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Delhi District Court

Title: State (Cbi) vs . Kuwar Singh @ Kunwar Pal & Another on 5 March, 2014

 IN THE COURT OF MS. SWARANA KANTA SHARMA, SPECIAL JUDGE, 
                    CBI­05, PATIALA HOUSE COURTS, NEW DELHI


CC No: 06/2013

RC No: DAI­2013/A­0016/CBI/ACB/DELHI

Unique Case ID No: 02403R0139842013

Title: State (CBI) Vs. Kuwar Singh @ Kunwar Pal & Another

U/s:   120­B  IPC   r/w   Section   7,  13(2)   r/w   Section  13(1)(d)  of    Prevention   of 
        Corruption Act, 1988.  

                Date of Institution                       :         03.10.2013
                Date of reserving order                   :         03.3.2014 
                Date of pronouncement                     :         05.3.2014

(Appearances)


Sh. Akshay Gautam, Ld. Senior PP for CBI. 

Sh.   Sanjeev   Bhardwaj,   Advocate,   Ld.   Counsel   for   accused   No.   1   Kuwar 
Singh. 

Sh. Anil Kumar, Advocate, Ld. Counsel for accused No. 2 Surender  Singh. 

JUDGMENT

1. Brief facts of the case are that accused Kuwar Singh being public servant while working as Lower Division Clerk, SDMC, General Branch, Central Zone, Lajpat Nagar, New Delhi and accused Surender Singh in the month of July, 2013 at Delhi entered into criminal conspiracy with each other and demanded and accepted Rs.10,000/­ CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 1 of 67 from Sh. Suresh Mehta S/o Sh. F.C. Mehta R/o G­49, First Floor, Lajpat Nagar­III, New Delhi as illegal gratification other than legal remuneration as a motive or reward for showing undue favour for settlement of Tehbazari fee in respect of space in front of the shop of complainant Sh. Suresh Mehta bearing No. 7, Central Market, Lajpat Nagar, New Delhi in the name and style of M/s Kaveri Selections Pvt. Ltd. where the complainant had been alloted some space in front of his said shop by MCD against payment of Tehbazari (Tax) on yearly basis and thereby both accused Kuwar Singh @ Kunwar Pal and accused Surender Singh committed offences under Section 120­B IPC r/w Section 7, 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988.

2. After completion of investigation, charge­sheet was filed. Both the accused persons had appeared in the Court and copies of documents, as required by Section 207 CrPC, were supplied to them to their satisfaction.

3. The charges were framed against both the accused persons under relevant Sections of Law to which they pleaded not guilty and claimed trial.

4. Now, the points for determination are:

CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 2 of 67

(i) Whether the accused persons, being a public servant, demanded and accepted bribe from the complainant in the discharge of their official duties?

(ii) Whether the bribe amount was recovered from the accused persons?

(iii) Whether the accused persons obtained the bribe amount by corrupt or by illegal means or by otherwise abusing their official position?

Section 7 of the P.C. Act provides as under:

"Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 3 of 67 State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.....".

Section 13 of the P.C. Act provided as under:

(1) A public servant is said to commit the offence of criminal misconduct .................................................. ......................................................................

..(d) if he­

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantages; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 4 of 67 thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest....."

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."

Section 20 of the P.C. Act provides as under:

"Presumption where public servant accepts gratification other than legal remuneration :­ (1) Where, in any trial of offence punishable under Section 7 or Section 11 or Clause (a) or clause (b) of sub­section (1) of Section 13 it is proved that an accused person has accepted or obtained or has CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 5 of 67 agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under Section 12 or under Clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 6 of 67 as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub­sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub­sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption my fairly be drawn."

5. Let me examine the testimony of the material witnesses and the other documents filed before me in light of law and the case law to decide whether charges are proved against both the accuseds or not.

6. CBI in support of their case have examined 21 witnesses.

7. PW­1 Sh. Ashok Kumar stated that on 01.10.2013, he was posted as Deputy Commissioner, Central Zone, MCD. On 24.9.2013, his office had received a request from SP, CBI through the CVO Office, SDMC. The office had also received the draft sanction order under Section 19 of Prevention of Corruption Act against accused Kuwar Singh @ Kanwar Pal Singh along with accused Surender Singh who CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 7 of 67 were both posted as LDC, SDMC, General Branch, Lajpat Nagar along with supportive material. He stated that he had also received copy of the FIR, copy of the complaint, summary of evidence as well as transcript of the intercepted conversation. After going through the entire record, he had granted sanction for prosecution against accused Kuwar Pal and accused Surender Singh. CBI, Anti Corruption­1 had registered a case against both the accused persons. He stated that the appointing and disciplinary authority for LDCs in MCD is Deputy Commissioner, MCD. He proved the Sanction Orders dated 01.10.2013 for prosecution of both of the accused persons vide Ex. PW1/A and PW1/B which bear his signatures and seal.

On being cross­examined by Ld. Counsel for accused No. 1 Kuwar Singh, he stated that Deputy Commissioner is the appointing Authority of both the accused persons. He denied that he has no authority to appoint LDC. He denied that he had granted sanction for prosecution against both the accused persons as per the draft sanction sent to him without application of mind. He admitted that he had signed the draft sanction sent to him by CBI without making any addition or deletion or correction. He stated that he had, however, signed it after verifying the facts and the record in respect of both the accused persons. He stated that he had not made any inquiry from other staff persons who were present in the room when the trap was laid. He denied that he had accorded the sanction without application of mind or that he was not competent to accord the sanction in respect CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 8 of 67 of both the accused persons. He denied that he is not competent to appoint LDC or that he was not an appointing Authority of both the accused persons. He denied that he was deposing falsely.

Ld. Counsel for accused No. 2 Surender Singh adopted the same cross­examination as conducted on behalf of accused No. 1 Kuwar Singh.

8. PW­2 Sh. Avtar Singh Sagar, Senior Sales Assistant stated that he was called at CBI office on 22­23.7.2013. He stated that in his presence, CBI Inspector had inquired from accused No. 1 Kuwar Singh about some mobile number and of its use. The mobile make was Reliance Communication. Accused No. 1 Kuwar Singh had told that he was using the said mobile for the last six years. In the call details record, the IMEI Number was different and the same did not tally with CDRs. Thereafter, the said mobile was returned to accused No. 1 Kuwar Singh by Inspector, CBI.

The witness was declared hostile by Ld. Senior PP for CBI. On being cross­examined by Ld. Senior PP for CBI he stated that his statement was recorded by CBI and he had signed it. He admitted that he had visited CBI on 13.9.2013. He denied that inquiry was made from accused Surender Singh and not accused Kuwar Singh. He denied that he was deposing falsely to save the accused persons. CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 9 of 67

9. PW­3 Sh. Suresh Mehta, complainant stated that he is the owner of shop No. 7, Central Market, Lajpat Nagar in the name of Kaveri Selections Pvt. Ltd. He stated that he is having licence issued from MCD since 2010 required to run the shop as per MCD Rules. He stated that MCD had sanctioned space measuring about 6 feet by 12 feet under the Tehbazari scheme of the Government. Under the Rules, one is required to pay an annual amount of about Rs.1500/­ towards Tehbazari charges. He stated that he had paid Tehbazari rent upto 31.3.2013. He was to pay advance Tehbazari charge from 01.4.2013 to 31.3.2014. He stated that accused Surender Singh had informed him that he had visited the office of MCD and that the policy of MCD towards Tehbazari has been changed and the fee has been enhanced. He also told him that since the policy in this regard was yet to be cleared, he will inform him about after a few days. In March 2013 and April 2013, he (complainant) along with many other shopkeepers of the area had visited MCD Office and he had met the Zonal Officer whose name he does not know. Accused Surender Singh had told him that he was to pay the deficient charges of the last three years along with penalty. He stated that he was told to pay a sum of Rs. 58,000/­ including the penalty. He requested accused Surender Singh that since he had paid the Tehbazari charges in time for the last three years, he should not be charged any penalty. Thereafter, accused Surender Singh took him to his Administration Officer Mr. Ashok Sharma. He stated that he had requested Mr. Sharma to show him any CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 10 of 67 notice on the basis of which he was being asked to pay penalty charges, but he refused to divulge any such details.

He had again requested accused Surender Singh that he was being charged with penalty charges which was unjustified. Accused Surender Singh told him that if he was ready to pay some bribe amount, he will be able to help him. He stated that when he had protested and told him that he was not in a position to pay either bribe or penalty charges, he told him that his superior officer whose name he did not divulge was not agreeing to help him without payment of bribe.

