Indian Kanoon - Search engine for Indian Law

Delhi District Court

Cc No.15/19 State vs Vinod Kumar 1 on 16 November, 2019

     IN THE COURT OF MS. KIRAN BANSAL, SPECIAL JUDGE
             (PC ACT) ACB­01, CENTRAL DISTRICT
         ROUSE AVENUE DISTRICT COURT , NEW DELHI

CNR No. DLCT11­000169­2019
CC No. 15/19

State (Govt. of NCT of Delhi)

                                   VERSUS
1.      Vinod Kumar
        S/o Sh. Om Parkash
        R/o D­183, Gali no. 11
        Bhagirathi Vihar, Delhi­110094.


FIR No.       :      08/14
U/S           :      7/13 PC Act
PS            :      Vigilance

                     Date of institution   : 09.10.2015
                     Judgment reserved on : 13.11.2019
                     Judgment delivered on : 16.11.2019

                            J U D G M E N T

1. Brief facts of the case are that Amit Kumar and Nitin Sharma submitted a joint complaint alongwith a CD and transcript of the sting operation conducted by them against the accused in which it was stated that Amit Kumar was undergoing a case of negligent driving under section 279 IPC at PS Shakarpur and his car bearing no. DL­3CBS­9699 was impounded in PS Shakarpur for one month. He further stated that whenever he tried to meet IO, he used to give lame excuses. Thereafter, on 01.02.2014, finally he was called by the accused to come and meet CC No.15/19 State Vs Vinod Kumar 1 him on 02.02.2014 for his bail and when he reached the PS, he was asked to sign some official documents required for bail and a demand of Rs.10,000/­ was made by the accused to get bail finally. Amit Kumar further submitted that he was not in a condition to pay the bribe amount. Thereafter, accused threatened him with dire consequences and stated that his work would not be done without bribe. He further told the accused that he was having Rs.2,000/­, then the accused forcefully took that money from Amit Kumar. Amit Kumar further stated that he was having the recording of taking bribe by accused in his mobile phone. Statement of Amit Kumar was also signed by Nitin Sharma and on that statement, the present FIR was registered. During investigation, the statement of witnesses were recorded and the CD/DVD of the sting operation, transcript as well as the original instrument i.e. apple i­phone 5 was seized. Voice sample of accused Vinod Kumar and Nitin Sharma were taken at CFSL, Lodhi Road and same were sent alongwith original instrument to CFSL, Lodhi Road for examination and it was opined that there was no alteration or editing in the footages contained in CD/DVD. Regarding voice matching, it was opined that the voices are probable voices of Nitin Sharma and accused Vinod Kumar. Thereafter, prosecution sanction was obtained from the competent authority and after conclusion of the investigation, the present chargesheet was filed.

2. Cognizance for the offence under section 7/13 of Prevention of Corruption Act, 1988, against accused Vinod Kumar was taken on 31.10.2015. Thereafter, charge against accused Vinod Kumar was framed for the offences punishable under section 7 and 13(1)(d) of PC Act read with section 13(2) PC Act, to which accused pleaded not guilty and claimed trial.

CC No.15/19 State Vs Vinod Kumar 2

3. Prosecution in support of its case has examined 17 witnesses and accused has examined 4 witnesses in his defence.

4. PW­1 ASI Dalip Singh is the duty officer who has registered the FIR no. 8/14 Ex.PW1/B on the basis of Rukka Ex.PW1/A, on 14.02.2014.

5. PW­2 Nitin Sharma, complainant deposed that in the year 2014, his friend Amit Kumar was involved in an accident case of PS Shakarpur and he was informed by Amit Kumar regarding his false implication and the fact that his vehicle was also impounded. He further stated that Amit Kumar told him that when he spoke to the IO ASI Vinod Kumar (accused) regarding his vehicle, the IO/accused told him that first he has to obtain bail and then his vehicle would be released. But no time was fixed for bail. He further deposed that finally on 01.02.2014, Amit Kumar was called by ASI Vinod Kumar/IO/accused to come to PS for bail on 02.02.2014. He further stated that on 02.02.2014, he alongwith Amit Kumar and surety Ismail Khan went to PS Shakurpur at 10:00 am. After reaching the PS, they met the accused who took them in a room and accused asked Amit Kumar to show him the documents brought for bail and obtained signatures of Amit Kumar and Ismail Khan on certain papers. He further deposed that when paper work was going on, in the meanwhile the accused demanded Rs.10,000/­ on which Amit Kumar told that he was not in a condition to pay Rs.10,000/­, then the accused asked as to how much money he was carrying, upon which Amit Kumar told him that he was carrying Rs.2,000/­. Thereafter, accused got up and took out Rs.2,000/­ from the pocket of Amit Kumar forcefully. PW­2 deposed that he was surprised to see the conduct of the accused and then, he started recording the conversation between himself and the accused from his apple mobile phone. He further deposed that in the CC No.15/19 State Vs Vinod Kumar 3 conversation, the accused can be heard saying that Rs.2,000/­ would be consumed in documentation work and verification of documents itself and the accused further told him to bring the balance amount or else he would leave the work pending and would return after four days leave and then would do the work. PW­2 further deposed that he called his brother Rajan Sharma but he did not respond to his call and then he told the accused to take Rs.1,000/­ and told him that he would pay the balance amount later. Thereafter, they left the PS and called the SHO, PS Shakarpur in the evening and apprised him about the incident who told that there were two officials by the name Vinod Kumar and he has to check as to who had demanded and accepted the money. PW­2 further deposed that SHO, PS Shakarpur told that he had verified and found that ASI Vinod Kumar had demanded and accepted the money and thereafter, they filed the complaint Ex.PW2/A in the Vigilance Branch, Barakhamba Road. He further deposed that the complaint was accompanied with the transcript Ex.PW2/B and CD and was signed by PW­2 as well as Amit Kumar. He further deposed that the CD was prepared on the computer and on the basis of recordings made on the apple mobile i­phone 5. He further stated that his complaint as well as transcript were examined and the conversation in the CD was heard and thereafter, the FIR was registered and the i­phone was seized vide Ex.PW2/C. He further deposed that during investigation, his voice sample was also taken and the micro chip containing his voice sample was seized vide seizure memo Ex.PW2/D and the CD was seized vide seizure memo Ex.PW2/E. Certificate under section 65B of Indian Evidence Act regarding correctness of the recording of the mobile phone as well as the contents of the CD/DVD is Ex.PW2/F. PW­2 further CC No.15/19 State Vs Vinod Kumar 4 deposed that the accused told him that "kisi se bhi pata kar lo ki jamanat ke kitne paise lagte hai or ye file 2000 rupaiye kha jayegi". He further deposed that the accused told him that in case the balance amount would not be paid, he would delay the proceedings as he was proceeding on leave. He further deposed that he told the accused that he was carrying Rs.1,000/­ which he could give him and the rest of the amount would be brought later, on which accused told him to bring the entire balance amount and pay it in one go. The accused also told them to do the needful at the earliest as he was proceeding on leave. He further stated that he had recorded the conversation with the accused through mobile I­ phone having SIM number 8447273252. The arrest memo of the formal arrest of Amit Kumar is Ex.PW4/A. PW­2 also identified his i­phone Ex.P1 and data cable Ex.P2. PW­2 further deposed that even after the present case, the accused has several times tried to contact him and pressurized him to take money and finish the present case and also threatened him. PW­2 also identified his voice as well as voice of the accused in the audio­video conversations contained in the mobile phone and deposed that the conversation contained in the mobile phone and played in the court is the same conversation which had taken place on the date of incident and the same are as per the transcript Ex.PW2/D. PW­2 also identified the CD Ex.P6 to be the same containing the recording contained in the I­phone and sent to the investigating agency. PW­2 also identified the micro chip Ex.PW8/S2 containing his voice sample.

6. During the cross­examination on behalf of accused, PW­2 deposed that Ex.PW2/A was written by him in his handwriting. He further deposed that Amit Kumar had met him on 02.02.2014 between 09:00 AM to CC No.15/19 State Vs Vinod Kumar 5 10:00 AM and they had reached the PS around 10:00 AM. He further deposed that he had met Ismail Khan in front of the PS and he had accompanied them when they went inside the PS. He further deposed that they remained in the accused's room for approximately 50 minutes to one hour. He further deposed that when he was recording the incident, one person had come inside the room and had spoken to the accused and had left. He further deposed that when the accused used to get up from the chair, he used to stop the recording and thereafter, when accused used to sit on the chair, he used to start the new recording, therefore, the recordings were done in three parts. He denied the suggestion that no demand was made by the accused from him or Amit Kumar. He denied the suggestion that he concocted a story of Rs.2,000/­ being taken out from the pocket of Amit Kumar forcefully. He denied the suggestion that he has supplied a false CD alongwith a false complaint. During the cross­examination, Ld. Counsel for the accused has also put certain conversation to the witness in order to substantiate that the witness was an extortionist and was demanding money from the accused. However, the witness denied his voice and stated that it was the accused who was pressurizing him for settlement.

7. PW­3 Amit Kumar deposed that a case was registered against him in PS Shakarpur regarding rash driving and in connection with the said FIR, his vehicle i.e. Santro car bearing registration no. 9699 was seized and the accused was the IO of the said case. He further deposed that he was only aware of the fact that his vehicle was seized but he was not aware that he was implicated in that case. He further deposed that on 01.02.2014, he spoke to the accused who called him on 02.02.2014 in the PS Shakarpur. He further deposed that on 02.02.2014, he alongwith CC No.15/19 State Vs Vinod Kumar 6 Nitin and his surety Ismail Khan went to the PS at around 10:00 am and met the accused who took them to his room and did some paper work and asked whether they had come prepared. He further deposed that whenever the accused used to talk to him prior to 02.02.2014, he was asked to come prepared and when he asked the accused as to what he meant by "Taiyar hokar aaye ho", the accused told them that Rs.10,000/­ should be paid for bail and then only they would be released. However, he deposed that he was not carrying Rs.10,000/­, then accused asked as to how much amount he was carrying upon which, PW­3 told the accused that he was carrying Rs.2,000/­. Thereafter, accused got up from his chair and forcefully took Rs.2,000/­ from him. He further deposed that accused then obtained their signature on bail papers and specifically directed them not to put the date and time on the same and accused told that Rs.2,000/­ would be spent on the paper work itself. He further deposed that his friend Nitin started recording the conversation between the accused and Nitin. He further deposed that they told the accused that they will bring the balance money and left. He further deposed that Nitin tried to contact the SHO and finally a complaint was lodged. PW­3 identified his signatures on the complaint Ex.PW2/A as well as transcript Ex.PW2/B. PW­3 further deposed that Nitin handed over the i­phone alongwith the data cable in which the conversation was recorded to the IO in his presence which was seized vide memo Ex.PW2/C. He also identified his signature on his arrest memo Ex.PW4/A in FIR No.22/14, PS Shakarpur (accident case) as well as on his personal search memo Ex.PW4/B. PW­3 also identified his signatures on the seizure memo of RC of Santro car bearing no. DL­ 3CBF­9699 Ex.PW4/C. He also identified the seizure memo of CC No.15/19 State Vs Vinod Kumar 7 insurance of car bearing no. DL­3CBF­9699 Ex.PW4/E and copy of his DL is Ex.PW4/D. Bail bond and personal bond are Ex.PW4/DA and seizure memo of CD is Ex.PW2/E. PW­3 further deposed that he can identify his voice in the recording if shown to him. The DVD Ex.P5 was played on the computer during his testimony containing three video files and the witness stated that the said video files were of the recording which was done by Nitin when he alongwith Ismail and Nitin were present in the room and accused had asked them "Taiyar hokar aaye ho". He further deposed that the recordings were of the incident of the transaction of bribe and he also identified voice of the accused and Nitin. He also deposed that the accused can be heard saying "2000 to file hi kha jayegi" and identified the voice of accused. He identified the mobile phone Ex.P1 and the data cable Ex.P2 which were used by his friend Nitin for recording the incident and were seized by the IO and stated that Ex.PW2/B is the correct transcript of the conversation in the audio­video files.

