Delhi District Court
I.D No.02401R0929542608, Cbi vs G.S. Raju Decided On on 16 November, 2013
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 10/2011
R.C. No. 41(A)/04/CBI/ACB/ND
Case I.D No. 02401R0700652005
Central Bureau of Investigation
Versus
Shri Jagdish Singh
S/o Shri Ram Mehar Singh
R/o D10/11, Sector15,
Rohini, Delhi110085.
Date of Institution : 08.07.2005
Date of reserving Judgment : 10.09.2013
Date of Pronouncement : 16.11.2013
JUDGEMENT
Preliminary Sh. Jagdish Singh son of Sh. Mehar Singh who had been working as Patwari at the office of SDM, Narela has been sent up for trial under Section 7 and 13(2) read with 13(1)(d) of the C.C. No. 10/11 Prevention of Corruption Act, 1988 (hereinafter referred to as the Act), after sanction of his prosecution had been accorded by the competent authority.
2. The case against the accused was registered on the basis of a written complaint submitted on 9.9.2004 by one Vijender Kumar S/o Sh. Bhalle Ram (hereinafter "Complainant") with interalia allegation of the accused having demanded Rs. 15,000/ from the Complainant in the name of his Supervisory Officer Sh. Rakesh Choudhary, Consolidation Officer ('CO' for short) for making some corrections in the records in respect of his land, after the said complaint had been verified. Allegations in detail in the complaint
3. The allegations made in the complaint dated 9.9.2004 submitted to the Superintendent of Police, CBI, ACB, New Delhi are that the complainant are three brothers, according to the Chakbandi records from the time of his father their lands were in the Khasra no. 80/2 and 80/3. Later because of the extension of C.C. No. 10/11 Lal Dora in the year 1999 after the consolidation proceedings, some part of the land was also added in Khasra no. 80/8. On 4.2.2004 for some reason he had obtained the copy of "Register Karyawahi" from Patwari Sh. Hari Om of Alipur Block. He had found that in the record instead of writing the Khasra no. 80/2, 80/3 and 80/8, the details had been given as 50/2, 50/3 and 50/8. He had informed Sh. Hari Om Patwari that this was not correct, who had advised him to talk to the Consolidation Officer. He had immediately got in touch with the Consolidation Officer. The Consolidation Officer asked him to file an appropriate application giving the complete details of the incorrect entry made along with the photocopy of the consolidation. He had accordingly submitted an application in this regard on 11.03.2004 vide Diary no. 1222. He had thereafter visited the Consolidation Officer a number of times, but he did not find him. In the month of May when he had met the Consolidation Officer, the Consolidation Officer had asked him to meet him after some time. He had then visited him again in the month of July. This time he was told by the Consolidation C.C. No. 10/11 Officer to see him after 23 days and his work would be done. On such an assurance given, he had met the Consolidation Officer after about a week. This time when he had met the Consolidation officer, he had stated that he has already asked Sh. Jagdish Singh Patwari (accused) to do his work. The Consolidation Officer had further told the complainant that he should do whatever he is asked to do by the accused and his work would be done. Complainant had then met the accused, accused told him that the Consolidation Officer has demanded Rs.15,000/ for his work. When complainant asked him that as to why he should pay money, he was told by the accused for making the correction in the land record. On this the complainant had replied that he was a poor man and from where he would arrange so much of money. Accused then told him that unless he pays the money, his work would not be done. The complainant had once again visited the Consolidation Officer in the month of August. This time again the Consolidation Officer asked him to meet the Patwari (accused). He had then visited the accused in the first week of September C.C. No. 10/11 and the accused had asked him to bring Rs.15,000/ and further told him that the day he pays Rs.15,000/, his work would be done. Since he did not want to pay the bribe, he had made this complaint to the Superintendent of Police.
Verification Proceedings
4. The complainant was introduced to Inspector Sh. S. S Bhullar who was asked to verify the complaint. There two independent witnesses namely Sh. Gajender Kumar, Section Officer and Sh. Chander Singh, UDC, both from BIS, Manak Bhawan, Bahadur Shah Zafar Marg, New Delhi, had joined Inspector Sh. S.S Bhullar to be part of verification proceedings. One Samsung Digital Voice Recorder, one Cenix Digital Recorder, one Eaves Dropping System 9818096259 of make 'TRIUM' along with four sealed audio cassettes were arranged.
5. The introductory voice of both the independent witnesses were recorded in the said digital recorder. The complainant along with independent witness Sh. Gajender Kumar and Const. C.C. No. 10/11 Manoj Kasana were deputed to record the conversation that may take place at the office of the suspect official through Samsung Digital Recorder and Eaves Dropping Phone. Sh. S.S Bhullar, the other independent witness Sh. Chander Singh and S.I Prem Nath stationed themselves near Phone no. 24362494 in the office and connected Cenix Digital Recorder at the said phone. The rest of the team i.e. Complainant, independent witness Gajender Kumar and Const. Manoj Kasana left CBI office at 12.10 P.M for the office of SDM at Narela.
6. On reaching at the spot the Samsung Digital Recorder was handed over to the complainant by Const. Manoj Kasana with the direction to switch on the same on contacting C.O Rakesh Choudhary and Patwari Jagdish Singh (accused). They were, however, not found in the office. This message was passed on to the team stationed at the CBI office. The complainant, independent witness and Const. Manoj Kasana were asked to wait for the arrival of the Consolidation Officer Sh. Rakesh Choudhary and Patwari Sh. Jagdish Singh (accused). C.C. No. 10/11 At about 4.30 P.M. they had reached at the office. This message was given to the team at CBI office. The Eaves Dropping device was activated thereafter through telephone no. 24362499 and the digital recorder was also switched on by the complainant. The complainant had gone inside the office to talk to C.O Sh. Rakesh Choudhary. Complainant conveyed to him his grievance. CO Rakesh Chouhdary asked him to meet Patwari Jagdish Singh (accused). Thereafter he and the independent witness had gone inside the office of the accused. After some conversation between them, the accused had demanded Rs.15,000/ from the complainant and had also asked him to come on the next day at 4 P.M. for paying him the bribe amount. Thereafter both the complainant and the independent witness came out of the office and handed over the Samsung Digital Recorder as well as the Eaves Dropping Phone to Const. Manoj Kasana who was waiting outside the office of SDM.
C.C. No. 10/11
7. At about 6.30 P.M. complainant, independent witness Sh. Gajender Kumar and Const. Manoj Kasana had returned to the CBI office. Thereafter both Cenix Digital Recorder and Samsung Digital Recorder were played, which confirmed demand of bribe of Rs. 15,000/ by the accused from the complainant and having asked the complainant to visit him on the next day i. e. 10.9.2011 at about 4 P.M. for payment of the bribe.
8. The conversation recorded in the Cenix Digital Recorder and Samsung Digital Recorder were transferred into two blank audio cassettes with the help of Compact Cassette Recorder. The conversation recorded at the spot was transferred on the A side and the same conversation recorded in the CBI office was transferred on the B side. The recording was also transferred to another third cassette which was to be used for the purpose of investigation. Cassettes were sealed. Seal after use was handed over to independent witness Sh. Chander Singh for safe custody. All these proceedings were recorded in "Complaint C.C. No. 10/11 Verification Memo" dated 9.9.2004 and signed by all the witnesses. These proceedings were concluded at 8 P.M. PrePost Trap Proceedings
9. After the verification proceedings, FIR was registered and the case for further investigation was handed over to Inspector Praveen Ahlawat. Inspector Praveen Ahlawat had then organized a team for laying the trap of which Inspector A.K. Pandey, Inspector S.S Bhullar, SI Prem Nath, SI Sandipani Garg and other supporting staff were the members besides the two independent witnesses Sh. Gajender Kumar, Sh. Chander Singh and the complainant. During the pretrap proceedings, the complainant had produced currency notes of Rs.15,000/ (8x1000, 4x500 and 50x100). A demonstration was given in the presence of all the team members on the directions of Inspector Praveen Ahlawat by Sh. A. K Pandey Inspector as to how if the currency notes after being treated with phenolphthalein powder are touched and then the fingers with which the said currency C.C. No. 10/11 notes are touched are dipped in a colourless solution of Sodium Carbonate, the solution would turn pink. This entire demonstration was given with the help of independent witness Sh. Chander Singh who was asked to touch the phenolphthalein treated currency notes. Thereafter the personal search of the complainant was conducted. He was not allowed to keep anything besides Rs.15,000/ treated with phenolphthalein powder which was to be paid as bribe. The said currency notes were kept in the left hand side front pocket of his pant with a direction to hand over the same to the accused on a specific demand being made from him.
10. Thereafter a Digital SVR 240 Samsung Recorder was arranged by SI Prem Nath. It was ensured that it did not have any prerecorded material. Introductory voices of independent witnesses Sh. Chander Singh and Sh. Gajender Kumar were recorded. The same Eaves Dropping mobile phone and Cenix Digital Voice Recorder and a few company packed blank audio cassettes make TDK 60 were also arranged. Cenix Digital C.C. No. 10/11 Voice Recorder and two blank audio cassettes were handed over to Inspector Amrik Raj to record the likely conversation which may take place on the spot through the Eaves Dropping mobile phone by connecting the device to phone no.24362494 and Const. Manoj Kasana was also directed to remain at the office to assist Inspector Amrik Raj. The Eaves Dropping mobile phone as well as SVR 240 Samsung Digital Recorder were handed over to the complainant.
11. All the team members had washed their hands with soap and water. Independent witness Gajender Kumar was directed to accompany complainant as shadow witness and to over hear the conversation which may take place between the complainant and the accused. Independent witness Sh. Gajender Kumar was further directed to give signal to the trap team by scratching his head with both hands after the transaction is over. Independent witness Sh. Chander Singh was directed to remain with the trap party. All these proceedings were recorded in the Handing Over Memo and C.C. No. 10/11 signed by all persons. The trap party had left for the spot in a government vehicle at about 4.00 P.M.
12. CBI trap team had reached near the office of SDM, Narela at about 5.20 P.M. The Digital Recorder was handed over to the complainant in "on" position to keep the same inside the vest for recording spot conversation. The complainant and the shadow witness Sh. Gajender Kumar had entered the premises of SDM Narela and then office room of the accused. After some formal exchange of greetings accused Jagdish Singh had came out of his office to discuss with him about the issue related to change of Khasra numbers of land as stated in his application dated 31.3.2004. Thereafter accused had demanded the bribe by way of gesture of his hand. The complainant then took out the money from his left side pant pocket with his left hand and extended the same to the accused. The accused accepted the same with his right hand and kept the same in the right side pocket of his pant. At 5.40 P.M the shadow witness gave the preappointed signal to the raiding party and rest of the team C.C. No. 10/11 members reached the spot. The accused was caught by his wrists by Inspector A. K. Pandey and Inspector S. S. Bhullar. The complainant and the shadow witness narrated to rest of the members as to what had transpired between the accused and the complainant as to the demand and acceptance of bribe.
13. The money was taken out of the pocket of the accused by the independent witness Chander Singh. The numbers of the currency notes were tallied with the numbers mentioned in the Handing Over Memo. The fingers of accused were dipped in a colorless solution of Sodium Carbonate and it turned pink and thereafter the inner line of the right side pant pocket of the accused was dipped in the another colorless solution of Sodium Carbonate which had also turned pink. The recordings from the Digital Recorder were transferred into a blank audio cassette TDK D60 with the help of a Compact Cassette Recorder. The same was sealed. The recorded conversation was also transferred into another cassette. The same was though not sealed because it was to be utilized for the purpose of investigation.
C.C. No. 10/11
14. After the accused had been apprehended, he was asked to contact the Consolidation Officer Sh. Rakesh Choudhary over phone. The accused replied that he did not remember the phone number of the Consolidation Officer and also informed that the phone number of the Consolidation Officer will be available with his P.A Sh. Om Prakash Suyal. Sh. Suyal was called at the spot and he was asked to contact the Consolidation Officer Sh. Rakesh Choudhary. Sh. Suyal then called Sh. Choudhary's number 01137015758 with his mobile no. 9818466937. After he had dialed the number, he handed over his cell phone to the accused who talked to Sh. Rakesh Choudhary who replied only in "Yes" or "No". This conversation between the two was also recorded which confirmed that Sh. Choudhary was in knowledge of the incident. The attempts to contact Sh. Choudhary thereafter failed. In these circumstances there was an authorization under Section 165 Cr.P.C issued for conducting the house search of accused Sh. Jagdish Singh. C.C. No. 10/11
15. While in the office, the office table of accused Sh. Jagdish Singh and office of C.O Sh. Rakesh Choudhary were searched and memos prepared and incriminating documents were seized. The three bottles containing the washes of the hands and the inner line pocket of the accused were wrapped and sealed with the seal of CBI. The paper slips were pasted on each bottle and marked RHW, LHW, RHSPPW denoting Right Hand Wash, Left Hand Wash and Right Hand Side Pant Pocket Wash respectively. The said paper slips and cloth wrappers were signed by all the independent witnesses. The trap money, three bottles containing washes, one audio cassette were all seized by a recovery memo. At the time when the accused was arrested, arrest cum personal search memo was prepared. The seal which was used for sealing the case property was handed over to the independent witness Sh. Chander Singh.
16. As per the directions given by the Investigating Officer Inspector Praveen Ahlawat, the independent witnesses Sh. Gajender Kumar and Sh. Chander Singh had reported on the C.C. No. 10/11 next day at 11.00 A.M. The specimen voice of the accused Jagdish Singh was recorded in their presence and in the presence of SI Prem Nath by reading out the transcript prepared earlier from the audio cassette in which the recording was made earlier on the spot for the purpose of investigation. This statement was given by the accused voluntarily. The specimen voice was recorded in Sanyo Compact Cassette Recorder by inserting a cassette after ensuring that it was clean. Before taking the specimen voice of the accused introductory voices of the independent witnesses were also recorded in the same cassette. The said cassette was sealed with the help of the seal which was given to the independent witness Sh. Chander Singh on the previous day. The seal was again handed over back to him for safe custody with the direction to produce the same before the Court as and when required.
Forensic Reports
17. On forensic examination of the specimen voice of the accused and the recordings made during the verification C.C. No. 10/11 proceedings on 9.9.2004 and the recordings of the day of the trap i.e on 10.9.2004 it was concluded that the specimen voice of the accused Jagdish Singh matched with the voice attributed to the accused Jagdish Singh in the said recordings beyond reasonable doubt. The chemical examination of the pink liquid in the bottles Ex. RHW, LHW and RHSPPW also tested positive for the presence of phenolphthalein and Sodium Carbonate. Sanction for Prosecution
18. On a request being received from CBI, the sanction was accorded for the prosecution of the accused by the competent authority i.e Dy. Commissioner (North West), Kanjhawala, Delhi. Framing of Charge
19. On the basis of the material on record a charge under Section 7 of the Prevention of Corruption Act and Section 13 read with Section 13(1)(d) of the Prevention of Corruption Act. C.C. No. 10/11 The accused had pleaded not guilty and claimed trial. Evidence of Prosecution
20. The prosecution had examined in all twelve witnesses. PW1 Sh. C.P. Tripathi
21. Witness PW1 Sh. C. P. Tripathi, Dy. Commissioner, North West District, Delhi had deposed that after perusing the material including the documents and statements of witnesses produced before him and having applied his mind, he had granted sanction Ex.PW 1/A for the prosecution of the accused Sh. Jagdish Singh, Patwari on 5.7.2005. He had deposed that he was competent to remove the accused from service and, therefore, competent to accord sanction for his prosecution. This witness had also identified the letter Ex.PW 1/B signed by Sh. Kidar Nath, SDM (Head Quarter) by which the sanction Ex.PW 1/A was forwarded to the CBI.
C.C. No. 10/11 PW2 Sh. C.L. Bansal
22. Witness PW2 Sh. C.L. Bansal who was posted as Sr. Scientific Officer with CFSL had deposed that on 22.9.2004 he had received three sealed bottles in RC No.41(A)/04 marked as Ex. RHW, LHW & RHSPPW containing light pink and pink sediments. On chemical examination the said liquid had given positive test for Phenolphthalein and Sodium Carbonate. He had proved his report Ex.PW 2/A bearing his signatures and seal.