Thereafter, accused Surender Singh had introduced him to his colleague accused Kuwar Singh who had told him that if he was ready to pay bribe of Rs.10,000/­, he will be able to bring down the penalty charges from Rs.58,000/­ to Rs.35,000/­. Thereafter, he had decided to lodge a complaint against both the accused persons to CBI office. He had gone to CBI office where he met DSP Sanjay Sinha and narrated everything. He had also met SP Vivek Priyadarshani Singh who directed him to give a complaint and accordingly, he had lodged the complaint Ex. PW3/A. CBI had appointed two independent witnesses, namely, Sh. Sanjeev Kumar and Sh. Kuldeep Yadav and in their presence, the demonstration of recording was given to him. He was also told that the independent witnesses Sh. Sanjeeev Kumar and Sh. Kuldeep Yadav shall accompany him along with SI Ajeet Daripa to MCD Office. Thereafter, the said persons along with him had gone to MCD Office at CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 11 of 67 around 12:00 pm. Both the independent witnesses and Sub­Inspector had maintained distance from him at different locations while he was sitting with accused Surender Singh. At that time, he had again discussed the matter with accused Surender Singh stating that the penalty and interest being imposed upon him was unfair. At that time, accused Kuwar Singh was having his lunch. After accused Kuwar Singh finished his lunch, accused Surender Singh had taken him to accused Kuwar Singh. While he was sitting at a distance, both the accused persons conversed with each other and accused Surender Singh told him to talk to accused Kuwar Singh. At that time, accused Kuwar Singh had taken him out and told him that his work will be got done. Accused Kuwar Singh had asked him to come at 4:00 pm. The entire conversation was recorded in the DVR which was fixed by SI Ajeet Daripa. Thereafter, they returned back to CBI office. Mr. Sanjay Sinha, DSP and Mr. Vivek Priyadarshani, SP had heard the entire conversation. Having heard the conversation, a team was constituted having two Inspectors namely Sh. Surender and Sh. Sahu and two Sub­ Inspectors namely Mr. Sukhvinder Singh and Mr. Ajeet Daripa. The said CBI officials had made preparation of the raid and he was given GC Notes of Rs.1000/­ each amounting to Rs.10,000/­. The demonstration had been given to him regarding the currency notes. He was instructed not to touch the GC Notes again. He stated that Mr. Sukhvinder Singh had kept the said GC Notes in his left side shirt pocket. The same DVR used earlier was handed over to him and he CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 12 of 67 had kept the same in his left side shirt pocket. At around 3:30 pm, he along with the entire team members including both the independent witnesses had gone to the MCD office and had parked their vehicles near the MCD Office. Thereafter, he along with independent witness Sh. Sanjeev Kumar had gone at 2nd floor of the MCD Office and met accused Kuwar Singh and at that time accused Surender Singh was not present in the office. Accused Kuwar Singh had taken him out of the office and told him "Kaam Ho Gaya". He had handed over Rs. 10,000/­ to accused Kuwar Singh in the presence of independent witness Sh. Sanjeev Kumar. Accused Kuwar Singh had taken the tainted GC Notes and had kept the same in his pocket. At that time, he had some discussion with accused Kuwar Singh. He stated that he had told accused Kuwar Singh that he should not have any problem and this thing should be brought to the notice of accused Surender Singh. Thereafter, accused Kuwar Singh had gone inside and brought the estimate and given the same to him. He stated that he was asked to deposit the said amount by cheque in the MCD Office.

He stated that thereafter, he made a call to CBI official, but his mobile was busy. In the meantime, he was looking for CBI official and was coming down. Meanwhile, CBI official met him at 1 st Floor. CBI official along with him and independent witness Sh. Sanjeev Kumar had inquired about accused Kuwar Singh and he told them that he had gone upstairs. CBI officials made inquiry from independent witness Sh. Kuldeep Singh who stated that he had noticed accused Kuwar Singh CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 13 of 67 going downstairs from the other stairs as there were two stairs running to the second floor. After accused Kuwar Singh had reached at the ground floor, he was apprehended at the identification of independent witness Sh. Kuldeep Yadav. Accused Kuwar Singh was brought to his room where the money was kept and the same was recovered by CBI officials from the office table drawer. Thereafter, accused Kuwar Singh had called accused Surender Singh at the instructions of CBI officials and accused Kuwar Singh stated that he had been given the bribe amount of Rs.10,000/­. He stated that accused Surender Singh had replied "Main Bahar Hun Rakh Lijiye Jamaa Karwa Denge". Thereafter, the mobile was got disconnected. At MCD Office itself, the hand washes of accused Kuwar Singh were taken and transferred into separate bottles which were sealed. Thereafter, they returned to CBI office and the DVR was taken back from him and switched off. He stated that CBI officials might have prepared some CDs but he does not know. The Chip of the DVR was also sealed. Thereafter, CBI officials prepared certain documents which were got signed by him. He stated that no documentation work was done in CBI office prior to leaving for raid. He further stated that even no documentation work was got done at the spot at MCD office.

An envelope sealed with CFSL containing another unsealed envelope with broken seals and impression of CBI containing a CD as well as cloth wrapper marked S­1 was opened. The CD Ex. S­1 had been played in the laptop produced by Malkhana, CBI. After hearing CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 14 of 67 the same, the witness (PW­3) identified that the voices of Sh. Kuldeep Yadav and Sh. Sanjeev Kumar, however, he stated that he is not sure as to whether the voice of the third person in the CD is of accused Kuwar Singh or not. He stated that the transcript of Ex. S­1 was prepared in his presence which bears his signatures and the same is Ex. PW3/B. He stated that no other transcription of specimen voice was prepred in his presence.

Another CD Ex. S­2 had been played in the laptop produced by Malkhana, CBI. After hearing the same, he (PW­3) stated that he cannot identify the voices of anyone in CD Ex. S­2.

One memory card Ex. PW3/C had been played in Card Reader with write blocker. After hearing the same, he (PW­3) stated that he can identify the voices as pertaining to himself, accused Surender Singh, accused Kuwar Pal Singh and other staff of their office.

Another memory card Ex. PW3/D had been played in Card Reader with write blocker. After hearing the same, he (PW­3) stated that the conversation played in the memory card is different and not clear, hence, he cannot identify the voices played therein. He stated that he he cannot say if the transcription in the present case was prepared. He further stated that some proceedings related to washes were going on but he was standing at a distance.

The witness was declared hostile by Ld. Senior PP for CBI and he was cross­examined by Ld. Senior PP for CBI. On being cross­ examined by Ld. Senior PP for CBI, he denied that CD Ex. PW3/B and CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 15 of 67 Ex. S­2 were prepared in his presence. He admitted that his statement was recorded by Inspector Bijender Singh on 09.8.2013 & 21.8.2013. He denied that the envelopes containing memory card Ex. PW3/C were prepared and sealed in his presence. He further denied that the envelopes containing memory card Ex. PW3/D were prepared and sealed in his presence. He further denied that the envelopes containing specimen CD Ex. PW3/B were prepared and sealed in his presence. He further denied that accused Kuwar Singh had given his specimen voice in his presence or that he (PW­3) had made statement before CBI Inspector that accused Kuwar Singh was requested to give his specimen voice for which he had agreed voluntarily in the presence of all the witnesses and thereafter some sentences from the recorded conversation Q­1 & Q­2 containing the voice of accused Kuwar Singh were prepared. He admitted that introductory voices of two independent witnesses were recorded in the DVR. He stated that he does not remember, if any pre­trap memo was prepared before laying the trap. He admitted that at the spot itself, some documentation work was done.

He stated that memos Ex. PW3/E to PW3/S bear his signatures. He admitted that his statement was also recorded on 05.9.2013 by CBI Inspector. He stated that the trap money was sealed in an envelope Ex. PW3/T in his presence and the said envelope bears his signatures. The trap money is Ex. PW3/T1 to PW3/T10. He denied that he intentionally did not identify the voice of accused Kuwar Singh and CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 16 of 67 accused Surender Singh in Q­2 and also in the specimen CD S­1 & S­2. He denied that he had intentionally and falsely deposed that the trap money was recovered from the pocket of accused Kuwar singh. He further denied that he had deposed falsely on some material facts in order to support the accused persons.

On being cross­examined by Ld. Counsel for accused No. 1 Kuwar Singh, he stated that he had visited CBI office on 23.7.2013. He stated that prior to this, he had visited CBI office once on 22.7.2013 for consultation where he had consulted with Mr. Sinha, Dy. Superintendent of Police. He admitted that accused Kuwar Singh is not a dealing hand / clerk / inspector pertaining to Tehbazari and he had no power to issue any Tehbazari receipt and also he had no authority or power to reduce the Tehbazari charges, rates or penalty. He stated that he had visited MCD office 10­15 times prior to 23.7.2013 and had met Zonal Officer once along with other shopkeepers of the area. He stated that he had not shown Sh. Ashok Sharma, the payment receipts pertaining to Tehbazari rates nor had he given any representation to Sh. Sharma or the Zonal Officer pertaining to the penalty charges being imposed on the Tehbazari space. He volunteered that he had not given any representation in writing as he was assured by Zonal Officer on his visit along with the shopkeepers that his work would be done within a week and appropriate direction will be passed to Sh. Ashok Sharma and Sh. Kashyap, Administrative Officers to do the needful. No order in writing was sent by the Zonal Officer to the said officers. He CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 17 of 67 admitted that he had not made any complaint against accused Surender Singh to the superior officer and had not narrated his grievance against accused Surender Singh stating that any bribe amount had been demanded by him. He admitted that accused Kuwar Singh was known to him prior to the date of incident.

He stated that he had complained to the superior officers of accuses Surender Singh that he is not willing to help him without payment of bribe. He admitted that there is another employee by the name of Kuwar Pal and Kuwar Singh.

He admitted that accused Kuwar Singh had never made any demand of bribe for himself or for accused Surender Singh or on behalf of anyone. He admitted that due to the said reason, there is no mention of any demand of bribe in complaint Ex. PW3/A. He admitted that no estimate of Rs.58,000/­ was prepared by accused Kuwar Singh and no such estimate was given by accused Kuwar Singh to him. He admitted that Ex. PW3/A does not bear his signatures. He stated that he had met punch witnesses, namely, Sh. Sanjeev Kumar and Sh. Kuldeep Yadav when he had reached at CBI office.