8. During the cross­examination by Ld. Counsel for the accused, PW­3 deposed that Santro car in question was registered in the name of his father and his father had already expired in the year 2013 and he had not got the vehicle transferred in his name. He further deposed that he had spoken to the accused several times but the accused used to say that he did not have time and finally asked on 01.02.2014 to come on 02.02.2014. He further deposed that Nitin had accompanied him and Ismail had reached the PS directly. He also deposed that he alongwith Nitin stayed in the room of accused for about 50­55 minutes and accused had enquired from him about the documents. He further deposed that the accused had asked them as to whether they had come prepared and CC No.15/19 State Vs Vinod Kumar 8 stated "Taiyar hokar aaye ho". He further deposed that the complaint was written by Nitin and the same was gone through by him before signing the same. He further deposed that the accused had asked for identity card and RC from Ismail. On questioning as to whether one constable was present in the room, the witness answered that one constable had come for a while and had left after making brief enquiry who had spoken to the accused only and had not signed any document in their presence. He further deposed that Nitin started recording the conversation after Rs.2,000/­ were taken by the accused from his pocket. He denied the suggestion that on that day no conversation regarding Rs.10,000/­ or Rs.2,000/­ had taken place. He further denied the suggestion that on 02.02.2014, victim of the incident Rahul Lumba was also present when they had gone to meet the accused on 02.02.2014 or that he had identified him. On being confronted with the document Ex.PW4/A, Ex.PW4/C, Ex.PW4/D, Ex.PW4/E and Ex.PW4/DA, he stated that Rahul Lumba had not signed in their presence. He further deposed that Vijay is his brother. He denied the suggestion that he had wrongly identified the voice of the accused at the instance of IO or that no conversation took place between him and the accused or that a false CD was prepared to implicate the accused falsely. He further denied the suggestion that accused never demanded any money from him or Nitin or that he had concocted a story to implicate the accused or that he has intentionally concealed the presence of Rahul Lumba and Ct. Annu Yadav on 02.02.2014 at the time of furnishing of bail bonds.

9. PW­4 Vinod Kumar, Ahlmad in the court of Ld. MM, proved the file of case FIR No.22/14, PS Shakarpur, U/s 279 IPC, having the original arrest memo Ex.PW4/A, personal search memo Ex.PW4/B, seizure CC No.15/19 State Vs Vinod Kumar 9 memo of RC of Santro car Ex.PW4/C, seizure memo of DL Ex.PW4/D, insurance of car Ex.PW4/E, original seizure memo of car Ex.PW4/F. During the cross­examination on behalf of accused, he proved the bail bond of the accused Amit Kumar Ex.PW4/DA and notice under section 133 of M.V. Act Ex.PW4/DB.

10. PW­5 ASI Parvesh deposed that on 04.01.2014, he was the duty officer and at about 10:55 pm, received a rukka sent by ASI Vinod Kumar, on the basis of which he registered the FIR no.22/14 of the accident case and made endorsement on the rukka Ex.PW5/A.

11. PW­6 SI Mukesh Rathi proved the bio­data of the accused Ex.PW6/A1 to Ex.PW6/A5 and the certificate under section 65B of Indian Evidence Act regarding its correctness is Ex.PW6/A6.

12. PW­7 Ct. Sikandar Maan deposed that on 25.09.2014, he was posted in the Vigilance Branch and on the instructions of IO, he had gone to CFSL and collected the exhibits and report which were duly sealed and after returning, he had deposited the exhibits with the Malkhana and report was handed over to the IO. He further deposed that so long as the exhibits remained in his possession, they were not tampered. He further deposed that on 05.12.2014, he again joined the investigation of the present case and on that day accused was arrested by the IO in his presence vide arrest memo Ex.PW7/A and his personal search memo is Ex.PW7/B.

13. PW­8 Sunil Kumar deposed that on 03.04.2014 while he was posted as Lab Assistant in CFSL, Lodhi Road, he took the voice sample of Nitin Sharma as well as accused Vinod Kumar. He further deposed that the micro SD card containing the voice sample of Nitin was marked as S2 and the micro SD card containing the voice sample of Vinod Kumar was CC No.15/19 State Vs Vinod Kumar 10 marked as S1. Both the micro SD cards were converted into pulanda which were sealed by the IO with the seal of ST. The micro SD card marked as S1 was taken into possession vide seizure memo Ex.PW8/A and micro SD card marked as S2 was seized vide Ex.PW2/D. He also identified the micro SD card as Ex.PW8/S2 containing the sample voice of Nitin Sharma and micro SD card Ex.PW8/S1 containing the sample voice of accused Vinod Kumar.

14. Testimony of PW­9 Ravinder Kumar, Lab Assistant, CFSL is also on the same lines and he has also deposed on the similar lines regarding obtaining of sample voice of accused and Nitin Kumar as deposed by PW­8.

15. PW­10 Ct. Upnesh Kumar deposed that on 03.04.2014, he was posted as constable in Vigilance Unit and had gone to CFSL, Lodhi Road where sample voice of accused Vinod Kumar and Nitin Sharma were taken with the assistance of CFSL officials on a microchip. Same were then sealed with the seal of ST. Both the pulandas were taken into possession vide memo Ex.PW8/A and Ex.PW2/B. He further deposed that on 22.04.2014, four exhibits were taken by him from Malkhana of PS Vigilance and the same were deposited at CFSL, Lodhi Road. He further deposed that so long as the exhibits remained in his possession, the same were not tampered.

16. PW­11 Mohd. Ismail deposed that in the year 2014, his friend Amit Kumar called him in the PS Shakarpur where he stood surety. He further deposed that when he reached the PS Shakarpur in the morning, he met Amit Kumar and his friend Nitin and they both took him inside the room where accused was sitting and accused checked his documents and thereafter, the documents asked by the accused were signed by him. He CC No.15/19 State Vs Vinod Kumar 11 further deposed that the accused thereafter, started asking for money and stated that the money was required to release the vehicle. Some money was also handed over to the accused. However, he did not remember whether the same was handed over by Amit or Nitin. He further deposed that accused had taken the money in his hand but did not notice whether the accused had kept the same. He further deposed that he cannot say whether the accused had returned the same as there was some conversation going on between them for returning the money. He further deposed that the money handed over to the accused was either Rs.1,000/­ or Rs.2,000/­.

17. As the witness was not revealing the complete facts, he was cross­ examined by the Ld. Addl. PP for the State and during the cross­ examination by Ld. Addl. PP for the State, he deposed that the accused was demanding Rs.10,000/­ for releasing on bail and accused had stated that "itna to kharcha lagega". He also admitted that he had gone to PS Shakarpur on 02.02.2014 and had reached there at about 10:00 am and that the accused was the IO in the case FIR No.22/14, U/s 279 IPC. He also deposed that the accused had specifically told them not to mention the date and time and therefore, the date and time on the documents for bail were not filled up. He also deposed that when Amit Kumar had told the accused that he was not having so much of money then the accused had asked him "tere pass kitne hai" and thereafter, Amit had told him that he was having only Rs.2,000/­. He further deposed that Amit Kumar had taken out Rs.2,000/­ from his pocket and shown to the accused which the accused had taken from Amit. He further deposed that certain negotiations regarding scaling down the amount was also going on between the accused and Amit. He CC No.15/19 State Vs Vinod Kumar 12 admitted that when Amit was asking the accused to reduce the amount, the accused stated that "kisi se pata kar lo jamanat ka kya lagta hai" and also stated that "jo 2000 rupaiye tumne diye hai, ye to file hi kha jayegi". He further deposed that Nitin had made recording in his phone. PW­11 has identified his signatures on the bail bond Ex.PW4/DA and FIR No.22/14. Three video files in the Apple I­Phone were played during the testimony of PW­11 and on seeing the audio­video recordings, PW­11 identified them to be the same which relates to the transaction of bribe between the accused and Nitin and Amit. PW­ 11 also identified the voice of Nitin and accused. The conversation as per the transcript is Ex.PW2/B.

18. During the cross­examination on behalf of accused, PW­11 deposed that he reached the PS at around 09:00 am to 10:00 am and that Amit had not met any other police official on that day except the accused. He further deposed that the entire proceedings took approximately half an hour. He denied the suggestion that no money was demanded by the accused or anybody or that the accused had not taken any money. He also denied the suggestion that the accused never stated that he should not mention the date and time on the bail bond or that no conversation regarding the money took place in the PS. He denied the suggestion that he had identified the recording at the instance of police official or that no recording was done on that day.

19. PW­12 Dr. Subrat Kumar Choudhary deposed that he was working as Senior Scientific Officer, Grade­II (Physics), CFSL and examined more than 425 cases and deposed in more than 100 cases. He further deposed that he had received four sealed parcels, specimen seal impression, photocopy of transcription of questioned and specimen recordings, CC No.15/19 State Vs Vinod Kumar 13 photocopy of seizure memos for examination and when he received the parcels, the seals were intact. He examined the CD, the mobile phone and the micro SD cards containing the specimen voice recording of Vinod Kumar and Nitin Sharma. He further deposed that auditory and spectrographic examination of the questioned and specimen voice recordings was carried out and his opinion is in his report dated 27.05.2014 Ex.PW12/A. He further deposed that on examination, voices of speakers Vinod Kumar and Nitin Sharma were found tallying with respective questioned voices contained in the Exhibit­1 i.e. CD and the exhibits were kept in separate envelopes and sealed. He further deposed that forwarding authority was intimated for collecting the sealed exhibits and voice examination report. The video examination report were also sent to the forwarding authority. He identified the CD Ex.P6 which he had examined as well as the I­phone Ex.P1 and data cable Ex.P2. He identified the micro SD card containing the sample voice of Vinod Kumar Ex.PW8/S1 and micro SD card containing the sample voice of Nitin Sharma Ex.PW8/S2.

20. During the cross­examination, he admitted that the transcript of the questioned voice and the sample voices were also received by him. He further deposed that he had not examined the I­phone and the same was examined in the Photo Division. He further deposed that he had not compared the sample voice with the recording in the I­phone. He had compared the sample voice with the questioned voices in the CD. He denied the suggestion that no spectrographic examination of the questioned voices was conducted in the present case. The copy of his spectrographic examination was placed on record during the cross­ CC No.15/19 State Vs Vinod Kumar 14 examination which is Ex.PW12/B. He denied the suggestion that the case property was tampered with while the same was lying the unsealed condition in his custody. He denied the suggestion that the spectrogram of questioned voice and specimen voice are not same. He denied the suggestion that no marking was done by him or that the entire Ex.PW12/B was prepared by his assistant. He denied the suggestion that he has prepared the report only on the basis of transcript supplied by the police.

