delhi 17 seize audio cassette which were played and analyzed. After analyzing the same, he gave his report Ex.PW7/A and vide letter Ex.PW7/B dated 13/03/2008, Director, CFSL informed CBI to collect report and exhibits. He further deposed that parcel mark S2 was also received in same case. S2 was opened and it was found containing a normal size audio cassette which was played and analyzed and after analyzing the same, he gave his report Ex.PW7/C. Vide letter Ex.PW7/D their office intimated the forwarding authority for collection of exhibits and report. He identified cassette Q1 as Ex.PW7/E, its inlay card as Ex.PW7/F & cloth wrapper as Ex.PW7/G and the envelope as Ex.PW7/H. He further identified another cassette Q2 as Ex.PW7/J, its inlay card as Ex.PW7/K & cloth wrapper as Ex.PW7/L and the envelope as Ex.PW7/M. He identified another cassette Q3 as Ex.PW7/N, its inlay card as Ex.PW7/O & cloth wrapper as Ex.PW7/P and the envelope as Ex.PW7/Q. He also identified another cassette S1 as Ex.PW7/R, its inlay card as Ex.PW7/S & cloth wrapper as Ex.PW7/T and the envelope as Ex.PW7/U. He further identified another cassette S2 as Ex.P1, its inlay card as Ex.PW7/V & cloth wrapper as Ex.P2 and the envelope as Ex.PW7/W. 3.8 PW8 Shri Malay Sen Gupta former ChairmancumManaging Director of MSTC Limited, Kolkatta has proved sanction order dated 26/03/2008 Ex.PW8/A for prosecution of A1.
3.9 PW9 Shri Piyush Kumar Luharuwalla is the complainant. He has DAI/2007/A/0005/CBI/ACB/New Delhi 18 deposed about his complaint and allegations of demand & acceptance of bribe by A1 and involvement of A2 in demand and acceptance of bribe. He also stated about pretrap proceedings in the office of CBI on 24/01/2007 and post trap proceedings at the office of MSTC Limited. He has deposed about participation of his firm M/s Karishma Enterprises in eauction conducted by MSTC Limited; his complaint Ex.PW9/A; production of Rs.two lacs to be used as bribe amount; reaching MSTC office along with trap team; his handing over GC notes to A1; disclosure of name of A2; making telephonic call by A1 to A2 on the instructions of CBI officials; taking hand wash of A1; arrest and personal search of A1 at the spot vide memo Ex.PW1/B; reaching Dwarka to apprehend A2; pre trap verification memo Ex.PW10/A; preparation of handing over memo Ex.PW10/B; preparation of post trap cum recovery memo Ex.PW1/A and preparation of handing over memo Ex.PW10/D. As PW9 had resiled from his earlier statement on some material points, he was cross examined by Ld. PP for the CBI. Thereafter, vide order dated 11/09/2013, application u/s 311 CrPC of Ld. PP for CBI was allowed and PW9 was recalled and was further examined.
3.10 PW10 Shri D.K. Mittal an independent/recovery witness, has deposed about his visit to CBI office on 23/01/2007; complaint of complainant Shri Piyush Kumar Luharuwalla; telephonic conversation between complainant DAI/2007/A/0005/CBI/ACB/New Delhi 19 and A1 in his presence; his visit to CBI office on 24/01/2007; his presence in trap team to MSTC office; recovery of Rs.two lacs from pant pocket of A1; taking hand washes of A1; disclosure of name of A2; call of A1 to A2 about receipt of bribe amount; visit of trap team at the house of A2 at Dwarka; conversation between complainant and A2 over mobile phone; and denial of A2 to meet them.
PW10 has proved pre trap verification memo dated 23/01/2007 as Ex.PW10/A, handing over memo dated 24/01/2007 as Ex.PW10/B, site plan of office site dated 24/01/2007 as Ex.PW10/C, further handing over memo cum trap memo dated 24/01/2007 as Ex.PW10/D, transcription of conversation recorded in cassette Q1 dated 25/02/2008 as Ex.PW10/E, transcription of conversation recorded in cassette mark Q2 dated 25/02/2008 as Ex.PW10/F, transcription of telephonic conversation recorded in cassette mark Q3 dated 25/02/2008 as Ex.PW10/G, search cum seizure memo dated 24/01/2007 as Ex.PW10/H and production cum seizure memo dated 24/01/2007 as Ex.PW5/C. PW10 was declared hostile and was cross examined by Ld. PP for the CBI. During his cross examination by Ld. PP for the CBI, PW10 supported the case of the prosecution on material facts.
3.11 PW11 Shri Piyush Kumar Gupta is an independent witness/shadow witness. He has deposed about his visit to CBI office; verification proceeding; pre trap proceeding and trap proceeding at the office of MSTC Limited and DAI/2007/A/0005/CBI/ACB/New Delhi 20 Dwarka.
PW11 was declared hostile and was cross examined by Ld. PP for the CBI. During his cross examination by Ld. PP for the CBI, PW11 supported the case of the prosecution on material facts.
3.12 PW12 Shri Rajesh Chahal, DSP, CBI, ACB, New Delhi was the Trap Laying Officer (TLO). He has deposed that a complaint Ex.PW9/A (D2) lodged by complainant was assigned to him by the then SP, Sh. Sumit Sharan for verification and laying trap. He verified the allegations made in complaint. Thereafter he constituted a trap team to catch A1 red handed while demanding and accepting bribe. He further deposed about pretrap proceeding dated 24/01/2007 in the CBI office and post trap proceeding dated 24/01/2007 at the office of MSTC Limited.
PW12 has also proved documents i.e. pre trap verification memo Ex.PW10/A (D3); FIR Ex.PW12/A and rough sketch/site plan Ex.PW10/C of the place of occurrence. He also identified audio cassette Q1 Ex.PW7/E and its inlay card Ex.PW7/F & cloth wrapper as Ex.PW7/G. He also proved letter dated 05/02/2007 Ex.PW12/X1 vide which the sealed audio cassettes i.e. Q1, Q2 & Q3 and S1 were also forwarded to CFSL for comparison and opinion. He identified: bottles Ex.P3 & Ex.P4; pant Ex.PW11/XP; cassettes Q1 Ex.PW7/E & its inlay card Ex.PW7/F along with its wrapper Ex.PW7/G; cassette Q2 Ex.PW7/J & its DAI/2007/A/0005/CBI/ACB/New Delhi 21 inlay card Ex.PW7/K along with its wrapper Ex.PW7/L; cassette Q3 Ex.PW7/N & its inlay card Ex.PW7/O along with its wrapper Ex.PW7/P and cassette S1 Ex.PW7/R & its inlay card Ex.PW7/S along with its wrapper Ex.PW7/T. He further deposed that on 27/02/2007, as per the instructions of then S.P. Shri Sumit Sharan, investigation of this case was transferred to Shri C.K. Sharma the then Inspector, CBI, ACB, New Delhi. He accordingly handed over the case file containing all record of the case to Shri CK Sharma for conducting further investigation.