He admitted that accused Surender Singh had never asked him to talk to accused Kuwar Singh in regard to his grievance. He admitted that on his first visit to SDMC for verification proceedings, he had met accused Surender Singh only and returned back with the team to CBI office and at that time, he had not met accused Kuwar Singh. He stated that when he had visited SDMC office for verification, at that CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 18 of 67 time he had only entered into the room of accused Surender Singh and the other two punch witnesses had remained outside SDMC office in the lobby. He stated that they had again visited SDMC office and at that time he had met accused Kuwar Singh who was known to him and he (PW­3) had shaken hands with accused Kuwar Singh. He admitted that at that time accused Kuwar Singh had shaken hands. He stated that at that time, the punch witnesses had also accompanied him and entered SDMC office. He admitted that Tehbazari receipt was seized from the office table of accused Surender Singh. He stated that he had visited CBI office subsequent to the day of trap i.e. 24.7.2013.

He stated that he had not mentioned in his complaint regarding demand of bribe made by SDMC officials. He stated that he had gone to SDMC office and deposited Tehbazari payment on 01.8.2013.

He admitted that he was not sure regarding the voices played in the Court in Ex. Q­1, Q­2, S­1 & S­2. He admitted that accused Surender Singh also never made any demand of bribe from him. He volunteered that accused Surender Singh had never demanded any bribe for himself rather accused Surender Singh had stated that senior officers would be demanding the same. He stated that no table wash was carried out in his presence.

He denied that after accused Kuwar Singh had left the room, he (PW­3) had kept the money in the table drawer or that he (PW­3) had planted the same. He admitted that no recovery was effected from the personal search of accused Kuwar Singh. He denied that the memory CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 19 of 67 cards Ex. Q­1 & Q­2 and CDs S­1 & S­2 are engineered and doctored.

He admitted that the Tehbazari space is on the name of Sh. Gurmukh Singh @ Gurmukh Das till date who was its original allottee. He admitted that the Tehbazari space has not been got transferred on his name till date. He admitted that Sh. Gurmukh Das has expired.

He denied that he foisted a false case in collusion with CBI officials against the accused persons.

On being cross­examined by Ld. Counsel for accused No. 2 Surender Singh, he stated that he had not made any complaint against accused Surender Singh to his senior officer regarding any alleged demand of bribe made by him. He denied that no Tehbazari receipt was seized from the office table of accused Surender Singh or that no such talks had taken place between him and accused Surender Singh stating therein that senior officers would be demanding bribe from him. He stated that no telephonic conversation had taken place between him and the accused persons, and between the accused persons on his any visit in his presence. He denied that he was deposing falsely.

Ld. Counsel for accused No. 2 Surender Singh adopted rest of the cross­examination as conducted on behalf of accused No. 1 Kuwar Singh.

10. PW­4 Sh. Binay Prasad proved receipt No. DZ­1744132 of site No. 481 dated 01.8.2013 which is in the name of Sh. Gurmukh Singh issued by MCD, vide Ex. PW4/A. CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 20 of 67 On being cross­examined by Ld. Counsel for accused No. 2 Surender Singh, he stated that the software on their computer through which the receipt Ex. PW4/A had been generated was not updated at that time. He stated that he had no knowledge regarding the charges / rent of Tehbazari. He stated that he cannot say if the amount mentioned in Ex. PW4/A is the correct amount paid towards Tehbazari rent or not. He admitted that the total amount payable towards Tehbazari rent / charges was calculated by the Licencing Branch and on that basis the same was deposited by their centre.

11. PW­5 Sh. Rajeev Sharda stated that he was working as Nodal Officer in Reliance Communications since the year 2012. He proved letter vide Ex. PW5/A. He also proved the documents i.e. CDR and subsriber details of mobile number 9350094004 for the period 23.7.2013 and Customer Application Form vide Ex. PW5/B and PW5/C respectively. He also proved the certificate under Section 65­B of Indian Evidence Act vide Ex. PW5/D. On being cross­examined by Ld. Counsel for accused No. 2 Surender Singh, he denied that the Nodal Officer is not competent to furnish details or certificate under Section 65­B of Indian Evidence Act or tender evidence in the Court. He further denied that the CDR and copy of the Customer Application Form are not genuine documents.

Ld. Counsel for accused No. 1 Kuwar Singh adopted the same cross­examination as conducted by Ld. Counsel for accused No. 2 CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 21 of 67 Surender Singh.

12. PW­6 Sh. Sanjiv Chadha stated that he is running a shop at Central Market, Lajpat Nagar, New Delhi in the name and style of M/s Chadha Pustak Bhandar. He stated that he knows Sh. Suresh Mehta whose shop is just opposite to his shop. He stated that the shop of Sh. Suresh Mehta is in the name and style of M/s Kaveri Selections Pvt. Ltd. He stated that in the year 2005, Shop No. 7, Central Market, Lajpat Nagar was purchased by Sh. Suresh Mehta. The said shop is just behind the shop No. 46 in the Central Market, Lajpat Nagar, New Delhi. He stated that Shop No. 46 was also owned by Sh. Suresh Mehta and Sh. Suresh Mehta removed the middle wall of both the shops and made one showroom in the name and style of M/s Kaveri Selections Pvt. Ltd.

On being cross­examined by Ld. Counsel for accused No. 1 Kuwar Singh, he stated that he had not been alloted any Tehbazari space in front of his shop. He stated that he is not a witness to the sale deed in respect of shop No. 7 and 46 owned by the complainant. He admitted that he had never seen or gone through the contents of the sale deed. He also admitted that Tehbazari rights granted by SDMC are not transferable and no sale and purchase thereof can take place.

Ld. Counsel for accused No. 2 Surender Singh adopted the same cross­examination as conducted by Ld. Counsel for accused No. 1 Kuwar Singh.

CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 22 of 67

13. PW­7 Smt. Sunita Mahalwal stated that accused Surender Singh is her husband and Sh. Hardwari Lal S/o Late Sh. Ran Singh Solanki is her father. She stated that her father never gifted her any mobile phone with SIM Card bearing Mobile No. 9350094004.

Attention of the witness was drawn to application form of Reliance Ex. PW5/C at Point­A. After going through the same, she stated that she cannot identify the said signatures.

Attention of the witness was drawn to photocopy of Driving Licence in the name of Sh. Hardwari Lal at Point­A. After going through the same, she stated that she cannot identify the signatures appearing at Point­A. She stated that her statement under Section 161 CrPC was never recorded by CBI on 23.8.2013. However, she was called by CBI Inspector and had been asked about one mobile number which she did not recollect.

The witness was declared hostile by Ld. Senior PP for CBI. On being cross­examined by Ld. Senior PP for CBI she stated that she does not know as to whether her statement under Section 161 CrPC was recorded by Inspector Bijender Singh on 23.8.2013. Her attention had been drawn to the statement recorded under Section 161 CrPC which is Ex. PW7/A. She stated that she had never stated before CBI Inspector that Mobile No. 9350094004 with SIM Card was gifted by her father Sh. CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 23 of 67 Hardwari Lal about 10 years back and the said phone was given by her to her husband accused Surender Singh and the said phone was being used by her and her husband accused Surender Singh.

She denied that she was shown the application form Ex. PW5/C by CBI Inspector and she had identified the signatures of her father appearing at Point­A. She further denied that she had given statement about the identification of signatures of her father on the application form Ex. PW5/C. She further denied that she was shown any certified photocopy of the license Mark PW7/A and after that she had identified the signatures of her father Sh. Hardwari Lal appearing at Point­A on Mark PW7/A and any such statement was given by her to CBI Inspector Bijender Singh. She denied that she was deposing falsely to save her husband accused Surender Singh being his wife.

On being cross­examined by Ld. Counsel for accused No. 2 Surender Singh, she stated that Mobile No. 9350094004 was never used by her or by her husband accused Surender Singh.

14. PW­8 Sh. Ajit Kumar Pandey stated that he had visited CBI office on 30.8.2013. He stated that voice sample of Surender Singh was taken by CBI Inspector Bijender Singh in his presence. Before taking specimen voice, his introductory voice and other witnesses were recorded in a recorder. The recording in the recorder was transferred in a Compact Disk. One envelope sealed with the Court seal had been opened which contained a CD as well as cloth wrapper. He stated that CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 24 of 67 CD Mark S­2 was prepared in his presence which is Ex. PW8/A. The cloth wrapper is Ex. PW8/B. He stated that one CBI Brass Seal which was used for sealing the above said CD was handed over to him by CBI Inspector Bijender Singh. The said CBI Brass Seal bearing No. 03/2013 is Ex. PW8/C. He stated that in his presence, the specimen handwritings of Surender Singh were also taken. Attention of the witness had been drawn to specimen signatures of Surender Singh dated 30.7.2013. After going through the same, he stated that the specimen signatures S­1 to S­15 were taken in his presence which are Ex. PW8/D1 to Ex. PW8/D15.

He stated that all the proceedings were reduced into writing and specimen voice recording memo was prepared. The said specimen voice recording memo is Ex. PW8/E. On being cross­examined by Ld. Counsel for accused No. 2 Surender Singh, he stated that he had gone to CBI office in this case only on one occasion i.e. on 30.8.2013. He stated that he was given written instructions by his DGM to attend CBI office in this case. He stated that his statement under Section 161 CrPC was recorded by Inspector Bijender Singh when he had visited CBI office to participate in the proceedings of voice sample as well as specimen signatures. He denied that no proceedings of taking of voice specimen and specimen of handwriting of Surender Singh had taken place in his presence and he had simply signed at Ex. PW8/E and also at other documents on the asking of CBI to suit the case of CBI antedated. He denied that he has CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 25 of 67 identified accused Surender Singh at the asking of CBI.