21. PW­13 S. Ingarsal, Senior Scientific Officer, Grade­I, CFSL deposed that on 19.05.2014, he received an internal forwarding note from Physics Division alongwith two sealed parcels marked Ex.1 and Ex.2 for examination of video footage. He had examined the Ex.1 and Ex.2 i.e. CD and Apple I­Phone and the three video files contained in the exhibits with the help of i­mac system containing final cut express editing software. He further deposed that the video footages contained in both the exhibits were genuine. He further deposed that all the three video files contained in CD are single shot video clips having no sign of editing/alteration. He further deposed that video files contained in the CD were also found available in I­phone having similar characteristics with respect to all elements in the video clips including duration of individual clips. He further deposed that all the video clips contained in the I­phone are also single shot video footage having no sign of editing/alteration between the conversation of the video footage. He further deposed that after the examination he had sealed the exhibits in two separate parcels with his official seal and the report was sent back to the Physic Division alongwith the report. His report is Ex.PW13/A. He also identified the DVD Ex.P5 to be the same CC No.15/19 State Vs Vinod Kumar 15 which he had examined and regarding which he had given the report and also I­phone Ex.P1 as well as data cable Ex.P2.

22. During the cross­examination, he deposed that he had started examining the exhibits on 05.08.2014 and concluded on 29.08.2014 and during this period the exhibits were in his custody. He further deposed that there were several other files in that almirah and case properties of other cases. He further deposed that though the formats of the files in the CD and I­phone mobile are different but the contents of the exhibits are the same and he had thoroughly examined both the exhibits and there was no difference and therefore, the difference in file format would not affect the authenticity. He further clarified that the resolution may differ, however, it would not make any difference in the content of the video. He further deposed that in the report Ex.PW13/A there is no mention about any abrupt beginning or abrupt ending as there was no sign of abrupt beginning or abrupt ending in the identified video recording examined by him. He admitted that all the recordings were of less than two minutes each.

23. PW­14 ASI Jaiveer deposed that on 18.02.2014, he was posted at PS Shakarpur and case file of FIR No.22/14 was assigned to him and thereafter, on 18.02.2014 he was called to Vigilance Office alongwith case file and on the request of the IO Insp. Surender Sharma, he had supplied him copy of some documents of the case FIR No.22/14.

24. PW­15 Raj Kumar Singh, Addl. Commissioner of Police is the sanctioning authority who deposed that in the year 2015, he was posted as DCP, PCR. He further deposed that request of the IO for according sanction was received by him and after perusing the documents including copy of FIR, statements of witnesses, CFSL result, CC No.15/19 State Vs Vinod Kumar 16 transcription etc. and after due application of mind, he found that there was sufficient material and was of the opinion that accused should be prosecuted and thus, had accorded sanction Ex.PW15/A under section 19 of the PC Act.

25. During the cross­examination, he deposed that he did not give any personal hearing to the accused, neither he had called the IO of the case FIR No.44/14, PS Shakarpur. He denied the suggestion that he had not perused the transcript correctly or that he had not applied his mind and accorded sanction in mechanical manner. He further denied the suggestion that draft sanction order was produced before him and he accorded sanction on the basis of draft sanction order.

26. PW­16 Retired Insp. Surender Sharma deposed that on 14.02.2014, investigation of the present case was entrusted to him and he received the copy of FIR and complaint of Amit Kumar which was also signed by Nitin alongwith the copy of transcript. He further deposed that one CD was also handed over to him by the duty officer and he had conducted the investigation and recorded the statements of witnesses. He had seized the Apple I­Phone alongwith data cable in which the original recording was made which was produced by Nitin vide seizure memo Ex.PW2/C. He further deposed that the CD containing the recording was also played in the presence of witness and recording contained in the CD was identified by the witness. The CD was also seized vide seizure memo Ex.PW2/E and the transcript Ex.PW2/B was admitted by the witness to be correct as per the recording. He further deposed that during investigation he had obtained the voice sample of accused Vinod Kumar and Nitin Sharma. He further deposed that the voice samples were taken at CFSL, Lodhi Road and the voice sample was provided in CC No.15/19 State Vs Vinod Kumar 17 two separate micro chips and the same were also seized and sealed vide seizure memo Ex.PW8/A and Ex.PW2/D. He further deposed that during investigation the original I­phone, both the micro chips were sent to CFSL, Lodhi Road for seeking expert opinion and opined that there was no tampering etc. and the voice contained in the recording tallied with the sample voices. He also collected the documents of FIR No. 22/14, U/s 279 IPC and the accused was arrested. He further deposed that he sent request letter for grant of sanction Ex.PW15/A. He further deposed that he had collected the bio­data of accused and certificate under section 65B of Indian Evidence Act from Nitin as well as from the duty officer. He also identified the case property during his testimony.

27. During the cross­examination on behalf of accused, PW­16 deposed that duty officer sent him copy of FIR which was marked to him by ACP L.C. Yadav and during investigation he had heard the recorded conversation in the CD. He further deposed that he had visited the PS Shakarpur when the accused was on PC remand but could not locate or trace any physical evidence during the PC remand of the accused. He further deposed that he did not seize the mobile phone of Amit Kumar as the same was not required nor he had annexed the CDR of Amit Kumar with the chargesheet. He further deposed that the transcript of the recording was prepared by the complainant Nitin. He further deposed that he had not obtained any permission of the court before taking specimen voice of the accused and verbally apprised the accused that the specimen voice could be used against him during the trial. He also told the accused that in case of denying the sample voice, adverse inference could be drawn against him and also explained the pros and cons of the specimen voice. He denied the suggestion that he forced the accused to CC No.15/19 State Vs Vinod Kumar 18 give his specimen voice sample and thereby violated Article­20(3) of the Constitution of India. He denied the suggestion that he had sent draft sanction order to the sanctioning authority alongwith the request letter.

28. PW­17 L.C. Yadav deposed that in the second week of February 2014, he was called by DCP, Vigilance in his office where two persons namely Amit and Nitin were present who were making complaints regarding demand of bribe by IO of an accident case of PS Shakarpur. He further deposed that the DCP asked him to verify the facts and to take appropriate action. He further deposed that Nitin and Amit gave him written complaint signed by them and also submitted a CD of the recording of conversation of Nitin and accused Vinod Kumar. He heard the recording in the computer and asked the complainant to prepare transcript of the conversation and the complainant produced the transcription of the CD and he found the transcript to be the correct version of the CD. He further deposed that after he was satisfied that a prima facie case for the offence under section 7/13(i)(d) of PC Act is made out against accused and on the verbal approval of the DCP, he wrote a rukka endorsed on the complaint Ex.PW2/A of complainant Amit and Nitin. His endorsement is Ex.PW17/A and gave the same to Duty Officer to lodge the present FIR and thereafter, the investigation was handed over to Insp. Surender Kumar. The witness also identified the CD Ex.P5 to be the same which he had seen in his office computer during verification proceedings prior to registration of FIR.

29. During the cross­examination on behalf of accused, he deposed that the incident was of 02.02.2014 at around 10:00 am to 11: am. He has not checked the case file of the accident case at the time of verification of the case. He further deposed that he had not verified as to what action CC No.15/19 State Vs Vinod Kumar 19 had already been taken by the accused with respect to acceptance of bail bonds. He denied the suggestion that he had not verified the facts fairly, scientifically and professionally and let the complainant Nitin and Amit implicate the accused in a false case. He denied the suggestion that he had come to know during verification that one Rahul Lumba and Ct. Annu Yadav were also present during the period Amit and Nitin were present. He further denied the suggestion that he had not compared/verified the transcription with the contents of the recording.

30. After completion of the prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. in which all the incriminating evidence was put to the accused which he denied as false and incorrect and stated that he has been falsely implicated in the present case. He further stated that he never demanded or accepted any money from the complainant Amit and Nitin who were bearing grudge against the accused who was the IO of case registered in PS Shakarpur. He further stated that the CD and the mobile phone produced are forged and fabricated. He further stated that the complainant was pressurizing him to show leniency in the case and after registration of the case, they started contacting him to extort money for deposing in his favour in the present case for which he recorded the said conversation and produced before the court.

31. Thereafter, accused examined four witnesses in his defence. DW­1 Rahul Loomba deposed that he had gone to PS Shakarpur on 02.02.2014 in the morning in connection with investigation of FIR no. 22/14, PS Shakarpur and at that time two boys were present at the PS and the accused was also present. He further deposed that there was no police person present in the room of the IO i.e. accused. He further CC No.15/19 State Vs Vinod Kumar 20 deposed that he stayed in the PS for about one and half hours and he was asked to identify the person who was driving the car involved in the accident and he had correctly identified the driver of the said car involved in the said accident. He further deposed that he has signed one document in the PS. He further deposed that till he was present in the PS, no demand of bribe was made by the accused and the accused had not taken any money in any manner from anybody.

32. During the cross­examination by Ld. Addl. PP, he deposed that he was doing private job and that on 02.02.2014, he had reached his office at about 01:30 pm to 02:00 pm. He further deposed that he had reached the PS at about 11:00 am on 02.02.2014. He identified his signature on the arrest memo Ex.PW4/A and admitted that time of arrest as mentioned in the Ex.PW4/A is 10:30 am. He further deposed that Ex.PW4/A was prepared after recording of his statement and the recording of statement started after 10 to 15 minutes of his reaching to PS. He further deposed that it is possible that he might have reached the PS at about 09:30 am as he was not sure about the timing. He identified his signatures on the personal search memo Ex.PW4/B in FIR no.22/14. He further deposed that he was not continuously present in the room of the IO for one and half hour and had left the room once or twice to go to the washroom for about five minutes.

33. DW­2 Ct. Annu Yadav is the prosecution witness but prosecution did not examine him stating that his role is not material. However, the said prosecution witness has been examined in defence by the accused. He deposed that he was present on emergency duty with the accused on 04/05.01.2014 at about 09:30 pm and a call was received regarding an accident and quarrel. He further deposed that he alongwith accused CC No.15/19 State Vs Vinod Kumar 21 Vinod Kumar reached at the spot and they met the complainant Rahul Lumba at the spot. He further deposed that on 02.02.2014, he was present at the PS alongwith the accused and were having tea there when three persons reached there including Amit and Nitin and they told the accused that they wanted to get released their vehicle. He further deposed that accused ASI Vinod Kumar called Rahul Lumba telephonically who reached there in around 10 minutes. He further deposed that he remained there while the proceedings took place. He further deposed that Rahul Lumba identified Amit as the driver who had caused the accident on 04.01.2014 and then accused Vinod Kumar asked Amit and Nitin to produce the relevant documents related to vehicle i.e. R.C., insurance, DL etc. He further deposed that Amit and Nitin produced the requisite documents as required which were seized. He further deposed that IO asked Amit and Nitin to produce surety for them/vehicle. He further deposed that one Ismail had also come with Amit and Nitin and Ismail would stand surety for Amit and thereafter, accused Vinod Kumar concluded the proceedings relating to release of vehicle and thereafter he left from there. He further deposed that Amit, Nitin and Ismail also left simultaneously and till the time he was present there, no demand of bribe was made by the accused in his presence.