PW3 Dr. Rajender Singh
23. Witness PW3 Dr. Rajender Singh, Principal Scientific Officer, CFSL, New Delhi had deposed that on 22.9.2004 he had received five sealed parcels from S.P, CBI, ACB, New Delhi. The parcels were marked by him Q1 to Q5. Parcels Q1 to Q4 contained normal audio cassettes having questioned voices of accused Jagdish Singh. The parcel Q5 also C.C. No. 10/11 contained a normal audio cassette having specimen voice of accused Sh. Jagdish Singh which was marked by him as Ex.S1(A). After examining the questioned voice marked by him as Ex.Q1(A), Q2(A), Q3(A) and Q4(A) and specimen voice Ex.S1(A) by auditory and spectographic technique he had reported that the question voices were of the same person whose voice was marked Ex.S1(A) i.e the voice of the accused Sh. Jagdish Singh beyond reasonable doubt. He had identified his report in the Court dated 18.1.2005 Ex.PW3/A bearing his signatures at point A on all pages.
PW4 Sh. Hari Om
24. Witness PW4 Sh. Hari Om who was posted as Patwari in the office of SDM, Narela in February, 2005 had deposed that he had handed over the documents to CBI vide Production cum Seizure Memo dated 24.2.2005 Ex.PW4/1. He had identified those documents also in the Court. They were : C.C. No. 10/11
1) Application dated 11.3.2004 submitted by Sh. Vijender Kumar (complainant) addressed to Consolidation Officer for making correction in the revenue record of the number of his Khasra with the subject "Gaon Kheda Kalan Mein Galat Mustil No. Aur Kila No. Theek Karwane Haitu" Ex.PW4/2 ;
2) Copy of Despatch Register where the reference to the said application Ex.PW4/2 had been given at Sr. No. 1222 on page no. 86 - Ex.PW4/3 ;
3) Note of the accused dated 28.7.2004 in file no.
M38/TN/O/2004 pertaining to Om Prakash etc. Ex.PW 4/4 having been put up before Field Kanoongo/C.O (Narela) where upon Sh. Rakesh Choudhary the then Consolidation Officer on 18.8.2004 wrote the note "Patwari to discuss along with the records" and then marked it to Halka Patwari. On the said note on 6.9.2004 Sh. Rakesh Choudhary had again made an endorsement to the effect "Discussed. Put up the proposal". It also had the signatures of Sh. Satya Naryan, Field Kannongo at point X2 ;
C.C. No. 10/11
4) An application dated 11.8.2004 addressed to Consolidation Officer signed by Sh. Jeet Singh S/o Shish Ram, Maman Singh and Mahender Singh S/o Late Sh. Charan Singh on the subject "Gaon Kheda Kalan Mein Kheton Ki Zameen Vitrit Babat" Ex.PW4/5.
PW5 Sh. Vijender Kumar
25. Witness PW5 Sh. Vijender Kumar is the complainant. He had deposed that in February, 2004 on a visit to Alipur Block for obtaining a copy of "Fard" of his agricultural land, he had come to know that the demarcation of his land situated in village Kheda Kalan was not correctly mentioned. He had brought this fact to the knowledge of the then Patwari who had asked him to move an appropriate application giving the entire details of his land. He had then moved an application dated 11.3.2004 Ex.PW 4/2 before the Consolidation Officer. Along with the said application he had enclosed pass book consolidation No.57 in the names of Sh. Maman Singh, Sh. Kanwal Singh, Sh. Jai C.C. No. 10/11 Kishan, Sh. Jai Parkash, Sh. Om Parkash and himself of village Kheda Kalan viz. Ex.PW 5/1 and Ex.PW 5/2. Copy of the Khatoni for the year 1978 of village Kheda Kalan in respect of his agricultural land Ex.PW 5/3 and copy of "Register Karwai" of village Kheda Kalan is Ex.PW 5/4.
26. The witness PW 5 had narrated as to how he had met the Consolidation Officer Sh. Rakesh Choudhary after being asked to visit him after 78 days and he was told that it would take one or one and half months to dispose of the application. When he had visited Sh. Rakesh Choudhry again, he was informed that it may take another one and half months to take action on his application as the concerned Patwari had been transferred and he would only be able to give report after new Patwari had joined. Complainant again visited Sh. Rakesh Choudhary after 1520 days and this time it was informed by Sh. Rakesh Choudhary Consolidation Officer that a new Patwari has joined and it would take another 12 days to do his work after collecting the necessary information from the new Patwari. C.C. No. 10/11
27. The complainant met Sh. Rakesh Choudhary Consolidation Officer after 12 days. This time he was informed that for making the corrections in the records he will have to produce Sh. Jeet Ram in whose record the corresponding mistake had been committed. He then met Sh. Jeet Ram who had agreed to accompany him to the Tehsildar on the next day. Sh. Jeet Ram also gave in writing Ex.PW 4/5 to the Consolidation Officer stating interalia that he had no objection with regard to making the necessary changes in the record.
28. About 57 days prior to 9.9.2004 complainant had met the accused. The accused had informed him that he has already completed the job and sent the report to the Consolidation th th Officer. On 5 or 6 of September he met Consolidation Officer Sh. Rakesh Choudhary and requested him to do his job. He had sent some one to call the accused (Patwari). The accused arrived in his room. When Sh. Rakesh Choudhary had asked him as to what had happened to the work, accused had replied C.C. No. 10/11 that he has performed his part of the job and the file is lying with him. The accused further informed Sh. Rakesh Choudhary that he would go through the file again and after completing the deficiencies, if any, he would resend the file to him. The accused thereafter had left from his room. At this time after the accused had left, the Consolidation Officer Sh. Rakesh Choudhary had demanded bribe from him. When the complainant enquired from Sh. Rakesh Choudhary the reason for paying the money, the Consolidation Officer Sh. Rakesh Choudhary had replied that money was to be paid for issuing the NOC.
29. After this the complainant had approached CBI and gave the complainant Ex.PW 5/1.
30. The complainant thereafter in his testimony had explained as to how the preverification proceedings were conducted in his presence and how after reaching the officer of the SDM, Narela, he had met Sh. Rakesh Choudhary and Sh. Rakesh Choudhary C.C. No. 10/11 had demanded bribe from him again and also clearly told him that work would not be done unless the payment is made to him.
31. He had further explained as to how he had participated in the pre trap proceedings and trap proceedings on the next day along with the independent witnesses and other officials of CBI. His examination in chief would show that his allegations of bribe were mainly against the Consolidation Officer Sh. Rakesh Choudhary without making any reference to the accused herein as having demanded bribe from him. This witness was then crossexamined by the Ld. PP for CBI for his having resiled from his earlier statement.
PW6 Sh. Gajender Kumar
32. Witness PW6 Sh. Gajender Kumar is the shadow witness. His testimony also relates to his participation in the verification proceedings of 9.9.2004. He had identified his signatures on different documents prepared during the C.C. No. 10/11 investigation such as Complaint Verification Memo Ex.PW 5/9 with regard to the proceedings conducted on 9.9.2004, transcription of the conversation recorded on 9.9.2004 Ex.PW 5/7, Handing Over Memo Ex.PW 5/8 prepared during the course of the pre trap proceedings, Recovery Memo Ex.PW 6/1 prepared after the recovery had been made of the money from the possession of the accused as per the case of the prosecution and site plan Ex.PW 6/3.
33. He had also identified his signatures on the audio cassette Ex. P1, cloth wrapper Ex. P2 and its Inlay Card Ex. P3, bottles in which the hand washes and wash of the inner line of the right hand side pocket of the pant had been collected, right side pocket of the pant, the cassettes with the label spot trap conversation Ex. P4 with Inlay card Ex. P5 and the cloth wrapper Ex. P6. This witness had also not supported the case of the prosecution and said nothing specifically that the accused had demanded and accepted Rs.15,000/ from the complainant Vijender Kumar. He was also crossexamined by the Ld. PP for CBI.
C.C. No. 10/11 PW7 Sh. Chander Singh
34. Witness PW7 Sh. Chander Singh is another independent witness. He had deposed that as to how he had participated in the pre trap proceedings and in his presence it was decided that the other independent witness Sh. Gajender Kumar would go along with the complainant and some CBI officials to the office of the Consolidation Officer for the verification of the complaint. His introductory voice and the voice of Sh. Gajender Kumar were recorded in some recorder. He, however, had remained sitting at the CBI office. Similarly, on 10.9.2004 also he had joined the pre trap proceedings at the CBI office. He had deposed that during the pre trap proceedings, he was asked to touch currency notes of Rs.15,000/ after being sprinkled by some powder and then asked to dip his fingers in water like solution as a result of which the said colourless solution had turned pink. In his presence the currency notes were handed over to the complainant with a direction to pay the same to the Consolidation Officer. After the pre trap proceedings were over, C.C. No. 10/11 he along with the other independent witness, complainant and members of the CBI team left for Alipur. He had not entered the office at Alipur and remained outside along with the other members of the CBI team. After some time according to his testimony some official was caught by the CBI team. He along with other CBI officials had rushed inside the office. CBI officials had caught hold of one person. He had stated that he was not in a position to identify the said person. The Court observation during his testimony shows as if he was avoiding to look at the persons in the Court room when he was called upon to identify the person who had been caught by the CBI officials. On being insisted by the Court he had looked around and still stated that the said person was not present in the Court. This witness during the course of his testimony had identified his signatures on Complaint Verification Memo dated 9.9.2004 Ex.PW 5/9, one audio cassette Mark Ex.P1, Inlay Card Ex.P3 and its cloth wrapper Ex.P2, one another cassette with the label Spot Verification Memo Ex.P9, its Inlay Card Ex.P10 and also its cloth wrapper Ex.P11.
C.C. No. 10/11
35. He had further identified his signatures on the Handing Over Memo prepared according to the case of the prosecution during pre trap proceedings Ex.PW 5/8, Arrest cum Personal Search Memo of the accused Ex.PW 6/DB, Recovery Memo Ex.PW 6/1, site plan Ex.PW 6/3, three bottles with labels Right Hand Wash, Left Hand Wash, Right Hand Side Pant Pocket Wash, pant of the accused stated to have been taken into possession at the time after the recovery had been made from the pocket of the pant of the accused, Voice Recording Memo Ex.PW 6/DA, Memo prepared with regard to the search of the office of the Consolidation Officer Ex.PW 6/DC and also the file Ex.PW 7/DX1 which was seized through this memo.
36. Similarly, he had also identified his signatures on the cassette Ex.P4 with words Spot Trap Conversation, its Inlay Card Ex.P5, and transcript Ex.PW 5/6. This witness too had not supported the case of the prosecution on material questions and, therefore, had been crossexamined by Ld. PP for CBI. C.C. No. 10/11 PW8 Inspector S.S Bhullar
37. Witness PW8 Inspector S.S Bhullar is the Officer who had conducted the pre trap proceedings and also was the part of the pre trap and post trap proceedings. His deposition is on the lines of the case of the prosecution.
PW9 Inspector Parveen Ahlawat
38. Witness PW9 Inspector Parveen Ahlawat is the Trap Laying Officer to whom the investigation was marked after the registration of the case on the basis of the verification report of the witness PW8 Inspector S.S Bhullar. His testimony is also on the line of the case of the prosecution. He had referred to in his testimony various documents which he had prepared in the pre trap proceedings and post trap proceedings. PW10 Inspector Shehnaz Khan
39. Witness PW10 Inspector Shehnaz Khan is the Officer C.C. No. 10/11 who had taken over the investigation from Sh. Parveen Ahlawat on 15.10.2004 and ultimately submitted the charge sheet in the Court after the sanction had been received for the prosecution of the accused. Her testimony is also on the lines of the case of the prosecution.
PW11 Constable Manoj Kasana
40. Witness PW11 Const. Manoj Kasana is the official of CBI who had remained with the complainant on 9.9.2004 during the pretrap proceedings. He had identified his signatures on the Verification Memo Ex.PW 5/9 also. He had remained associated with the pre trap proceedings which took place on the next day i.e 10.9.2004 in the CBI office. He had identified his signatures on the Handing Over Memo prepared during the pre trap proceedings Ex.PW 5/8. This witness, however, had not accompanied the CBI team to go to the office of SDM, Alipur Block but had stayed back at the CBI office with Insp. Amrik Raj for recording the conversation at the office by the use of Eaves C.C. No. 10/11 Dropping System. This recording was made between 5/5.10 P.M to 5.40 P.M. He had identified his signatures on the Tape Recording Memo Ex.PW 9/B. He had, however, subsequently asked to join the rest of the team at the spot and he had joined rest of the members of the CBI team at about 6 P.M. after the trap was over. He had identified his signatures on the Recovery Memo Ex.PW 6/1.
41. Witness PW11 had also identified his signatures on the transcript of the conversation Ex.PW 5/6 prepared with regard to the conversation which took place on 10.9.2004. PW12 S.I Prem Nath
42. Witness PW12 SI Prem Nath who was posted as Sub Inspector at CBI, ACB, New Delhi had joined verification proceedings on 9.9.2004. He had deposed that he was asked to arrange for two Digital Voice Recorders, Eaves Dropping Phone and four blank audio cassettes by Insp. S.S Bhullar C.C. No. 10/11 which he had accordingly arranged. In both the Digital Voice Recorders introductory voices of both the independent witnesses had been recorded. The instruments were given to independent witness Sh. Gajender Kumar and Const. Manoj Kasana who accompany complainant to the office of SDM, Narela. Eaves Dropping System as well as Digital Recorder were both handed over to the complainant. The other digital recorder was connected with the landline number of the SP office of CBI. As per the instructions given the complainant after reaching at the spot had made a call to the CBI office and the Eaves Dropping instrument was activated. This witness had remained in the office for recording the conversation with the help of Eaves Dropping Instrument in the presence of the other independent witness Sh. Chander Singh and also Inspector Sh. S.S Bhullar. The conversation accordingly was recorded in the office by him and a transcript thereof was prepared. This witness had identified his signatures on the Complaint Identification Memo Ex.PW 5/9.
C.C. No. 10/11
43. This witness also deposed about his participation in the pre trap proceedings and having visited the office of SDM along with the other members of the team and independent witness in the leadership of Inspector Parveen Ahlawat, the Trap Laying Officer. He had identified his signatures on the Handing Over Memo Ex.PW 5/8 in which the entire proceedings related to the pre trap proceedings were recorded.
44. According to this witness he had arranged for the cassettes and the Digital Voice Recorders also on the said day of trap including the Eaves Dropping Instrument. In the Digital Voice Recorder the introductory voice of both the independent witnesses were recorded. Inspector Amrik Raj and Const. Manoj Kasana were left at the office for recording the conversation simultaneously with the help of Eaves Dropping Instrument. He had deposed about what transpired after having reached at the spot on the lines of the case of the prosecution including taking the hand washes and wash of the inner line of the pocket of the pant of the accused and other proceedings C.C. No. 10/11 which took place as recorded in Ex.PW 6/1 i.e the Recovery Memo. He had also identified his signatures on the site plan Ex.PW 6/3 prepared at the spot.
45. As per his testimony on the next day i.e 11.9.2004 both independent witnesses were asked to report at the CBI office. He was called by Inspector Parveen Ahlawat and instructed to take the specimen voice of the accused in the presence of independent witnesses. He had accordingly done so after recording the introductory voice of the two independent witnesses. The signatures of the independent witnesses were taken on the cassette in which the specimen voice of the accused was taken which was marked S1 and thereafter sealed. He had identified the Memo Ex.PW6/DA which was prepared in this regard by Insp. Parveen Ahlawat. This witness had identified the case property which was produced in the Court i.e the cassette in which the recordings were made on 9.9.2004 on the spot as well as at the office and also the recording on the next day i.e on the day of the trap and and the C.C. No. 10/11 cassette in which on the next day i.e 11.9.2004 the specimen voice of accused was taken. He had also identified the bottles in which the hand washes and the wash of the inner line of the pocket of the pant was taken on the day of the trap after the recovery had been made from him. He had also identified the currency notes seized in his presence.
Statement of accused under Section 313 Cr.P.C :
46. All the incriminating evidence which had been recorded was put to the accused and his statement under Section 313 Cr.P.C was recorded.
Defence Evidence :
47. The accused had examined three witnesses in his defence.C.C. No. 10/11
DW1 Sh. Subhashish Bose
48. Witness DW1 Sh. Subhashish Bose had proved the reply under Right to Information Act provided to one Sh. Anand Bhardwaj, Advocate by the Revenue Department of NCT of Delhi, informing interalia that the competent authority to remove a Patwari from service is Secretary (Revenue), Additional Commissioner.