On being cross­examined by Ld. Counsel for accused No. 1 Kuwar Singh, he stated that the signatures of the accused were taken on the specimen CD S­2. He volunteered that the signatures of the accused were taken on several documents but he does not recollect the contents of the documents. He stated that he does recollect if the digital voice recorder was sealed at CBI office on his visit. He denied that he was deposing falsely.

15. PW­9 Dr. Reeta Rani Gupta stated that she had joined CFSL in the year 2004 and have 10 years experience in the field of forensic document examination and had worked in various capacities. She stated that the said case was referred by SP, CBI, ACB, Delhi in RC No. 16­A, 2013, DLI through his forwarding letter bearing No. DAI­2013A­0016/DLI/11/480 dated 08.8.2013. The forwarding letter addressed to Director, CFSL Marked as Q­1 to Q­3 and S­1 to S­15 was sent to the Head of Division documents. She stated that the questioned English initials, writings and numerals Marked Q­1 to Q­3 are consistent with the specimen English initials, writings and numerals marked S­1 to S­15 attributed to Surender Singh. She proved the request letter dated 08.8.2013 of CBI received in their office vide Ex. PW9/A and her report dated 06.9.2013 running into 4 pages vide Ex. PW9/B collectively.

CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 26 of 67 On being cross­examined by Ld. Counsel for accused No. 2 Surender Singh, she admitted that letter of CBI Ex. PW9/A mentions that the questioned writings and the specimen writings pertain to accused Surender Singh. She denied that the said letter Ex. PW9/A was suggestive in nature so as to indicate the report as required by CBI and it was on this basis that the report Ex. PW9/B was given by her. No photographs/enlarged photographs of the questioned and specimen writings were taken while examining the same in this case. No video filming of the questioned and specimen writings was done in this case during the examination. She admitted that it is not mentioned in her report Ex. PW9/B as to whether the questioned documents Q­1 to Q­3 are written with Ink Pen or Ball Pen. She admitted that the opinion of the handwriting expert is his personal opinion. She admitted that handwriting science is a progressive science like other branches of science. She admitted that a person can imitate the signatures/writings of others. She volunteered "but not exactly as genuine one". She admitted that the admitted writings of accused Surender Singh were not forwarded to CFSL, Delhi for examination and opinion in this case. She denied that it is very difficult to opine on initials. She denied that she has not provided any data or reasons to justify her opinion about the natural variations. She admitted that CFSL is under administrative control of CBI. She volunteered, CFSL has its own Director. She denied that she had given her report Ex. PW9/B mechanically and without application of mind and at the instance of CBI and out of her CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 27 of 67 duty compulsion. She denied that she was deposing falsely.

16. PW­10 Sh. Chandra Shekhar stated that he had joined as Nodal Officer in Bharti Airtel Ltd. on 07.3.2013. He proved his letter vide Ex. PW10/A vide which he had handed over the certified copy of CDR along with copy of Customer Application Form of Airtel Mobile Numbers 9818272784 & 9910560037 to CBI Inspector Bijender Singh. He also proved the certificate under Section 65­B of Indian Evidence Act vide Ex. PW10/B issued by him.

He also proved Cell ID Chart, CDR of both the mobile numbers, CA Form of Mobile Number 9910560037, identity card in the name of Kuwar Singh, CA Form of Suresh Mehta, one photograph and copy of Ration Card vide Ex. PW10/C (Colly).

On being cross­examined by Ld. Counsel for accused No. 1 Kuwar Singh, he admitted that Bharti Airtel has printed chart in respect of all the towers installed in Delhi. He admitted that Cell ID Chart Ex. PW10/C is not the same printed chart. He denied that cell ID chart or the documents provided by him in the present case are forged and fabricated documents. He volunteered that he had prepared the same manually. He denied that he had no authority to prepare any record manually or that the same is forged and fabricated. He denied that he is not competent to furnish call details, records or tender evidence in the Court or that the Certificate under Section 65­B of the Indian Evidence Act in respect of the aforesaid mobiles is not in accordance CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 28 of 67 with rules and law or that he is not competent to issue the same. He denied that he was deposing falsely.

Ld. Counsel for accused No. 2 Surender Singh adopted the same cross­examination as conducted by Ld. Counsel for accused No. 1 Kuwar Singh.

17. PW­11 Sh. Pawan Singh stated that he had joined as Nodal Officer in Idea Cellular Ltd. in the year 2005. He proved his letter vide Ex. PW11/A vide which he had handed over the certified copy of call details of Mobile No. 9891835505, CAF of the said mobile number, certified copy of Cell ID Chart and certificate under Section 65­B of Indian Evidence Act to CBI Inspector Bijender Singh. He proved certificate under Section 65­B of Indian Evidence Act vide Ex. PW11/B, call details vide Ex. PW11/C and certified photocopies of CAF, identity cards and site ID chart vide Ex. PW11/D, PW11/E & PW11/F respectively.

On being cross­examined by Ld. Counsel for accused No. 1 Kuwar Singh, he admitted Idea Cellular Ltd. has printed chart in respect of all the towers installed in Delhi. He admitted that Cell ID Chart Ex. PW11/F is not the same printed chart. He denied that cell ID chart or the documents provided by him in the present case are forged and fabricated documents. He denied that he is not competent to furnish call details, records or tender evidence in the Court or that the Certificate under Section 65­B of Indian Evidence Act in respect of the CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 29 of 67 aforesaid mobiles is not in accordance with rules and law or that he is not competent to issue the same. He denied that he was deposing falsely.

Ld. Counsel for accused No. 2 Surender Singh adopted the same cross­examination as conducted by Ld. Counsel for accused No. 1 Kuwar Singh.

18. PW­12 Sh. Tika Ram, S/o Late Sh. Madhva Nand, LDC, General Branch, SDMC, Central Zone, Lajpat Nagar, New Delhi stated that since 11.6.2011, he was working as LDC, General Branch, SDMC, Central Zone, Lajpat Nagar, New Delhi and was looking after the charge of Ward No. 159, Andrews Ganj, New Delhi. He stated that as per order of SDMC, he was posted to look after the charge of Ward No.

155. He stated that some documents were seized from him by CBI Inspector Bijender Singh vide production­cum­seizure memo Ex. PW12/A. The documents which were seized are mentioned in the said memo and the same are collectively Ex. PW12/B. He stated that on the instructions of his Administrative Officer, he had also handed over letter dated 17.9.2013 and attendance sheet to CBI. On his visit at CBI office, he had just handed over the documents as mentioned above. He stated that no CD was ever heard by him in CBI office and his statement was never recorded by CBI.

The witness was declared hostile by Ld. Senior PP for CBI. On being cross­examined by Ld. Senior PP for CBI, he denied that his CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 30 of 67 statements under Section 161 CrPC were recorded on 05.9.2013 and 17.9.2013. He denied that on 16.9.2013, he had heard the CD of conversation dated 23.7.2013 in the investigation copy of the IO through the official laptop. He denied that he had identified the voice of accused Surender Singh and accused Kuwar Singh and some other staff. He denied that accused Kuwar Singh is known as Kunwar Pal also. He denied that he was deposing falsely to save the accused persons being his colleague.

On being cross­examined by Ld. Counsel for accused No. 1 Kuwar Singh, he admitted that Tehbazari receipts are not issued by him. He stated that he had not personally verified the documents of ownership of Plot No. 7, Lajpat Nagar. He stated that there is one employee by the name of Kuwar Pal in SDMC. He admitted that accused Kuwar Singh and Kunwar Pal are two different persons.

He stated that accused Kuwar Singh was not looking after the seat of Tehbazari of the ward of Suresh Mehta.

Ld. Counsel for accused No. 2 Surender Singh adopted the same cross­examination as conducted by Ld. Counsel for accused No. 1 Kuwar Singh.

19. PW­13 Sh. Sh. Hari Chand Kashyap, Administrative officer, SDMC, Central Zone, Lajpat Nagar, New Delhi has stated that he had joined SDMC in the year 1989. He stated that he knew accused Kuwar Singh accused Surender Singh as both of them were working as LDC CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 31 of 67 in General Branch, Central Zone, SDMC, Lajpat Nagar, New Delhi under his administration. He has proved letter dated 15.10.2013 which was Ex. PW13/A. He has also proved office order no. 604/AC/CZ dated 16.10.2013 and also the work of ward no. 199 and the same was Ex. PW13/B. He has also attested the bio­data of both the accused persons and the same were collectively Ex. PW13/C. He stated that he has also attested the documents from page no. 38 to 48 pertaining to tehbazari etc. and the said documents were collectively Ex. PW13/D. He has also proved Ex. PW13/E. Ex. PW13/F, Ex. PW13/G, Ex. PW13/H and Ex. PW13/J.

20. PW­14 Sh. Ashok Kumar Sharma, Administrative Officer, SDMC, West Zone, Rajouri Garden, New Delhi has stated that on 01.8.2013 he was posted as Zonal Superintendent, SDMC, Central Zone, Lajpat Nagar, New Delhi and on that day some documents were seized from him by Bijender Singh vide production cum seizure memo Ex. PW14/A. Attention of the witness was drawn to receipt Ex. PW3/S and after going through the same he has stated that the calculation was done by the then RC Sh. Surender Kumar. He stated that he cannot say as to whether the calculation made in the receipt was correct or not. Sh. Akshay Gautam, Ld. Senior PP had submitted that witness may be declared hostile as he was not supporting the prosecution version on certain facts.

CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 32 of 67 On being cross examined by Ld. Senior PP for CBI he denied that his statement was recorded by Inspector Bijender Singh on 01.8.2013. He stated that he had not stated before the CBI Inspector in his statement that because the Tehbazari holder already had deposited the Tehbazari on old rates on previous dated (2010­11, 2011­12 and 2012­13) so no penalty was charged. He had not stated before CBI Inspector in his statement that a demand of more than Rs. 34,356/­ was wrong. He denied that statement Ex PW14/DA was recorded by Inspector Bijender Singh on 01.8.2014.

On being cross examined by Ld. Counsel for accused no. 1 Kuwar Singh he stated that he had taken the documents which were seized by Inspector from him which were attested by Sh. Hari Chand Kashyap at their office. He stated that he is not empowered to reduce tehbazari charges or to impose penalty. Attention of the witness was drawn to Circular No. 532 dated 08.10.2009 Ex. PW13/D and after going through the same, he has admitted that transfer charges/fee of Rs. 1,00,000/­ was charged by SDMC in case of transfer of Tehbazari space and the tehbazari space on the name of Sh. Gurmukh Singh falls in category­A. He further admitted that tehbazari space is liable to cancel in case of non­deposit of transfer charges in case of case in hand as mentioned in the circular.

Ld. Counsel for accused no. 2 Surender Singh has adopted the same cross examination as conducted by Ld. Counsel for accused no. 1 Kuwar Singh.

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21. PW­15 Sh. V.B. Ramteke, Sr. Scientific Officer, Grade­1 (Chemistry), CFSL, CBI has stated that on 19.8.2013 he had chemically examined three sealed bottled which were received in their office and after examination of the same, he had prepared the chemical examination report dated 19.8.2013 and the said chemical examination report bears his signatures and the same was Ex. PW15/A. He stated that exhibits RHW, LHW and TDW gave positive tests for the presence of phenolphthalein.

On being cross examined by Ld. Counsel for accused no. 1 Kuwar Singh he admitted that the details of tests conduct in his report were not mentioned in Ex. PW15/A. He stated that he had prepared the report on the same day on which the tests were conducted and completed by him. He denied that his report was false and the same was scientifically incorrect or that he had prepared his report Ex. PW15/A at the instructions of SP, CBI.

22. PW­16 Dr. Subrat Kumar Choudhury, Sr. Scientific Officer, Grade­II (Physics), CFSL has stated that he had examined four exhibits i.e. Q­1, Q­2, S­1 and S­2 which were received in sealed condition in their office and after examination of the same, he had prepared the voice examination report dated 26.8.2013 and the said report was Ex. PW16/A. CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 34 of 67 On being cross examined by Ld. Counsel for accused no. 1 Kuwar Singh he admitted that the evidence/recordings in form of memory cards and CDs forwarded to him were electronic record and fall under category of electronic evidence. He admitted that under Information Technology Act, no notification from Central Government for the purpose of providing Expert Opinion as an Examiner on Electronic Form of Evidence before any Court has not been issued in his favour in regard to the present case. He denied that for the purpose of suspect voice comparison there exists requirement of a board comprising of various specialist including linguistic and sound engineers. He voluntarily stated that similar criteria is not required in all the countries. He admitted that the physiological condition of speaker also effects the speech. He admitted that through mimicry similar voice can be generated. He denied that he was not authorized or competent to give any opinion of voice examination or that he does not posses any qualification for examination of electronic evidence or that he did not examine the exhibits or that the same did not contain the voices of accused persons or that the exhibits were tampered or that he gave false and incorrect report at the asking of CBI.

On being cross examined by Ld. Counsel for accused no. 2 he admitted that separate tests are required for voice comparison and for detecting tampering in the recorded conversations. He admitted that the transcription of the questioned voices Q­1 and Q­2 and specimen CDs S­1 and S­2 did not exactly tall with the alleged exhibits Q­1, Q­2, CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 35 of 67 S­1 and S­2. He denied that even the alleged recorded conversatin said to be compared by him and mentioned in the report Ex. PW16/A did not tally with the alleged recorded conversation in the questioned CDs. He denied that he had not conducted any comparison of the questioned voices in this case and have given a false report at the asking of CBI.

23. PW­17 Sh. Sanjeev Kumar, UDC, Department of Trade and Taxes has stated that he had visited CBI office on 23.7.2013 on the direction of his Administrative Officer and initially, he had reported at the reception of CBI office and then, he was made to sit at the reception. He stated that in CBI office he was instructed by Sh. Sinha that they have to go to MCD office at Lajpat Nagar in connection with the complaint of Sh. Suresh Mehta against accused Kuwar Singh. He stated that he alongwith complainant Sh. Suresh Mehta and SI Arijit Daripa went to MCD office, Lajpat Nagar, New Delhi. He stated that SI Arijit Daripa remained outside at MCD Building and he was asked to accompany the complainant inside the building. He stated that he alongwith the complainant had reached at 2 nd floor and he was asked by the complainant to wait outside near the stairs and stated that he will go inside the room. After 5­6 minutes, Sh. Suresh Mehta came outside the room and had told him that the person to whom he had to meet was not available in the room and it has been informed by some official that he will meet at around 2:30 pm. He stated that in the office, he had not CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 36 of 67 seen any MCD official as he was standing near the stairs. He stated that he had not heard any talks between the complainant and any of the MCD officials since he was standing at the distance near the stairs. He stated that in CBI office, currency notes in the sum of Rs. 10,000/­ were produced by one of the CBI official. He stated that when the complainant went inside, he met one person and had shaken hands with him which was witnessed by him as he stood outside the room. He stated within 1­2 minutes the person with Sh. Suresh Mehta had shaken hand came outside the room at the call of someone and went upstairs. At that time, the complainant stood near the table of the said person and after 2­3 minutes, the complainant had also came outside the room and called Inspector Kailash Sahu. He stated that thereafter, Inspector Kailash Sahu alongwith the complainant had entered in the room and got recovered Rs. 10,000/­ from the table through Sh. Kuldeep Yadav. The numbers of currency notes were tallied with the numbers already noted down and the numbers were found to be same. He stated that nothing else was found from the table and during that period no recording was conducted.

Sh. Akshay Gautam, Ld. Senior PP for CBI had stated that the said witness may be declared hostile as he was not supporting the prosecution version on certain facts.

On being cross examined by Ld. Senior PP for CBI he stated that he does not know if on 21.8.2013 his statement under Section 161 Cr.P.C was recorded by the CBI Inspector Bijender Singh. He stated CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 37 of 67 that he does not know as to whether any DVR was handed over to Sh. Suresh Mehta to keep the same in his front shirt pocket and to meet the suspect officials to record the likely conversation which may take place between the complainant and the suspect official. He stated that he had not stated before CBI Inspector that the DVR was taken back from the complainant by one SI Arijit Daripa and switched off and that the complainant has told them that he met accused Surender and Kuwar Pal who had demanded the bribe amount of Rs. 10,000/­ against increasing the penalty and interest of tehbazari and called at about 1600 hours on 23.7.2013 with the bribe amount. He admitted that CBI seal used for sealing the CD and was handed over to him. He denied that he had stated before CBI Inspector in his statement that the complainant had produced a sum of Rs. 10,000/­ comprising of 10 numbers of GC Notes of Rs. 1000/­ denomination which the complainant had brought for the purpose of giving the accused as bribe. He admitted that chemical powder was applied on the GC Notes and a demonstration was given. He further admitted that he was to act as a shadow witness and remained closed to the complainant to see the transaction if any, or to hear the conversation which may take place between the complainant and accused. He denied that the hand washes of accused Kuwar Singh were taken in his presence. He admitted that the rough site plan Ex. PW3/J bears his signatures at point B and the same was taken in CBI office explaining the positions of the persons by CBI officials. He stated that the sample voice of CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 38 of 67 accused Kuwar Singh was not taken in his presence. He admitted that the recovery memo Ex. PW3/H bears his signatures on each page at point B but the contents of the same were not read by him. He denied that the voice transcription was prepared in his presence as well as in the presence of other witnesses and the complainant. He denied that recording contained ind Q­1, Q­2, S­1 and S­2 were played before him by CBI and he further denied that the transcription of the same was prepared in his presence after hearing the recording played by CBI official and that he had signed the transcriptions of the same in token of its correctness.

On being cross examined by Ld. Counsel for accused no. 1 Kuwar Singh he stated that for the first time they had reached at SDMC office at 12:00 pm and stayed there for 5­10 minutes and thereafter returned back to CBI office at around 1:00 pm. He stated that when accused Kuwar Singh had left the room at the call of his superior, he was stationed outside the room near the entrance and at that time he saw the complainant went down and fiddling the drawer of accused Kuwar Singh. He stated that till he stayed at CBI office on 23.7.2013, accused Kuwar Singh was not brought to CBI office.

Ld. Counsel for accused no. 2 Surender Singh has adopted the same cross examination as conducted by Ld. Counsel for accused no. 1 Kuwar Singh.

CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 39 of 67

24. PW­18 Sh. Kuldeep Yadav has stated that in July, 2013 he was working as JE in Delhi Jal Board and on that day he had reported CBI Office, Delhi on the instructions of his senior officials. He stated that initially, he had reported in the reception of CBI office to Duty Officer and he remained sitting in reception till 2:00 pm. After 2:00 pm, he met one CBI Inspector, namely Sh. Sahu. He stated that Sh. Sahu then took him to one SP namely Sh. Sinha.