34. During the cross­examination by Ld. Addl. PP for State, he deposed that he had left the PS Shakarpur alongwith the accused at about 09:20 pm. He further deposed that they had returned to PS after attending the said call at about 10:30 pm to 11:00 pm. He further admitted that as per the FIR no. 22/14 Ex.PW5/A, he had left the spot with Tehrir to PS whereas ASI Vinod Kumar had remained present at the spot. He further deposed that on 02.02.2014, he was on emergency duty from 08:00 am CC No.15/19 State Vs Vinod Kumar 22 to 08:00 pm and he remained in the PS from 08:00 am to 11:30am/12:00 noon and thereafter he left the PS after attending the call. He further deposed that the accused who was the IO had recorded his statement under section 161 Cr.P.C. on 02.02.2014. He further deposed that he had not gone to the accident spot alongwith the accused/IO Vinod Kumar on 02.02.2014. He further admitted that as per the arrest memo Ex.PW4/A, the place of arrest of Amit is Street No.5, School Block, Mandawali, Fazal Pur, Delhi and the date and time of arrest are 02.02.2014 at 10:30 am. He further admitted that he was present in the PS at 10:30 am on 02.02.2014 and he had not read the arrest memo before signing the same. He further deposed that he had signed the arrest memo in the PS on 02.02.2014. He further admitted that under his signature on Ex.PW4/A, he had not put the date. He further deposed that he had left the room of the accused Vinod Kumar at about 11:30 am on 02.02.2014 and Rahul Lumba had remained present in the said room for about one hour. He further deposed that accused had prepared all the said documents in his presence. He further deposed that at about 10:30 am, accused had started preparing the documents and concluded at 11:20 am and during that period he had not gone outside the room. He further deposed that he had signed the documents prepared by IO and he does not know what documents were brought by Amit. He further deposed that accused had made enquiries from Amit and at that time Rahul Lumba was also present in the room. He further admitted that Insp. Surender had recorded his statement and he had told Insp. Surender about innocence of accused Vinod Kumar.

35. DW­3 Vinod Kumar accused himself deposed that on 04.01.2014, he CC No.15/19 State Vs Vinod Kumar 23 was on emergency duty. He had received a call at about 09:30 pm regarding quarrel and accident and he had reached the spot alongwith Ct. Annu Yadav and met the complainant Rahul Lumba. Two persons who had caused the accident were got medically examined and were taken into custody and the case was registered against driver Amit. He further deposed that thereafter, he was deputed for Republic Day prepration duty. During this period, Amit had called him few times regarding release of the car and he had directed Amit to meet the SHO. He further deposed that in his room more than two persons used to sit there and on 02.02.2014, HC Ravinder was also sitting in the room when Ct. Annu Yadav came to the room. He further deposed that at around 10:00/10:15am, three persons namely Amit, Nitin and Mohd. Ismail came in the room and told that their car had been seized in FIR No.22/14, PS Shakarpur and that they wanted the said car to be released. He further deposed that he called the complainant Rahul Lumba to come to PS and identify the offender/driver of the car who had caused the accident and thereafter, Rahul Lumba reached and identified Amit as the driver who had caused the accident. He further deposed that he asked for relevant papers from Amit pertaining to the said car and Amit had not produced his driving license and went away to collect the same and produced the same after some time. He further deposed that he did all the necessary paper work and through all the proceedings, he did not say anything. He further deposed that he had not demanded any money from them. He further deposed that throughout the period when Amit, Nitin and Ismail remained there, Ct. Annu Yadav and Rahul Lumba were also present and HC Ravinder was also sitting and doing his work in the same room. He further deposed that after completing the CC No.15/19 State Vs Vinod Kumar 24 necessary paper work for bail of Amit, DW­3 alongwith Amit, Nitin, Ismail, Annu Yadav and Rahul Lumba came out from the said room. He further deposed that thereafter he proceeded on leave for 3­4 days and after his returning to duty, Nitin called him to tell that one case was registered against him by the Vigilance Branch. He further deposed that Nitin started calling him frequently to drop hints for taking some money from him and he did not pay any heed to him and on being fed up with the continuous calls of Nitin, he arranged one memory card and placed in his mobile phone to record his extortion calls. He further deposed that he recorded the telephonic conversations from his mobile numbers 9711771119, 8447273252 on his mobile phone no. 9899773236 and got prepared a CD of the said recording in the memory card at his home on the computer and also got prepared transcript of the said recorded conversation. He identified his Micromax phone Ex.DW3/A, original memory card Ex.DW3/B and the CD Ex.DW3/C alongwith its transcript Ex.DW3/D.

36. During the cross­examination by Ld. Addl. PP for the State, he deposed that he had not obtained the signature of HC Ravinder on the arrest memo, personal search memo of Amit in FIR no.22/14. He further stated that HC Ravinder remained in the said room even after DW­3 left the said room. He further deposed that he had verbally informed the IO of the present case regarding extortion calls made by Nitin. He further admitted that he did not make any complaint against Nitin to any authority but he had once gone to CBI office but they told him that they do not have jurisdiction to raid a public person. He denied the suggestion that he had made several calls to Nitin to settle the matter in order to escape punishment.

CC No.15/19 State Vs Vinod Kumar 25

37. DW­4 Nitin Kumar is the son of the accused. He had deposed that his father was having some recording in the memory card and he with the help of laptop prepared two true copies of the said recordings contained in the memory card in CD/DVD. Certificate under section 65B of Indian Evidence Act regarding correctness of the CD is Ex.DW4/A. He also identified the CD Ex.DW3/C and identified the CD to be the same which he had prepared with the help of laptop.

38. During the cross­examination by Ld. Addl. PP, he deposed that he is 12th pass and his laptop is of make HP. He further stated that he does not understand English properly and that the CD Ex.DW3/C was prepared in the month of September 2016 probably. He further stated that he had copied and pasted contents of memory card in the laptop and thereafter, he copied and pasted the same from laptop into DVD. He denied the suggestion that he had manipulated the contents of the memory card and had transferred the contents of the manipulated memory card from which he had prepared the DVD in order to save his father.

39. Arguments on behalf of Ld. Addl. PP for the State and Ld. Counsel for the accused heard.

40. Ld. Addl. PP for the State has argued that on 02.02.2014 accused demanded Rs.10,000/­ from PW­3 Amit Kumar for completing formalities of bail in case FIR no.22/14, PS Shakarpur in which accused Vinod Kumar was investigating officer. PW­3 Amit Kumar requested that he is not in a condition to pay the bribe amount whereupon accused threatened him and stated that his work would not be done without bribe. After accused took out Rs.2,000/­ from the pocket of PW­3 Amit Kumar, PW­3 Nitin Sharma started recording the incident by his I­phone. During the investigation, I­phone of Nitin Sharma and CD of the sting operation CC No.15/19 State Vs Vinod Kumar 26 were seized. Voice sample of the accused and Nitin Sharma were taken at CFSL and were deposited with CFSL alongwith I­phone and CD. CFSL has opined that there is no alteration/editing in the audio­video recordings contained in the CD and further opined that voices are probable voices of Nitin Sharma and accused Vinod Kumar and also opined that the contents of the video files available in the CD are also available in the I­Phone having similar characteristics with respect to all elements and have no sign of editing/alteration found between the conversation contained in the I­Phone.

41. Ld. Addl. PP further argued that PW­3 Amit Kumar and PW­2 Nitin Sharma have deposed categorically against accused and their version is supported by the electronic evidence. PW­11 Mohd. Ismail, friend of the complainant has supported the prosecution case on the material aspects. PW­12 Dr. Subrot Kumar Chaudhary and PW­13 S. Ingarsal, Senior Scientific Officer, CFSL have proved the FSL results. PW­15 Raj Kumar Singh, IPS has proved the prosecution sanction. PW­16 Insp. Surender Sharma has proved all the documents prepared by him during investigation and explained about the entire investigation.

42. Ld. Addl. PP further submitted that once the CFSL has opined that there was no editing or alteration in the exhibits, then the submission of defence regarding delay in sending the exhibits to CFSL and possibility of tampering and plantation is meaningless.

43. Ld. Addl. PP further argued that there is no provision in the law which bars investigating agency for obtaining specimen voice of the accused without permission of the court. IO had specifically deposed that accused was warned about the consequences pertaining to voice sample. Accused is a police official and was himself investigating officer in case CC No.15/19 State Vs Vinod Kumar 27 FIR No.22/14, PS Shakarpur and he was much aware about the consequences of giving or refusing voice sample.

44. Ld. Addl. PP for the State further argued that provision of Section 79A of I.T. Act is a directory provision and not a mandatory provision because it is an option for Central Government to notify any agency as expert for providing expert opinion on electronic evidence. This provision does not say that in absence of such notification opinion based on scientific provision given by a person well versed or skilled in such science is not admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of Section 79A of I.T. Act that report given by any other body/lab shall be inadmissible in evidence and further relied upon judgment of Hon'ble Madras High Court in K. Ramajayan Vs Insp. of Police, Chennai reported in 2016, Crl. L.J. 1542. It is a matter of fact that in the present case, exhibits were examined in CFSL in the year 2014 and till then there was no notification of Central Government under section 79A of I.T. Act.

45. Ld. Addl. PP further argued that CFSL reports clearly reflect that scientific experts had clearly picked certain words out of the transcript of recorded questioned conversation and out of the specimen voice of the accused. In the case of Sudhir Chaudhary, on the basis of objections raised by accused, Hon'ble Apex Court had observed that :

"we do not find substance in the submission that the text which is to be read by the appellant in the course of drawing their voice sample should contain no part of inculpatory words which are a part of disputed conversation. A commonality of word is necessary to facilitate a spectrographic examination".

46. Thus, Hon'ble Apex Court in the aforesaid case recognized requirement CC No.15/19 State Vs Vinod Kumar 28 to have similar words in specimen voice as compared to the questioned recorded conversation for conducting spectrographic examination.

47. Ld. Addl. PP further argued that on the basis of documentary and oral evidence, prosecution has proved the case against accused Vinod Kumar beyond reasonable doubt and prayed for conviction of the accused.

SANCTION :

48. Ld. Defence counsel has argued that the sanctioning authority has not applied his mind independently and the sanction was granted mechanically as sanctioning authority had not seen the audio­video footage before grant of sanction and therefore, same also reveals non­ application of mind by the sanctioning authority.

49. On the other hand, Ld. Addl. PP for the State has argued that no prejudice has been shown to have been caused to the accused. As far as the fact that the sanctioning authority had not gone through the audio­ video recording is concerned, in the judgment of State Vs R.C. Anand & Anr., (2004) 4 SCC 615, it was held that :

".............The counter­affidavit of the present appellant before the High Court clearly indicated that relevant aspects were noted by the Governing Body before arriving at its decision. The High Court seems to have proceeded on the basis that since the basic material or evidence i.e. alleged taped conversation, was not looked into by the Governing Body to form its own independent opinion to depart from the view of the President, the sanction was contrary to law. In Kalpnath Ravi Vs State, (1997) 8 SCC 732 it was clearly observed by this Court that the sanctioning authority is not required to wait for CC No.15/19 State Vs Vinod Kumar 29 the report of the experts. The sanctioning authority has only to see whether the facts disclosed in the complaint prima facie disclose commission of an offence or not. The actual production of the tapes, etc. are matters for proof during trial and are not necessarily to be undertaken at this stage..............."

50. In view of the above case of R.C. Anand, it is immaterial if the sanctioning authority has not gone through the audio­video recording before according sanction, as the same are matters of proof during trial.