DW2 Sh. Praveen Bhardwaj
49. Witness DW2 Sh. Praveen Bhardwaj Field Kannongo from the office of the SDM had brought the Roznamcha KarGuzari for the year 200304 and 200405 Ex.PW 2/A1 and A2. This witness had deposed that as per the entry at Sr. No. 131 and 132 dated 6.9.2004 the Patwari had supplied one copy of register karwahi, Khatta No. 508 to 513 on charging fee of paise 50 to one Vijender.
C.C. No. 10/11 DW3 Sh. Dushyant Singh
50. Witness DW3 Sh. Dushyant Singh, Care Taker of office of CBI, ACB, New Delhi was summoned to produce the record relating to DVRs/Eaves Dropping Instrument to the Investigating Officer of this case on 9.9.2004 and 10.9.2004. This witness had deposed that there is no such formal entry made with regard to such instruments being supplied to the Investigating Officer as there is no such register maintained for this purpose. Submissions
51. I have heard Ld Public Prosecutor for CBI and also the Ld Defence Counsel for the Accused and have gone through the record of this case.
Tape Records of Conversation recorded, secondary evidence
52. According to the case of the prosecution on 9.9.2004 C.C. No. 10/11 during the verification proceedings, the recording of the conversation between the complainant and the accused were recorded in a Digital Voice Recorder which the complainant was carrying with him and the said conversation being simultaneously recorded in the office of CBI in a Digital Voice Recorder attached with the landline at the office of CBI through an Eaves Dropping Instrument which the complainant was also carrying with him. The recording from the Digital Voice Recorder, which the complainant was carrying along with him to the spot and the recordings made in the Digital Voice Recorder at the office of CBI through the Eaves Dropping Instrument were both transferred to audio cassettes. Similarly, the recordings at the spot on the next day i.e the day of the trap i.e 10.9.2004 were also recorded in a Digital Voice Recorder which the complainant was carrying with him like the previous day. The same recording was also made simultaneously at the office of the CBI through an Eaves Dropping Instrument which the complainant was carrying. It is not in dispute that this time again the recordings in the Digital Voice Recorders both C.C. No. 10/11 recorded at the spot and at the CBI office were transferred to audio cassettes.
53. One of the arguments raised during the course of the arguments related to the integrity of the entire process of transferring the recording from DVR to the cassette. Ld Ld Defence Counsel had submitted as under:
"In this case admittedly all the recordings were made in Digital Voice Recorder. There is no explanation as to why Digital Voice Recorder was not preserved containing the original recording and why was the recordings from the DVR transferred to a cassette. The DVR does not cost so much that it could not have been preserved as such. One may further note that according to the case of the prosecution at the time of first interaction with the CBI officials had introduced themselves to the accused before apprehending him. If, as claimed by the prosecution the complainant was carrying DVR with him, then all this part of the conversation which the CBI officials had with the accused must have been recorded in the DVR but in the cassette which was played in the Court and for which there as a transcript was prepared by CBI itself, there is no C.C. No. 10/11 such conversation reflected. Meaning thereby that in the process of transferring the recordings from the DVR to the cassette, there were interpolations, erasions possible to be made and they were actually made to suit the case of the prosecution. It may be noted that before any audio recording could be relied upon by the prosecution, the prosecution is required to establish its integrity and to also show that it was not manipulated at any time."
54. I had the occasion to deal with the same issue in one another case RC4(A)/08/CBI/ACB/ND, C.C No.36/2011, Case I.D No.02401R0929542608, CBI v/s G.S. Raju decided on 29.9.2011. In the said case I had examined the provisions of the Evidence Act as well as Information Technology Act and held that a copy of the recorded conversation from Digital Voice Recorder in audio tape constitutes is secondary evidence and not admissible unless it meets the conditions laid down in Section 65 of the Indian Evidence Act. My observations in the said case were as under:
"10.6.4 Bare reading of the process by which cassette was prepared would show that this cassette was copy of what was recorded in digital C.C. No. 10/11 voice recorder and thus secondary evidence as per section 63(2)1 of the Evidence Act. A digital voice recorder is not a Computer within the meaning Section (2) (i)2 of the Information Technology Act, 2000 as a "digital voice recorder" does not perform any "memory functions" as envisaged under the said definition. Even if it were, such a copy would still be secondary evidence as there is no certification under 65 B of the Indian Evidence Act3 . Therefore, 1 63. Secondary evidence Secondary evidence means and includes--
(1) certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in them-
selves ensure the accuracy of the copy, and copies compared with such copies. (3) copies made from or compared with the original ; (4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a documents given by some person who has himself seen it.
2 (i) "computer" means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network; 3 65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a pa- per, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a docu- ment, if the conditions mentioned in this section are satisfied in relation to the informa - tion and computer in question and shall be admissible in any proceedings, without fur- ther proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) --- --- ---
(3) ---- --- ---
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
C.C. No. 10/11
from any angle the cassette here Ex P19 (Q2) is secondary evidence. In other words to it be accepted as an evidence we need to consider if it is covered by Section 65 of the Indian Evidence Act. The careful reading would show that it is not covered by any of the clauses of Section 651 of the
(b) giving such particulars of any device involved in the production of that elec- tronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub- section (2) relate, and purporting to be signed by a person occupying a responsible official posi- tion in relation to the operation of the relevant device or the management of the rele- vant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) --- --- ---
1 65. Cases in which secondary evidence relating to documents may be given Secondary evidence may be given of the existence, condition, or contents of a documents in the following cases:-
(a) When the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved , or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not pro- duce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representa- tive in interest;
(c) when the original has been destroyed or lost, or when the party offering evi- dence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 40[India] to be given in evidence ;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it the general re- sult of the whole collection.
C.C. No. 10/11
Evidence Act therefore not admissible as evidence. The transcripts of the cassette is only a copy of the copy and again not admissible as in evidence."
55. My opinion on the issue remains the same. It would have been different if the conversation was directly recorded on a audio tape. Thus in present case as well it does not appear to me that the conversation in the audio cassettes is admissible in evidence and so is the transcript prepared there from. I am also of the view that the CFSL report based thereon can also not be relied in support of the case of the prosecution and therefore best be ignored.
Recovery of money from the pocket of the accused - Evidence of CBI Officials Supported by scientific evidence
56. It is not in dispute neither the complainant nor the independent witnesses have supported the case of the In cases (a), (c) and (d), any secondary evidence of the contents of the docu- ment is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of sec- ondary evidence, admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
C.C. No. 10/11 prosecution either to say that there had been demand from the side of the accused or voluntary acceptance of money by him from the complainant. Complainant has claimed he had tried to thrust money in the hands of the accused but accused had refused to accept the same so much so in the process of thrusting the money in his hands, money fell on the ground which the complainant had picked up and put in the hands of the accused again. These witnesses have also denied that the money from the pocket of the accused was recovered in their presence though it has been so claimed by the officers of CBI forming part of the CBI team that the tainted currency notes were recovered from the pocket of the accused and this claim stands supported by the CSFL report.
57. It was observed by the Hon'ble Supreme Court in the case " Raghbir Singh vs State of Punjab" AIR 1976 SC 91:
" We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked currency C.C. No. 10/11 notes which are used for the purpose of trap, are treated with phenolphthalein powder so, that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant. It is but meet that science oriented detection of crime is made a massive programme of police, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only, thereby discouraging liberal use of scientific research to prove guilt. Vide Som Prakash v. State of Delhi."
58. Before proceeding further I would also like to note that it is neither inconceivable nor any rule of law that if a case is not supported by complainant or non police (so to say independent witnesses) the case of the prosecution should be discarded if the testimony of police witnesses is otherwise believable. In Hazari Lal v State (Delhi Administration) [1980 AIR SC 873] the Complainant and the other witnesses had not supported the C.C. No. 10/11 case of the prosecution. On the basis of the testimony of the Investigating Officer with some corroboration on material points from one of the witnesses; it was possible to reach the conclusion that the accused had committed the offence. In State of Andhra Pradesh Vs V. Vasudeo Rao [JT 2003(9) SC 119] Complainant had died and could not been examined at the trial and the court could still reach at the conclusion on the basis of evidence on record accused was guilty of commission of offence. Similarly in N. Narasinga Rao Vs State of Andhra Pradesh [2001(1) SCC 691] both the complainant and witness arranged by the investigating agency (independent witness) had not supported the case of the prosecution but still on the basis of the other evidence available they the accused could be convicted. One may here also make reference to the judgement of the Hon'ble Supreme Court in Govindaraju @ Govinda vs State By Sriramapuram P.S. & Anr. (2012) 4 SCC 732 wherein it was observed:
"16. This Court in the case of Girja Prasad (supra) while particularly referring to the evidence of a police officer, said that it is not the law that Police C.C. No. 10/11 witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration."
59. It was also observed by the Hon'ble Supreme Court in Karamjit V State ( Delhi Administration) AIR 2003 SC 1311 :
"The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other C.C. No. 10/11 persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down."
60. Lastly one may also refer to the Judgment of Hon'ble Supreme Court in case Hazari Lal V Delhi Administration (Supra) in a case under Section Prevention of Corruption Act, 1947, where it was laid down:
"We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance."C.C. No. 10/11
61. Coming back to the facts of this case, one may note that as far as the question that the phenolphthalein powder was found on the hands of the accused is concerned the same is not disputed as it is one of the defences of the accused himself that the money was thrust in the hands of the accused though he was unwilling to accept the same. It was also attributed to the shaking hands by the complainant with accused. (According to the complainant he had shifted the money from one pocket to the other before meeting the accused, which can be inferred as phenolphthalein getting rubbed on his hand/fingers and in turn getting transmitted to the hands of the accused as he shook hands with the accused.) The case of the prosecution, however, is that money was recovered from the pocket of the accused. The next logical question therefore, is, if accused was unwilling to accept the money how the money reached his pocket. If on the basis of the overall evidence which has come on record it can be said that the money was recovered from the pocket of the accused then certainly the theory that the money was thrust into his hands will not be valid, accused would then be required C.C. No. 10/11 to dispel the presumption of law under section 20 of the Prevention of Corruption Act and also presumption of fact under section 114 of the Indian Evidence Act for money in the pocket of the accused would be good enough to show that he had kept it voluntarily.
62. To begin with one may note that during the pretrap proceedings of 10/09/2004 the currency notes were smeared with phenolphthalein. This has been so stated even by the independent witness. It may also be noted these witnesses and the complainant have though not stated that the money was recovered from the possession of the accused in their presence but they also did not say that the money was put into the pocket of the accused by any of the CBI officials. Independent witness Gajender Kumar had stated while admitting his signatures on the pocket of the accused "at the time of obtaining my said signatures I was informed that the said pant belonged to the apprehended person and from the pocket thereof, the tainted money had been recovered. I do not know who had C.C. No. 10/11 effected the recovery of the currency notes. In my presence, the numbers of the recovered currency notes had been compared by Sh. Chander Singh in my presence with those mentioned in the handing over memo and the same tallied." Chander Singh had stated "I had not recovered money from the pocket of the said person. In my presence there was no recovery made from the said person."
63. It has already been stated above that the complainant and independent witnesses have not supported the case of the prosecution and they were declared hostile and crossexamined by the Ld Prosecutor of the CBI. Let us examine what the witnesses of CBI have deposed with the regard to the incident of 10/09/2004 if they can be believed and also look at the testimonies of other witnesses and other material on record including the CFSL Report of witness PW 2 Sh. C.L. Bansal.
64. It was stated by the witness PW 8 Inspector S S Bhullar with regard to the recovery, who was part of the trap team C.C. No. 10/11 organized to trap the accused on 10/09/2004, after how the trap team had reached at the spot and the complainant and the shadow witness had been sent inside to contact the accused, as follows:
"We had noticed after sometime that the complainant, the shadow witness and one another person had come out of the office and stood on the right side of the office in an open area. Sometime thereafter the shadow witness had given the perappointed signal. We could also see from distance some transaction taking place, although it was not very clear. What was noticeable was that complainant had extended something by his left hand. I, however, could not see what was extended by the complainant and received by the said person. I could not see anything else beyond it. We also could not hear the conversation between them.
After the receipt of the signal the trap team had rushed to the spot. The TLO inspector Ahlawat had disclosed his identity to the third person and also the other members of the trap team and challenged him as to whether he had demanded and accepted the bribe from the complainant of Rs. 15,000/ The accused, however, did not say anything and kept quite. I C.C. No. 10/11 and inspector A K Pandey had the caught hold of right and left wrists of the accused who was later on identified as Jagdish Singh Patwari. He is also today present in Court. (Correctly identified)."
65. This witness thereafter narrated as to what was informed by the complainant and the shadow witness with regard to the demand and acceptance of the bribe of Rs. 15,000/ by the accused. This is obviously not admissible in evidence being hearsay. The witness then had continued "The independent witness Chander Singh had recovered the money from the right side pocket of the pant of the accused after taking it out at the instruction of the TLO. On the instruction of the TLO he had compared the currency notes with the number of currency notes with the number of currency notes recorded in the handing over memo. He had ticked the said after comparing the same ( I have seen the handing memo it does bear the tick marks). He had informed that the numbers appearing on the currency notes matched with the C.C. No. 10/11 numbers recorded in the handing over memo. A colourless solution was of sodium carbonate was then prepared and Shri Jagdish Singh Patwari was asked to dip his fingers in the said solution. On doing so the colourless solution turned pink. The same was transferred to a neat and clean glass bottle. Thereafter another fresh colouless solution was prepared of sodium carbonate and the accused was asked to dip his left hand fingers in the solution. On doing so the solution turned pink. The said solution was transferred to a separate neat and clean bottle. The accused was asked to remove his pant. I do not recollect if he was given anything to cover himself. A fresh colourless solution was again prepared in which right hand side inner lining of the pant pocket was dipped. On doing so the colourless solution turned pink. Similarly this solution also was transferred into a neat and clean bottle."
66. He had further continued "The three said bottles containing the washes were also sealed with the seal of C.C. No. 10/11 CBI and were marked as RHW, LHW and RSPPW denoting right hand wash, left hand wash and right side pant pocket wash. Both the witnesses had signed on the said bottles. After the pocket had dried, both the witnesses had also signed the same. The pant was given to the accused to wear it again."
67. The witness thereafter spoke about the sealing of bottles, sealing of audio cassettes and currency notes being taken into possession and preparation of the recovery memo.
68. The witness had identified the said bottles as well as the pant of the accused in the Court.
69. I have carefully gone through the crossexamination of the witness PW 8 Sh. S S Bhllar. The crossexamination covers lots of angles but is completely silent on the above aspect that the hand washes or the wash of the innerline of the right pocket of the pocket of the pant of the accused had been taken or not or C.C. No. 10/11 the same were not sealed in bottles or that the money was not taken out by witness Chander Singh from the pocket of the accused and thereafter compared the numbers of the said currency notes with the numbers as mentioned in the handing over memo. There was a suggestion given to the witness that he had not participated in the proceedings on 10/09/2004 which was denied by the witness. It was also suggested to him that except for his signatures there were no documents in his hand writing. The witness had pointed out that the arrest cum personal search memo of the accused Ex PW 6/DB and also the office search cum seizure memo Ex PW6/DC were in his handwriting.
70. Witness PW 9 Inspector Praveen Ahlawat is the trap laying officer. He had deposed:
"After maintaining some distance from the complainant and the shadow witness we had also entered the said office. The complainant and the shadow witness had entered into a C.C. No. 10/11 room. Soon thereafter they had come out of the room along with the third person. Later on we came to know that he was accused. I can identify him. He is today present in court. (correctly identified). The complainant, the shadow witness and the accused thereafter had gone towards the open space on the right side of the office building. After some time we got the signal from the shadow witness. This signal was not seen by me as I was slightly behind the other members of the team. Inspector A K Pandey had noted the said signal and he had signaled us accordingly. We had then rushed towards the spot. The accused was apprehended. He was caught by his wrists by inspector A K Pandey and Inspector Bhullar. I had given to the accused my own introduction and the introduction of the other members of the team. I had challenged him by saying that he had demanded and accepted Rs. 15,000/ from the complainant. The accused thereafter had got stunned as a result of it." He had continued " A colourless solution of sodium carbonate was prepared at the spot. The accused was asked to dip the fingers of his right hand in the said solution. The colourless solution of sodium carbonate had turned pink after the accused had dipped his fingers in it. This solution was C.C. No. 10/11 then transferred into a bottle. There was a paper pasted on this bottle. Both the witnesses had signed on the said paper so pasted. The bottle was also marked as RHW. This bottle was sealed with the help of cloth and sealing wax. Similarly the left hand wash of the accused was taken in fresh sodium carbonate solution prepared, after asking the accused to dip his fingers in the said solution. This solution had also turned pink. This solution thereafter transferred into a bottle. Similarly as in the case of the first bottle in this bottle also a paper pasted on which the witnesses were asked to put their signatures. It was also sealed using the sealing wax and cloth. This bottle was marked as LHW.