3.13 PW13 Shri R.K. Singh, ManagercumNodal Officer, Bharti Airtel Limited, 224, Okhla Industrial Area, phaseIII, New Delhi has deposed that in January, 2008, he was working as Nodal Officer in Bharti Airtel Limited. His duty was to provide call detail records (CDRs) to the security agencies on their requisition. The call details are automatically saved in the server. Being Nodal Officer, by using a password, he had the access to the data maintained on the server. He proved letter dated 16/01/2008 as Ex.PW13/A (D13) which was written by him to Shri C.K. Sharma, Inspector, CBI, ACB, New Delhi for providing CDRs and the ownership of mobile telephone no.9810833823 and the said telephone number was in the name of Shri R.K. Saran r/o A904, Sector 4, Plot no.36, near Modern Convent School, Rajasthan CGHS, Dwarka, New Delhi. He further deposed that he also provided the CDRs of the above mentioned mobile telephone number for the period between 15/01/2007 to 31/01/2007. The said DAI/2007/A/0005/CBI/ACB/New Delhi 22 CDRs which were running into three pages were retrieved by him from the server of their company by using his password. He proved CDRs as Ex.PW13/B. He also proved certificate u/s 65 B of the Indian Evidence Act as Ex.PW13/C. 3.14 PW14 Shri Rakesh Soni, JTO (CDR), Mobile Service, Tis Hazari Exchange, 3rd Floor, Delhi has deposed that in January, 2008, he was working as JTO (Legal)at MTNL Mobile Service, Idgah Telephone Exchange, New Delhi. His duties were to provide call detail records (CDRs) to the security agencies on their requisition. The call details are automatically saved in the server. Being JTO, by using a password, he had the access to the data maintained on the server and the retrieval of the data from the server. He proved letter dated 10/01/2008 as Ex.PW6/A which was written by him to Shri C.K. Sharma, Inspector, CBI, ACB, New Delhi for providing CDRs. He deposed that mobile telephone no. 9868225133 was in the name of Shri SK Ghosh r/o A 12, Dayanand Colony, Lajpat Nagar, New Delhi24 and mobile telephone no.9968294590 was in the name of M/s Krishma Enterprises, 912, Nav Sansand Vihar, Plot No.4, Sector22, Dwarka, New Delhi. He further deposed that he also provided the CDRs of the above mentioned mobile telephone numbers for the period between from 15/01/2007 to 30/01/2007 and the said CDRs which are running into five pages are Ex.PW6/B. The CDR data of both these mobile phones was retrieved by him from the server of his company by using his password. He brought and proved certificate u/s 65 B of the Indian Evidence Act Ex.PW14/A. He further deposed DAI/2007/A/0005/CBI/ACB/New Delhi 23 that as per the software programming of the server of MTNL, the CDR shows the timings of the calls on random basis i.e. the calls of the same date may not be shown in sequence from morning to night time or night to morning time but the timings of the respective calls would remain the same with the margin of few seconds.
3.15 PW15 Shri C.K. Sharma, Inspector was Investigating Officer. He has deposed that by the order of SP, ACB, CBI New Delhi, the investigation of this case was transferred to him. During investigation of this case, he recorded statement of complainant and other witnesses u/s 161 CrPC. Vide memo Ex.PW2/A he took the specimen voice of A2. He identified audio cassette S2 and stated that audio cassette S2 was sent to CFSL in a sealed cloth wrapper mark Ex.P2 vide forwarding letter dated 02/01/2008 Ex.PW15/A (D11). He further deposed that he prepared the transcript of the recorded conversations contained in audio cassettes Q1, Q2 and Q3 from the copies of the cassettes prepared by previous IO for investigation. He proved transcript Ex.PW10/E in respect of audio cassette Q1, transcript Ex.PW10/F in respect of audio cassette Q2 and transcript Ex.PW10/G in respect of audio cassette Q3.
PW15 (IO) proved production cum seizure memo dated 21/02/2008 Ex.PW15/B (D20) pertaining to M/s Karishma Enterprises, the firm of father of the complainant relating to the Eauction in question. He further deposed that documents which were seized vide seizure memo Ex.PW15/B were attested as DAI/2007/A/0005/CBI/ACB/New Delhi 24 true copy by Smt. Bhanu Kumar and were collectively exhibited as Ex.PW15/C [D20 (page no.2 to 16)]. He further deposed that he collected the opinion of experts from CFSL along with the exhibits in respect of the hand wash, pant wash and the audio cassettes Q1, Q2, Q3, S1 and S2 respectively. He further deposed that he collected the call detail records of the mobile phones used by complainant, A1 and A2 from the respective service providers. He further deposed that sanction for prosecution was received against A1 from competent authority. After completion of investigation he filed charge sheet before the court of Ld. Special Judge at Patiala House Courts, New Delhi. He filed disclosure statement dated 24/01/2008 Ex.PW15/E of A1. He proved his report u/s 173 CrPC (charge sheet) as Ex.PW15/D. Statement of accused u/s. 313 Cr. P. C.
4. In statement u/s. 313 Cr. P. C., entire incriminating evidence was put to both the accused. Accused persons denied the incriminating evidence and pleaded their innocence. They did not lead any evidence in their defence.
5. I have heard Ld. PP for the CBI and Ld. defence counsels for accused persons. I have carefully gone through the testimony of the witnesses, documents, written submissions and other material placed on record. I have gone through the judgments referred by the Ld. Prosecutor and Ld. Defence counsels and carefully considered the respective submissions. DAI/2007/A/0005/CBI/ACB/New Delhi 25
6. Let me first discuss the material evidence on record.
Recorded conversation contained in audio cassette Q1, Q2 and Q3 6.1 The recorded conversation contained in audio cassette Q1 is pertaining to the telephonic conversation dated 23.01.2007 between complainant PW9 and accused Samir Kumar Ghosh. As per report of expert (PW7) from CFSL ,there was conversation of about 2 minutes and 3 seconds on side "A" of audio cassette Q1. On comparison it was found by PW7 that questioned voice contained in Q1 tally with specimen voice of accused Samir Kumar Ghosh and no tempering was found in the said recording. As per PW7 only two sentences were taken by him for comparison and entire conversation was not compared with the specimen voice of accused Samir Kumar Ghosh. The cassette Q1 could not be played in the court during testimony of PW9 despite all efforts for about 40 minutes.
6.2 Audio cassette Q2 is pertaining to the recorded conversation dated 24.01.2007 at the office of MSTC which is mainly between complainant and accused Samir Kumar Ghosh. As per PW7, the questioned voice contained in Q2 was the probable voice of accused Samir Kumar Ghosh. Audio cassette Q3 contained the recording for duration of about 3 minutes 20 seconds and 10 minutes 35 seconds as per the report of PW7. For comparison, out of these conversations also only two sentences were selected by the expert and entire DAI/2007/A/0005/CBI/ACB/New Delhi 26 conversation was not compared.
6.3 Ld.PP submitted that there is ample evidence on record that the recorded conversation contained in cassette Q1, Q2 and Q3 was transferred from DVR immediately at the spot and cassettes were sealed in presence of the witnesses which exclude any possibility of tempering. Ld.PP submitted that in view of the reports of expert (PW7) and his testimony, it has been clearly proved that the recorded conversation are mainly between complainant, accused Samir Kr. Ghosh and accused R.K. Saran. The recorded conversation has clearly established the entire transaction of demand, acceptance and recovery of bribe. 6.4 Ld. defence counsels for both the accused contended that as per prosecution, the original recording was done through the DVR. The DVR was neither sent to CFSL for the opinion of the expert nor has been produced before the court. Therefore, the primarily evidence has not been produced and the possibility of tempering cannot be ruled out. It was further argued that recorded conversation contained in cassette Q1, Q2 and Q3 cannot be relied because the substantial portion of the same are inaudible and not clear. The another argument was that specimen voice of accused persons was not properly taken with permission of the court and therefore, the recorded conversation is not admissible in evidence. One of the challenge was that recorded conversation was not clearly identified by the witnesses in the court. DAI/2007/A/0005/CBI/ACB/New Delhi 27 6.5 It is true that accurate voice identification is much more difficult than visual identification. Law laid down in the case of Nilesh Dinkar Paradkar v. State of Maharashtra (JT 2011 (3) SC 429 = 2011 (3) SCALE 473) is relevant here :
"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 reality can be completely replaced by fiction The Courts have to be extremely cautions in basing conviction purely on the evidence of voice identification".
6.6 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 recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.DAI/2007/A/0005/CBI/ACB/New Delhi 28
(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"
6.7 In the case of R.M. Malkani v. State of Maharashtra (1973) 1 Supreme Court Cases 471 it was held by Hon'ble Supreme Court that:
(i) Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voices; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also DAI/2007/A/0005/CBI/ACB/New Delhi 29 comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act.