51. Also, as regards application of mind by sanctioning authority in 2013 (8) SCC 119 State of Maharashtra through CBI Vs Mahesh Jain, following principles were culled out :­ "14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. 14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.

14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prime facie reach the satisfaction that relevant facts would constitute the offence.

14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.

14.6 If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.

CC No.15/19 State Vs Vinod Kumar 30

14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."

It was further held that :

"True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused."

52. Thus, grant of sanction is an administrative function and only prima facie satisfaction of the sanctioning authority is needed. The adequacy or inadequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. Also, flimsy technicalities cannot be allowed to become tools in the hands of accused.

53. Also in Mansukhlal Vithaldas Chauhan Vs State of Gujarat, decided on 03.09.1997 by the Hon'ble Supreme Court of India, it has been observed that :

"The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority.

CC No.15/19 State Vs Vinod Kumar 31

Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.

Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force by acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."

54. There is nothing on record to suggest that the sanctioning authority was under any obligation or compulsion to grant sanction or had not applied his independent mind.

CC No.15/19 State Vs Vinod Kumar 32

55. Also, in CBI Vs Ashok Kumar Aggarwal, decided on 31.10.2013 by the Hon'ble Supreme Court, it has been held that :­ "(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material.

The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.

(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withheld the sanction.

(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

(d) The order of sanction should make it evidence that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."

56. Certainly, it is the duty of the prosecution to send entire record of the case to the sanctioning authority and the emphasis of the Hon'ble Supreme Court in the above case is also that the record should be CC No.15/19 State Vs Vinod Kumar 33 sent alongwith material and document that may tilt the balance in favour of the accused and on the basis of which competent authority may refuse the sanction. Though, Ld. Counsel for the accused has argued that the entire record was not sent but he has failed to show as to which of the documents which the prosecution had not sent, would have tilted the balance in favour of the accused. None of the document which were not sent to the Sanctioning Authority could have formed basis for refusing sanction. Also, how the balance would have tilted in his favour, if the sanctioning authority would have perused the audio­video recording or the audio recording of the conversation between the complainant and the accused. The accused has not been able to point out any document or material which if would have been put before the Sanctioning Authority (but was not sent to Sanctioning Authority by the IO) might have tilted the balance in favour of the accused and on the basis of which it can be said that if the said document would have been brought to the notice of the Sanctioning Authority, he would not have granted sanction for prosecution of the accused. Moreover, no question regarding non­perusal of audio­video footages has been put to the witness PW­15, Sanctioning Authority during his cross­examination. The accused has also not been able to show that the discretion vested in the Sanctioning Authority was affected by any extraneous consideration or that the mind of sanctioning authority was under pressure from any corner.

57. Also, in Ashok Kumar Tshering Bhutia Vs State of Sikkim, 2011 (3) LRC 93 (SC) on the point of sanction, it was held as follows:

"......In the absence of anything to show that any defect or irregularity therein caused a failure of justice, the plea is without substance. A failure CC No.15/19 State Vs Vinod Kumar 34 of justice is relatable to error, omission or irregularity in the sanction. Therefore, a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19 (1) of the PC Act 1988 is a matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the Court under Cr.P.C., it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance........"

58. The object behind the requirement of grant of sanction to prosecute a public servant under the POC Act are designed as a check on frivolous and unscrupulous attempts to prosecute honest public servant for acts arising out of due discharge of their duties. Section 19(1) of the POC Act are mandatory and forbid courts from taking cognizance of any offence punishable U/S 7,10,11,13 & 15 of the POC Act against public servants except with the previous sanction of the competent authority.

59. Also, this court is of the view that accused failed to show that failure of justice had occasioned by any error, omission or irregularity in the sanction. Moreover, as regards errors, omission or irregularity in the sanction order including competency of the authority to grant sanction, it has been held in "State of Bihar Vs. Raj Mangal Pandey, 2014 (II) SCC 388" as under :

"In a situation where under both the enactments any error, omission or irregularity in the sanction which would also include the competence of the authority to grant sanction, does not vitiate the eventual conclusion in the trial including the conviction and sentence, unless of course a failure of justice has CC No.15/19 State Vs Vinod Kumar 35 occurred."

"The object behind the requirement of grant of sanction to prosecute a public servant need not detain the court save and except to reiterate that the provisions in this regard either under the Code of Criminal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute an honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is - whether the act complained of has a reasonable connection with the discharge of official duties by the government or the public servant. If such connection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bona fide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay and motivated, ill­founded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provisions have been incorporated in Section 19(3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Procedure which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the CC No.15/19 State Vs Vinod Kumar 36 opinion of the court a failure of justice has been occasioned. This is how the balance is sought to be struck."

60. PW­15 has denied the suggestion that he had not applied his mind. There is nothing established on record to suggest that any draft sanction order was placed before competent authority before grant of sanction and therefore, it cannot be said that there is any non­application of mind.

61. In view of the above discussion, it cannot be said that the order of sanction for prosecution of accused is not valid or illegal.

ADMISSIBILITY OF ELECTRONIC EVIDENCE :

62. It is argued by Ld. Defence counsel that the recording available in I­ phone Ex.P1, transcription Ex.PW2/B and CD Ex.P5 cannot be read in evidence as there is unexplained delay of 2 months and 8 days in sending the exhibits to CFSL and therefore, possibility of tampering and plantation cannot be ruled out. In this respect, Ld. Counsel for accused has relied upon Jitender Vs State, 2006 (3) JCC 1382 Delhi. It is further argued that there is no opinion of Physic Division, CFSL as to whether tampering was possible in the recording with the help of I­ phone Ex.P1. In this respect, reliance is placed upon Ashish Kumar Dubey Vs State, 2014(IV) AD (Delhi) 473, by the Ld. Defence counsel. As far as the judgment in Jitender's case is concerned, the said case was a Murder Case and recovery of blood stained shirt was doubtful. The said judgment is just not applicable to the present case. More so, when the CFSL expert PW­13 Sh. S. Ingarsal, has clearly opined that he had examined the audio­video footages contained in the I­Phone Ex.P1 as well as the CD Ex.P5 with the help of Final Cut Express Editing CC No.15/19 State Vs Vinod Kumar 37 software and had found no editing/alteration and had further opined that the footages contained in I­Phone Ex.P1 and CD Ex.P5 are genuine. In view of the report of CFSL experts PW­12 and PW­13, possibility of tampering is ruled out and delay, if any, in sending the exhibits for examination is not material. Also, in Ashish Kumar Dubey's Case, the Micro Cassette Recorder (MCR) was not examined by CFSL for ruling out tampering and no query regarding tampering or editing was raised by the IO and therefore, the expert had not expressed any opinion in this regard. However, in the present, the recording device I­phone Ex.P1 and CD Ex.P5 were examined by PW­13 to rule out any possibility of tampering/editing/alteration etc. The relevant part of the testimony of PW­13 is reproduced herein below :

"............... I examined these two exhibits marked Ex.1 and Ex.2. The parcel mark Ex.1 contained a CD and the exhibit mark Ex.2 contained a Apple i­phone. I examined the exhibits containing three video footages in each of the exhibits with the help of i­mac system containing final cut express editing software. I found that the video footages contained in both the exhibits are genuine in respect of the characteristic features of the video footages. All three video files contained in CD are single shot video clips having no sign of editing / alteration. Video files contained in CD were also found available in i­phone having similar characteristics with respect to all elements in the visuals (video clips) including duration of individual clips. All the video files contained in the i­phone are also single shot video footage having no sign of editing/alteration between the conversation of the video footage..........."

Relevant part of cross­examination of PW­13 is reproduced hereinbelow :

"............... Q. If a video is given to you for analysis after erasing initial portion of it or the last portion of it, then I CC No.15/19 State Vs Vinod Kumar 38 suggest to you that as an expert you cannot tell about the same ?

Ans. As a part of our analysis we analyze whether the footage has an abrupt beginning or abrupt ending and therefore if there is any abrupt beginning or abrupt ending then we would know about it.

It is correct that in the report Ex.PW13/A, there is no mention about any abrupt beginning or abrupt ending. (vol. Because there was no sign of abrupt beginning or abrupt ending in the identified video recording examined by me). ..........."

63. It is further argued by Ld. Counsel for the accused that no permission of the court was taken for obtaining sample voices of the accused and no written warning of adverse inference was given by IO to the accused before recording his specimen voice and that the IO during cross­ examination has stated about giving oral warning but entire case is silent on this aspect. However, there is no law or provision requiring permission of court for obtaining sample voice of accused. In the judgment of Ritesh Sinha Vs State of U.P. decided by Hon'ble Supreme Court on 02.08.2019 also, Hon'ble Supreme Court has observed that magistrate can authorize the investigating agency to record the sample voice of accused and has power to order a person to give sample voice but no specific permission is required from court before recording sample voice.

64. Ld. Counsel has further stated that the electronic evidence in this case is not admissible in view of the fact that the original device is not examined by PW­12 Subrat Kumar Chaudhary, CFSL Expert and therefore, no reliance can be placed on recording contained in Ex.P1. Also the court had observed during the examination of PW­11 that the face of the accused cannot be seen in any of the video played and CC No.15/19 State Vs Vinod Kumar 39 therefore, the recording is of no help to the prosecution. Though the original device is not examined by PW­12 Sh. Subrat Kumar but the same was examined by expert Sh. S. Ingarsal, PW­13 who clearly opined that the video files contained in CD were also available in I­ Phone having similar characteristics including duration of individual clips. The testimony of PW­12 and PW­13 together establish that the files available in the CD Ex.P5 were also available in I­Phone Ex.P1 and there was no tampering in the files and that the voice of accused and Nitin Kumar tallied with respective questioned voices. As far as the fact that the face of the accused cannot be seen in the videos played, the same is immaterial in view of the fact that his sample voice has tallied with the questioned voice and therefore, it is proved on record that the conversation in the audio­video footages contained in the I­Phone and CD was between Nitin Sharma and accused. PW­2 Nitin Shama already stated that while he was recording the incident he was taking care to switch off the recording whenever the accused used to get up from his chair and therefore, it appears that the face of the accused could not be captured in the recording.

65. It is further argued that the IMEI number of the phone device was not noted down by the IO in the memo Ex.PW2/C and also PW­11 and PW­ 12 have not noted down the IMEI number in their respective reports and therefore, the same is doubtful. Moreover, no date of recording is available contained in the CD as well as in the I­phone. It is also argued that the report Ex.PW12/B and Ex.PW13/A cannot be read in evidence for want of notification under section 79A I.T. Act. Ld. Counsel for the accused has relied upon the judgment of the present court in case titled State Vs Gurpreet Singh Walia decided on 18.04.2018. It is also argued CC No.15/19 State Vs Vinod Kumar 40 unidentified voices of other persons were not incorporated by the IO in the specimen voices obtained and in this respect Ld. Counsel for the accused has relied upon Nilesh Dinkar Vs State, (2011) 4 SCC 143.