In the mean time the independent witness namely Sh. Chander Singh was asked to take out the money from the right side pant pocket of the accused. He had taken out the money from his pocket and compared the numbers of these currency notes with the numbers which were mentioned in the handing over memo and had informed that the currency notes so recovered from the pocket of the accused were the same as mentioned in the handing over memo. The accused was asked to remove his pant. The wash of the right side pocket of his pant was C.C. No. 10/11 taken after dipping the same in the colourless solution of the sodium carbonate as before. The colourless solution of sodium carbonate had turned pink. This solution was transferred into a bottle. A paper was pasted on this bottle on which the independent witnesses were asked to put their signatures. This bottle on which the independent witnesses were asked to put their signatures. This bottle was also sealed using the sealing wax and the cloth. This bottle was marked as RHPPW."
71. His crossexamination, however, does leave a scope for doubt that at what stage he had left the spot in search of the other suspect that is the Consolidation Officer Sh. Rakesh Choudhary but certainly he was there till the accused was apprehended. In his crossexamination he had stated "I had entrusted the job of making the actual recovery of money from the accused after making his search to Shri Bhullar, since it was necessary to also apprehend the Tehsildar I had left from the said spot where the accused was apprehended in search of Tehsildar alongwith some of the C.C. No. 10/11 members of the team. After I had returned I was informed that bribe money had been recovered from the accused."
72. Witness PW 12 Sh. Prem Nath had deposed on this aspect on the similar lines as the witness PW 8 Sh. S S Bhullar. Including the aspects of dipping the fingers of the hands of the accused and right hand side pocket of the pant of the accused in the solution of sodium carbonate solution and their solution turning pink on so dipping. The same being sealed in bottles and signatures of the complainant and independent witnesses being taken on the said bottles after pasting slips and signing the innerline of right hand side pocket of the accused after having dried up and also crosschecked the numbers of currency notes with the numbers noted in the handing over memo. Though this witness at one stage had stated that after crosschecking the witnesses had signed the handing over memo. He, however, corrected himself after looking at the handing over memo that the numbers were tick marked but the memo was not signed after crosschecking the numbers. C.C. No. 10/11
73. For the first time there was a suggestion given to this witness hinting that there had been no actual hand washes being taken of hands or the pocket of the pant of the accused. First a question was put to him if phenolphthalein powder is dropped in carbonate solution would that also turn pink the answer of the witness was understandably in affirmative. Then there was a question put to him Q: Would it correct that the complainant had refused to sign on the recovery memo after noticing that false hand washes, pant washes are being prepared by using phenolphthalein powder already in possession of CBI. The answer given was " I do not remember (again said) Nothing of this sort happened in my presence." I am of the view this assertion that the solutions were prepared by using phenolphthalein powder already in possession of the CBI officials is clearly an afterthought. Firstly, this line of cross examination was taken for the first time in the testimony of witness SI Prem Nath who was the last of the prosecution witnesses examined that too in the form of suggestion and not by way serious quizzing to unearth the truth. C.C. No. 10/11 I am therefore not prepared to believe that CBI officials were carrying the phenolphthalein powder with them and used it make the "washes".
74. The testimony of the shadow witness PW 6 Sh. Gajender Kumar is bit shaky but does not rule out the case of the prosecution on this aspect of the matter. In his examination in chief he had deposed clearly that the currency notes were treated phenolphthalein in the pretrap proceedings and also a demonstration of the reaction given as what would happen in case if someone touches the currency notes and his fingers are dipped in sodium carbonate solution. He had also deposed during these proceedings the complainant Vijender Singh was also present. Since this witness was not supporting the case of the prosecution he had been crossexamined by the prosecutor with the permission of the Court. In the crossexamination by the Ld. Prosecutor at one stage he had stated: C.C. No. 10/11
"It is wrong to suggest that hand washes of accused Jagdish Singh were taken in my presence. I have seen bottles Ex P1 and Ex P 2 which bears my signatures at point A. I signed Ex P1 and Ex P2 because I was told by CBI officers that the same contained hand washes of the person who had been apprehended. The purpose of taking hand washes of the accused was already told and explained to us in CBI office prior to proceeding for the trap. Myself and Sh. Chander Singh were apprised before the trap that the purpose of taking washes of hands of the accused would be that in case he would accept the tainted notes, the phenolphthalein would get stuck to his fingers and if the same would be washed in solution of sodium carbonate the colour would turn pink.
I have seen the right side pocket of the pant Ex P3 which bears my signatures at point A and at the time of obtaining my signatures I was informed that the said pant belonged to the apprehended person and from the pocket thereof the tainted money had been recovered. I do not know who had effected the recovery of currency notes. In my presence numbers of currency notes had been compared by Shri Chander Singh in my presence with those mentioned in the Handing Over Memo and the same tallied. "C.C. No. 10/11
75. On the next date when he appeared in the Court he had deposed with regard to these facts " I have seen the bottle RHSPPW, which bears my signatures at point A and the same is Ex P 7. I have seen 8 currency notes in the denomination of Rs. 1000/ each four currency notes in the denomination of Rs. 500/ each and 50 denomination of Rs. 100/ each and tallied their number with the numbers mentioned in Handing Over Memo Ex PW 5/8 and found the same correct. The said GC notes are Ex P 8/1 to Ex P 8/62. I cannot say that GC notes Ex P 8/1 to Ex P 8/62 are the same on which phenolphthalein powder had been applied in the CBI office. I have seen Ex PW 5/8 which bears my signatures at point B. the purpose of mentioning the serial numbers of GC notes Ex P8/1 to Ex P8/62 in Ex PW 5/8 as told by CBI officers was that powder had been applied on the same and when anyone touches the same and his fingers are put in water the would turn pink. It is correct that the currency notes on which powder had been applied in the CBI office had been handed over to the complainant. C.C. No. 10/11 It is also correct that the said currency notes had to be handed over by the complainant to the person, who would demand the bribe. After the trap, Shri Chander Singh, another independent witness tallied the recovered the recovered GC notes in my presence."
76. This witness was also crossexamined by the Ld. Defence counsel. On the question of recovery and hand washes "I have seen Ex P1, Ex P2 and Ex P7 (three bottles) but I do not know the name of the particular CBI officer who had brought the empty bottles. I do not know the name of the particular CBI officer, in whose custody the aforesaid bottles remained after having been sealed. Some CBI officials had brought the pant Ex P3 to me for obtaining my signatures thereon. I did not come back to the CBI office from spot, where the raid was conducted. On 10.09.2004, I do not remember whether I had signed the pant Ex P3 during my subsequent visit to CBI office when I visited and other documents. I can neither deny or affirm that in all CBI C.C. No. 10/11 officers had obtained my signatures on 50 to 60 documents."
77. What can be made out from his testimony unquestionably is that the phenolphthalein was applied on the currency notes and they were given to the complainant to be handed over the person who may demand the bribe. Though according to him recovery was not made in his presence but the said currency notes had been given to the other independent witness Chander Singh for comparison and he did compare the same with the number of the currency notes mentioned in the handing over memo and found them to be correct. It also can be safely said while signing the bottles in which the washes were sealed he knew the purpose the said washes were meant to serve (He had been explained about it in the pretrap proceedings by way of a live demonstration). He also did not raise any question when he was told the washes were of the hands of the accused and also of the pant of the accused i.e the person who had been apprehended.
C.C. No. 10/11
78. Witness PW 7 Sh. Chander Singh though had not supported the case of the prosecution on many material aspects but he did admit that in the pretrap proceeding currency notes of Rs.15000/ had been supplied by the complainant, they were treated with phenolphthalein powder and in the demonstration given in fact he was called upon to touch the currency notes. He also admitted his signatures on the documents including the recovery memo to have been signed by him on 10/09/2004 though he had said that he had signed the same without reading the same on being asked by the CBI officials as it was already late in night. He had also admitted his signatures on the inner line of the pocket of the pant of the accused and also on the bottles containing washes of the hands of the accused and wash of the innerline of the pocket of the accused. He of course did not agree to the suggestions that washes of the hands of the accused wash of the pocket of the pant of accused had been taken in his presence. He also denied having made the recovery from the pocket of the accused.
C.C. No. 10/11
79. I would like to refer to the demeanor of the witness PW 7 Sh. Chander Singh which would show that he was indeed hostile to the prosecution. He was kind of determined not identify the accused in Court. The court had recorded his demeanor like this "The witness at the time of identification was seen looking at the floor and saying that the said person is not present in the Court. The Court pointed out to the witness to look to the persons present in the court and then reply whether the said arrested person was present in court or not. On this, witness looked at the persons present in the Court including the accused standing in the dock but the witness said that the said person is not present in the court. Let further deposition of the witness continue."
80. I would like to add here the witness PW 6 Sh. Gajender Kumar was working as a Section Officer working in the Legal Section of Bureau of Indian Standards and witness Chander Singh as UDC in the same office and I find it extremely hard to C.C. No. 10/11 believe that they would sign on the documents such as the recovery memo and also the pocket of the pant of the accused and the bottles in which the washes had been collected just because they were asked to do so. In other words they knew precisely what they were there for and what they were doing.
81. Complainant has also not supported the case of the prosecution. I would also like to add that that it does appear that complainant was out to spare the accused. This is evident from the fact that he artificially tried to introduce the angle of shaking hands with the accused. He had admitted clearly in the examination in chief that he was under instruction to not to touch the currency notes. He had deposed in his examination in chief recorded on 2/2/2010 " I was also directed not to interfere with GC notes of Rs.15,000/ since the same were smeared with powder....." Further in the chief he states at the stage he had met the accused like this " In my pocket there was a camera as also the money. I transferred the money from one pocket of my pant to the other pocket thereof. In the meantime , Sh. Jagdish C.C. No. 10/11 Patwari came out and shook hands with me to which I reciprocated." First of all why did he shook hands with the accused when he was under the instruction not do so? Secondly, way he had stated this fact it was crystal clear that he wanted some how the court to know that he had first touched the currency notes smeared with phenolphthalein powder by shifting the money from one pocket to the other and then he shook phenolphthalein smeared hands with the accused thereby he had transmitted the phenolphthalein powder to the hands of the accused. I would like to also point out there has been attempt on the part of the defence to bring this angle from the very beginning. For example witness PW 2 the Sh. C.L. Basal, chemical examiner, who was examined much before this complainant was examined, was also asked a question to which he had replied "It is possible if the hands having phenolphthalein powder comes in contact with some body's finger or cloths, the powder may get transferred to such finger or cloth." In any case there can be one thing which can be said with certainty from his testimony is; that the C.C. No. 10/11 money he had "thrust" in the hand of the accused was his money or the money recovered from the possession of the accused was the money of the complainant.
82. Returning to the scientific evidence on record, one may note that Sh. C L Bansal PW2 Sr. Scientific Officer from CFSL who had chemically examined the liquid in the above bottles and given his report Ex PW2/A confirming the presence of phenolphthalein and sodium carbonate in the liquid in the said bottles. He had deposed "On 22.9.2004 I was posted as Sr. Scientific Officer with CFSL, Delhi. On that day I received three sealed bottles in case RC No.41(A)/04 marked as Ex.RHW, LHW and RHSPPW containing light pink and pink liquid sediments and on chemical analysis the exhibits gave positive test for presence of phenolphthalein and sodium carbonate. My report is Ex.PW2/A and bearing my signature and seal at point A. The remnants of the exhibit were returned with my seal impression CLB/Chemistry Division/CBI New Delhi. One sealed envelope containing C.C. No. 10/11 seal impression along with wrappers was also returned with the seal impression of CLB/Chemistry Division/CBI New Delhi." This witness was crossexamined at length by the accused. I have not come across anything in the cross examination on the basis of which the said report could be disbelieved. He had in the crossexamination denied the suggestion that he had himself not conducted the test. To a question put to him "Is it correct that phenolphthalein is a phenol derivative and it gives deep red colour if dissolved in an alkali like sodium carbonate", witness had replied "phenolphthalein is a phenol derivate compound it gives deep red colour in alkaline media like sodium carbonate but the intensity of colour vary from very very light pink, pink, dark pink and also known as dark red." He had also denied the suggestions with regard to the bottle being tempered with those which were received in the lab. He had stated "It is wrong to suggest that even the bottles received by me were tempered sealed bottles." The witness had in his testimony named two assistants who had assisted him in the analysis of C.C. No. 10/11 the washes and also placed on record a photocopy of the worksheet. He had deposed "I have brought the worksheet of this case on the basis of which the report Ex. PW2/A was prepared by me. There were two assistants namely Dr. Aditi and Ms. Meeta who assisted me in analysing the washes. The photocopy of worksheet is Ex. PW2/DA bearing my signatures at point A and that of my assistants at points B & C."
83. Thus the report of the witness PW 2 Sh. Bansal rules out tempering of the bottles in which the washes were preserved and also confirmed that the washes did have phenolphthalein and sodium carbonate.
No Mathematical Proof Necessary - Test of Prudent Man
84. In now well settled even in a criminal case the Court is not required to examine the evidence with some kind of mathematical formula but has to make up its mind on the basis C.C. No. 10/11 of the overall evidence which has come record and not get carried away by some witness turning hostile.
85. Following observation of the Hon'ble Supreme Court In Narasing Rao's case (Supra) as to the standard of proof required are iconic and have been widely accepted:
"15. The word "proof" need to be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. What is required is production of such materials on which the Court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L. J. in Hawkins v. Powells Tillery Steam Coal C.C. No. 10/11 Company, Ltd. (1911) 1 KB 988 observed like this:
"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion"."
Conclusion:
86. If the testimonies of witnesses of CBI and that of the complainant and independent witnesses are measured in terms of being close to the truth witnesses of CBI would fair much better.
87. Looking at the entire evidence on the issue as a prudent person there is very high degree of probability that the currency notes of Rs. 15,000/ which belonged the Complainant and treated with phenolphthalein powder during the pretrap proceedings were recovered from the pocket of the accused and 1 2 if I apply presumption of fact as envisaged under section 114 1 N Narsinga Rao v State of AP 2001 (1) SCC 691 2 Section 114 . Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard C.C. No. 10/11 of Indian Evidence Act, I would conclude that the accused had accepted this money voluntarily from the accused and not thrust into his hands as claimed by the complainant. Presumption under section 20 of the Prevention of Corruption of Act.
88. The question as to when the presumption under section 20 would arise has been long settled by the constitutional bench of the Hon'ble Supreme Court in Dhanvantrai Balwantrai Desai vs State of Maharashtra on 28 September, 1962, 1964 AIR 575, which has been followed in number subsequent Judgment of the Hon'ble Supreme. I would like to refer to here refer one of such judgments of the Hon'ble Supreme Court in V.D. Jhangan vs State Of Uttar Pradesh on 3 March, 1966 1966 AIR 1762 wherein it was laid down:
"3. The first question for determination is whether a presumption under subs.(1) of S.4 of the Prevention being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.C.C. No. 10/11
of Corruption Act arises in this case. That provision reads as follows:
"Where in any trial of an offence punishable under S. 161 or S. 165 of the Indian Penal Code it is proved that an accused person has accepted or ob tained, or has agreed to accept or attempted or ob tain, for himself or for any other person, any gratifi cation (other than legal remuneration or any valu able thing from any person, it shall be presumed un less the contrary is proved that he accepted or ob tained, 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 the said S. 161, or as the case may be, without consideration or for a consideration which he knows to be inadequate."