He stated that Sh. Sinha had discussed with him about the complaint of Sh. Suresh Mehta, Complainant against one Kuwar Singh about demand of some money for favouring the complainant to reduce the penalty with regard to Tehbazari. He stated that when they had reached SDMC Office, he was asked to take position outside of the building and the other senior officials went inside the building. He stated that after around 10 minutes, he was called inside the building by one CBI official and when he had entered into the said room, he was given Rs. 10,000/­ by the CBI official to count the same and he after counted the same returned back to CBI official. He stated that the currency notes of Rs. 10,000/­ was produced by some CBI officials at CBI office.

Sh. Akshay Gautam, Ld. Senior PP for CBI had submitted that the witness may be declared hostile as he was not supporting the prosecution version on certain fact.

On being cross examined by Ld. Senior PP for CBI he denied that his statement was recorded by Inspector Bijender Singh on CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 40 of 67 21.8.2013 and the same was Ex. PW18/PA. He denied that complainant Sh. Suresh Mehta after introduction with him told him that accused Kuwar Singh had made a demand of Bribe of Rs. 10,000/­ and then it was decided to lay a trap. He denied that an FIR containing handwritten complaint in Hindi dated 23.7.2013 of the complainant and verification memo dated 23.7.2013 Ex. PW3/E were read over and explained to them. He denied that no phenolphthalein powder was smeared on the piece of paper rather it was applied on the GC Notes in his presence. He had not stated before the CBI Inspector the facts mentioned in Ex. PW18/DA from portion H to H where it is so recorded. He denied that he had put the tainted bribe amount of Rs. 10,000/­ in the left side front pocket of the shirt of the complainant after ensuring that nothing incriminating was left in the said pocket. He admitted that Sh. Sanjeev Kumar, Independent Witness was to act as a shadow witness and had to remain close with the complainant and to overhear the conversation and to see the bribe transaction but this fact was not stated by him to CBI Inspector. He admitted that he himself and Sh. Sanjeev Kumar had tallied the numbers of the recovered bribe amount with the numbers mentioned in a list. He stated that he does not know as to whether the said recovered GC notes were kept in a brown colour envelope and the same were put in a yellow colour big envelope and the same was sealed with CBI seal. He denied that hand washes of accused Kuwar Singh had taken place in his presence and that the washes were transferred into a glass bottle and the glass bottle was CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 41 of 67 sealed in his presence and cloth wrapper and paper label was pasted on the said bottle in his presence. He admitted that his formal voice was recorded in a DVR. He stated that no specimen voice was given by accused Kuwar Singh in his presence. He stated that no voice transcription was prepared in his presence after playing the CDs. He stated that he had signed on the paper pasted on the bottle at CBI office in the evening on 23.7.2013.

On being cross examined by Ld. Counsel for accused no. 1 Kuwar Singh he stated that they reached SDMC Office at around 3:00 pm and they left SDMC office at around 4:00 pm - 4:30 pm. He stated that all the documents i.e. Ex. PW3/E, Ex. PW3/F, Ex. PW3/G, Ex. PW3/H, Ex. PW3/J, Ex. PW3/S, Pw18/A and PW18/C were prepared on 23.7.2013 and signed by him at around in between 6:30 pm-7:00 pm. He admitted that when they had reached the spot they were informed by the staff that accused Kuwar Singh had gone upstairs at the call of senior officials.

Ld. Counsel for accused no. 2 Surender Singh has adopted the same cross examination as conducted by Ld. Counsel for accused no. 1 Kuwar Singh.

25. PW­19 SI Arijit Daripa, CBI, ACB, New Delhi has stated that on 23.7.2013 he was called by his SP and one complaint Ex. PW3/A was marked to him for verification. He stated that after verification of the complaint Ex. PW3/A, he had prepared verification memo Ex. Pw3/E CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 42 of 67 and the contents of the note have been correctly mentioned in detail in the said verification memo. He stated that independent witness Sh. Sanjeev Kumar was also associated with him during verification and he had signed the verification memo at point B after going through the contents of the verification memo. He stated that before verification at CBI office itself, one DVR was arranged and a blank memory card was also arranged. He stated that the complainant had informed that there was demand of Rs. 10,000/­ as bribe amount by accused Kuwar Pal. The independent witness Sh. Sanjeev Kumar had also said that he has seen the complainant talking with other person who seemed like MCD official and thereafter, they all returned back to CBI office. He stated that the DVR was played in the presence of independent witness Sh. Sanjeev Kumar as well as complainant Sh. Suresh Mehta. The introductory voice of Sh. Sanjeev Kumar was taken in the memory card and the said memory card was removed from the DVR and was kept in a plastic cover and put in one envelope and sealed with brass seal of CBI after keeping a copy of the recording for investigation purpose. He has not taken any document from the punch witness Sh. Sanjeev Kumar regarding he being employed in Vyapar Bhawan. He had not taken the requisition letter sent by his office or the official letter issued by the office of Sh. Sanjeev Kumar for joining the trap proceedings on 23.7.2013. He admitted that he had not got any verification personally or through his source conducted regarding the fact as to whether the complaint was alloted any tehbazari space on the name of complainant CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 43 of 67 Sh. Suresh Mehta. He stated that he cannot admit or deny if the DSP, CBI was friend of the complainant and that on 22.7.2013 the complainant had came and met the DSP, CBI. He stated that he had not typed in the verification memo that the seal was handed over to the punch witness Sh. Sanjeev Kumar. He admitted that he cannot say as to with whom the complainant or the punch witnesses had talked after entering in SDMC Office. He further admitted that he cannot say if accused Kuwar Singh was present inside SDMC Building when the verification proceedings were carried out. He denied that no DVR was carried to the spot. He denied that seal was never used by him or that on sealing work was done in the presence of independent witnesses. He denied that the complainant and the punch witness Sh. Sanjeev Kumar had informed him that accused Kuwar Singh was not available in the office during verification proceedings. He stated that he had not deposited any document or case property in the Malkhana, CBI. He denied that he had not participated in the investigation or carried out any verification proceedings or that he stood as a false witness at the instance of senior officers.

Ld. Counsel for accused no. 2 Surender Singh has adopted the same cross examination as conducted by Ld. Counsel for accused no. 1 Kuwar Singh.

26. PW­20 Inspector Kailash Sahu, CBI, ACB, New Delhi, has stated that FIR dated 23.7.2013 related to this case was entrusted to CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 44 of 67 him. The witness has proved the signatures of Sh. Vivek Priyadarsh which was exhibited as Ex. PW20/A. He stated that he had acted as Trap Laying Officer. He has stated that the memos and rough sketch were prepared in his presence and he had signed the same after going through its contents, in token of its correctness. He has also proved arrest cum personal search memo of accused Kuwar Singh Ex. PW17/C which bears his signatures at point C. He stated that in CBI office, the complainant had produced sum of Rs. 10,000/­ comprising of 10 number of GC Notes of Rs. 1000/­ denomination and the number of same were noted down in annexure A of Ex. PW3/G. He stated that a demonstration was given regarding significance of phenolphthalein powder applying on the GC Notes and solution of sodium carbonate. He had explained that if any part of the phenolphthalein smeared on the GC notes was touched by anyone and the washes of the touched part were taken in the solution of sodium carbonate and water, its colour will turn pink. He stated that the tainted bribe amount of Rs. 10,000/­ was put in the left side front pocket of the shirt of the complainant by independent witness Sh. Kuldeep Yadav. He stated that he was specifically directed to handover the bribe amount to the accused only after demand was made by him. He stated that the handing over memo already Ex. PW3/F was prepared in the office of CBI, ACB on official computer and was signed by all concerned in token of its correctness and genuineness. He stated that the complainant and the shadow witness Sh. Sanjeev Kumar were directed CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 45 of 67 to proceed towards MCD office and DVR was switched on and was put in left side front shirt pocket of the complainant. He stated that he himself and witness Kuldeep Yadav followed the complainant and remained moving around backside staircase area leading to second floor to avoid exposure. He stated that he could not notice the presence of complainant Sh. Suresh Mehta on 2nd floor and, therefore, immediately made a call to the complainant who had informed him that the bribe amount had been delivered to accused Kuwar Singh and he had also informed him that he had come to the ground floor from front side staircase to inform the trap team members. He stated that he alongwith both the witnesses followed the accused who had reached the ground floor. He stated that the complainant indicated towards accused Kuwar Pal and stated that accused had accepted the bribe amount from the complainant. He stated that the accused had accepted that he had accepted the bribe amount from the complainant and he has disclosed his name as Kuwar Singh. He stated that he had disclosed that he had kept the bribe amount in his office table drawer where he was sitting. He stated that independent witness Sh. Kuldeep Yadav had recovered the tainted bribe amount from the second drawer of the office table of the accused in room No. 203. He stated that the wash of right hand of accused Kuwar Singh was taken in freshly prepared colourless solution of Sodium Carbonate and water in a clean glass tumbler in the presence of both the independent witnesses and on doing so the colour of the wash turned pink which was transferred CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 46 of 67 into a clean glass bottle and was sealed by using white cloth wrapper, tag and CBI brass seal. He stated that in the same fashion the left hand wash of accused had been taken. He stated that the complainant had also informed that the accused had assured him after accepting the bribe amount that entry would be made in the register after the requisite amount will be deposited by him with SDMC. The complainant had informed that the accused had given him a piece of paper and had informed that it was written by accused Surender Singh. Attention of Inspector Kailash Sahu was drawn to Ex. PW3/S and after seeing the same he stated that signatures at point F in Ex. PW3/S had been taken on the spot. He stated that accused Kuwar Singh had also informed that the paper had been written and given to him by accused Surender Singh. He stated that a call was received from accused Surender Singh on the mobile of accused Kuwar Singh and the phone of accused Kuwar Singh was kept on loudspeaker mode. He stated that the telephonic conversation was recorded in a DVR and since the sound of the same was not clear, the matter had been left for investigation.