(ii) Under Section 146 of the Evidence Act question might be put to the witness to test the veracity of the witness. Again under Section 153 of the Evidence Act a witness might be contradicted when he denied any question tending to impeach his impartiality. A previous statement placed by the tape recorded conversation can be used to contradict a witness. The tape itself becomes a primary and direct evidence of what a witness has said and has been recorded.
Shri N. Sri Rama Reddy v. Shri V.V. Giri, (1970) 2 SCC 340, relied upon.
(iii) The substance of the offence under Section 25 of the Indian Telegraph Act is damaging, removing, tampering, touching machinery battery line or post for interception or acquainting oneself with the contents of any message. Where a person talking on the telephone allows another person to record it or to hear it, it cannot be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting oneself with the contents of any message. There was no element of coercion or DAI/2007/A/0005/CBI/ACB/New Delhi 30 compulsion in attaching the tape recorder to the telephone. There was no violation of the Indian Telegraph Act.
(iv) There is warrant for proposition that even if evidence is illegally obtained it is admissible.
A document which is procured by improper or even by illegal means cannot bar its admissibility provided its relevance and genuineness are proved.
A tape recorded conversation is contemporaneous relevant evidence and therefore it is admissible. It is not tainted by coercion or unfairness. There is no reason to exclude this evidence.
If the conversation is voluntary and there is no compulsion, the attaching of the tape recording instrument though unknown to the person whose conversation is recorded does not render the evidence of conversation inadmissible. The conversation cannot be said to have been extracted under duress or compulsion. Tape recording a conversation is a mechanical contrivance to play the role of an eavesdropper.
(v) Article 21 of the Constitution contemplates procedure established by law with regard to deprivation of life for personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or highhanded interference by tapping the conversation. The protection is not for the DAI/2007/A/0005/CBI/ACB/New Delhi 31 guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. At the time of the conversation there was no case against the appellant and he was not compelled to speak or confess.
(vi) Although the Director of Intelligence Bureau advised and instructed doctor 'M' to talk to the accusedappellant and another doctor 'H' and the conversation was recorded on tape, such conversation cannot be said to be a statement made to the police officer.
6.8 In case of Savita alias Babbal v. State of Delhi, 2011 (3) JCC 1687, it was held by the Hon'ble High Court that :
The rulings in R.M. Malkani; Ziyauddin Burhanuddin Bukhari and Ram Singh (Supra) have mandated safeguards, which are to be followed by courts while taking into account taperecorded telephonic conversations. Here, none of the witnesses knew, or could have identified the swami's voice; none of them have shown convincingly that the possibility of tampering with tape recordings had been eliminated. Besides, the authenticity of the tapes becomes questionable, since the prosecution does not produce the authority documents which persuaded the MTNL officials to accept the request for telephone tapping; in fact even MTNL officials did not depose in support of the prosecution, corroborating its version. The authorities are uniform and clear on this aspect; the voice of the DAI/2007/A/0005/CBI/ACB/New Delhi 32 accused, or the maker to whom a conversation was attributed, had to be identified by someone familiar with it.
6.9 Careful consideration of recorded conversation contained in audio cassette Q1, Q2 and Q3, their respective transcript , testimony of complainant (PW9) and other witnesses proved that :
a) The original recording was done in DVR. Then the recordings were transferred in audio cassette Q1, Q2 and Q3 but the DVR has not been produced in the court.
b) As per the transcript and testimony of PW9, substantial portions of conversation contained in cassette Q2 and Q3 were either not clear or inaudible and could not be identified by PW9 before the court.
c) Recordings contained in cassette Q1 could not be played before the court during testimony of PW9 complainant.
6.10 CFSL expert PW7 did not compare the entire conversation contained in cassette Q1, Q2 and Q3 and based his reports on the comparison of only one or two sentences/phrases.
6.11 The next important question is pertaining to proof, admissibility, relevance and reliability of the recorded conversation contained in audio cassette Q1, Q2 and Q3.
DAI/2007/A/0005/CBI/ACB/New Delhi 33 6.12 In view of above discussion, the recorded conversation contained in audio cassette Q1, Q2 and Q3 does not come true on the test laid down in above mentioned judgments. Therefore, in my opinion, the said recorded conversation is not reliable evidence.
Testimony of complainant PW9 Piyush Kumar Luharuwalla 6.13 In the testimony of PW9 (complainant Piyush Kumar Luharuwalla) following discrepancies were mentioned:
i) That his employee Mr. Jha told him that a person from MSTC wanted to talk to him in respect of unallotted lots in Eauction but Mr. Jha is not examined by prosecution.
ii) PW9 heard rumors that some lots were being approved/disapproved by MSTC on the same price and it appears that he contacted the CBI on the basis of said rumors.
iii) After receiving information from Mr. Jha, he telephonically contacted representative of MSTC but he could not tell the name of the said employee of the MSTC and details of conversation.
iv) PW9 contacted one Mr. Sharma of CBI from Jaipur and then came to Delhi but failed to remember as to what conversation had taken place between PW9 and Mr. Sharma.
v) PW9 stated that the instances mentioned in complaint Ex.PW9/A were DAI/2007/A/0005/CBI/ACB/New Delhi 34 true but that complaint Ex.PW9/A was written by him with the help of CBI officials.
vi) In response of page no.3 of Ex.PW9/A,he stated that initially something else was written on page no.3 and it was not the same page.
vii) He reached in the office of CBI in the late light and no proceedings were carried out in his presence which is contrary to the claim of prosecution. He could not depose about the contents of the complaint without going through the complaint Ex.PW9/A.
viii)He could not tell exactly how much amount was produced by him to the CBI officials but stated that it was more than 2 lacs which reflects on his memory about the material facts.
ix) He stated that on next day, he reached in the CBI office between 7 to 9 AM and waited there till 2 PM. He could not tell what proceedings were conducted by CBI officials.
x) That PW9 was not aware whether accused Samir Kr. Ghosh was Sr. Manager or Regional Manager of MSTC.
xi) PW9 stated that he alongwith CBI officials entered in the office of accused Samir Kr. Ghosh which is contrary to the prosecution case.
xii) He stated that he was instructed by CBI officials that he should hand over the bribe amount to accused Samir Kr. Ghosh immediately after his entry in MSTC office and CBI officials would enter into room within the particular time frame which is contrary to prosecution case.
DAI/2007/A/0005/CBI/ACB/New Delhi 35
xiii)He stated that he took out the G.C notes from his pocket and was holding the same in his hand. CBI officials who were already inside with him (inside the office of Regional Manager) instructed him to hand over GC notes to accused Samir Kumar Ghosh. This part of the testimony is also contrary to the prosecution case. According to prosecution, shadow witness was present with him but not the CBI officials.
xiv)During cross examination he stated that he put the GC notes on sofa set and when CBI official entered inside the room, he told the same by gesture which is also contrary to the prosecution case. As per prosecution case, the G.C notes were handed over by complainant to accused Samir Kumar Ghosh who accepted the same and kept the same in his pocket.
xv) Name of Col. R.K. Saran came during discussion in the office of Regional Manager that he was involved in the said transaction. This claim of Pw9 is also contrary to the prosecution case. As per prosecution, the name of accused R.K. Saran was disclosed by accused Samir Kumar Ghosh after his arrest.
xvi)PW9 stated that some proceedings were carried out by CBI officials. He could not tell clearly about the hand washes. He only mentioned that the water turned its colour. He stated that he alongwith CBI officials went to Dwarka to apprehend Col. Saran but he could not tell the address. xvii)He stated that security guard of society stated that Col. Saran was not present at home and his house was found locked which is contrary to the DAI/2007/A/0005/CBI/ACB/New Delhi 36 prosecution case. As per prosecution case, accused Samir Kumar Ghosh contacted accused R.K. Saran the over phone and he refused to accept the bribe.
xviii)In handing over memo Ex.PW10/D, on some pages, he mentioned the date as 24.1.2007 whereas on some other page, he mentioned the same as 23.1.2007 but could not clarify that why two dates have been mentioned by him on same document.
xix)In respect of post trap cum recovery memo Ex.PW1/A, he stated that he was not sure if this document was prepared in his presence on 24.1.2007. However, he identified his signature on the document. xx) During cross examination by Ld.PP PW9 stated that he do not remember whether specimen voice of accused Samir Kumar Ghosh was taken in his presence.
xxi)During cross examination by Ld. defence counsel, PW9 stated that he do not remember the date, month and year of visit to CBI relating to this case and he could not tell the details of documents, sealed pulandas etc. xxii)In his further examination by ld.PP, in respect of recorded conversation, he could not identify the number of portions of the recorded conversations contained in audio cassette Q2 and Q3 whereas cassette Q1 could not be played.