89. It was held by this Court in Dhanvantrai Balwantrai Desai v. State of Maharashtra, A.I.R. 1964 S.C. 575, that in order to raise the presumption under this subsection what the prosecu tion has to prove is that the accused person has received "grati fication other than legal remuneration" and when it is shown that he has received a certain sum of money which was not a legal remuneration, then the condition prescribed by this section is C.C. No. 10/11 satisfied and the presumption thereunder must be raised. It was contended in that case that the mere receipt of any money did not justify the raising of the presumption and that something more than the mere receipt of the money had to be proved. The argument was rejected by this Court and it was held that the mere receipt of the money was sufficient to raise a presumption under the subsection. A similar ar gument was addressed in C. I. Emden v. State of Uttar Pradesh AIR 1960 SC 548. In rejecting that argument this Court observed:
"If the word 'gratification' is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption. Technically it may no doubt be suggested that the object which the statutory presumption serves on this construction is that the court may then presume that the money was paid by way of a bribe as a motive or reward as required by s. 161 of the Code. In our opinion this could not have been the intention of the Legislature in prescribing the statutory pre sumption under s. 4(1)."C.C. No. 10/11
This Court proceeded to state:
"It cannot be suggested that the relevant clause in s. 4(1) which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the accused but that it has been received by him without consideration or for a consideration which he knows to be inadequate. The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more. If that is the true position in respect of the construction of this part of s. 4(1) it would be unreasonable to hold that the word 'gratification' in the same clause imports the Necessity to prove not only the payment of money but the incriminating character of the said payment. It is true that the Legislature might have used the word 'money' or 'consideration' as has been done by the rele vant section of the English statute;........" It must, therefore, be held that, in the circum stances of the present case, the requirements of subs. (1) of S. 4 have been fulfilled and the pre sumption thereunder must be raised.C.C. No. 10/11
(Section 20 in the Act of 1988 is the same as the Section 4 of the Act of 1947)
90. Once the above conclusion is reached that the money was recovered from the possession of the accused, it gives rise to the legal presumption under section 20 of the Act that the accused being a Patwari had accepted the money for doing an official act i.e. to make the necessary correction in his agricultural record and thus committing an offence under section 7 of the Prevention of Corruption Act.
Presumption under section 114 of the Evidence Act
91. Though the presumption under section 7 of the Act is not available to come the conclusion that the accused had committed the offence under section 13(1)(d)(ii) of the Act but it cannot be said presumption of fact is also not available under section 114 of the Evidence Act to reach the conclusion that the accused had obtained the said money by abusing his position C.C. No. 10/11 as Patwari for he could not have any other accepted the money (Rs.15,000) from the complaint. In Ragubir Singh V State of Haryana 1974 AIR 1516 it was laid down by the Hon'ble Supreme Court :
"But we may notice that even if the statutory presumption is available the courts may presume what may in the ordinary course be the most probable inference. That an Assistant Station Master like the accused has in his hand a marked currency note may offer to him by a passenger whose bedding has been detained by him for which no credible explanation is forthcoming and he is caught red handed with the note is a case of res ipsa loquitur. The very thing speaks for itself in the circumstances."
Presumption of Law and Presumption of fact
92. It may be noted that the presumption of law and presumption of fact are two different things. Presumption of law is a rule of law based on public policy and it may or may not C.C. No. 10/11 have the logical connection with the facts established but the presumption of facts would always have the logical connection with the primary facts established.
93. A presumption of law has been defined as a deduction which the law expressly directs to be made from particular facts. In actuality it is a rule of law which declares that one fact is presumed to exist if another fact or set of facts is proved. A classic example of a presumption of law is the presumption of death that arises when a person is shown to have been continually absent from his home for seven years and has not been heard from during such period by persons who would naturally have heard from him had he been alive. Presumptions of law are artificial creations because while "presumptions declared by the courts should have the support of reason," there is often no logical connection between the presumed fact and the proven fact.
94. Legal presumptions usually arise from considerations of public policy; for purposes of convenience; from a desire to C.C. No. 10/11 provide an escape from a dilemma; or to force a litigant to whom certain information is more easily accessible to make it known. Certainly, logic does not require us to conclude from the fact of death that the deceased, immediately prior thereto, exercised due care for his safety; however, it is a conclusion which accords with the judicial concept of sound social policy.
95. A presumption of fact has been described as the process of ascertaining one fact from the existence of another without the aid of any rule of law. The term is used to denote the reasoning or fact finding process of the triers of the facts and as such it is a logical and not a legal deduction of one fact from another. The presumption is drawn from the circumstances of the case by the ordinary reasoning powers and not by virtue of any rule of law. It is "an inference which a reasonable person would as a rule draw from given circumstances." A presumption of guilt may arise from proof that the accused, when arrested, was in possession of stolen goods and was attempting to leave the country. The presumption would be one of fact since there is no legal rule which compels the presumption to be made. C.C. No. 10/11
96. Presumptions of law differ from presumptions of fact in this essential respect: the former are fixed rules of law which compel a certain inference to be drawn from particular facts; the latter are mere logical arguments that are derived entirely and directly from the circumstances of the particular case and which depend not upon a rule of law but upon their own natural force and 1 efficacy in generating belief."
97. In Vasudeo Rao it was laid down by the Hon'ble Supreme Court:
" 14. Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The presumptions falling under the former category are compendiously known as "factual 1 Presumptions of Law and of Fact David Kaiser Marquette Law Review Volume 38 Article 5 Issue 4 Spring 1955 (http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=3106&context=mulr) C.C. No. 10/11 presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions"
or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 4(1) of the Act, it must have the same import of compulsion.
15. When the subsection deals with legal presumption, it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 4 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act."
C.C. No. 10/11 Evidence necessary to rebut the presumption law and presumption of fact.
98. It is an extremely important question as to how much evidence is enough to rebut the presumption of law or presumption of fact.
1
99. When it comes to section 20 of the Act one would note that the expression used is not "unless satisfactorily explained "
but "unless contrary is proved". Thus it is clear when it comes to presumption of law under this section it cannot be overcome not just by offering some explanation. There is something more which is required to be done. In a Judgment of the Hon'b;e Mad hya Pradesh High Court in Krishnabiharilal vs State decided on 2 8 December, 1954 there was a reference made to the Section 1 Section 20(1): Where, in any trial of an 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 agreed to accept or attempted to obtain for himself, or for an other persons, 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 1956 CriLJ 233 C.C. No. 10/11 1 2 of the Prevention of Corruption Act 1916 of England where a similar expression "unless contrary is proved" was used, while examining the same expression used in section 4(1) of the 1947 Act, the test laid down to "prove the contrary" in (1943) 1 KB 607 (A) was approved by saying :
"67. Test, under both English and Indian law regard ing probabilities of a fact, is that of a prudent man and it would be a strange result if such a test should differ in the case of an English and Indian citizen. In my opinion therefore, the view expressed in (1943) 1 KB 607 (A) quoted above ought to be applied in such cases." The paragraphs 63 and 64 where this test was referred is being reproduced as under:
"63. This question came specifically for considera tion in an English case (1943) 1 KB 607 (A) in con nection with the presumption arising by reason of Section 2, Prevention of Corruption Act, 1916 (En glish). The term 'unless contrary is proved' as ap 1 Presumption of corruption in certain cases.Where in any proceedings against a person for an offence under the Prevention of Corruption Act 1906, or the Public Bodies Corrupt Practices Act 1889, it is proved that any money, gift, or other consideration has been paid or given to or received by a person in the employment of His Majesty or any Government Department or a public body by or from a person, or agent of a person, holding or seeking to obtain a contract from His Majesty or any Government Department or public body, the money, gift, or consideration shall be deemed to have been paid or given and received corruptly as such inducement or reward as is mentioned in such Act unless the contrary is proved.C.C. No. 10/11
plied to a case under that Act was discussed in this case. Humphreys J. who delivered the judgment quoted with approval the words of Lord Reading C.J. in Rex v. Ward' (1915) 3 KB 696 (H), of Viscount Sankey L. C. in 'Woolmington v. Director of Public Prosecutions' (1933) AC 462 (I) and of Lord Hail sham in 'Sodeman v. R.' (1936) 2 All ER 1138 (J) and held as follows at p. 612:
In our Judgment, in any case where, either by statute or at common law, some matter is presumed against an accused person 'unless the contrary is proved', the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case be yond a reasonable doubt, and that the burden may be discharged by evidence sat isfying the jury of the probability of that which the accused is called upon to establish. " ( Emphasis supplied)
64. The principle is accepted and followed in by P. B. Mukharji and Das Gupta JJ. and later in AIR 1952 Orissa 267 (at p. 272, para 8) (C)."C.C. No. 10/11
100. One may also refer to the constitutional judgment of Hon'ble Supreme Court In Dhanvantrai Balwantrai Desai v. 1 State of Maharashtra" , same reads as under:
"In the case before us, however, the presumption arises not under S. 114 of the Evidence Act but under S. 4(1) of the Prevention of Corruption Act. It is well to bear in mind that whereas under S. 114 of the Evidence Act it is open to the Court to draw or not to draw a presumption as to the existence of one fact from the proof of another fact and it is not obligatory upon the court to draw such presumption, under subsec. (1) of S. 4, however, if a certain fact is proved, that is, where any gratification (other than legal gratification) or any valuable thing is proved to have been received by an accused person the court is required to draw a presumption that the person received that thing as a motive of reward such as is mentioned in S. 161, I. P. C. Therefore, the Court has no choice in the matter, once it is established that the accused person had received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to 1 AIR 1964 SUPREME COURT 575 C.C. No. 10/11 show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S. 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible . A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. ( Emphasis supplied) C.C. No. 10/11 Whether the Accused has been able to rebut the presumption of law under section 7 of the Act or presumption of fact under section 114 of Indian Evidence Act.
101. Let us examine if the defence has been able to rebut the above presumptions. There are various issues raised to doubt the case of the prosecution in turn to rebut the presumption. One may look at them one by one.
Absence of signatures of the complainant on the recovery memo.
102. It is an admitted fact the recovery memo does not bear the signatures of the complainant. When witness PW 8 Inspector Bhullar was asked about it he could not say anything about. He had stated "I also cannot say why he did not take signatures of the complainant on the recovery memo Ex PW6/1." At the end he was given a suggestion giving the reason why the complainant did not sign the said recovery memo and in reply C.C. No. 10/11 this witness had stated " it is also wrong to suggest that complainant Ex PW5/5, handing over memo Ex PW5/8 and recovery memo Ex PW6/1 were fabricated by me. It is also to wrong to suggest because of the said fact and realizing, false implication of the accused in the present case, complainant had not signed recovery memo." This reason was improved as noted above by suggesting to PW12 SI Prem Nath that the complainant did not sign the recovery memo because the CBI officials had used the phenolphthalein already with them to prepare the so called hands washes and wash of the pocket of the pant of the accused.
103. It is hard to believe that the complainant did not sign the recovery memo for the said reasons. First, these reasons have come only in the forms of suggestions. Had the defence been serious about, it would have had an elaboration cross examination of the witness to get to the truth. Secondly, why was this question not put to the complainant he was the best C.C. No. 10/11 person to have answered this question as to why he did not sign on the said memo. Thirdly, if this was reason for his not signing the recovery memo in a kind of protest, then why he did not sign all the remaining documents prepared at the spot including the arrest memo cum personal memo of the accused and also the pocket of the pant of the accused and the bottles wherein washes were collected. Forth, the complainant had stated that complaint in this case had been written by him, at the instance of the officials of CBI wherein the accused had been implicated as demanding bribe from him. If he could go to the extent of writing a full complaint almost running into two pages implicating the accused could he have refused to sign the recovery memo, if the CBI officials wanted? I think it was an omission on the part SI Sandipani Garg (refer to the testimony of witness Sh. S S Bhullar who had deposed that recovery memo was in the handwriting of SI Sandapini Garg) who had prepared this recovery memo and there is too much being made out of it. C.C. No. 10/11 Complaint being hand written post trap by the complainant at the dictation of CBI officials Original Complainant was type written.
104. The origin of this defence lies in the description of the complaint in the list of documents filed along with the charge sheet filed in this case. It is written here "Type written complainant dt. 09/09/2004 in Hindi of Sh. Vijender Kumar s/o Bhale Ram Khera Kalan Delhi - 110082". The fact of the matter is that the complaint on record is not typed but hand written. According to defence there was a type written complaint of the complainant which was later on replaced by another complainant which the accused was made to write just to falsely implicate the accused.
105. The complainant had at one stage in his testimony of 02/02/2010 in his examination in chief had stated "All proceedings stood completed by 9.00 PM. There I was made to write another application by the CBI officers stating that name of Jagdish, the Patwari should also be C.C. No. 10/11 written therein since money had been taken by him and they would themselves arrest Tehsildar/CO, Rakesh Choudhary. On this I stated that the money was for Tehsildar / CO Rakesh Choudhary upon which they stated that they would themselves arrest him being a Government official he could not run away. I again wrote down another application." In his crossexamination on 31/07/2008 by the Ld Defence Counsel he had stated "I have seen Ex PW5/5 (D 1) and I state that this complainant in two pages was written by me in the office of SDM after apprehending the accused. The complainant which I had taken to CBI office was against CO as he was demanding bribe from me. I the SDM office. I was informed that since CO had not accepted money therefore name of the Patwari has to be included in the complainant in order to enable CBI officer arrest CO Shri Rakesh Choudhary. It is only thereafter that I wrote the complainant Ex PW5/5 as per dictation given by the CBI officials."
C.C. No. 10/11
106. I am of the view this assertion that the Complaint Ex PW5/5 was not written on 09/09/2004 as noted on this complainant but on 10/04/2004 after the trap proceedings were over for the following reasons cannot be accepted:
(1) The complainant himself had stated in his examination in chief on 02/02/2010 once in the beginning of his examinationin chief and again in his cross examination after the said complaint had been specifically put to him that this was the complaint which he had submitted to CBI. The relevant parts of his testimony read as under:
"I have seen the complaint (D1) and the same is in my handwriting which bears my signatures at point A. The said complaint is Ex PW5/1. I met one CBI officer and explained the contents of my complaint Ex PW5/5 to him."
In the crossexamination by Ld. Prosecutor he again reiterated "It is correct that Ex PW5/5 is the same complaint which had been lodged by me when I first visited the office of C.C. No. 10/11 CBI. It is also correct that the said complaint Ex PW5/5 was already written when I visited CBI office."
(2) According to the defence this complaint was written on the dictation of some CBI officer. If it was so than it is certain the complainant would have been able to give the name of the officer who had made him write the said complaint. It would not have been able difficult for him after all complainant had been with the officer of CBI for quite for some time on the day of trap, a day before and on different occasions like being called for writing transcript of the recorded conversation. There was no suggestion given to any of the CBI officers part of the investigation that the complaint was written by the complainant at the instance of anyone of them.
(3) It may further be noted as per the defence complainant had refused to sign the recovery memo because the accused was being falsely implicated, if he could go to that extent of not signing the recovery memo because the accused was being C.C. No. 10/11 falsely implicated, cannot it believed that he would himself write an application in his own handwriting implicating the accused. It is clearly an afterthought to get out of the allegation made by the complainant in the complaint Ex PW5/5 against the accused. (4) There is a contradictory stand taken by the accused in this regard. On the one hand the complainant has claimed that the Complaint Ex PW5/5 was recorded on the dictation of CBI officials on 10/09/2004 post trap proceedings. There was, however, suggestion given to witness PW 8 inspector S S Bhullar that this complaint was got prepared by him after 10/09/2004. The relevant part of his testimony reads "Yes I was in possession of complaint Ex PW5/5 of the present case on 09/09/2004. It is wrong to suggest Ex PW5/5 was got prepared by me from Vijender Kumar after 10/09/2004". (5) Above all the FIR on record shows that it was written at 1.00 PM on 10/09/2004 that is many hours before the accused had been apprehended. It has the verbatim reproduction of this C.C. No. 10/11 complaint Ex PW5/5. The complainant had admitted his signatures on this FIR. He had stated in continuation of the statement reproduced above regarding his admission having submitted that he had submitted the same FIR CBI on his first visit "I have seen FIR (D2) dated 10.09.2004 and it bears my dated signatures at point A on page no. 4 thereof" . Though this witness denied having received a copy thereof or having signed in token of having received the copy. The fact, however, remains; he did not say that he did not sign the said FIR on 10/09/2004. He did not say that he signed the said FIR after the complaint Ex PW5/5 had been dictated to him. In fact his testimony would show that after the proceedings were over he was dropped at his residence by the CBI team on the way to CBI office.
(6) To create a doubt about the integrity of the FIR itself, there was a question put to PW 9 TLO Praveen Ahlawat with regard to the fact that FIR/RC register of CBI as on 10/09/2004 was not from a bound register. The witness agreed it. I am of the view C.C. No. 10/11 even if it appears that the FIR was taken not from a bound volume, it would still not matter because complainant admitted to have signed the FIR on 10/09/2004. He also did not state that he had put the date of 10/09/2004 on the FIR under someone's pressure.
