Delhi District Court
Cbi vs . Jati Ram Meena & Anr. on 29 July, 2022
In the court of Shri Naresh Kumar Laka
Special Judge (PC Act) (CBI-20)
Rouse Avenue District Court, New Delhi
CBI No. 47/19 (16/16)
RC No. DAI-0004-A-2011/CBI/ACB/N.D
(CNR No. DLCT11-000103-2019)
U/s 120-B IPC & Section 7 & 13 (2) r/w
13(1) (d) of the Prevention of Corruption Act, 1988.
In the matter of:
Central Bureau of Investigation (CBI)
5B, 3rd Floor, CGO Complex,
Lodhi Road, New Delhi.
versus
1. Sh. Jati Ram Meena
S/o Late Sh. L.R. Meena,
R/o 23/142, Lodhi Colony, New Delhi
..........Accused No. 1
2. Sh. S.K. Gupta
S/o Late Sh. J.N. Gupta,
R/o 21/29, 4th Floor,
West Patel Nagar, New Delhi-110001
..........Accused No.2
Date of filing of final report (charge-sheet) : 20.01.2012
Final arguments concluded on : 12.07.2022
Date of judgment : 29.07.2022
Result : Accused no.1 is
convicted
Accused no. 2 is
acquitted
Appearances
Sh. Pramod Singh, Ld. Public Prosecutor for CBI.
Sh. P.K. Sharma, Ld. Counsel for accused Jati Ram Meena (A-1)
Sh. Sunil Mehta, Ld. Counsel for accused S.K. Gupta (A-2)
Case No. CBI No. 47/19 Page No. 1 of 31
CBI vs. Jati Ram Meena & anr.
JUDGMENT
Brief facts of the case Sh. Khyali Ram Meena (complainant) was working as 'Personal Assistant' (Hindi) in the Ministry of Defence, Government of India and he was attached with Sh. S.K. Gupta (accused no.2) who was a DDG in his office. Sh. S.K. Gupta also attached complainant with Sh. Jati Ram Meena (Accused no.
1) to work with him. At the relevant time, the accused no.1 gave grading of the ACR of the complainant as 'very good'. As per accused no.2, the accused no.1 was not officially authorized to write ACR of complainant. Therefore, he also wrote ACR of the complainant for the same period by giving his grading as 'below average'. Aggrieved by the same, the complainant preferred an appeal dated 20.12.2010 against the said grading of ACR as given by accused no.2 which was rejected. The complainant alleged that he came to know that if the accused no.2 gave his consent, his ACR grading could be upgraded. It is further alleged that on a particular day, the complainant met accused no.2 and the latter instructed him to meet accused no.1 and, thereafter, the complainant met accused no. 1 in January, 2011 where accused no.1 told that Sh. S.K. Gupta (Accused no. 2) can upgrade his ACR if he is given an amount of Rs. 65,000 and the complainant was also asked to write again to the competent authority. On such demand being raised (allegedly), the complainant approached CBI office and filed his complaint dated 01.06.2011 (Ex. P-5/A) alleging demand of bribe by accused no.1 and accused no.2.
2. The officials of the CBI verified the said complaint and the relevant proceedings were recorded in the verification memo dated 01.06.2011 (Ex. PW5/B). On the next date i.e. 02.06.2011, a trap team was constituted in Case No. CBI No. 47/19 Page No. 2 of 31 CBI vs. Jati Ram Meena & anr.
CBI office and after making all preparation and following the usual procedure, as recorded in handing over memo (Ex. PW5/C), a trap was laid. Before the said trap, preparation was made for arrangement of DVR for recording of voice, treating currency notes of Rs. 45,000 with the phenolphthalein powder (in short 'PPL powder'), briefing of team members, independent witness, etc. On the said day, a trap was laid and the accused no.1 was caught red handed when he accepted the bribe amount from the complainant.
3. After apprehension of the accused no.1, he was sent alone to the accused no.2 with switched on DVR for recording the voice conversation and after 10 minutes, the CBI team entered into the said office and heard the voice conversation, which prima facie revealed that the accused no.2 was also involved in the said offence of demanding of bribe, conspiracy, misuse of official position etc. Accordingly, both the accused persons were arrested and after completion of the investigation, final report (charge sheet) was filed before this court alleging the offences under Section 120B IPC and Section 7 & 13 (2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 (in short 'PC Act').
Taking of cognizance, framing of change & trial
4. Both the accused persons were released on bail during investigation upon filing of bail applications. After taking cognizance of the offences, the accused persons were summoned. They were given complete set of charge sheet and the attached documents in accordance with Section 207/208 of Cr.PC.