66. In the Nilesh Dinkar's case, the voice of accused was identified by a police official who had earlier arrested the accused in another case and not by an expert and therefore, the said judgment is not applicable to the facts of the present case. As voice identification in the present case has been conducted by an FSL expert, 4­5 unidentified voices could not have been mixed with the sample voice in such circumstances. It is only where the voice has been identified by a private person who claims that he can recognize the voice, that the voice is to be mixed with 4­5 unidentified voices. The said judgment is therefore, not applicable to a case where sample voice is recorded in a lab by an expert and thereafter, is examined by spectrographic methods. Though the Ld. Counsel for the accused has argued that the IO has not noted down the IMEI number of phone in the seizure memo Ex.PW2/C. However, the same is not correct as the perusal of the Ex.PW2/C shows that the IMEI No. 013424005555724 is noted down in the seizure memo. In the report of CFSL expert Ex.PW12/A also, the same IMEI number is mentioned on page no. 4 by the expert PW­12 and therefore, this argument that the IMEI number of the phone device was not noted down by the IO or by the FSL expert is not correct as per the record.

67. Regarding non­availability of the date of recording in the CD and I­ phone, PW­2 and PW­3 have clearly stated that they have recorded the said conversation on 02.02.2014 and moreover, no such question regarding date of recording has been put to PW­2 and PW­3 during their cross­examination.

CC No.15/19 State Vs Vinod Kumar 41

68. As far as the argument that the CFSL is not notified under section 79A of I.T. Act is concerned, the electronic evidence is explained in Section 29­A IPC :­ The words "electronic record" shall have the meaning assigned to them in clause (t) of Sub­section (1) of section 2 of the Information Technology Act, 2002.

69. Sec. 2 (1)(t) I.T. Act :

""Electronic record" means data, record or data generated, image or sound stored, received or sent in an Electronic Form or Micro Film or computer generate micro fiche.

Similarly qualification of expert is defined under section 45­A Evidence Act and Section 79­A I.T. Act.

Section 45A Evidence Act :

When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer recourse or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79­A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.

Section 79A I.T. Act :

Central Government to Notify Examiner of Electronic Evidence­ The Central Government may, for the purposes of providing expert opinion on Electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as a Examiner of Electronic Evidence."

70.

71. The issue as to whether in absence of notification under section 79A of Information Technology Act, the report given by an expert from CFSL, CC No.15/19 State Vs Vinod Kumar 42 New Delhi regarding examination of electronic evidence, would be admissible in evidence, is a legal issue.

72. The relevant law provisions in this regard Section 79 A of I.T. Act was enacted in the year 2000, which came into force w.e.f. 17.10.2000. This provision provides that the Central Government may for the purposes of providing expert opinion on electronic form evidence, specify, by notification, any department, body or agency as an examiner of electronic evidence.

73. Moreover, the provision under section 79A I.T. Act or provision under section 45A Evidence Act do not provide that in absence of such notification, opinion based on scientific examination given by a person well versed or skilled in such science, would not be admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of section 79A of I.T. Act, that the report given by any other authority/lab would be inadmissible in evidence. Therefore, the court does not find any occasion to go into the question of intention of legislature while using the term 'may' in Section 79 A.

74. Hon'ble High Court at Madras in the case of K. Ramajayam v. Inspector of Police, Chennai 2016 Cr.LJ 1542, on the issue of Section 79A of I.T. Act, observed that­ "It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW­ 23) and Pushparani (PW­24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are CC No.15/19 State Vs Vinod Kumar 43 correct and cannot be faulted."

75. It is also pertinent to mention that the Information Technology Act was enacted in the year 2000, after much advancement in the use of electronic data, transactions being carried out by means of electronic data and other means of electronic communication. It was so enacted to provide safeguards necessary for legal recognition to such transactions. However, recorded conversations were being produced during criminal trial of a case since long and much prior to 2000 and same were duly relied upon by the courts, subject to certain precautionary measures, for the purpose of giving decision in such cases.

76. Also, section 293 Cr.P.C. refers to certain government scientific experts and provides that report of such experts may be used as evidence even without calling such expert to formally prove their reports before the court. Thus, report of certain experts were given special status and were admissible without formally calling such expert in the witness box to prove the same. In the year 2005, legislature added one more category in section 293 (4) Cr.P.C. to include any other government scientific expert specified by notification by the Central Government for this purpose. This addition took effect from 23.06.2006. Thereafter, w.e.f. 27.10.2009, legislature again came up with section 45A Indian Evidence Act, which provided that opinion of examiner of electronic evidence referred in Section 79 A of I.T. Act shall be a relevant fact in respect of any information stored in any computer resource or any other electronic devise. Thus, it is clear that legislature has been taking steps one after another for the purpose of due legal recognition of electronic evidence in formal manner.

77. It cannot be said that prior to 2009, opinion of any scientific expert qua CC No.15/19 State Vs Vinod Kumar 44 recorded conversations was irrelevant or not admissible in any court proceedings. Section 45 of Evidence Act in itself is enabling provision to accept opinion of such expert in the court proceedings. Obviously, the courts over the passage of time, have evolved certain precautionary measures for the purpose of appreciation of expert opinion. Notification under section 79A of I.T. Act may further lay down a basis to accept report of such notified expert under Section 293(4)(g) Cr.P.C., without formal proof of the same. It is also to be appreciated that other experts viz. handwriting experts have to prove their opinion or report before the court, after appearing as witness. Their opinion/reports are evaluated and appreciated by court on merits rather than being rejected on the grounds that they are not notified experts. As the CFSL was not notified under section 79A of the I.T. Act, the formal proof of report of such experts cannot be dispensed with under section 293(4)(g) of Cr.P.C. and the prosecution would have to prove their report by calling such experts as witnesses.

78. In the present case, PW­12 and PW­13 appeared in the court for their evidence and proved their respective reports and were subjected to lengthy cross­examination also by the defence. They adopted prevalent scientific instrument and method of audiography and spectrography. Their opinion/report is based on scientific examination, rather than personal opinion. Therefore, same would be admissible in evidence.

79. As far as the judgment of the present court State Vs Gurpreet Singh Walia qua Section 79A of the I.T. Act is concerned, the same is not binding on the present court. Moreover, the present court has taken a different view in State Vs Sube Singh decided on 28.09.2019 by this court.

CC No.15/19 State Vs Vinod Kumar 45

80. It is further argued that no independent sentences were made for the purpose of taking sample voice of the accused by using common available words from the questioned voice and as such the recordings and sample voice cannot be used against the accused. Moreover, no specimen voice of accused was taken by incorporating incriminating words from questioned recording. In this respect, Ld. Counsel for the accused has relied upon Sudhir Choudhary Vs State, AIR 2016 SC 3772.

81. The court has heard the sample voice of the accused. During the recording of sample voice, preliminary voice was also recorded, wherein the accused has stated that he has ensured that the micro SD Card used for recording his sample voice is fresh and blank. He has further stated that he is getting his sample voice recorded voluntarily, without any force etc. Once, he has got his sample voice recorded voluntarily and had also ensured that the micro SD Card was fresh and blank, this argument that he was made to read sentences from the transcript is meaningless. Also, no prejudice has been caused to him even if he has been made to read few sentences from the transcript. Moreover, in Sudhir Chaudhary's Case, the Hon'ble Supreme Court has not stated that if the accused is made to read sentences from the transcript, the whole proceedings would be vitiated. In Sudhir Chaudhary's Case, the accused had taken objection prior to recordings of his sample voice but no such objection was taken by the accused before recording of his sample voice in the present case. Rather, he has voluntarily participated in the proceedings for recording of sample voice.

82. It is also argued that the transcript of questioned voice and sample voices were also provided to CFSL, so the identity of the speakers were CC No.15/19 State Vs Vinod Kumar 46 already with the expert. Ld. Defence counsel has further submitted that the expert PW­12 is not a qualified expert as he was not possessing any degree in the field of voice identification and as such the report Ex.PW12/A cannot be read. In this respect, Ld. Counsel has relied upon Sukhdeo Singh Vs State, 1993 (1) CCC 57 SC. In Sukhdeo Singh Vs State, opinion of handwriting expert was in question and it was observed that before relying upon the report of handwriting expert, the court must be satisfied that the expert is competent, reliable and dependable witness. The court has gone through the reports of PW­12 and PW­13 as well as their testimony and it is opined that both the experts are competent, reliable and dependable. In fact, PW­12 and PW­13 have been cross­ examined at length and during their cross­examination also they have stated that their report is based on scientific methods. PW­12 has clearly stated that he has extracted the audio from the video file and thereafter, compared the same with the specimen voices. Even the copy of the spectrographic examination was placed on record as Ex.PW12/B during his cross­examination. PW­12 has clearly stated that he had compared the audio with the sample voices and the spectrogrms markings were done by him on visual comparison. As regarding possessing any degree in voice identification is concerned, during cross­examination, PW­12 has clearly stated that there is no such degree or diploma of voice examination offered by any university in India and that he had completed M.Sc. in Physics and Ph.D in Forensic of Audio­Video Authentication from Punjab University, Patiala and thus, he is a qualified expert. Also, providing of transcript of questioned voice to the expert is rather essential for the experts to carry out their examination effectively.

83. As regards the question of credibility of the audio­video recordings, Ld. CC No.15/19 State Vs Vinod Kumar 47 defence counsel disputed recorded specimen voice of accused. He submitted that no witness has deposed about specimen voice being recorded in his presence. He also alleged that all these recordings are tampered and fabricated recordings, which do not contain voice of accused. The micro SD cards containing sample voices of accused Nitin Sharma are Ex.PW8/S1 and Ex.PW8/S2 respectively. PW­8 and PW­9 are the Lab Attendants, CFSL witnesses who had recorded the sample voices of accused as well as Nitin Kumar. In view of the testimony of PW­8 and PW­9, the above argument is not sustainable.

84. In view of the above discussion, it is directed that electronic evidence i.e. audio­video footages contained in I­phone Ex.P1 and CD Ex.P5 are authentic, reliable and admissible in evidence.

APPRECIATION OF EVIDENCE, DEMAND & ACCEPTANCE :

85. Ingredients of Section­7 being relevant are reproduced hereinbelow :

"7. Public servant taking gratification other than legal remuneration in respect of an official act - whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment CC No.15/19 State Vs Vinod Kumar 48 which shall be not less than six months but which may extend to five years and shall also be liable to fine."

86. Ingredients of Section­13 (1)(d) being relevant are reproduced hereinbelow :

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

(d) if he ­

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

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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

87. As regards Section 7 and 13(1)(d) of the P.C. Act, Hon'ble Supreme Court in C.K. Damodaran Nair Vs Govt. of India, (1997) 9 SCC 477, observed as below :

"Before we proceed to consider whether the prosecution has, in fact, succeeded in proving that the appellant demanded bribe from the Hospital authorities it will be necessary to ascertain whether such demand is an essential ingredient of the offences in question. To sustain the charge under Section 161 IPC [since omitted from the IPC and incorporated in Section 7 of the Prevention of Corruption Act, 1988 ('1988 Act' for short) with certain modifications] against the appellant the prosecution was required to prove that :

(i) the appellant was a public servant at the material time;

(ii) the appellant accepted or obtained from PW9 and gratification other than legal remuneration; and

(iii) the gratification was for exempting the Hospital CC No.15/19 State Vs Vinod Kumar 49 in question from its liability to pay statutory provident fund contributions.