107. In the above given circumstances I find that the complaint was not dictated to the complainant on 10/09/2004 post trap just to implicate the accused. It had been submitted to CBI by him on 09/09/2004 in his own handwriting. It also leads to the conclusion that description in the list of witnesses of the complaint being type written is obviously nothing but a typographical error around which this defence has been built up to take benefit of this mistake. I may add besides this document I have not been able to find any document where the complaint of the complainant may have been described as "type written". C.C. No. 10/11 Complaint does not bear the endorsement by the Superintendent Of Police for ordering verification.
108. This is another connected issue raised that the complaint Ex PW5/5 does not bear any endorsement by the Superintendent of Police marking it to the Inspector S S Bhullar for verification. There is something written on the right side top of the complaint in the portions X1 and X2 for which no explanation could be given by the witnesses in particular PW8 Sh. S S Bhullar to whom the verification proceeding were marked.
What is written in the portion X1 is:
On file sd/ 9/9/04 CC (Compt) What is written in the portion X 2 is " Co No. 56/04" .
109. Witness PW8 Sh. S S Bhullar was questioned about it, as stated above, but he could not give any explanation to it. But he C.C. No. 10/11 insisted that he was instructed by the SP to conduct the verification. He had further pointed that it was not mentioned on the complaint but is clearly mentioned in the FIR "The complaint was entrusted to Sh. S S Bhullar Inspector CBI ACB New Delhi for verification."
110. I am of the view that this question is required to be seen from the angle if there were any verification proceedings conducted or not. If the defence had been that there was no verification proceeding conducted perhaps it would have assumed some significance. When there is no dispute that there were verification proceedings conducted on 09/09/2004 then this question becomes meaningless. It may be noted that it has not been denied by the complainant that he had not visited the office of SDM with the shadow witness after he had made the complaint on 09/09/2004.
If Constable Manoj Kasana was a Planted witness
111. It has been submitted by the defence that Constable C.C. No. 10/11 Manoj Kasana was a planted witness in the case. Although he was deputed to remain at the CBI office to hear the conversation taking place but his signatures find place on the documents stated to have been prepared at the spot on 10/09/2004 post trap proceedings including the recovery memo.
112. There is indeed some confusion if the Constable Manoj Kasana had visited the spot on the day of trap. Both Inspector Praveen Ahlawat and also Inspector S S Bhullar had maintained that Constable Manoj Kasana had not visited the spot and remained at the CBI office; they could not give any convincing explanation as to how his signatures appear on recovery memo. But Constable Manoj Kasana and SubInspector Prem Nath, who was also part of the trap team, had stated that the Constable Manoj Kasana had visited the spot on that day. Constable Manoj Kasana had deposed he had visited the spot on getting a call from the spot. When he had reached trap was already over and proceedings were being recorded. He had started assisting the team and starting doing whatever he was C.C. No. 10/11 instructed to do. There is also a minor contradiction with regard to the time when Constable Manoj Kasana had reached at the spot. According to Constable Manoj Kasana he had reached at the spot at around 7 PM and according to the SI Prem Nath he had reached sometime around 8 or 8 30 PM.
113. I would like to point out that the recovery memo does not just relate to recording the fact of recovery of money from the possession of the accused but it catalogs almost everything relating to the recovery including what was narrated by the witness and the complainant, the process of transferring of recording form DVR to an audio cassette, sealing of washes in bottles etc. If one goes by the statement of Constable Kasana even if he had signed the memo it would not have been entirely unjustified. Even if his signatures are there on this memo he does not claim he had witnessed the recovery. He could have been said to have been planted if by his introduction or by his having signed the recovery memo the investigating officer was to gain anything. There were already a team of officers present C.C. No. 10/11 at the spot and also the complainant and independent witnesses. By him having at the spot in so far as the recovery is concerned his presence was hardly of help. Since he was only a constable it is possible he may have been called after the recovery was over to render some assistance to do minor jobs, as he had himself claimed that after reaching at the spot he had started doing the jobs whatever he was being asked to do. In any case I find it hardly sufficient to dislodge the presumption either under section 7 of the Act or under section 114 of the Indian Evidence Act.
Work already done
114. This was another issue raised by the defence that the as far the accused is concerned he had already done his part of the work thus there was no question of the accused demanding money from the accused. In this respect he had also examined one DW 2 Sh. Praveen Bhardwaj Girdawar/Filed Kanoongo from the SDM officer Narela with Roznamcha Kar Guzari (daily C.C. No. 10/11 diary of the work done) for the year 20032004 and 20042005. He had placed on record DW2/A1 and DW2/A2 on record. He was asked to depose about a particular entry number 131 of Ex DW1/A2 at point X dated 06/09/2004 and inform if the Patwari had supplied one copy of the Register Karwai Kheda Kalan Khatta No. 508 to 513 on charging fee of paisa 50 from one Vijender son of Bhalley Ram resident of the said village. The witness had replied the same in affirmative. He had also informed that it was the daily diary of the Patwari and maintained in the usual course of the witness. In the cross examination he had admitted that this register did not bear the signatures of anyone and also did not bear the signature of anyone having received the copy of the Register Karwai. He had clarified that it was a daily diary of the Patwari maintained by him for keeping the record of all the work done by him during the course of the day. It was not required to be signed.
115. I have gone through the entire record relating to it, which was seized during the investigating. It shows that it is not just C.C. No. 10/11 the accused herein but also consolidation office who had done everything required to be done at his end on 06/09/2004 itself that is to say giving approval for the changes to be made in terms of the rectification of the record. It may further be noted that this order Ex P4 of giving approval did not just relate to the application of the complainant but related to many other application. It was on the basis of this approval the accused had to make entries in the Register Karwai, Ex P5 .
116. First of all if I have to accept the logic that the accused had no reason to demand bribe as what was required had already been done then there was also no logic for consolidation officer also to have demanded money against whom the allegation have been levelled so vociferously by the defence that it was he who had demanded the bribe and not the accused. In any case it is important to find out if the complainant had indeed received the copy of the Karwai on 06/09/2004 as claimed and thus there no reason for the accused to have demanded bribe. Complainant had completely denied having C.C. No. 10/11 received any such copy of Karwai or any information of the work having been done officially. He had deposed " Neither CO nor accused Jagdish showed me any documentary evidence wherein numbers if any had been so corrected by him. It is correct that on the date of the arrest if the accused documents showing correct Killa Numbers of the land not been delivered to me nor any such document had been shown to me. Now I have come to know that the said correction was bearing the date three/four days prior to the arrest of the accused. The relevant copy of the Fard not delivered to me by the accused but it was delivered after the arrest by some other Patwari."
117. In the above given circumstances where the complainant has himself denied that he had received any copy of the necessary correction made or copy thereof had been supplied this ground of the accused that the accused could not have demanded because he had already supplied the copies or already done the work does not survive. Moreover, even if it were so it is not a contra indication that the money could have not demanded by the accused.
C.C. No. 10/11
118. Ld. Defence counsel made reference to Judgment of the Calcutta High Court "Kailash Chandra Pandey V State of West Bengal 2003 Cri L J 4286" to submit that the since the work of the complainant had already been done there was no reason for the accused to have demanded money form the complainant without realizing this Judgment of the Hon'ble High Court had been overruled by the Hon'ble Supreme Court by its Judgment In AIR 2005 SUPREME COURT 119 "State of West Bengal v. Kailash Chandra Pandey" . In this case one of the reasons for the acquittal of the accused was amount covered by impugned bills of complainant contractor had already been released was not accepted by the Hon'ble Supreme Court. The relevant part of the Judgment reads "It was submitted by learned counsel for the respondent that the bills of the complainant for the period in question have already been passed and payments made. That may be so, but this is not a ground to disbelieve the prosecution case."
C.C. No. 10/11 Telephone record
119. It was submitted by the Ld. Defence Counsel that the prosecution itself had filed call details of the calls exchanged between the consolidation officer and his private secretary. He had drawn my attention to the fact that there were two inward calls made by him to his private secretary from the number of the consolidation officer at 5.33 and 5.37 PM and subsequently two calls had been made from the phone of his private secretary to the consolidation officer, meaning thereby consolidation officer knew what was going on at that time.
120. As far as outward calls are concerned of 5.41 and 5.42 PM, it is the case of the prosecution itself that consolidation officer was in the zone of suspicion and after the accused had been apprehended the accused was asked to call him from the phone of the secretary of the consolidation officer. So there is nothing new in what the Ld. defence counsel has submitted but the question is how does it help the accused. It does not show C.C. No. 10/11 that no recovery was made from the accused or no recovery could be made from him.
Is not supporting of the case by the complainant sufficient to rebut the presumption
121. There can be an argument as to what more the accused could have done to rebut the presumption then to have referred to the testimony of the complainant who had himself stated that no demand had been made from him by the accused. It is an adage well established that the "witnesses may lie but the circumstances would not". The fact of the matter is, there is hardly any explanation as to how the money of the complainant found its way into the pocket of the accused. Money of the complainant in pocket of the accused in my view is a conclusive proof he had accepted this money voluntarily and complainant would not have given him money without it being demanded. As already submitted above nonsupporting of case of prosecution by the complainant is no guarantee to disbelieve the case of the C.C. No. 10/11 prosecution or even to rebut the presumption. I am of the view that the entire evidence which has come on record is required to be examined in its entirety. I would like to here refer to the following paragraph of the judgment of the Hon'ble Supreme Court in Narsinga Rao' s Judgment ( Supra) where PW1 i.e the complainant and PW2 i.e the shadow witness had both not supported the case of the prosecution but it was still not sufficient to rebut the presumption under section 20 of the Act. The relevant part of the Judgment reads as under:
"25. We, therefore, agree with the finding of the trial Court as well as the High Court that prosecution has proved that appellant has received gratification from PW 1. In such a situation the Court is under a legal compulsion to draw the legal presumption that such gratification was accepted as a reward for doing the public duty. Of course, the appellant made a serious endeavour to rebut the said presumption through two modes. One is to make PW1 and PW2 speak to the version of the appellant and the other is by examining two witnesses on the defence side. True PW 1 and PW 2 obliged the appellant. The two defence witnesses gave evidence to the effect that the appellant was not present at the station on the C.C. No. 10/11 date when the alleged demand was made by PW 1. But the trial Court and the High Court have held their evidence unreliable and such a finding is supported by sound and formidable reasoning. The concurrent finding made by the two courts does not require any interference by this Court."
122. As already noticed in this case the attempt of the complainant had been to some how save the accused, like bringing in the story of shifting of money from one pocket and by trying to get out of the complaint he had made to CBI incriminating the accused by saying that this complaint was dictated to him by CBI offices.
Was the consolidation officer only target and has been deliberately saved by the prosecution
123. It has been submitted that the grievance of complainant was against the consolidation officer and not against the accused herein. It is also evident from the testimony of not just the complainant but also from the deposition of the CBI officials. C.C. No. 10/11 It had been deposed by the trap laying officer himself after handing over the accused he had proceeded to go in search of the consolidation officer. There was an attempt made to make call the consolidation officer from the phone of his secretary Mr. Om Prakash Suyal but on its basis nothing could materialize. There is also reference made to orders of the court passed at the time of charge observing that there was also a prima facie case made out against the consolidation officer.
124. Stage of framing of charge is entirely different from the stage of passing the judgment. The considerations which go into the farming of charge are different form considerations which are required to be gone into at the stage passing the final judgment. There are indications in the complaint itself that in the demand of the bribe apart form the accused consolidation officer Rakesh Choudhary also had some role to play. The acts of the trap laying officer in having his secretary to make call from the spot indicate the involvement of the consolidation officer was a matter which was being investigated. I am of the view even if it C.C. No. 10/11 was so, it does not wash away the crime of the accused. The fact of the matter is CBI chose not chargesheet the consolidation officer. There is no evidence against him on the record. To go past the evidence on record and to hold that the consolidation officer was the target of the entire exercise and he had committed the offence would be nothing but speculative. Fact of the matter is that there is evidence that the accused was found in possession of the currency notes belonging to the complainant and there is legal as well as factual presumption against him that he has committed the offence under section 7 and section 13(1)(d)(ii) of the Act.
Conclusion
125. I am of the view of the submission made above are insufficient to rebut the presumption against the accused either under section 7 or section 114 of the Indian Evidence Act. C.C. No. 10/11 Was Deputy Commissioner not competent to accord sanction?
126. It has been submitted from the side of defence that the Deputy Commissioner who had accorded sanction for prosecution was not competent to do so as the authority to remove the accused from service was not the Deputy Commissioner but the Revenue Secretary (Divisional Commissioner) .
127. In his defence the accused examined one Shri Shubhashish Bose working as UDC with Revenue Department of NCT of Delhi. He had brought the record relating information supplied to an RTI application submitted by one Shi Anand Bhardwaj Advocate dated 02/04/2013. As per the reply given it was Secretary (Revenue) Divisional Commissioner Delhi who was the competent authority to appoint, remove and take disciplinary action in respect of a Patwari. He had placed on record one copy of the said reply.
C.C. No. 10/11
128. On the other hand the prosecution had examined the Deputy Commissioner PW1 Sh. C P Tripathi North West who had accorded sanction for the prosecution of the accused. He had clearly deposed that he was competent to accord sanction as he was competent to take disciplinary action and remove a Patwari posted in his district. He had proved the sanction order passed by Ex PW1/A.
129. I have gone through his entire testimony and I have found not a single question being put to him challenging his testimony if he was not competent to accord sanction for the prosecution of the accused. I am of the view that he was the best person to have answered the question if he was competent to remove accused form service or not. I would also like to state here that the sanction in this case of the year 2005 and the information supplied under the RTI Act is of the year 2013. Eight years is a long time and it is also a fact during these long years administration in Delhi have undergone a lot of changes. What C.C. No. 10/11 was true in terms competence of an authority to remove an official from service in 2005 may be not true in the year 2013. In any case on comparison I would say the best evidence we have is of the PW1 sanctioning authority himself and his testimony cannot be displaced or substituted by information supplied to someone under the Right to Information Act which is only an information based on some records which have not been subjected to the scrutiny of the court.
130. Ld. Defence counsel has further referred to the two judgments of the Hon'ble Court Sh. B. R. Kedia, Special Judge07 Central District, Tis Hazari Courts, wherein on the basis of the records proved it was held for the accused in those cases, who were also Patwaris, it was the Divisional Commissioner who was the appointing authority and not the Deputy Commissioner who had accorded the sanction. It would not appropriate for me to comment on the said judgment either way. The question if someone is competent to accord sanction under section 19 of the Act is a mixed question of law and facts, C.C. No. 10/11 which is required to be decided on the basis of the evidence produced. Sometimes it is also possible on the basis of same kind of evidence two courts may reach different conclusion. I am supposed to take the decision on this question on the basis of the evidence which has come on the record of this case and not the evidence which may have come on record in the cases decided by the Ld. Special Judge07, Central District.
131. On the basis of the material available in this case, I am of the view that the prosecution has been able to prove that Sh. Tripathi PW 1 Dy. Commissioner was competent to accord sanction for the prosecution of the Accused.
132. I, therefore, conclude that the sanction of prosecution of the accused is in order and valid.
Judgments referred as to absence of demand Suraj Mal Vs. State (Delhi Admn.) (1979) 4 SCC 725
133. I have gone through the judgment in this case. First of all it appears from the facts of the case that in that case by and C.C. No. 10/11 large the conviction was based on the oral testimony of witness. It does not appear that there was any assistance taken of scientific tools in the investigation. As it appears from the said judgment the same testimony which was described as shaky and unconvincing was used for acquittal of one of the accused was used for the conviction of other. I am of the view that it is in this backgrounds the observation of the Hon'ble Supreme Court needs to be examined. The same reads as under: "In our opinion mere recovery of money divorced from circumstances under which it was paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable."
134. One may here refer to the judgment of the Hon'ble Supreme Court in the case T. Shankra Prasad Vs. State of Andhra Pradesh AIR 2004 SC 1242 where it was observed:
"It is to be noted that the decision relied upon by Ld. Counsel for the accused was considered in Narsingha Rao's case (Supra) and it was held, that had no application as the findings recorded C.C. No. 10/11 depended upon the veracity of the testimony of witnesses so far as Suraj Mal's case (Supra) is concerned and the observation in Sita Ram's case (Supra) were confined to the facts of that case and no legal principle for further application could be discernible therefrom."
Pyare Lal Vs. State 149 (2008) DLT 425 (DB)
135. I have gone through the judgment. I find here in this case no issue with specific reference to "demand in trap cases" has been dealt with but the Hon'ble Court believed the defence that there was a chance of false implication of the accused. The reference made to the judgment of the Hon'ble Supreme Court in G.V Nanjundiah's case in Para no.15 is only with regard to the fact that one of the punch witnesses who had deposed had been deputed on 17/18 dates to attend Anti Corruption Branch and participated in three such raids there could not be considered as independent.