6.14 Testimony of PW9 cannot be stated as false on material aspects. But, in view of discrepancies, his testimony requires corroboration. DAI/2007/A/0005/CBI/ACB/New Delhi 37
Testimony of PW11 Sh. Piyush Kumar Gupta (Shadow witness) 6.15 PW11 is the important witness being the shadow witness at the time of trap. PW11 was working as Chief Manager in Vijaya Bank and was involved in the proceedings as independent witness. The following discrepancies were mentioned in his testimony:
i) As per PW11 he reached in the office of CBI at about 5 PM and the (party) complainant reached in the office of CBI between 10/11 PM. He could not tell the name of the person who had arrived from Jaipur.
ii) PW11 stated that when he reached in the CBI office, he was called by Mr. Rajesh Chahal in his office and was informed that approximately Rrs.5 lacs were to be given as bribe to Mr. Samir Ghosh with regard to tender process in MSTC which is contrary to statement of PW9.
iii) PW11 stated that at the instance of Mr. Chahal that person (complainant) gave telephonic call to Mr. Ghosh. The telephonic conversation was conveyed by complainant to PW11. It reflects that telephonic conversation between complainant and Samir Kumar Ghosh was not heard by PW11 and he has deposed on the basis of information received from TLO or complainant. He further stated that party produced G.C notes of Rs.3 lacs in the denomination of Rs.500/. The said statement of Pw11 is contrary to the prosecution case as complainant could arrange only Rs.2 lacs and produced the G.C notes in the denomination of Rs.1000/each.
iv) He could not remember if any proceeding was conducted in the office of DAI/2007/A/0005/CBI/ACB/New Delhi 38 CBI in pre trap proceedings.
v) PW11 stated that party (complainant) told Mr. Ghosh that he could not arrange Rs.5 lacs and had arrange only Rs.3 lacs which is also contrary to prosecution case. As per prosecution, trap money was Rs.2 lacs.
vi) Pw11 stated that party (complainant) took out Rs.3 lacs from his pocket and handed over to A1 which A1 kept in the pocket of his pant. This claim is just contrary to the claim of PW9 who stated that he put the money on sofa.
vii) PW11 stated about preparation of transcript of recorded conversation on last day of his visit to CBI office. It was observed by the court that there is no transcript on record dated 25.1.2007 as stated by PW11. 6.16 In my opinion, the testimony of Pw11 cannot be discarded in toto. His testimony may be relied where ever finds corroboration.
Testimony of PW10 D.K. Mittal (Recovery witness) 6.17 PW10 is important witness of the prosecution. He was working as Sr. Manager in Vijaya Bank. The following discrepancies were mentioned in the testimony of PW10:
(i) In his presence complainant had conversation with Mr. Ghosh on telephone. He could only hear what complainant was saying to Mr. Ghosh but could not hear what was being said from other side. DAI/2007/A/0005/CBI/ACB/New Delhi 39
(ii) PW10 stated that Mr. Chahal informed him that in respect of some scrap bill, the amount of Rs.3 lacs was demanded from complainant by one Mr. Sharan and he could not remember if any proceeding was conducted on 23.01.2007. This statement reflect that demand was made by Mr. Sharan and TLO, was aware about the demand of Mr. Sharan which is just contrary to the prosecution case. As per prosecution case, the involvement of accused R.K. Saran came into the picture on 24.01.2007 from the disclosure statement of A1
(iii) In respect of proceedings dated 24.1.2007 PW10 stated that he reached in CBI office at 8 Am. He could not remember about any proceedings which took place in the office of CBI and straight away stated that they went to Tolstoy Marg at the office of MSTC. This testimony in examination in chief reflect about the poor memory and creditability. At this stage, PW10 could not depost about anything about pre trap proceedings.
(iv) In respect of the recovery of bribe amount, PW10 stated that he was informed by CBI official that trap was over. When he entered into the room, Piyush Gupta , Mr. Luharuwalla and Mr. Ghosh were sitting in the room. He was asked to took out the money from pocket of accused. He took money from pocket of accused but he could not tell from which pocket it was recovered.
(v) He stated that accused Mr. Ghosh was thoroughly interrogated and Mr. Ghosh informed that he had accepted the bribe amount on behalf of Mr. DAI/2007/A/0005/CBI/ACB/New Delhi 40 Sharan. He did not mention anything about recording of disclosure statement of accused S.K. Ghosh.
(vi) PW10 stated that after reaching at Dwarka at 7 PM, complainant spoke to Mr. Sharan from his mobile. This statement is contrary to the statement of complainant PW9 who stated that guard informed them that Mr. Sharan was not at his home. PW9 did not talk about the telephonic conversation with Mr. Sharan.
(vii)Pw10 stated that after telephonic conversation, complainant informed that Mr. Sharan had not asked for any bribe and also asked him to go away which appears to be contrary to the testimony of Pw9 who did not mention about these facts.
(viii)PW10 stated that some internal proceedings were conducted in CBI office but he could not remember about the said proceedings.
(ix) He stated that on 24.1.2007 at about 9 PM, they came to CBI office from Dwarka and some documents were prepared by CBI officials. He could not tell what were the said documents.
(x) During cross examination by Ld.PP, entire documents were put up to this witness and in response to most of the leading questions, he admitted the correctness of the facts which were not deposed by him in his examination in chief which also adversely affects his creditability.
6.18 In my view, testimony of PW10 cannot be discarded as false. But, his DAI/2007/A/0005/CBI/ACB/New Delhi 41 testimony should be relied where ever it finds corroboration. Testimony of PW12 Sh. Rajesh Chahal,DSP, CBI (Trap Laying Officer/TLO) 6.19 PW12 is an important witness being trap laying officer/ TLO. He has supported the prosecution case on material facts. Admittedly, PW12 was not inside the room at the time of trap proceedings. Therefore, he is not a witness of demand and acceptance of bribe (at the time of trap) by accused Samir Kumar Ghosh. He has supported the documents prepared by him during the proceedings. He has supported the prosecution case on the question of demand of bribe at pre verification stage and the recovery of bribe amount from the possession of accused Samir Kumar Ghosh at the stage of trap.
Disclosure statement Ex.PW15/E 6.20 It was stated by PW12 (TLO) that after arrest, accused Samir Kumar Ghosh (A1) was interrogated and he disclosed the involvement of accused R.K Saran (A2) in the commission of offence. PW12 also stated that disclosure statement of accused Samir Kumar Ghosh was recorded by him which was signed by A1 and the witnesses. The said disclosure statement was not filed by prosecution alongwith the chargesheet. During testimony of PW12, the disclosure statement could not be proved. During testimony of PW15 Inspector C.K. Sharma ,Investigating Officer (IO) , the disclosure statement was brought on DAI/2007/A/0005/CBI/ACB/New Delhi 42 record as Ex.PW15/E. The disclosure statement does not bear signature of accused Samir Kumar Ghosh (A1) or any of the witnesses. 6.21 It was submitted by ld. defence counsel that no disclosure statement was made by A1 and disclosure statement Ex.PW15/E is a fabricated document. Ex.PW15/E does not bear the signature of accused or the independent witnesses. There is no explanation from the prosecution that why disclosure statement was not signed by A1 or the witnesses. Prosecution failed to explain why disclosure statement was not filed alongwith the chargesheet. Keeping in view the facts and circumstances of the case, there is serious doubt about the genuineness of disclosure statement Ex.PW15/E. The said doubt is further strengthen because PW9, PW10 and PW11 did not mention about the disclosure statement Ex.PW15/E. The Call Detail Record (CDR) 6.22 PW13 R.K. Singh, Noddle Officer from Bharti Airtel Ltd. proved the call detail record of mobile phone of accused R.K. Saran and and proved certificate u/s 65 (b) of the Evidence Act.