So far as the other offence is concerned, section 5(1)

(d) of the Act (now replaced by Section 13(1)(d) of the 1988 Act) lays down that if a public servant, by corrupt or illegal means or by otherwise abusing his position as a public servant obtained for himself or for any other person any valuable thing or pecuniary advantage he would be guilty of 'criminal misconduct' and Section 5(2) thereof (which corresponds to Section 13(2) of the 1988 Act) speaks of the punishment for such misconduct. The other Section which requires reproduction is Section 4(1) of the Act (it corresponds to Section 20(1) of the 1988 Act). It reads as under :

"Where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or of an offence referred in clause (a) or clause (b) of sub­section (1) of Section 5 of this Act punishable under sub­section (2) thereof it is proved that an accused person has accepted or obtained or has agreed to accept or attempt to obtain for himself, or for any other person any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing as the case may be as a motive or reward such as is mentioned in the said Section 161 or as the case may be without consideration or for consideration which he knows to be inadequate."

From a combined reading of Section 161 IPC and Section 4(1) of the Act it is evident that if, in the instant case, the prosecution has succeeded in proving that the appellant was a public servant at the material time and that he had 'accepted' or 'obtained' Rs.1,000/­ from PW9 as gratification not only the first two ingredients of the former would stand proved but also the third, in view of the presumption under the latter which the Court is bound to draw unless, of course, the appellant, in his turn, has succeeded in CC No.15/19 State Vs Vinod Kumar 50 rebutting that presumption. According to Shorter Oxford Dictionary 'accept' means to take or receive with a 'consenting mind'. Obviously such a 'consent' can be established not only by leading evidence of prior agreement but also from the circumstances surrounding the transaction itself without proof of such prior agreement. If an acquaintance of a public servant in expectation and with the hope that in future, if need be, he would be able to get some official favour from him, voluntarily offers any gratification and if the public servant willingly takes or receives such gratification it would certainly amount to 'acceptance' within the meaning of Section 161 IPC. It cannot be said, therefore, as an abstract proposition of law, that without a prior demand there cannot be 'acceptance' The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Sections 5(1)(a) and (b) - and not under Section 5(1)(c), (d) or

(e) of the Act. 'Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)

(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either 'acceptance' - or 'obtainment'.

88. In Ram Krishan & Anr. Vs State of Delhi, 1956 SCR 183, Hon'ble Supreme Court has observed that :

"...............The word "obtains", on which much stress was laid does not eliminate the idea of acceptance or CC No.15/19 State Vs Vinod Kumar 51 what is given or offered to be given, though it connotes also an element of effort on the part of the receiver. One may accept money that is offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by abusing his position as a public servant............."

89. In M.W. Mohiuddin Vs State of Maharashtra, (1995) 3 SCC 567, Hon'ble Supreme Court has observed that :

"...............The word "obtains", observed whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances of each case. Hon'ble Supreme Court held that it was proved that accused made a demand and also got the affirmation from the complainant that he had brought the demanded money and at his instance, the complainant wrapped the money in the handkerchief given by the accused and placed the same on the bag which was brought by the accused and as asked by him; these steps have been taken into consideration in arriving at the conclusion that the accused had in fact "obtained" the pecuniary advantage, namely, that he received the illegal gratification............"

90. Thus, to attract the offence under section 7 and 13(1)(d) of the P.C. Act, the accused must have either accepted or obtained or attempted to obtain illegal gratification. Also, for obtaining a pecuniary advantage, an effort is required on the part of the receiver. Let us analyse the evidence on record to find out as to whether accused accepted or obtained for himself any illegal gratification.

91. It is argued by Ld. Defence counsel that entire evidence brought on CC No.15/19 State Vs Vinod Kumar 52 record by prosecution is shaky and is much beyond reasonable doubt in as much as PW­2 Nitin Sharma deposed that accused demanded Rs.10,000/­ for releasing Amit on bail and took out Rs.2,000/­ from the pocket of PW­3 forcefully, after which PW­2 started recording the conversation. It is also stated that the accused has demanded the balance amount and he (i.e. PW­2) told accused to take Rs.1,000/­ and assured to pay balance amount later and accused told them that he is taking less amount. It is stated that these allegations are not true in as much as the transcript Ex.PW2/B is silent qua demand of balance amount or any specific amount and about threats of dire consequences. It is stated that PW­2 has made ample improvements in his statement before the court. It is also stated that PW­2 during the cross­examination dated 09.04.2018 deposed that "accused ne kaha ki bataye hue paise jab de doge tab tumhara kaam karunga, varna kaam me rukawate daal dunga" but such averments are not available in his complaint Ex.PW2/B. In the complaint Ex.PW2/B, it is stated that "Sir, I told Mr. Vinod that I am not in conditions to pay this amount at this he threatened us with dire consequences and said this work can't be done without bribe. He also said that I will put this work into the glitches if you dont pay the said amount."

92. The main purport and gist of what is stated by PW­2 in cross­ examination and what is stated in complaint Ex.PW2/B is same.

93. It is also stated that PW­3 deposed that accused had asked whether they have come prepared but PW­2 has not deposed about any such talks. It is also stated that PW­3 deposed that accused forcefully took Rs.2,000/­ from him, however, PW­11 has not stated that accused took the money CC No.15/19 State Vs Vinod Kumar 53 from his pocket. PW­11 has clearly stated that accused took the money from Amit as soon as he took out the same from his pocket.

94. It is further argued that PW­11 deposed that accused talked about money for release of vehicle after he has signed the documents asked by the accused. He also deposed that some money was handed over to the accused. PW­11 further stated that money handed over was Rs.1,000/­ or Rs.2,000/­. PW­11 further deposed that some conversation of money had taken place but he had shown ignorance about the exact talks. Moreover, PW­11 denied taking out money from the pocket of Amit and thus, PW­11 falsified the version of PW­2 and PW­3 because as per PW­ 2, they left the room immediately after signing the bail bond/papers, whereas as per PW­11, he had signed the documents first and thereafter, some talks of money started for release of vehicle. It is further argued that PW­11 deposed that accused had stated that "jo 2000 rupaiye tumne diye hai, ye to file hi kha jayegi" but there is no such averment as per the transcript Ex.PW2/B.

95. Para­1 of the transcript Ex.PW2/B is reproduced hereinbelow :

"Vinod : Mein Nitin Babu is baare me tumhe kya batau. Mein kuch bhi nahi bataunga. Kisi se pata kar lo ki jamanat ka kya lete hai. Kitna kharcha hai. Ye file 2 hazar rupaiye kha jayengi.........."

96. The above said lines uttered by the accused Vinod Kumar clearly reflects words "ye file 2000 kha jayegi" and thus, accused had said about Rs.2,000/­ being spent on file.

97. In the case Bharuda Broginbhai Harjibhai vs. State of Gujarat AIR 1983 SC 753, it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not CC No.15/19 State Vs Vinod Kumar 54 be attached undue importance. Their Lordships have enumerated following reasons for arriving at this conclusion :­ "1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise.

Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.

3) The powers of observance differ from person to person, what one may notice, another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.

4) By and large people cannot accurately recall a conversation and reproduce the very words used by them on heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape­ recorder.

5) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guess­work at spur of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimates in such matters. Again, it depends upon the time­sense of individuals which varies from person to person.

6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

7) A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross­examination made by counsel and out of nervousness mix­up facts, get confused regarding CC No.15/19 State Vs Vinod Kumar 55 sequence of events, or fill up details of imagination at the spur of the moment. The sub­conscious mind of the witness sometimes so operate on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him, perhaps it is a sort of psychological moment."

98. The minor differences in the testimony of PW­2, PW­3 and PW­11, which the Ld. Defence Counsel has painstakingly highlighted do not go to the root of the matter. All the three witnesses have deposed on same lines. If their testimonies would have been verbatim same, it would have rather led to a conclusion, that they were tutored. They cannot be expected to recall the sequence of events accurately and should not be expected to be human tape­recorder. As the observance power differ from person to person, there is bound to be some difference in the testimony of PW­2, PW­3 and PW­11. PW­11 has not stated that no talks of bribe whatsoever took place. He has stated that some talks of money were going on. Amit in FIR no. 22/14 was accused of bailable offence and was entitled to be released on bail under section 436 Cr.P.C. and could not have been taken into custody, and no money was required for granting bail in bailable offences. In a bailable offence, the only choice available to the investigating officer is between taking a simple recognizance of the accused or demanding security with surety. But PW­11 has clearly stated that some talks of money did took place, thus, clearly establishing that accused demanded bribe to release Amit on bail even in a bailable offence.

99. The relevant portion of the transcript of the recorded conversation Ex.PW2/B to show that accused obtained illegal gratification of Rs.2,000/­ is reproduced hereinbelow :

CC No.15/19 State Vs Vinod Kumar 56

"Vinod : Mein Nitin Babu is baare me tumhe kya batau. Mein kuch bhi nahi bataunga. Kisi se pata kar lo ki jamanat ka kya lete hai. Kitna kharcha hai. Ye file 2 hazar rupaiye kha jayengi.

Vinod : Yaar dekho jo agar hai to thik hai, nahi to kal chadhaunga kaam to. Isme to koi baat nahi hai yaar.

Nitin : Sir sahi baat hai. Jo lagte hai wo to lagte hi hai. Abhi maine bhai ko miss call kari hai. Aap karo to sahi sir, kaam to karo, mein de jaunga, usme koi dikkat wali baat nahi hai. Koi aapse alag nahi hai hum.

Vinod : Mujhe kuch nahi chahiye phir mein jaa raha hu apne ghar. Nitin Babu mein bata raha hu ki mujhe bahut jaldi me hu. Aur bahut jaruri kaam hai. Ye phir ho jayega chaar din bad.

Nitin : Are nahi nahi sir, ab aakhri kuch bata do. Kuch kam kar do.

Vinod : Maine appko bata diya ab jo hone wali chij thi na. Aap pata karo kisi thanedar se ki is chij ke, aap police ke reference se ho. Maine to pahle hi apni taraf se jitni bhi umeed thi, acha meri suno mein idhar udhar bhagta phirunga, ye bhi verify karane de. Aage vakil vegarah bhi (apmaanjanit sabd istemal kiye) jo hai.

Nitin : Nahi, waha jakar aap jama bhi karaoge, court bhi jaoge. LIC wale par jaoge, mein de jaunga bad me. Abhi hazar deta hu, baki bad me de jainga, meri jimmewari hai.

Vinod : Bhai Sahab aap maaf karo yaar Nitin Babu, dekho mein hath jodkar kahta hu aapke saamne. Dekh lo mein agar baat banti hai to thik hai, nahi to mein raha hu chal. Chaar din bad aakar karwa lena free, mein kar dunga.

CC No.15/19 State Vs Vinod Kumar 57

Nitin : Mein to abi lakar de du. Mein to kah rraha hu ek ghanta ruk jao yaar. Sir dekho bhai bhi abhi dukan par hai. Mere ko sirf 10 minute chahiye.

Vinod : 10 minute se jada nahi wait karunga."

100. The words "kitna kharcha hai, kisi se pata kar lo jamanat ka kya lete hai" clearly indicate that the accused was demanding illegal gratification for bail (jamanat). If there was no demand, where was the occasion to say that he would do the work for free after four days. The above conversation clearly reflects that accused made a conscience effort to obtain the illegal gratification.

101. It is also argued that the complainant Amit Kumar stated that he had talked to accused several times but no call records have been placed on record by the IO and even CAF has not been collected by the IO. It is also argued that as per PW­2, the transcript Ex.PW2/B was given alongwith the complaint Ex.PW2/A but as per PW­3, it was given alongwith CD, therefore, the version of PW­2 and PW­3 are contrary as to when the transcript Ex.PW2/B was given. However, the court does not find any contradiction in this regard, as the CD as well as transcript were given alongwith the complaint Ex.PW2/A as per the prosecution case. Also, call records of CAF of Amit Kumar are not relevant or material to decide the present case.