C.C. No. 10/11 G.V Nanjundiah Vs. State AIR 1987 SC 2402
136. On the reading of this case I find nothing as a principle of law being determined that unless the complainant directly states in the Court that the demand was made from him, no conviction can result in. It was a case where there was clear indication that the Contractor who had made the complaint against the accused Engineer had motive to frame him and also there was clear indication of accused not being available at the time of demand as stated to have been alleged. The reading of the following paragraphs of the judgment would make it clear:
"14. It may be that at one stage such a certificate was given by the appellant. But, that does not negative the said finding of the learned Special Judge. It is also quite immaterial that the appellant had made payments to the contractor on account of the works done by him and allowed him to complete his work to the tune of Rs. 26,08,463/. The fact remains that the appellant had been frequently making supervision of the work of the contractor and C.C. No. 10/11 insisting on conformity to the standards and supplying good materials. What the learned Special Judge had meant to say was that the contractor did not like such strict supervision by the appellant and for the purpose of getting rid of such strict supervision, he could as well have tried to implicate the appellant in a false case. It was not the case of the appellant that the contractor had not done any work and, as such, he was not entitled to any payment. There can be no doubt that the contractor had executed the works, but under the strict supervision of the appellant and, accordingly the appellant had to sanction his bills for the works done by him. In our opinion, the High Court was not justified in overruling the said finding of the learned Special Judge.
15. It is now manifestly clear that the allegation of the contractor that the appellant had withheld the refund of the security money and payment to him on account of the extra works is false. P. D. Sehgal, the dealing Accountant came to support the false allegation of the contractor. The learned Special Judge has rightly observed that the evidence of the contractor and of P. D. Sehgal could not be relied upon.C.C. No. 10/11
16. We may now consider the question whether the appellant had made a demand for a price of Rs.5,000/. According to the contractor, he accompanied by his son U.S Sharma met the appellant at his office in the DDA building at Ring Road at 1.00 P.M on Oct.30, 1973. It is not in dispute that on that day, that is, on Oct. 30, 1973, the Prime Minister was to visit the site where the construction work was going on. In his statement under S.313 Cr.P.C the appellant denied that on that day the contractor and his son had met him in his office and requested him for the release of the security amount and sanctioning payment of amounts due on account of the extra items of work done. Thereafter, it was stated by him as follows:
"The Prime Minister was scheduled to visit the works at site that day and I was busy at site up to 2.00 p.m. It was only at 1.30 p.m that a firm message was received that P.M would not come to site that day and we returned from the site."
17. Thus, according to the appellant, he was at the site up to 2.00 p.m. on account of the proposed visit of the Prime Minister. The contractor also in his evidence admitted it as correct that on Oct. 30,1973 the Prime Minister C.C. No. 10/11 of India was scheduled to visit the site. He also admitted that on that day almost all the officers were there at the site. He, however, stated that he had left the site that day at about 11.00 a.m."
137. The observation made by the Hon'ble Court in para no.25 that "the question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other material circumstances one of which is the question whether any demand was at all made by the appellant for the bribe. When it is found that no such demand was made by the accused and the prosecution has given a false story in that regard, the court will view the allegations of payment of bribe to and recovery of the same from the accused with suspicion" (emphasis supplied) of the said judgment needs to be seen in the light of the observations made in paras 14 to 17. Anand Swarup Aggarwal Vs. State 1988 Cri.L.J. 756
138. It is a judgment of Hon'ble High Court of Delhi. As one could find that this judgment relates to the earlier Prevention of C.C. No. 10/11 Corruption Act of 1947. In this judgment there is a reference made to Section 165 A of IPC and following observation was made:
"introduction of S.165A of the Penal Code making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that of accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon."
139. It may be noted that after coming into existence of the new Act of 1988, the Section 165 (A) stands deleted from the Penal Code. It may further be noted that in that case it was not only the independent witnesses who did not support the case of the prosecution but also the chemical examination report did not favour the prosecution. It was also found that the accused was found to be not concerned with the preparation of "certified copies" and, therefore, there was no reason for him to demand bribe in that account. On the face of it the said judgment does not apply in the given facts of the case.
C.C. No. 10/11 Harbharosey Lal Vs. State of U.P 1988 Cri.L.J. 112
140. It is a case under the old Act. It is a case where two public witnesses had not been examined and that according to the Hon'ble Court it created a doubt about the case of the prosecution. It may further be noted that the Hon'ble Court found the complainant in his testimony made "irreconcilable" statements thus making it unreliable. Moreover, it was found that the marked currency notes were recovered from the drawer of the accused and not his person as in the present case. It was stated in the judgment:
"If the recovery of the signed note was not made from the person of the appellant but was made from his drawer, much more clinching evidence was required to have been furnished by the prosecution which is lacking in this case."
141. In this case, however, the money was recovered from the pocket of the pant of the accused.
C.C. No. 10/11 Som Prakash Vs. State of Punjab 1992 Cri.L.J 490 (SC)
142. I have gone through the judgment. It is a very small judgment. The facts stated are so brief that it would be difficult to draw the conclusion that the facts of the said case are anyway close to the facts of the present case. C.M. Girish Babu Vs. CBI, Cochin 2009 (2) LRC 93 (SC)
143. The examination of the said case would show the tainted money was recovered from the pocket of the accused, unlike in the present case there was an explanation available how the money reached the pocket of the accused. In the said case the explanation of the accused was that it was the money given towards the repayment of the loan. The following observations were made by the Hon'ble Court:
"13. The evidence on record suggests that PW10 had given money to the appellant stating that it was a loan repayable by PW2 to accused C.C. No. 10/11 no.1. The appellant was lulled into that belief based on which he received the amount from PW10.
14. The fact remains that the prosecution established through evidence of PW12 and PW13 and Exhibit P9post trap mahazar that MO IV series tainted currency notes were recovered from the pocket of the appellant. A question then arises for consideration is that whether the recovery of the tainted money itself is sufficient to convict the appellant under Section 7 of the said Act?"
144. As has already been stated in the present case, there is no explanation as to how the money had found its way into the pocket of the accused. In the present there is not even an allegation that someone had stuffed the money in his pocket. V.Kannan Vs. State 2009 (IX) AD (SC) 293
145. It is difficult to understand for what reason this judgment has been relied upon by the defence. It is a case where C.C. No. 10/11 evidence was available for both demand and acceptance and the accused had been found guilty both by the trial court and the Hon'ble High Court and his appeal to the Hon'ble Supreme Court had been dismissed.
State of Maharashtra Vs. D.L Rao Wankhede 2009 (4) RCR (Cri) 217.
146. It is a case where the State had gone in appeal against the acquittal of the accused by the Hon'ble High Court. It is well settled that while considering the appeals against the acquittals, the parameters for setting aside the judgment of acquittal are narrow. In any case facts of the present case cannot be compared with the facts of the said case. In the said case it was observed that there was inherent weakness in the conversation of the complainant. The observation made in para no.18 of the said judgment reads as under:
"18. Initially, an amount of Rs.2,000/ was demanded. A sum of Rs.1800/ was said to have been paid against the aforementioned demand. Another criminal case was instituted on 14.07.1995. An amount of Rs.1500/ was said to C.C. No. 10/11 have been demanded on 31.07.1995. Only a very small part of the said amount had been paid, viz. Rs.100/ and Rs.200/ on two different occasions. Keeping in view the fact that the respondent enquired about the correctness or otherwise of the First Information Reports lodged by the complainant and the mother of said Sudhakar Borkar after a long time, it is doubtful that the respondent had been coming to the village again and again. Even complainant was made only on 8.08.1995. Indisputably, at least two attempts have been made, one on that date and another later on. The entire procedure for making a raid was repeated on 22.08.1995. This itself casts a serious doubt about the prosecution case. The matter does not end here. Complainant with Ashok Waghade went to the police station.
Then, they went to their residence. If the respondent intended to take the amount, he would have accepted the same in his house itself and there was no reason to ask the complainant and the witness to meet him at a public place, i.e., near the Veterinary Hospital. Even the details of the said purported raid, viz. time of the complainant's visit to the police station, the residence of the respondent and Veterinary Hospital, have not been disclosed."C.C. No. 10/11
147. In the present case, however, the complainant has not supported the case of the prosecution, but the overall circumstances of the case including the testimony of the witness from CBI and the circumstances narrated above indicate that despite the complainant not supporting the case of the prosecution there are enough reasons to raise presumption under Section 20 of the Act and the accused has failed to dislodge the said presumption.
Banarsi Dass Vs. State of Haryana 2010(3) JCC 1842
148. It is a case where the accused had been acquitted after being given benefit of doubt because two of the main witnesses had not supported the case of the prosecution. According to the said judgment the presumption available under Section 20 of the present Act was not available in the old Act. It was observed in para 14 of the judgment as under:
"14. The case of C.M. Girish Babu (supra) was registered under the Prevention of corruption Act, 1988, Section 7 of which is in pari materia C.C. No. 10/11 with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case."
149. The present case is under the new Act and once possession of the money is established there is a legal presumption which is available under Section 20 of the Act. I am of the view that the principle on the basis of which the said case was decided by the Hon'ble High Court cannot be borrowed in the given facts of the case.
Rajinder Singh Vs. State of Punjab 2010 (1) CC Cases (HC) 60
150. I have gone through the facts of the case. It is a case where the accused was acquitted for there was no independent C.C. No. 10/11 corroboration of the testimony of the complainant. The shadow witness had not supported the case of the prosecution. There are many factors which distinguish this case from the said case. Unlike the present case, in that case FSL report was withheld by the prosecution. The recovery was not made from the pocket of the accused, but from under a pillow at his house. The circumstances in which the Hon'ble Supreme Court had acquitted the accused were:
"12. Baldev Singh (sic.) having been declared hostile, we are left with the statement of Raghbir Singh PW4 complainant. His evidence is to be treated as the evidence of an accomplice is treated. The remaining are official witnesses. His evidence having been not corroborated by Baldev Singh (sic.), it would be going too far to treat his evidence to be a gospel truth, for the reason that he being the complainant was all out to see the accusedappellant being convicted. As a rule of prudence, his evidence in relation to demand of bribe and acceptance thereof by the accusedappellant required corroboration. A glaring circumstance which all the more renders the prosecution case a suspect is that the recovery of the treated currency notes was not C.C. No. 10/11 effected from the person of the accused appellant rather it yielded from beneath the billow lying on the bed over which the accused appellant was sitting at the time of alleged recovery Startlingly enough that the cover of the pillow as well as the bed sheet in between which the tainted currency notes lay were not seized by the Investigator for the reasons best known to him. The pillow cover wash as well as bed sheet wash would have further fixed as to whether or not the recovery was effected from in between the two. It is significant to note here that admittedly, the Forensic Science Laboratory's report with regard to hand wash of the accusedappellant has been withheld. May be that the complainant who was all out to get the accusedappellant arrested had trickly pushed the alleged currency notes in between the pillow as well as the bed sheet soon after his entry in the room. The factum with regard to the acceptance of the stated bribe money would have been corroborated by the laboratory's report with regard to the hand wash was of the accusedappellant. Thus, it would be quite risky to maintain conviction on the basis of the statement of the complainant."
The same is not the case here.
C.C. No. 10/11 Harbans Singh Vs. State of Punjab 2010 (2) CC Cases (HC) 287
151. The facts of this case are different from the said case. In the said case the recovery was made from the drawer of the accused. From the discussion in the said case it appears that no presumption could be drawn against the accused under Section 20 of the Act and, therefore, it was necessary to prove the allegations as to the demand of bribe by producing cogent evidence beyond reasonable doubt. It appears that the prosecution failed to do so. In the present case the recovery was made from the pocket of the accused, which is clearly indicative of the money being received voluntarily. Ashok Kumar Vs. State of Haryana 2011 (1) CC Cases
152. Though in this case also the money was recovered from the pocket of the accused, but according to the facts in that case, the accused had demanded bribe from the complainant C.C. No. 10/11 for making the correction in the Girdawari in relation to a land located in a village 'X'. It, however, could be established that the accused had already been transferred 13 days back from the said village. The matter was already pending adjudication before the Assistant Collector. Thus, even if he wanted, he could not have helped the complainant. Apart from it the complainant had died and the shadow witness had not supported the prosecution. Thus, it appears from the preponderance of probabilities Court reached the conclusion that it was sufficient to rebut the presumption of preponderance of probabilities. Para 21 reads as under:
"21. In the instant case, from the transfer of order, Ex. DA, which is an order issued by the State Government and also from the statement of DW1, it is established on record that the appellant was not posted at village Kheri Gulam Ali at the relevant time. From the record, it is made out that the case pertaining to the correction of khasra girdawari was already pending adjudication before the learned Assistant Collector. The appellant was not in a C.C. No. 10/11 position to help the complainant; the DSP, in his statement, has admitted that the complainant along with shadow witness, Rameshwar Das, did not approach him on 13.6.1995, rather they approached him on the next date i.e 14.6.1995; the movement of the raiding party is not recorded in the Roznamcha; the complainant, due to his death, could not be examined; the shadow witness has not supported the case of the prosecution; and the number of discrepancies noticed by the learned trial Court in para 49 of its judgment, make the case of the prosecution highly doubtful. Therefore, the prosecution has failed to prove its case beyond reasonable doubt."
153. Unlike the said case, as has already been discussed above, it cannot be said that it was practically not possible for the accused to have demanded bribe. The defence had tried to show that after the relevant rectification had been made, the copies had been supplied to the complainant, but the complainant had clearly denied the same during the course of the testimony. He had stated that "a fard had been supplied to him by the Patwari who had replaced the accused." C.C. No. 10/11 Prem Raj Meena Vs. CBI 2011 (1) Crimes 730
154. In this case the money was not recovered from the possession of the accused as such. It was found that the money was kept in the briefcase of the accused without his knowledge. Thus, its possession could not be attributed to him. In this case, however, the accused cannot claim it to be so. It was recovered from his pocket for which he could not give any explanation. The line of crossexamination is also absolutely silent as to what happened after the money was allegedly pushed into the hands of the accused. He must have known that as to how the money had reached his pocket. He, however, failed to give any plausible explanation for it. State of Kerela & Anr. Vs. C.P Rao (2011) 4 SCC 450
155. It is also a case where appeal was against the order of acquittal. As has already been noted above the considerations which go into admitting an appeal against an order of acquittal C.C. No. 10/11 are different from admitting an appeal against the order of conviction. The judgment is, therefore, required to be seen in that perspective. The reading of the facts of the said case would show that there was cogent evidence available on record that the money had been thrust in the pocket of the accused. The complainant too was not examined in the said case. The observations made in para 5 and 6 are important. The same reads as under:
"5. The prosecution case is that the demand of illegal gratification of Rs.5000/ was made by the respondent from CW1 on 19.10.1994 for the purpose of giving pas marks to all the students who appeared in the practical examination of Pharmaceutical II in DPharma final examination in the year 1994. It is an admitted case that the respondent alone cannot give such marks. In view of the examination system prevailing such marks have to be approved by others. The respondent alone, therefore, is admittedly not in a position to allot higher marks.
6. Apart from that, it is the case of the respondent that when CW1 met him in a hotel C.C. No. 10/11 room, the respondent shouted that some currency notes had been thrust into his pocket by CW1. Such shouts of the respondent were heard by PW1 and PW2. The evidence of PW1 and PW2 were recorded by the trial Court. The evidence of PW1 and PW2 could not be, in any way, shaken by manner of crossexamination. PW3 has also given evidence of the previous animosity between the college authorities and the respondent who had an occasion to file reports with the college authorities on the basis of some inspection."
156. Thus, in the above given circumstances, the recovery of money could not have been divorced from the given facts. The same, however, cannot be said to be true in the present case. Subhash Parbat Sonvane v. State of Gujrat AIR 2003 SC 2160
157. As a proposition of law there cannot be two opinion that demand/ obtainment constitutes an integral part of the offence under section 7 and 13(1)(d) of the Act but it is necessary to examine this issue in the light of the given facts of a case. It is C.C. No. 10/11 not even necessary to prove it with any direct evidence. It can be gathered even from the indirect evidence. It was observed by the Hon'ble Supreme in "T. Shankar Prasad v. State of Andhra Pradesh" (supra):
"The only condition for drawing such a legal presumption under Section 4 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act." (Emphasis supplied) (See M. Narsinga Rao v. State of A.P. (2000 (1) SCC 691). AIR 2001 SC 318 : 2000 AIR SCW 4427 : 2001 Cri LJ 515.