He stated that the search of the office premise of accused was conducted in presence of both the independent witnesses but nothing incriminating was found. He stated that due to disturbances in SDMC office as a large crowd of SDMC officials had gathered, it was decided to conduct the remaining proceedings in CBI office. The DVR was played in the presence of the witnesses. The voice files were CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 47 of 67 transferred into office laptop from the memory card of the DVR in CBI office and the memory card was kept in a plastic case, wrapped with white paper and after keeping it in an envelope, it was sealed with CBI seal. He stated that the envelope was signed by independent witnesses and himself and the said envelope was marked as Q­2 and thereafter accused was arrested. He stated that the details of the post­ trap proceedings were incorporated in the recovery memo Ex. PW3/H and was signed by all the witnesses after contents of the same were read over and explained to them.

Attention of the witness was drawn to Ex. PW3/T containing tainted money of Rs. 10,000/­ and after seeing the same he has stated that his signatures are at point C. Attention of the witness was also drawn to the bottles containing hand washes as well as table drawer and after seeing the same he has identified his signatures on Ex. PW18/B at point C, on Ex. PW18/C at point C and on Ex. PW18/D at point C. The witness has also proved an envelope Q­2 sealed with the Court seal containing memory Card Ex. PW3/D and the said envelope was also exhibited as Ex. PW20/A. The witness has also proved Ex. PW20/B and Ex. PW20/C. On being cross examined by Ld. Counsel for accused no. 1 Kuwar Singh he stated that no preliminary inquiry report was registered in the present case. He stated that he had met the complainant and whenever he had to ask something, he talked with the complainant. He had not met the complainant alone. He stated that he had not tried to CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 48 of 67 find out through his informer as to whether any tehbazari space was alloted to the complainant by SDMC. He stated that he had not asked the punch witnesses as to since when he was available in CBI office. He stated that he had not prepared any seizure memo in respect to the documents received by him from SI Arijit Daripa. He had not narrated the proceedings carried out by SI Arijit Daripa to Sh. Kuldeep Yadav. He stated that the DVR in switch on condition was handed over to the complainant outside SDMC Office at around 200­300 meters and it was around 4:30 pm and the operation of the DVR was explained by SI Arijit Daripa. He stated that the search of the complainant was carried at CBI office between 4:00 ­4:15 pm and the complainant and both the witnesses were accompanying him in the car of the complainant and the rest of the team followed in another official vehicle. He stated that after handing over the DVR to the complainant, he had directed the team members to take appropriate position inside and outside the building and he had received the signal at around 4:40 pm. He had given his introduction to accused Kuwar Singh on his apprehension by showing his identity card mentioned that he is Inspector Kailash Sahu. He stated that neither he himself nor the team members had given any offer of our search prior to arresting accused Kuwar Singh. He denied that the statement of both the punch witnesses and the complainant have not been so place on record as neither of them had stated any series of proceedings mentioned in the verification memo, recovery memo, handing over memo, arrest cum personal search memo, site CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 49 of 67 plan etc. He admitted that if any signal was given by any person coming from the corridor as shown at point A, B and C and comes in the gallery at point G to G going towards room no. 203 then, it was visible to the person as point F and E. He stated that he had handed over the statements of the witnesses recorded under Section 161 Cr.P.C to the Investigating Officer when the investigation was taken over by the Investigating Officer Inspector Bijender Singh. He denied that memory card Q­1 and verification memo were never in existance or that due to the said reason, the same was not mentioned in Ex. PW3/F or that both are fabricated documents. He denied that the handing over memo was prepared at a later stage and the same was ante­timed. He denied that the documents prepared by him were forged and fabricated documents and ante­timed or that the signatures of the witnesses and the complainant were obtained on 24.7.2013. He stated that he had not made any entry pertaining departure, arrival, seizure or arrest of accused in general diary register since it is not mandatory to do so. He stated that he had not obtained signatures of accused Kuwar Singh on any document while he had taken his specimen voice. He stated that he had placed the cloth piece with which table drawer wash was conducted in the bottle. He stated that it is not mandatory to type the denomination of GC Notes in the handing over memo. He admitted that he had not personally witnessed any bribe transaction. He admitted that many other officials also used to share the room in which accused persons used to sit. He stated that CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 50 of 67 he does not know if any room no. 10 exists in SDMC building.

On being cross examined by Ld. Counsel for accused no. 2 Surender Singh he denied that accused Kuwar Singh had not given the complainant a piece of paper and had not informed that it was written and given by accused Surender Singh nor the complainant had informed him about it. He further denied that no call was received from accused Surender Singh on the mobile phone of accused Kuwar Singh on 23.7.2013 and hence, there was no question of keeping the phone of accused Kuwar Singh on loudspeaker mode and there was no question of any recording in the DVR as alleged.

27. PW­21 IO Inspector Bijender Singh, CBI, ACB, New Delhi has stated that the present case was entrusted to him for investigation by the then SP, CBI Sh. Vivek Priyadarshi. He stated that during the investigation, he had collected the documents i.e. verification memo Ex. PW3/E, complaint Ex. PW3/A, FIR Ex. PW20/A, handing over memorandum Ex. PW3/F, annexure A of handing over memo Ex. PW3/G, recovery memo Ex. PW3/F, rough sketch Ex. PW3/J, photocopy of tehbazari receipt Mark A, arrest cum personal search memo Ex. PW17/C and case diaries from Inspector Kailash Sahu. He has proved Ex. PW21/A and Ex. PW21/B. He stated that during investigation he had also collected the case properties i.e. memory card, CDs, bottles containing washes from Malkhana, CBI. He stated that he had seen production cum seizure memo Ex. PW3/A vide which CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 51 of 67 he had seized the documents from the complainant. The original trade license and original receipts dated 20.4.2013 were also proved by him and the same were Ex. PW21/C and Ex. PW21/D. He has also proved the original receipt dated 01.8.2013 already Ex. PW4/A, self­certified copy of agreement to sell of shop bearing no. 7 bears the signature of the complainant at point A and the same was Ex. PW21/E, self certified copy dated 08.7.1985 certified by the complainant and the same was Ex. PW21/F. He has also seen letter dated 29.8.2013 of Administrative Officer, Central Zone, SDMC vide which copies of the suspension order of Kuwar Singh and accused Surender Singh were provided to him by the Administrative Officer and the said letter was Ex. PW21/G. He stated that during investigation he had also collected documents Ex. PW3/S and Ex. PW18/A from Inspector Kailash Sahu. He has also proved Ex. PW21/H which was sent by SP Sh. Vivek Priyadarshi regarding corrigendum of date. He has also proved letter dated 09.9.2013 of Sh. Sanjay Gupta, Assistant Law Officer, Vigilance vide which the bio­data in respect of accused Kuwar Singh and accused Surender Singh was provided to SP, CBI and the said letter was Ex. PW21/J. He has also proved Ex. PW21/K, Ex. PW21/L, Ex. PW21/M, Ex. PW21/N, Ex. PW21/O and Ex. PW21/P. On being cross examined by Ld. Counsel for accused no. 1 Sanjeev Bhardwaj he stated that he had taken over the investigation of the present case on 27.7.2013 and during the investigation, he had visited the spot once, however, he does not recollect the date. He CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 52 of 67 stated that copy of recovery memo was given to the accused against receiving obtained on the recovery memo. The signatures of accused were also obtained on the recovery memo in token of its correctness. He had not verified if any receiving or signatures of accused Kuwar Singh were obtained on the recovery memo. Attention of the witness was drawn to Ex. PW3/H and after going through the same, he admitted that neither there was any signature of accused Kuwar Singh on the recovery memo nor any receiving was taken from him. He stated that no specimen voice recording memo of accused Kuwar Singh was prepared in the present case and he had also raised an objection to Inspector Kailash Sahu, Trap Laying Officer as to where is the specimen voice recording memo of accused Kuwar Singh and TLO had replied that it was not required. He denied that no such certificate under Section 65­B of Indian Evidence Act was obtained and demanded as the recordings did not contain the voices of accused persons or that the same was engineered and doctored. He denied that he intentionally did not file the statements of the complainant and the punch witnesses recorded by the Trap Laying officer in the Court as the same was against the case of the prosecution. He stated that he does not know if the complainant was trying to get tehbazari space of Sh. Gurmukh Singh transferred on his name. He admitted that he has no personal knowledge about the present case.