6.23 PW6 R.S Yadav and PW14 Rakesh Soni proved the CDR of mobile phone used by accused Samir Kr. Ghosh and mobile phone used by complainant in the name of M/S Krishna Enterprises alongwith certificate u/s 65 (b) of DAI/2007/A/0005/CBI/ACB/New Delhi 43 Evidence Act.
6.24 The genuineness of CDRs was disputed by ld. defence counsels on the ground that certificate u/s 65 (b) of the Evidence Act was prepared by the witnesses on the day of their testimony while sitting in the court. Ld. defence counsel alleged that server was not under the control of the PWs and therefore, they could not have deposed about the authenticity of the CDRs. After going through the testimony of above witnesses, I do not find any substance in the contentions of ld. defence counsels. There is nothing in the evidence that CDR has been manipulated in any manner.
Arguments of Ld. Public Prosecutor (Ld.PP)
7. Ld. PP for CBI argued:
i) That in substance PW9, PW10,PW11 and PW12 has supported the prosecution case on the question of demand, acceptance and recovery of bribe on the part of A1.
ii) That on the ground of discrepancies on account of contradictions or improvements, the testimony of witnesses cannot be discarded. Undue importance cannot be given to contradictions if the same does not go to the root of matter.
iii) Recovery of bribe amount from the possession of A1 has been proved by DAI/2007/A/0005/CBI/ACB/New Delhi 44 all the material witnesses which finds corroboration from the report of CFSL and statement of PW1. A1 has not explained that how trap money came in his possession. There is presumption u/s 20 of P.C Act and therefore, it was for A1 to explain how trap money came in the hands and the pocket of A1. It is not the case of A1 that either TLO or witness or complainant had any animosity with A1. It is also not the case of A1 that bribe amount was forcibly put into the hands or the pocket.
iv) That payment of bribe may be proved through surrounding circumstances and sequence of events. Reliance was placed on Bhupender Singh Sikka Vs. CBI, Crl. A. 124/2001 decided on 25.3.2011 (Delhi High Court); State of UP Vs. Zakulla, 1982 AIR SC 511; Gyan Singh Vs. State of Punjab, 1974 Cr.L.J. 789 and Hazari Lal Vs. State (Delhi Administration) , 1980 Crl.L.J (564) SC Etc.
v) That hostility of witness may be due to various reasons and does not always means that witness is unworthy of reliance.
vi) That the plea of A1 and A2 that they were not in position to give any favour to the complainant is not acceptable in view of explanation (a) of section 7 of P.C Act. Public servant taking illegal gratification need not be capable to give favour. Ld.PP placed reliance on Bhanu Prasad Hari Prasad Dabey Vs. State of Gujrat, 1968 Cr.L.J 1503; Sh. Shiv Raj Singh Vs. Delhi Administration 1969 Crl.L.J, page 1; Chatur Dass DAI/2007/A/0005/CBI/ACB/New Delhi 45 Bhagwan Dass Patel Vs. State of Gujrat 1976 Crl.LJ 1180 and M.A Thong Vs. State of Maharastra 1993 Crl.L.J 3796 etc.
vii) That acceptance of bribe may be easily gathered from the surrounding circumstances and sequence of events. Ld. PP relied upon State of Bihar Vs. Basawan Singh, 1958 AIR 500 (SC) wherein it was held that "the corroboration need not be from direct evidence when accused committed the crime, it sufficient even though it is merely of circumstantial evidence of his connection with the crime." .
viii)That plea of accused in respect of notification u/s 79 (a) of IT Act regarding CFSL, New Delhi is not acceptable in respect of admissibility of evidence. In number of judgments of Hon'ble High Court and Hon'ble Supreme Court, it is held that report of CFSL is a report of expert having special skills and expertize in the field. Even the report of private expert having sufficient expertize and skills may be accepted by the court.
ix) That non examination of Ajay Kumar Jha, an employee of firm of complainant was not necessary. Sh. Ajay Kumar Jha was not witness of demand of bribe.
x) That there may not be direct evidence to prove criminal conspiracy. Such offences are committed in clandestine manner. Criminal conspiracy may be proved from the circumstances.
xi) That independent witnesses cannot be treated like stock witnesses only DAI/2007/A/0005/CBI/ACB/New Delhi 46 because they had participated in one or two other proceedings of CBI. Ld. PP relied on State of UP Vs. Zakula, 1988 (1) SCC577 and Hazari Lal Vs. State (Delhi Administration) (1980) 2 SCC 390.
xii) That testimony of officials of CBI should not be suspected. The established law is that testimony of police officials should also be considered on the same parameters like any other witness. In support of his argument, ld.PP relied on Som Parkash Vs. State of Delhi , AIR 1974 SC 989.
8. Ld. defence counsels submitted that :
i) That testimony of PW9,PW10 and PW11 suffers from number of material contradictions and improvements and does not find any corroboration from the independent source. Therefore, testimony of these witnesses cannot be relied.
ii) That Sh. A.K. Ojha (an employee of complainant) who informed complainant for the first time about the telephonic call from MSTC has not been examined.
iii) That PW9 (complainant) himself stated that he acted on the basis of rumors.
iv) That accused no.1 Samir Kumar Ghosh was not the member of the committee which was empowered to take decision in the process of E auction.
DAI/2007/A/0005/CBI/ACB/New Delhi 47
v) That accused R.K. Saran was working on contractual basis and was not associated with the process of Eauction.
vi) That A2 R.K. Saran was not a public servant and therefore, charge against him u/s 7 and 13 of PC Act does not survive.
vii) There is no reliable evidence to prove demand, acceptance and recovery from A1 Samir Kumar Ghosh.
viii)That recorded conversation contained in audio cassette Q1 pertaining to trap proceedings could not be played in the court.
ix) PW9, PW10 and Pw11 were declared hostile and did not support the prosecution case on material points.
x) That the transcript of recorded conversation contained in Q1 does not suggest payment of bribe by A1.
xi) Handing over memo is fabricated document which bears different date i.e 23.01.2007 and 24.01.2007.
xii) That testimony of PW9 and PW11 is contradictory to each other on the aspect of acceptance of bribe which creates serious doubt.
xiii)Disclosure statement of accused Samir Kr. Ghosh is fabricated document.
xiv)That CDR is not proved in accordance with law.
xv) That on the aspect of recovery of bribe from A1 Samir Kumar Ghosh there are material contradictions in the testimony of witnesses. 9 I have considered the respective submission of Ld.PP and Ld. DAI/2007/A/0005/CBI/ACB/New Delhi 48 defence counsels in the context of facts, circumstances and evidence on record. 10 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".
11 It is settled proposition of law that the testimony of witnesses is required to be considered as a whole in the entire facts and circumstances of the case and keeping in view the contradictions, improvements and discrepancies. Testimony of any natural witness is bound to suffer from some contradictions and embroidery of falsehood. Every witness has his own intelligence, capability, observation, memory, knowledge and communication skill. Two witnesses of the same instance cannot narrate same incident in similar words. The testimony of DAI/2007/A/0005/CBI/ACB/New Delhi 49 witnesses always depends on their individual perception and capability. The duty of the court is to analyze the statements of witnesses in the context and background of witnesses and circumstances of the case. 12 The most important question is, whether witnesses have any reason to depose falsely to implicate accused persons? In the present case, it was argued by prosecution as well as defence that complainant was not known to either accused prior to this case. Similarly, two independent witnesses i.e. PW10 and PW11 as well as TLO/PW12 had no previous background or enmity with any of the accused. Nothing has been brought on record to prove that material witnesses of the case has any motive or reason to implicate the accused persons falsely. Therefore, in my opinion the testimony of Pw9, PW10, PW11, PW12 and other witnesses cannot be treated as false with any ulterior motive. 13 It is settled preposition of law that hostility of witnesses may be due to various reasons. Sometime witnesses may resile from their statement on account of lapse of time. Witnesses may forget minor aspects of the case and the minute details. Sometime, witnesses may contradict due to confusion or lack of understanding.