102. It is further argued that except the bald statements of PW­2 and PW­3, there is no evidence of demand of bribe by the accused and nothing was recovered from the accused. It is also argued that PW­17, IO has stated a different version about partial recording of spot conversation by PW­2. PW­2 has stated that he could not record CC No.15/19 State Vs Vinod Kumar 58 conversation as the accused was frequently moving from his seat, whereas PW­17 has stated that he was told by PW­2 and PW­3 that they could not record complete conversation as they were receiving calls on their mobile phone. The version of PW­17 in this regard is hearsay evidence and should be discarded. Moreover, the statement of PW­2 and PW­3 is corroborated by the statement of PW­11 as well as the electronic evidence i.e. the three audio­video footages and thus, it cannot be said that the case is based on the bald statements of PW­2 and PW­3.

103. It is also argued that PW­3 Amit Kumar has pleaded guilty in case FIR no. 22/14 and was convicted vide order dated 06.12.2014 passed by the Ld. MM and thus, had accepted the documents including arrest memo, bail bonds etc. filed alongwith the chargesheet. Certified copy of the final order in FIR no.22/14 has also been filed alongwith the written submissions which reveals that Amit had pleaded guilty to the offence under section 279 IPC before the Plea­Bargain Judge. By pleading guilty to the offence under section 279 IPC, it cannot be said that he had also accepted that the particulars, stated in his arrest memo were also correct. Even as per the defence version the arrest memo in FIR No. 22/14 was prepared while sitting in the PS and the place of arrest of accused Amit (Complainant in this case) has been shown as Street no. 5, School Block, Mandawali, Fazal Pur, Delhi. This reveals that the document of arrest/seizure/bail bonds etc. were prepared casually of the accused in FIR no. 22/14 with incorrect particulars. DW­2 Ct. Annu Yadav has also stated that he signed the documents without reading.

104. As regards raising of presumption under section 20 of the PC Act, it was held in Mukut Bihari Vs State of Rajasthan 2012 (11) SCC 645 as under :­ CC No.15/19 State Vs Vinod Kumar 59 The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification but the burden rests on the accused to displace the statutory presumption raised under section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interest and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused persons."

105. Section 20 of the Prevention of Corruption Act, 1988 reads as under:­ "Section 20. Presumption where public servant accepts gratification other than legal remuneration.

- (1) Where, in any trial of an offence punishable CC No.15/19 State Vs Vinod Kumar 60 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 any 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) Where in any trial of an offence punishable under section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

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

106. As regards drawing of presumption, it has been held in Madhukar Bhaskarrao Joshi Vs State of Maharashtra (2000) 8 SCC 571 as under:­ "The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said CC No.15/19 State Vs Vinod Kumar 61 premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification of any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."

107. The presumption under section 20 of the PC Act is rebuttable either through cross­examination of witnesses of prosecution or by adducing reliable evidence as held in C. M. Girish Babu vs CBI, Cochin High Court of Kerala (2009) 3 SCC 779. The facts remains that prosecution established through the evidence of complainant that the accused had demanded Rs.10,000/­ and had obtained Rs.2,000/­ from complainant. Thus, the question for further consideration is whether obtaining of Rs.2,000/­ along with other evidence could establish that it was illegal gratification.

108. On careful scrutiny of the evidence on record, it transpires that there is a direct evidence regarding demand and acceptance of bribe amount by accused which gives rise to the presumption under section 20 of the PC Act.

109. In my view, in the facts and circumstances of the present case, the events which followed in quick succession lead to the inference that CC No.15/19 State Vs Vinod Kumar 62 money was obtained by accused from Vinod Kumar and prosecution succeeded in proving that accused had demanded Rs.10,000/­ and had obtained Rs.2,000/­ from the complainants Amit Kumar and Nitin Sharma on 02.02.2014 and presumption under section 20 of the PC Act is also thus, attracted in the present case.

DELAY IN LODGING FIR :

110. It is stated that the complaint Ex.PW2/A was filed only on 14.02.2014 whereas alleged date of incident is 02.02.2014 and no clarifications was sought by the IO about the delay and in this respect Ld. Counsel for accused placed reliance upon V. Venkata Subharao Vs State, 2007 (1) RCR (Cr.) 519 SC.

111. The complaint has been filed within 12 days of the incident and thus, there is no delay in lodging the FIR. In fact, PW­2 and PW­3 deposed that they tried to contact the SHO, PS Shakarpur who told them that there are two Vinod Kumar posted in PS Shakarpur. There does not appear any delay in lodging of FIR, to the judicial mind.

112. It is further argued that the IO had seized the I­phone on 12.03.2014 whereas the complaint was lodged on 14.02.2014 and there is no explanation about the delay in seizing the mobile phone. The complaint was lodged on 14.02.2014 and the original device was seized within one month of the lodging of FIR and there does not seem any delay in seizing of mobile phone also.

MISCELLANEOUS ARGUMENTS :

113. The final argument of the Ld. Counsel for the accused is that possibility of putting accused in trouble by PW­3 cannot be ruled out as CC No.15/19 State Vs Vinod Kumar 63 PW­3 was involved in accident's case by the accused/IO. In this respect, reliance is placed on Ganga Kumar Vs State, AIR 2005 SC 3123. The court has perused the judgment in Ganga Kumar's Case, which is a trap case and in that case, the appellant had initiated a criminal case against the complainant. However, the present case is not a trap case and is a sting case and the criminal case was initiated against complainant Amit by DW­1 Rahul Loomba and not by the accused.

APPRECIATION OF TESTIMONY OF DEFENCE WITNESSES :

114. The accused has examined four witnesses in his defence. As far as DW­4 is concerned, he is the son of the accused and has filed certificate under section 65B Indian Evidence Act. DW­4 deposed that he has prepared the CD of the conversation between the accused and Nitin Sharma contained in the phone of his father. The CD Ex.DW3/C, the phone Ex.DW3/A and the memory card Ex.DW3/3 were sent to FSL, Rohini, however, after receiving of the expert report, the accused has stated that he does not want to summon the expert witness who had examined the CD and the memory card containing the conversation between the accused and Nitin Sharma. Even defence has not summoned the witness to prove the CDRs preserved vide order dated 08.05.2017 on the application of accused. Therefore, as the FSL reports dated 20.06.2019 and 30.07.2019 have not been proved by the accused in his defence, so the evidence of alleged conversation between the accused and Nitin Sharma cannot be perused by the court to decide the present case. Also, as the authenticity of the said electronic evidence has not been proved by the accused by summoning the relevant FSL experts, the testimony of DW­4 regarding certificate under section 65B Indian CC No.15/19 State Vs Vinod Kumar 64 Evidence Act is also of no help to the accused.

115. As far as testimony of DW­1 and DW­2 is concerned, the version regarding their presence at the relevant time in the room of the accused differ in as much as, DW­1 has stated that there was no other police official present in the room of the IO i.e. the accused. When DW­1 who was the witness of the accused has stated that no other police official was present in the room of the IO, it is doubtful that the DW­2 Ct. Annu Yadav was present in the room of the IO throughout as deposed by him.

The arrest memo of Amit Kumar reveals that the place of arrest has been shown as Street no. 5, School Block, Mandawali, Fazal Pur, Delhi. Even as per the defence witnesses, the complainant Amit Kumar was formally arrested in PS Shakarpur and thus, the documents regarding arrest etc. were prepared casually by accused with incorrect particulars and the accused has manipulated the documents regarding arrest, seizure etc. in FIR No. 22/14. DW­1 has stated that one of the boys had left the PS to bring the driving license but as per DW­2, no person or Amit had gone to bring the driving license. DW­2 has rather deposed that Amit had brought all the documents pertaining to his vehicle at the time when he had come to the room in question. Again, DW­1 has admitted that he was not present in the room of the IO throughout and had left the room of the IO once or twice to go to the washroom for about five minutes.

116. It is also argued that the accused has appeared as defence witness under section 315 Cr.P.C. and was cross­examined by Ld. Addl. PP but no suggestion was given by the Ld. Addl. PP that he had demanded Rs.10,000/­ and even no suggestion was given about motive and demand and forcefully taking out money from the pocket of Amit Kumar and threat to defer the work by the accused. It is also argued that suggestion CC No.15/19 State Vs Vinod Kumar 65 was given to DW­1 that he had left the PS immediately after putting his signatures on Ex.PW4/A and therefore, the prosecution has admitted the presence of DW­1 in the PS on 02.02.2014. It is further argued that the presence of Ct. Annu Yadav on 02.02.2014 was also proved as the arrest memo Ex.PW4/A was also got identified from DW­2. It is also argued that both the witnesses DW­1 and DW­2 has categorically stated that no money was demanded by the accused from anybody or taken any money. It is argued that defence witnesses are entitled to equal treatment and in this respect placed reliance upon Anil Sharma Vs State, 2004 (3) RCR (Cr.) 774 SC. Certainly defence witnesses are entitled to equal treatment as prosecution witnesses but the defence witnesses have given a totally contradictory version about the presence of such witnesses at the relevant time. DW­1 has admitted that he was not present throughout the proceedings in the room of accused and thus, could not have deposed about what happened in the room in his absence. As per accused, even Ct. Ravinder was present in the room when the complainant Amit Kumar had come alongwith Nitin Sharma and Mohd. Ismail but DW­1 has stated that no other police official was present in the room of accused. Even DW­2 Ct. Annu Yadav has not stated about the presence of Ct.Ravinder in the room of the accused at the relevant time. As per the version of DW­1, presence of DW­2 in the room of accused itself is doubtful. In such circumstances, testimony of DW­1 and DW­2 does not inspire confidence and is not reliable.

CONCLUSION :

117. It has thus, been proved that the accused has committed offence under section 7 and 13(1)(d) punishable under section 13(2) of CC No.15/19 State Vs Vinod Kumar 66 Prevention of Corruption Act, 1988, on the basis of :

(i) Testimony of PW­2, PW­3, PW­11, PW­12 and PW­13.

(ii) Electronic evidence i.e. I­phone Ex.P1 and CD Ex.P5.

(iii) CFSL reports coupled with testimony of PW­ 11 and PW­12.

118. On the basis of the evidence led on record, the prosecution has been able to prove the offences under section 7 and 13(1)(d) punishable under section 13(2) of Prevention of Corruption Act, 1988 committed by the accused on 02.02.2014 beyond reasonable doubt and the accused has not been able to prove his defence even to the extent of preponderance of probability. Thus, accused Vinod Kumar is held guilty for the offence under section 7 and 13(1)(d) punishable under section 13(2) of Prevention of Corruption Act, 1988.

119. This court appreciates the diligent and hard work of Ld. Addl. PP Sh. Manoj Kumar Garg, attached to this court who had provided outstanding cooperation and also provided latest judgments of Hon'ble Apex Court and Hon'ble High Court on the Prevention of Corruption Act which have assisted this court in the interpretation and appreciation of facts and law in right perspective. Digitally signed by KIRAN KIRAN BANSAL Announced in the open court BANSAL Date:

2019.11.20 on this 16th November, 2019. 12:20:07 +0530 (Kiran Bansal) Special Judge (PC Act) ACB­01 Rouse Avenue District Court Central District, New Delhi CC No.15/19 State Vs Vinod Kumar 67