On being cross examined by Ld. Counsel for accused no. 2 Surender Singh he stated that the TLO had handed over to him CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 53 of 67 transcript of Q­1, but it was not verified as to who had prepared the same. He denied that the statements of the witnesses and the proceedings regarding specimen voice recording memo in respect of Surender Singh were fabricated by him to suit the case of CBI. He stated that he did not investigate the aspect that an FIR in this case could not have been registered at 3:30 pm in view of the verification proceedings concluded during 11:30 am to 3:30 pm as mentioned in verification memo Ex. PW3/E (D­2). He admitted that in the transcripts (D­18), it was not mentioned that there were additional recordings in the memory cards Q­1 and Q­2. He admitted that the alleged voice of accused Kuwar Singh at various places of the transcript mentioned as accused Kuwar Singh was of different person on hearing the same. He stated that he has not filed the investigation copy of memory cards Q­1 and Q­2 and S­1 and S­2 on record of this case. He denied that he had recorded false statements of witnesses to make out a false case against the accused persons. He further denied that his investigation was perfunctory and the charge sheet has been filed without any evidence and also on the basis of the fabricated evidence.

28. Prosecution Evidence was closed thereafter.

29. Statements of accused persons were recorded U/s 313 Cr.P.C in which both the accused persons had stated that they are innocent and have been falsely implicated in this case. They refused to lead any CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 54 of 67 evidence in their defence.

30. Final arguments were heard on behalf of Sh. Akshay Gautam Ld. Special PP for CBI as well as Ld. Counsels for accused Kuwar Singh and accused Surender Singh. I have heard arguments and have carefully gone through the case file.

31. Ld. Counsels for the accused persons state that neither the complainant nor the shadow witness nor the independent witness have supported the case of prosecution. These witnesses have turned hostile. They have denied the case of prosecution in totality. It is also stated that the prosecution has failed to prove the demand or acceptance of bribe by either of the accused persons. Therefore, they be acquitted of all the charges.

32. Ld. Senior PP for CBI, on the other hand, has submitted that even if the complainant and the independent witnesses have not supported the prosecution case, the accused persons can be convicted on the sole testimony of Trap Laying Officer, IO and other official witnesses. My attention has also been invited to the transcriptions to show that accused Surender Singh was demanding bribe from the complainant. My attention has also been invited to the chemical examination report regarding the presence of phenolphthalein and sodium carbonate in the washes obtained on the spot. My attention CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 55 of 67 has also been invited to the call details to show that accused and complainant were in touch with each other. It is also stated that accused Surender Singh was in touch with accused Kuwar Singh after the bribe amount was accepted and it was communicated to him by accused Surender Singh. It is also stated that in the complaint filed by complainant Suresh Mehta, he has named both the accused persons who were demanding bribe from him.

33. Ld. Special PP for CBI has further stated that not considering the evidence of prosecution witnesses who have been declared hostile is contrary to law and the Court should take into account the deposition of the witnesses if otherwise credible. For this purpose, reliance was placed on Sat Paul Vs. Delhi Administration, AIR 1976 SC 294. It is further submitted that selective portion of depositions of witnesses by considering only their examination­in­chief and not taking into account the cross­examination is permissible. It is stated that the entire testimony of such witnesses also cannot be discarded by the Court.

34. It is further stated that only on the basis of testimony of the Trap Laying Officer and the Investigating Officer, conviction of the accused can take place.

35. I have heard the rival submissions of both the parties and carefully gone through the statements of the witnesses, the CFSL CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 56 of 67 Report pertaining to hand washes and intercepted conversation and other material placed on record. After going through the same, I am of the opinion that while dealing with question of appreciation of evidence, Hon'ble Supreme Court in an authority reported as Syed Ibrahim Vs. State of Andhra Pradesh, 2006 VI AD (SC) 593 observed in paragraph No. 11, as under:

Stress was laid by the accused appellants on the non­ acceptance of evidence tendered by PW1 to a large extend to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of any accused, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, if would be open to the Court to CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 57 of 67 convict an accused notwithstanding the fat that evidence has been found to be deficient, out to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim 'falsus in uno falsus in omnibus' has no application in India and the witness or witnesses cannot be branded as liar

(s). The maxim 'falsus in uno falsus in omnibus' has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to , is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but is it not what may be called 'a mandatory rule of evidence'. (See Nisar Ali Vs. The state of Uttar Pradesh [AIR 1957 SC 366]). In a CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 58 of 67 given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurcharan Singh & Another Vs. State of Punjab [AIR 1956 SC 460]). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead­stop.

Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 59 of 67 matter of law that it must be disregarded in all respect as well. The evidence has to be sifted with care.

The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. See Sohrab S/o. Beli Nayata abd Anr.

Vs. The State of Madhya Pradesh, [1972 (3) SCC 751] and Ugar Ahir and Ors. Vs. The State of Bihar [AIR 1965 SC 277]. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricable mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 60 of 67 details present by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (Zwinglee Ariel Vs. State of Madhya Pradesh {AIR 1954 SC 15} and Balaka Singh and Ors. Vs. The State of Punjab {1975 (4) SCC 511}.

As observed by this Court in State of Rajasthan V s. Smt. Kalki and Anr.

{1981 (2) SCC 752}, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 61 of 67 the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."

Similarly, in an authority reported as Sunil Kumar Vs. State 2007, IV AD (Delhi) 417, while dealing with a case under Section 7 and Section 13(1)(d) r/w 13(2) of the Act, Hon'ble High Court of Delhi observed in Paragraphs 12 and 13 as under:

"12. All cases of corruption have two important aspects and they are (i) demand and (ii) acceptance. Unless demand and acceptance of illegal gratification by the public servant charged with under the Prevention of Corruption Act are proved by the prosecution beyond doubt, the presumption provided for in Section 20 of the Act cannot be drawn. Three cardinal principles of criminal jurisprudence are well settled and they are as follows:

CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 62 of 67

i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;

ii) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and

iii) that the onus of the prosecution shifts.

13. The Evidence Act also does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 63 of 67 Act as a result of which he succeeds not because he proves his case to the hilt but because probability of his version throws doubt on the prosecution case.

36. Having thus gone through the testimony of the complainant, shadow witness and independent witness, I am of the view that to constitute the offences under Section 7 of PC Act, it is necessary for the prosecution to prove that there was demand of the money and the same was voluntarily accepted, either by the accused or by someone on his behalf. Therefore, under the Prevention of Corruption Act, the demand and acceptance of the money for doing a favour in discharge of its official duty is sine qua non for the conviction of the accused.

Therefore, firstly there must be a demand and secondly there must be acceptance since the accused had obtained illegal gratification. There has to be clinching evidence to show that if the money has been received on behalf of the accused there has to be a tacit approval of accused that the money had been taken on his behalf is illegal gratification.

37. When the testimony of all the witnesses is seen in the light of the law, it is clear that in the instant case there were three material witnesses. In the present case, the complainant has denied the case CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 64 of 67 of prosecution in totality. He has denied demand or acceptance of bribe by the accused persons.

38. PW­14 A.K. Sharma, Administrative Officer, SDMC has also denied in totality that his statement Ex. PW14/DA under Section 161 CrPC had been recorded by IO.

39. PW­17 Sanjeev Kumar, the shadow witness has denied having heard any conversation between accused and the complainant as he was standing at a distance. He denied the pre­trap and post­trap proceedings including recording of conversation. He has also denied that 10,000/­ rupees currency notes were produced by the complainant. On the other hand, he stated that the bribe amount was produced by an official of CBI. He denied that the alleged intercepted or recorded conversation was played before him or transcription thereof was prepared in his presence.

He has rather stated that the complainant was fiddling with the drawer of table of accused Surender Singh when accused had gone outside the room and thereafter in his absence, Trap Laying Officer was called and the alleged bribe amount was recovered from the drawer.

40. PW­18 Kuldeep Yadav denied verification of complaint or being told by complainant that Kuwar Singh had demanded Rs.10,000/­ from CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 65 of 67 him. He denied the pre­trap proceedings of demonstration of demonstration of application of phenolphthalein powder etc. at CBI office. He denied having made statement Ex. PW18/DA before IO. He denied post­trap proceedings also including playing of intercepted or recorded conversation and preparation of transcripts.

41. The complainant and other independent witnesses have admitted their signatures on certain documents but have denied knowledge of contents of the same which creates a shadow of doubt on their veracity.

42. The defence of the accused is that he had refused to help the complainant regarding transfer of Tehbazari space in his favour which stood in someone else's name which had annoyed the complainant, who had later on falsely implicated him in the present case. Interestingly, the Tehbazari space in question was not even in the name of the complainant qua which he stated that he had to deposit the penalty or charges. The Tehbazari space was in the name of one Late Sh. Gurmukh Singh as per the SDMC records proved by PW­4 Sh. Binay Prasad.

43. The case thus seen in its entirety puts shadow of doubt on the veracity of statement and genuineness of proceedings in the case. The prosecution has, therefore, failed to prove the demand, acceptance and CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 66 of 67 recovery beyond reasonable doubt. The prosecution has failed to prove charge under Section 120­B IPC r/w Section 7, 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 beyond reasonable doubt. I, accordingly, grant benefit of doubt to accused persons, namely, Kuwar Singh and Surender Singh and acquit them of the charges framed against them.

44. Bail bonds of the accused persons are cancelled and their sureties are discharged. Documents of the sureties be returned to them after cancellation of endorsement, if any, thereon. Case property if forfeited to the State to be destroyed or disposed of after the time of appeal is over. The amount of Rs.10,000/­ or equivalent thereof be forfeited to the State since the complainant has clearly mentioned in his statement that he had not produced Rs.10,000/­ against the demanded bribe amount.

45. File be consigned to Record Room.

Announced in the open Court on 05th of March, 2014.

(SWARANA KANTA SHARMA) SPECIAL JUDGE (CBI­05) NEW DELHI / 05.3.2014 CC No. 06/13 State (CBI) Vs. Kuwar Singh & Another Page No. 67 of 67