158. The Judgment in Subhash Parbat Sonvane would reveal that only evidence before the Court was "when the prosecution party went to the police chowki accused asked the complainant as to why he had come there at that time? To that complainant C.C. No. 10/11 replied that he had been waiting since one O' clock and that he has brought one witness to be examined. Accused informed him to come in the evening as his writer was not present. When the accused started to go towards toilet, the complainant followed him and he gave something from his pocket to the accused who took the same and put that in his pocket." In the light of this fact it was observed by the Hon'ble Supreme Court "From this evidence it cannot be inferred that accused demanded any amount from the complainant or that he had obtained the same."
159. I am of view; it cannot be said so in the given facts of the case for the reasons already stated above.
State of Punjab V Madan Mohan Lal Verma Criminal Appeal No. 2052 of 2010.
160. Ld. defence counsel has made reference to the above judgment of the Hon'ble Supreme Court to bring home the same C.C. No. 10/11 point that mere recovery of money is not sufficient to convict an accused. Before proceeding further one may take note of the fact this Judgment was also by state against the Judgment of acquittal by the Hon'ble High Court and parameter for interfering with a judgment of acquittal by the Hon'ble Supreme Court are narrow. (see Para 6 of the Judgment). It is evident that there was a finding of the Hon'ble High Court that there was a possibility of phenolphthalein powder appearing on the hands of the accused because of the shaking of hands by accused. The Hon'ble Court had also come to the conclusion that the "prosecution has not disclosed the genesis of the case correctly". I am of the view that the facts of the said case were quite different from the said case. In this case the complainant had tried to say that he had pushed the money in the hands of the accused but the said assertion stood negatived by the fact that the money was recovered form the pocket of the pant of the accused and there is no explanation how money reached the pocket of the accused.
C.C. No. 10/11 Roshan Lal Saini & Anr V CBI Law Reports of Crime 2010 ( 4) LRC.
161. Ld Defence Counsel had submitted that making complaint is by itself is not proof and the prosecution is still required to prove what is alleged by the prosecution. In the above noted case there was a submission made on behalf of CBI "the fact that complainant Vijay Kumar had himself gone to CBI office to lodge his complainant Ex PW6/A by itself is sufficient proof of initial demand for illegal gratification made by the appellant M N Sharma." It was further submitted "if there was no demand there was no occasion for the complainant to file a complainant against Sh. M.N Sharma particularly when the complainant was working as deed writer in the Sub Registrar Office and he could not have taken a risk to file a false complaint against the Sub Registrar to the detriment of his career." It was further submitted that "correctness of allegations in the complaint Ex.PW6/A cannot be doubted for the reason that there is nothing on record to suggest any motive or reason on the part of the complainant to lodge a false report against appellant M.N C.C. No. 10/11 Sharma." It was answered like this "There is no merit in the submission of the learned Prosecutor. Filing of complaint with CBI by the complainant cannot be taken as a substitute for the evidence of proof of allegations contained therein. The complaint Ex.PW6/A is a document containing allegation of demand of illegal gratification made by the appellant M.N. Sharma. Prosecution was required to prove the allegation made in the complaint by convincing evidence, which the prosecution has failed to do. Therefore, I find it difficult to accept that the prosecution has been able to establish the initial demand."
162. I am of the view that there cannot be any doubt that a complaint cannot be a substitute for deposition in the court with respect to the allegation leveled therein. It, however, can still be a question that under what circumstances the complaint had been filed. In the present case the complainant had gone a step further to say that he had not filed the complaint Ex PW5/5. It was written by him on the dictation of CBI, the above discussion C.C. No. 10/11 would show that it has been found to be not believable. I may also submit here that on the merits Hon'ble High Court did not find enough evidence to believe that the money was recovered from the accused to raise the presumption either under section 20 of the Act or under section 114 of the Indian Evidence Act. I am of the view in the present case; however, it does not appear to be so.
rd S.K. Singhal V/s State (CBI) Crl. A.577/2002 decided on 3 May, 2013
163. I have gone through the judgment. As one could find in the given facts of the case there was no creditable evidence available as to the recovery of money from the pocket of the accused, therefore, onus could not be shifted to the accused under Section 20 of the Act to disprove willful acceptance and to prove that the money was thrust on him. (Para 12 of the judgment). This, however, cannot be said to be true in the present case in the light of the discussion above. C.C. No. 10/11 Rakesh Kapoor V/s State of Himachal Pradesh Crl. Appl No. 1839 of 2012 decided on 22.11.2012
164. I have gone through the judgment. I find that one of the main question before the Hon'ble Supreme Court was that if it was possible to convict a person for the offence under Section 13(2) of the Act, after he has been acquitted for the offence under Section 7 of the Act. There was also a factor in that case that the criminal misconduct as defined under Section 13(1)(a) had not been included in the charge sheet. One may refer to the observations of the Hon'ble Supreme Court in para no.7 and 9 of the said judgment. The relevant parts read as under:
Relevant part of para no.7 "A reading of the charge sheet shows that the claim made by the prosecution in paras 2 and 3 is one and the same. It is not in dispute that the High Court on appreciation of the evidence led by the prosecution and the stand taken by the defence exonerated the appellant in respect of the offence punishable under Section 7 of the P.C Act. Now, the moot question for consideration is whether in C.C. No. 10/11 the absence of Section 7, conviction under Section (13) (2) is permissible, particularly, when there is no reference to Section 13(1)(a) of the P.C Act. It is not in dispute that Section 13(2) only speaks about punishment for committing criminal misconduct."
Para 9 "The criminal misconduct which is defined in Section 13(1) (a) has not been included in the charge. In such a circumstances , the accused lost an important opportunity to defend him, particularly, when he was acquitted under Section 7 of the Act. By applying the ratio rendered in the above decisions and in the light of the undisputed factual position that conviction of the appellant under Section 7 has been set aside by the High Court and in the absence of any appeal by the State against such acquittal and substantive charge under Section 13(1)(a) the conviction under Section 13(2) could not be sustained."
165. I have also not been able to find if in the said case there were circumstances where the presumption could be drawn under Section 20 of the Act. There cannot be two opinion that demand is sine qua non for conviction for an offence under C.C. No. 10/11 Section 7 or Section 13(2) of the Act read with Section 13(1)(d)
(i) of the Act. It is clear that in the said case since there was no presumption to be drawn under Section 20 of the Act, the burden remained on the prosecution to establish this fact and apparently the prosecution failed to do so.
L.K. Jain Vs. State 2005 [3] JCC 1677
166. After having gone through the judgment I find that there were two accused, one was Jr. Engineer and the other was Beldar (A2 Balram Singh). According to the allegations of the prosecution the Jr. Engineer had allegedly accepted the bribe through the Beldar (A2 Balram Singh). The conspiracy between the two could not be proved. The other allegations with regard to the demand made by the Jr. Engineer also could not be established, but it could be established that the recovery of currency notes of Rs.20,000/ were recovered from the possession of the Beldar (A2 Balram Singh). One of the contentions raised before the Hon'ble Court was that once the C.C. No. 10/11 recovery had been made of the money from the possession of the Beldar (A2 Balram Singh) the court must raise a presumption as envisaged by Section 20 of the Act. It was held by the Hon'ble High Court:
"It is true that the law enjoins upon a Court trying the offences under Section 7, 11 or clauses (a), (b) of subsection 13 of the Act to draw a presumption that the gratification was accepted or obtained by the accused as motive or reward, but before such a presumption is raised, the prosecution must establish that the accused has accepted or obtained gratification other than legal gratification. In the case of Suraj Mal vs. State (Delhi Administration), (1979) 4 SCC 725 the Supreme Court held that mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. As notice above in the case in hand, the prosecution has not been able to establish that even A2 Balam Singh made any direct or indirect demand of illegal gratification from the complainantRitesh Chand Gupta. That part of the testimony of Ritesh Chand Gupta where he stated that A2 Balam Singh and not A1 L.K Jain had demanded the money on 15.10.1996 has been totally discarded by the C.C. No. 10/11 learned trial Court. No such demand is alleged by A2 Balam Singh on 16.10.1996. Onus to prove that A2 Balam Singh had accepted the money was heavy on the prosecution which on the facts and circumstances of the case and the material obtaining on record, cannot be said to have been discharged bit it. If the initial onus not discharged, then presumption as envisaged by Section 20 cannot be raised. On the face of this factual and legal position, the learned trial court was not justified in recording the finding of guilty even against A2 Balam Singh for the substantive offences punishable under Section 7, 13 (1) (a) and
(d) of the Act."
167. It has already been submitted above that when it comes to acceptance of money it is not necessary that there should be direct evidence available to prove the same. It is a fact which can be proved even by indirect evidence. In Raghubir Singh's case (Supra) the recovery of the marked currency notes was considered to be sufficient to establish that it was accepted by him so as to raise the presumption against the accused. It has also been observed above that the judgment in Surajmal's case (supra) is to be considered to be confined to the facts of the said C.C. No. 10/11 case. I would like to make reference to the judgment of the constitution bench of the Hon'ble Supreme Court in the case Dhanwant Rai Balwant Rai Vs. State of Maharashtra (supra) where it was laid down:
"How the burden which has shifted to the accused under s. 4(1) of the prevention of Corruption Act is to be discharged has been considered by this Court in State of Madras v. A. Vaidyanatha Iyer (1 ) where it has been observed : "Therefore, where it is proved that a gratification has been accepted, then the presumption shall at once arise under the section. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused." (Emphasis supplied)
168. On the same aspect the Judgment of the Hon'ble Supreme Court in V D Jhangan's case has already been made above.
169. As far as the present case is concerned, I am of the view there is sufficient evidence available to raise presumption of law under section 20 of the Act.
C.C. No. 10/11 Other Judgments relating to admissibility of tape recorded conversation.
170. There are many other judgments referred to by the Ld. defence counsel with regard to the admissibility of tape recorded conversion. Once it has been decided to keep the same out of consideration reference to the said judgments have lost relevance.
Conclusion:
171. In view of the forgoing discussion, I would conclude that the accused has failed to discharge the burden either under Section 20 of the Act or under section 114 of the Indian Evidence Act.
ORDER :
172. In view of the foregoing discussion, I am convicting the accused for the offences under Section 7 and Section 13(2) C.C. No. 10/11 read with Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988.
Announced in the Open Court ( L. K. GAUR )
on 16 of November, 2013 Special Judge, P.C. Act
th
(CBI09), Central District,
Delhi.
C.C. No. 10/11
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE P.C. ACT (CBI09), CENTRAL DISTRICT, TIS HAZARI: DELHI CC No. 10/2011 R.C. No. 41(A)/04/CBI/ACB/ND Case I.D No. 02401R0700652005 Central Bureau of Investigation Versus Shri Jagdish Singh S/o Shri Ram Mehar Singh R/o D10/11, Sector15, Rohini, Delhi110085.
Date of Institution : 08.07.2005 Date of reserving Order : 25.11.2013 Date of Order : 28.11.2013 ORDER ON SENTENCE : Preliminary
1. Shri Jagdish Singh Convict, who was working as Patwari at the office of SDM, Narela, has been convicted for C.C. No. 10/11 having committed the offenses under section 7 and section 13(1)(d) punishable under section 13(2) of the prevention of corruption act, 1988 for having demanded and accepted a bribe of Rs. 15,000/ from the complainant for making correction in the revenue records relating to the land of the complainant. Hearing
2. I have heard Ld Defense Counsel for the convict as well as Ld. Public Prosecutor for CBI and have gone through the record of this case including one affidavit filed on behalf of the convict with some documents relating to the aliment of his parents and wife.
Guidelines of Sentencing
3. The broad guidelines for sentencing can be found in Rule 1 of Chapter 19 of Volume 3 of Delhi High Court Rules and Orders. The same reads as under:
C.C. No. 10/11
"The award of suitable sentence depends on a variety of considerations-- The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence."
Extenuating Circumstances
4. The following extenuating circumstances have been pointed on behalf of the defence: C.C. No. 10/11
(i) Convict has a clean service record of last 30 years. Except for the present case he was never found earlier of having committed any misconduct. The CBI also did not found any property / assets with the convict beyond known sources of his income.
(ii) The convict is a sole bread earner of his family. He has aged ailing parents to support besides his wife and widow sister's family having two children. The wife of the convict is also stated to be suffering from certain ailments, which require constant medical attention.
(iii) The amount involved is only Rs. 15,000/ Aggravating circumstance
5. Ld. Public Prosecutor for CBI on the other side has made a submission that the sentence which may be awarded in this case should be sufficient to have a deterrent effect in general. C.C. No. 10/11 He has also pointed out that the convict was holding a post of Patwari which was one of the key position in the Revenue Department.
Sentence of imprisonment
6. The fact that the Convict is the only bread earner in the family and has a family responsibilities including taking care of his aged parents and the family of the widow sister. In my view all extenuating factors which are to be taken into account at the time of imposing the sentence of imprisonment as a long incarceration of the convict in the jail will have an adverse impact on his family.
7. The bribe amount claimed though cannot be said to be on the very lower side but at the same time it also cannot be aid too high to deserve a punishment on the extreme side. C.C. No. 10/11
8. I am also of the view that it is a widely known fact that in the Revenue Departments there is a wide scale corruption prevalent and for even ordinary small matters the bribe is demanded by public servants from the persons who happen to be more often than not illiterate or semiilliterate. It was pointed out by the Hon'ble Supreme Court in Adu Ram v. Mukna, AIR 2004 Supreme Court 5064 that "imposition of sentence without considering its effect on the social order in may cases may be in reality a futile exercise."
9. Some amount of deterrence is inbuilt both in section 7 and section 13(2) of the Act, by providing minimum sentence but considering the overall family circumstances of the convict and also taking into account the fact that, on the other hand, he was holding a key position in his office and that the punishment to be imposed should have deterrent effect, in my view sentencing the convict for rigorous imprisonment for a period of one year for the offence under section 7 of the P.C. Act and further sentencing him for rigorous imprisonment for a period of two years under C.C. No. 10/11 Section 13 (2) read with Section 13(1)(d)(ii) of the P.C. Act with a direction that both the sentences shall run concurrently would be just and proper.
Sentence of Fine
10. Sentence of Fine is an integral part of section 7 as well as section 13(2) of the Act. Imposition of fine is one of the effective ways of punishment in the economic offences. It can be meant to make the convict realise that earning through illegal means would not pay. However, the consideration that while imposing the fine the Court also can not be oblivious of the fact that the fine to be imposed may ultimately not turn out to be having a ruinous effect on his family. At the same time the fine to be imposed should have correlation not only with the money earned by the illegal means but also the position the public servant was holding. I want to add that in such cases while imposing the fine, I am in favour of actually recovering the fine from the convict and not to just get away by suffering C.C. No. 10/11 imprisonment in default of payment of fine.
11. In the light of foregoing discussion and the facts and circumstances of the case in my opinion imposing a fine of Rs. 50,000/ for having committed offence under section 7 of P.C. Act and imposition of fine of Rs. 1,00,000/ for having committed offence under section 13(1)(d)(ii) punishable under section 13(2) of the P.C. Act would serve the ends of justice. Sentence
12. In the light of above discussion, I am sentencing the convict to undergo rigorous imprisonment for a period of one year alongwith fine of Rs. 50,000/ for having committed the offence under section 7 of the P.C. Act and to further undergo rigorous imprisonment for a period of two years alongwith a fine of Rs. 1,00,000/ for having committed the offence under section 13(1)(d)(ii) punishable under section 13(3) of the P.C. Act. C.C. No. 10/11
13. The sentences imposed shall run concurrently and the period spent by the convict in jail from 10.09.2004 to 06.11.2004 after his arrest shall stand set off against the sentences imposed.
14. The Convict will have time of six weeks to make the payment of fine. In case of his failure to pay the fine during the said period steps would be taken for the recovery of fine in accordance with Section 421 of the Code of Criminal Procedure, 1973.
15. The currency notes which had been supplied by the complainant be returned to him after keeping the photocopies thereof attested by the S.P. CBI after the expiry of period of appeal / subject to any orders which may be passed by the appellate Court in this respect.
Announced in the Open Court ( L. K. GAUR )
on 28th November, 2013 Special Judge (CBI)9
Central District, Delhi.
C.C. No. 10/11
C.C. No. 10/11