14 No doubt that testimony of PW9, PW10 and PW11 suffers from contradictions, improvements and deficiencies on some of the material facts as DAI/2007/A/0005/CBI/ACB/New Delhi 50 well as the minor details of the case. But, the important question is, whether these witnesses are consistent, natural and trust worthy on the core issues of the case. Perusal of testimony of PW9, PW10, PW11 and PW12 and documents on record proves that these witnesses have consistently deposed and corroborated each other which proved following facts of the case:
i) That complaint was lodged by PW9 with the CBI alleging demand of bribe.
ii) That pre trap verification proceedings were conducted wherein complainant contacted accused Samir Kumar Ghosh (A1) over the phone which is proved by complainant and finds corroboration from PW11 and PW12.
iii) There may be difference of opinion, whether there was demand in clear terms in pre trap verification proceedings. But, there is no element of doubt that accused Samir Kumar Ghosh called the complainant to his office on next day.
iv) That pre trap proceedings were conducted in the office of CBI which is proved by PW12 (TLO) as well as the documents prepared in pre trap proceedings. The testimony of PW12 finds corroboration from the testimony of PW9, PW10 and PW12.
v) There may be some discrepancies about the amount produced by complainant to be used as trap money but Pw9, PW10, PW11 and Pw12 consistently deposed that amount of trap money was produced by complainant.DAI/2007/A/0005/CBI/ACB/New Delhi 51
vi) PW12 (TLO) stated that G.C notes produced by complainant were smeared with phenolphthalein powder and demonstration of significance of phenolphthalein powder was shown to the witness in pre trap proceedings. Testimony of PW12 finds corroboration from the testimony of PW9, PW10 and PW11.
vii) PW9, PW10, PW11 and PW12 consistently deposed that trap was laid and they alongwith other members of trap team reached in the office of MSTC.
viii)Pw9, PW10, PW11 and PW12 consistently stated that PW9 and PW11 met A1.
ix) It is consistently deposed by Pw9, Pw10, PW11 and PW12 that A1 met complainant PW9 and shadow witness PW11 in the office of Regional Manager, MSTC.
x) PW9 and PW11 deposed that they were asked to sit in the office of Regional Manager, MSTC by A1 himself.
xi) PW9 and PW11 consistently deposed that in their meeting with A1 in the office of Regional Manager, MSTC there had been talks about E auction/tender process.
xii) PW9 and PW11 stated that there had been talks pertaining to demand of bribe.
xiii)PW9 & PW11 clearly stated that trap money was taken out by PW9 from his pocket and was extended to accused Samir Kumar Ghosh. Though, there is a contradiction in the testimony of PW9 and PW11 whether the DAI/2007/A/0005/CBI/ACB/New Delhi 52 trap money was put on sofa or was directly handed over to A1 but it is stated by both the witnesses that money was given to accused Samir Kumar Ghosh by complainant on his demand.
xiv)Though there is contradiction between PW9 and PW11, whether the money was recovered from the sofa or from the pocket of accused Samir Kumar Ghosh but PW10 and PW12 both stated that money was recovered from the pocket of accused Samir Kumar Ghosh.
xv) It is staed by Pw12 that hand wash and pocket of A1 was taken in the solution of sodium carbonate and solution turned pink which established that the GC notes of trap money smeared with phenolphthalein powder came in contact with accused Samir Kumar Ghosh. This fact has also found corroboration from the testimony of Pw9, PW10 and PW11 as well as report of CFSL expert.
xvi)It is stated by PW9,PW10, PW11 and PW12 that distinctive numbers of trap money (G.C notes) recovered from the accused were tallied with the number of GC notes recorded in pre trap handing over memo and number of GC notes tallied in toto.
15 There is no explanation from A1 that when he was unknown to the complainant and was not concerned with the Eauction process, why he entertained complainant over the phone and fixed the meeting with him in the office of MSTC. There is no explanation from A1 that why he met complainant DAI/2007/A/0005/CBI/ACB/New Delhi 53 and shadow witness in the office of MSTC and entertained them in the office of Regional Manager. These circumstances also creates a serious doubt about the conduct of accused Samir Kumar Ghosh and corroborate the prosecution case. It corroborates the prosecution case that A1 fixed the meeting in the office of MSTC in pursuance to his demand of bribe and accepted the same from complainant.
16 Keeping in view the above mentioned discussion, in my opinion, PW9, PW10, PW11 and PW12 has supported the prosecution case on material aspects. The contradictions, improvements and deficiencies in their testimonies cannot be given much importance. In my view, the testimony of PW9, PW10, PW11 and PW12 on material facts, (in totality of circumstances), creates a ring of truth.
17 Even if the recorded conversation contained in audio cassettes is excluded, the testimony of witnesses and documents proved on record clearly establish that accused Samir Kumar Ghosh demanded the bribe from complainant, accepted the same which was recovered from his possession. 18 I do not find any merit in the submission of Ld. defence counsel of accused Samir Kumar Ghosh. In my opinion, the plea of false implication of accused Samir Kumar Ghosh (A1) is neither substantiated from the evidence on DAI/2007/A/0005/CBI/ACB/New Delhi 54 record nor proved in preponderance of probabilities.
Criminal Conspiracy and Demand, Acceptance & Recovery of Bribe 19 Both the accused are facing charges for the offences u/s 120 B of the IPC r/w Sec. 7 & 13 (2) r/w Sec. 13(1) (d) of the P.C. Act and for offence u/s 7 & 13 (2) r/w Sec. 13(1) (d) of the P.C. Act for demanding and accepting bribe from the complainant.
20 In order to prove the criminal conspiracy, prosecution is required to establish the meeting of mind between the accused persons to enter into the criminal conspiracy and some overt act on the part of each accused towards the accomplishment of criminal conspiracy. The offence of criminal conspiracy is generally committed in clandestine manner to hide the commission of offence and therefore, generally there can hardly be any direct evidence in the form of independent witness in such cases. The meeting of mind, criminal intention and respective roles of respective accused can be established either by the direct or the circumstantial evidence. Therefore, circumstantial evidence also becomes important in the cases of criminal conspiracy.
21. 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:
DAI/2007/A/0005/CBI/ACB/New Delhi 55
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, 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.
22. 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"DAI/2007/A/0005/CBI/ACB/New Delhi 56
23. In order to prove charge u/s. 7, the 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.
(iii) For himself or for any other person.
(iv) Such gratification was not a remuneration to which the accused was legally entitled.
(v) 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.
24. B. Parameshwran v. State of A. P., 1999 Cr. L. J. 2059 (AP): is an important case wherein it was held that :
" A reading of this provision would make it amply DAI/2007/A/0005/CBI/ACB/New Delhi 57 clear that all the three wings of clause (d) of Sec. 13(1) are independent and alternative and disjunctive for constituting the ingredients of the offence under Sec. 13(1) (d) as is clear from the use of word or (at the end of each sub clause). Thus under Sec. 13(1) (d) (i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under Se. 13 (1) (d) of the Prevention of Corruption Act, 1988. on the same reasoning "obtaining a valuable thing or pecuniary advantage merely by abusing official position "as contemplated under Se. 13 (1) (d) (ii) in itself would satisfy the ingredients of criminal misconduct under Sec. 13(1) (d) (i) of the Act, 1988. Thus, it would appear that there is definite change as to the ingredients of offence of criminal misconduct under Sec. 13(1) (d) of Act, 1988 as distinct from Sec. 5(1) (d) of the Prevention of Corruption Act, 1947. The judgment of the Supreme Court rendered while interpreting the provisions of Prevention of Corruption Act, 1947 have to be appreciated taking into account of changes incorporated in relevant provisions in the Prevention of Corruption Act, 1988."
25 The involvement of accused R.K. Saran (A2) in criminal conspiracy is based on alleged disclosure statement made by (A1) and recorded conversation. There is serious doubt in the disclosure statement of accused DAI/2007/A/0005/CBI/ACB/New Delhi 58 Samir Kr. Ghosh. Otherwise also the alleged disclosure statement is not admissible in evidence unless the same comes u/s 27 of the Evidence Act. As per prosecution, the involvement of accused R.K. Saran was revealed from the said disclosure statement , therefore, it comes within the purview of section 27 of Evidence Act. I do not agree with the contentions of Ld.PP. In pursuance to disclosure statement neither there was any acceptance of bribe by accused R.K. Saran nor there was any recovery of bribe from him in accordance with the disclosure statement of A1. A1 has denied the alleged disclosure statement. In my opinion, the disclosure statement allegedly made by A1 is not proved on record by reliable evidence and therefore, no reliance can be placed on the disclosure statement. As already discussed, recorded conversation contained in audio cassette allegedly in the voice of accused R.K. Saran (A2) is not reliable evidence. Even if, for the sake of arguments only, the recorded conversation is taken into consideration, the same may be used only for the purpose of corroboration. In pursuance to the alleged recorded conversation neither there is any acceptance nor any recovery of bribe on the part of accused R.K. Saran. 26 In view of above discussion, prosecution has failed to prove charges against accused R.K. Saran beyond reasonable doubt in respect of his involvement in criminal conspiracy. Therefore, charge of criminal conspiracy u/s 120 B of IPC r/w Section 7 and 13 (2) r/w 13 (1) (d) of P.C Act against both the accused could not be proved by prosecution. As discussed above, demand, DAI/2007/A/0005/CBI/ACB/New Delhi 59 acceptance and recovery of bribe is also not proved against accused R.K. Saran (A2) and therefore charge u/s 7 and 13 (2) r/w 13 (1) (d) of P.C Act could not be proved against him. However, the demand, acceptance and recovery of bribe and the essential ingredients of offence u/s 7 and 13 (2) r/w Sec. 13 (1) (d) of the PC Act have been proved beyond any reasonable doubt against accused Samir Kumar Ghosh (A1).
27 In view of above findings:
(i) Both the accused are acquitted from the charge of criminal conspiracy u/s 120 B of the IPC r/w Sec. 7 and 13(2) r/w Sec. 13(1)(d) of the PC Act.
(ii) Accused Rajiv Kant Sharan (RK Sharan) is also acquitted from the charge u/s 7 and Sec. 13(2) r/w Sec. 13(1)(d) of the PC Act.
(iii) Accused Samir Kumar Ghosh is convicted for the charge u/s 7 and Sec. 13(2) r/w Sec. 13(1)(d) of the PC Act.
28 In accordance with Section 437 A of the Cr.P.C., accused Rajiv Kant Sharan (R.K. Sharan) is directed to submit personal bond of Rs.1,00,000/ (Rupees one lac only) with one surety of the like amount along with his recent passport size photograph and documentary proof of his present residential address with an undertaking that he will appear before the Ld. Appellate Court in case any appeal is preferred against him by the prosecution. DAI/2007/A/0005/CBI/ACB/New Delhi 60 29 Let, convict Samir Kumar Ghosh be heard separately on the point of sentence on 18/12/2013.
Announced in the open court (Sanjeev Jain)
th
on this 17 December, 2013. Special Judge(PC Act), CBI03, South District, Saket Courts, New Delhi.
DAI/2007/A/0005/CBI/ACB/New Delhi 61 IN THE COURT OF SHRI SANJEEV JAIN: SPECIAL JUDGE (PC ACT), CBI3, SOUTH DISTRICT, SAKET COURTS, NEW DELHI CC No. 49/12 RC No. DAI/2007/A/0005/CBI/ACB/New Delhi Under Section 7 and 13 (2) r/w 13 (1)(d) of Prevention of Corruption Act, 1988.
(Case UID No.02406R1110912008) Central Bureau of Investigation Versus
1. Samir Kumar Ghosh S/o Late Shri B.K. Ghosh R/o B605, Royal Towers, Sector61, Noida, U.P. (Convicted vide judgment dated 17/12/2013)
2. Rajeev Kant Sharan S/o Shri B.B. Sharan, R/o 4B 602, Gurjinder Vihar, AWHO Colony, Greater Noida, Uttar Pradesh201308.
(Acquitted vide judgment dated 17/12/2013)
Date of FIR : 23.01.2007
Date of filing of Chargesheet : 29.03.2008
Date of Judgment : 17.12.2013
Arguments on sentence heard on : 18.12.2013
Date of order on sentence : 18.12.2013
DAI/2007/A/0005/CBI/ACB/New Delhi 62
Appearance:
For prosecution: Sh. Raj Mohan Chand, Ld. PP for CBI.
For convict: Sh. Yogesh Verma, Advocate for convict Samir Kumar
Ghosh.
ORDER ON THE POINT SENTENCE
1 By my separate judgment dated 17.12.2013 accused Samir Kumar
Ghosh was convicted for the offence u/s Sec. 7 and 13(2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988.
2 I have heard the ld. PP for CBI and ld. defence counsel for the convict Samir Kumar Ghosh and carefully considered their respective submissions.
3 Ld. PP for CBI submitted that Samir Kumar Ghosh has been convicted for demanding bribe of Rs.3,00,000/ and accepting Rs.2,00,000/ from the complainant. It is submitted by Ld. PP that cases of corruption do not deserve any leniency. It is argued that punishment in such cases should be exemplary which may prove a deterrence for similar offenders. Ld. PP submitted that keeping in view the nature and gravity of offence, maximum punishment should be awarded against convict in accordance with law.
DAI/2007/A/0005/CBI/ACB/New Delhi 63 4 Ld. Defence counsel for convict Samir Kumar Ghosh requested for lenient view mainly on the ground of following mitigating circumstances:
(i) That convict is aged about 57 years and is suffering from diabetes and hypertension.
(ii) That wife of convict had expired during the trial of this case mainly because of hypertension.
(iii) That son of convict is aged about 23 years and is solely dependent upon the convict.
(iv) That mother of convict is aged about 78 years and she is suffering from various ailments and is bed ridden.
(v) That there is no other member in the family to lookafter his son and old age mother.
(vi) That convict has unblemished record in his service of about 27 years.
(vii)That convict has never been involved in any other crime.
5 The complex question of determination of nature and quantum of sentence comes before the Court after the conviction of an accused. The decision of punishment depends on various relevant factors relating to the nature of offence, the manner of its commission and the gravity of the same. The horizontal and vertical competing interest between society and individual, the victim and accused and the aspiration of "object to be sought" and the limitations of law require accurate analysis and harmonization of remedial, reformative and DAI/2007/A/0005/CBI/ACB/New Delhi 64 preventive steps.
6 In Giassudin Versus State of Andhra Pradesh, AIR 1977 SC 1932, it was held that...
"a proper sentences is the amalgam of many factors such as the nature of offence, the circumstances extenuating or aggravating of the offence, the prior criminal record (if any) of offender, the age of offender, the record of offender as to employment, the background of offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of offender, the prospects for rehabilitation of the offender, the possibility of return of offender to normal life in the community, the possibility of the treatment or training of offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to particular type of offence. These factors have to be taken into account by the court in deciding upon the appropriate sentence"
7 Ld. PP submitted that mitigating circumstances pointed out by the ld. defence counsel are not relevant for a lesser sentence. It is further submitted that keeping in view the nature and gravity of offence, convict does not deserve DAI/2007/A/0005/CBI/ACB/New Delhi 65 any leniency. In support of his submissions, Ld. PP has relied on the law laid down by superior courts in the cases of State of Gujarat v. Hon'ble Mr. Justice R.A. Mehta (retired) & Others, (2013) 3 SCC 1 and A.B. Bhaskar Rao v. Inspector of Police CBI Vishakhapatnam (2011) 10 SCC 259. In both the cases it had been held that the cases of corruption are required to be dealt with in a decisive manner and courts are not required to be lenient and sympathetic to such convicts.
8 In the case of Kishan Dayal Vs. State, 1958 Raj LW 596 it was held that...
"A corrupt official is a menace to the society and far from helping in the proper functioning of the Government and implementing of the laws, brings the Government and the society at large into disrepute. It is through the agency of the public servants that the policy of the legislature as well as of the Government is implemented. It is through the public servants that crimes are detected and offenders are brought to book. It is through strictly honest and incorruptible public servants that the welfare of the society can be ensured. If such servants are open to corruption and coerce the public into paying them illegal gratification the whole structure of the society would be upset and the policy of the Government and of the Legislature, howsoever beneficial it may be, would gravely suffer. A public servant therefore once he is found to be guilty of DAI/2007/A/0005/CBI/ACB/New Delhi 66 accepting or obtaining illegal gratifications, deserves no soft corner or indulgence from the Courts of Law."
9 In the case of A. Wati A.O. Vs. State of Manipur, 1996 Cr.LJ 403 (SC) it was held that...
"The fact that appellant is a Senior I.A.S. Officer really requires a serious view of the matter to be taken, instead of soft dealing. The fact that he has a number of dependents and is going to loose his job are irrelevant considerations in as much as in almost every case a person found guilty would have dependents and if he be a public servant he would loose his job. The present being the first offence is also an irrelevant consideration. Though the delay has some relevance but as in case of the present nature, investigation itself takes time and then the trial is prolonged because of the type of evidence to be adduced and number of the witnesses to be examined, the fact of delay of about five years could not have been a ground to award the sentence of imprisonment till rising of the court which really makes a mockery of the whole exercise."
10 In view of the cases cited above, in the case of corruption, age, family responsibilities, previous records of convict and the possibility of loss of job cannot be considered as mitigating circumstances. The only relevant mitigating circumstance in the case of convict Samir Kumar Ghosh is his bedridden 78 DAI/2007/A/0005/CBI/ACB/New Delhi 67 years old mother who is solely dependent upon him which requires some consideration.
11 Large range of public servants starting from lowest rank to the highest level are covered under Prevention of Corruption Act. Similarly, the range of corruption is also wide between petty bribes to the corruption in thousands of crores by top ranked public servants. Sentence to a convict should be proportionate and appropriate in response to the nature, gravity of offence and other circumstances. It is always difficult to determine a proportionate and appropriate sentence in a particular case which may serve the object of the sentence. In the cases of corruption, the main object of sentence is deterrence and prevention of such crimes by way of deterrence. Reformation theory of punishment has comparatively lesser applicability in such cases. 12 In order to determine the proportionate and appropriate sentence in such cases, court may start from middle point of maximum and minimum sentence which may be inflicted against the convict. After starting from middle point, court may consider the mitigating and incriminating circumstance to enhance or reduce the sentence accordingly. Similarly, for the offence in question, convicts are liable to pay fine. Quantum of fine may also be determined by considering the expenses incurred by the State during the investigation and trial. Though, it is difficult to determine the exact cost of such litigations, but court DAI/2007/A/0005/CBI/ACB/New Delhi 68 may notice that running investigating agency like CBI and the institution of courts is costly affair at the cost of public exchequer. Therefore, the quantum of fine should be proportionate to the gravity of offence, circumstance of convict as well as cost of litigation.
13 As per section 7 of Prevention of Corruption Act, 1988, on conviction it shall be punishable with imprisonment which shall not be less than six months but which may extend to five years and shall also be liable to fine. 14 Under section 13(2) r/w sec. 13(1)(d) of Prevention of Corruption Act, 1988, it shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.
15 Under section 7 and 13(2) r/w sec. 13(1)(d) of Prevention of Corruption Act, 1988, there is a provision for "Imprisonment & Fine". The description of imprisonment has not been provided under Prevention of Corruption Act for these offences.
16 Section 3(27) of General Clauses Act, 1897 provides "imprisonment" shall mean imprisonment of either description as defined in Indian Penal Code. Therefore, as provided under General Clauses Act, for DAI/2007/A/0005/CBI/ACB/New Delhi 69 offence u/s 7 and 13(2) r/w sec. 13(1)(d) of Prevention of Corruption Act, the imprisonment may be of either description i.e. rigorous or simple. 17 There is a famous saying that "power corrupts a man and absolute power corrupts absolutely". In the present context, it may also be said that it is not always power which corrupts a man but the corrupt man also corrupts the power i.e. system/processes. It is almost impossible to prepare a exhaustive list of the ill effects of corruption. Some of the ill effects are that it discredits the public institutions; creates economic inequality in the public; slow down the development of the country; creates frustration in the common masses; effects the institutions as well as the individuals. In democratic system there are the demarcation of powers between the different institutions and the said powers are exercised by the institutions through their employees/officials. The public servants are expected to maintain the purity of the system and to implement the rule of law. Corruption anywhere in any form, particularly in public servants and public institutions attacks the very roots of the democratic system. No system can progress unless the public authorities perform their duties with honesty and dedication. In this scenario we cannot visualize a dream of a developed and powerful country unless the constitutional boundaries are being maintained and protected by the public authorities. The positions of public authorities in civil life is almost similar to the soldiers. The only difference is that our soldiers are expected to protect our territorial boundaries and the public authorities to protect DAI/2007/A/0005/CBI/ACB/New Delhi 70 the constitutional boundaries. If the fence starts eating the crops perhaps no one can save the future. To summarize, it may be said that corruption is the sharpest weapon of exploitation of masses by the individuals which in essence destabilize the faith of the people in rule of law.
18 Keeping in view the entire facts and circumstances of the case, nature and gravity of offence, incriminating and mitigating circumstances and the need of the time, in my opinion undue leniency in such cases is neither desirable nor warranted. The punishment should be proportionate to the gravity of offence but as well as should be deterrent enough to give a right message to such similar offenders.
19 Keeping in view the above discussions, convict Samir Kumar Ghosh is sentenced in the following manner:
(a) To undergo rigorous imprisonment of four years and to pay fine of Rs. 75,000/ (Rupees seventy five thousands only) for the offence u/s 7 of Prevention of Corruption Act, 1988. In default of payment, he shall further undergo simple imprisonment for three months.
(b) To undergo rigorous imprisonment of five years and to pay fine of Rs. 75,000/ (Rupees seventy five thousand only) for the offence u/s 13 (2)r/w section 13 (1) (d) of Prevention of Corruption Act, 1988. In default of payment, he shall further undergo simple imprisonment for three months.
DAI/2007/A/0005/CBI/ACB/New Delhi 71 20 All the sentences of imprisonment will run concurrently. Benefit of section 428 Cr.P.C. be given to convict Samir Kumar Ghosh for the period of imprisonment already undergone by him i.e. from 24/01/2007 to 09/04/2007. 21 In accordance with order on sentence, convict Samir Kumar Ghosh be taken into custody and be sent to jail to undergo sentence. Personal bond and surety bond stand cancelled. Copy of the judgment and order on sentence be given to the convict free of cost. Custody warrants be prepared separately in accordance with the order of sentence.
22 File be consigned to record room after due compliance.
Announced in the open court (Sanjeev Jain)
on this 18 December, 2013
th
Special Judge (PC Act), CBI03,
South District, Saket Courts,
New Delhi.
DAI/2007/A/0005/CBI/ACB/New Delhi 72