Case No. CBI No. 47/19 Page No. 3 of 315. After hearing arguments from both sides, an order for framing of charge was passed by my Ld. Predecessor on 18.03.2013 and joint charges were framed against both the accused persons on 28.03.2013 for the offences punishable under Section 120B IPC r/w 7 & 13 (2) r/w 13(1) (d) of the PC Act and substantive offences under Section 7 & 13 (2) r/w 13(1) (d) of the PC Act to which both the accused persons pleaded not guilty and claimed trial. Accordingly, this case was put to trial and the prosecution examined following witnesses:
1. PW-1 Sh. V.B.Ramteke (S.S.O.Grade-1(Chemistry) (CFSL)
2. PW-2: Shri Amitosh Kumar, Sr. Scientific Officer, Grade-II (Physics)
3. PW-3: Shri Tej Prakash Srivastava Retired Principal Director
4. PW-4: Sh. Kailash Chandra Meena Deputy Director, (COORD)
5. PW-5: Sh. Khyali Ram Meena (complainant)
6. PW-6: Sh. Laxmi Narayan (independent witness).
7. PW7: Sh. Devendra Kumar Sharma (for prosecution sanction).
8. PW-8: Sh. Govind Sahay Bairwa, (independent witness).
9. PW-9 : Sh. Vijay Yadav, Inspector(verification officer).
10.PW- 10 Sh. Ajay Kumar, Nodal officer of Bharti Airtel.
11.PW-11: Inspector Gaurav Singh, CBI(TLO).
6. After completion of prosecution evidence, separate statements of accused persons were recorded under Section 313 Cr.PC by putting all incriminating evidence for seeking their explanations. Accused no.1 examined Case No. CBI No. 47/19 Page No. 4 of 31 CBI vs. Jati Ram Meena & anr.
Sh. Ram Dayal (DW-1) in his defence. Accused no.2 filed an application under Section 315 Cr.PC for his examination which was allowed and thereafter he examined himself as D2W1. The accused no.2 also filed certain documents on record.
7. I have heard arguments at length from Sh. Pramod Singh, Ld. Public Prosecutor for CBI, Sh. P.K. Sharma, Ld. Counsel for accused Jati Ram Meena (Accused no. 1) and Sh. Sunil Mehta, Ld. Counsel for accused S.K. Gupta (Accused no. 2).
8. In the instant case, the voice recordings were heard earlier during trial by my Ld. Predecessor. The said voice recordings were referred in evidence and, therefore, a direction was given to CBI to produce again the said voice recordings before the undersigned. On 25.07.2022, HC Finnay Sam (MHCM) produced the said voice recordings (Ex. Q-2) which have been heard by the undersigned. Record perused.
REASONS FOR DECISION
9. Before analyzing evidence of the case of prosecution as well as defence of the accused persons, it is paramount to decide first as to what are the evidence which can be said to be admissible in this case and as to which the material which are not admissible in evidence on account of some legal defect or requirement of law. Therefore, before adverting to the factual aspect of the case, this court would like to deal with the legal issues/objections which were raised by the Ld. Counsel for the accused persons and because xthey have bearing on the appreciation of factual aspects.
Case No. CBI No. 47/19 Page No. 5 of 31Applicability of Section 5 of the Indian Telegraph Act, 1885
10. The Ld. Counsel for the accused no. 1 vehemently argued that the voice recordings as relied by the prosecution are illegal, unauthorized and inadmissible in evidence in view of contravention of Section 5 of the Indian Telegraph Act, 1885. In this regard, he also relied on the case of 'Jatinder Pal Singh vs. CBI, 2022 SCC Online Del 135'. For a better understanding, Section 5 of the Indian Telegraph Act, 1885 is reproduced as under:
"Sec. 5. Power for Government to take possession of licensed telegraphs and to order interception of messages:
(1) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government, or any officer specially authorised in this behalf by the Central Government or a State Government, may, if satisfied that it is necessary or expedient so to do, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act.10[5. Power for Government to take possession of licensed telegraphs and to order interception of messages.--(1) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government, or any officer specially authorised in this behalf by the Central Government or a State Government, may, if satisfied that it is necessary or expedient so to do, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act."
(2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied Case No. CBI No. 47/19 Page No. 6 of 31 CBI vs. Jati Ram Meena & anr.
that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order.
Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section."
11. On the contrary, Ld. PP for CBI argued that the Section 5 of the aforesaid Act does not apply to the voice recordings which were recorded in this case by using a DVR and same were not captured by intercepting the telephonic calls/conversation of the accused. He further stressed that the said Section 5 applies to the intercepted calls only.
12. From the plain reading of Section 5 of the Indian Telegraph Act, 1885, it is observed that the said Section relates to any message, or class of messages to or from any person or relating to any particular subject brought for transmission by or transmitted or received by any telegraph. It is doubtful whether the voice recording conversation which were recorded on a DVR without intercepting calls by the CBI comes within the said category.
13. From the perusal of the judgment of 'Jatinder Pal Singh vs. CBI (supra)' as relied by the Ld. Counsel for accused no.1, it is seen that the said Case No. CBI No. 47/19 Page No. 7 of 31 CBI vs. Jati Ram Meena & anr.
judgment was passed with regard to intercepted voice recording/calls and there is no discussion about the voice recording which is recorded on a DVR. In that case, the issue of taking of permission as per Section 5 of the Indian Telegraph Act was dealt with and it was held that the evidence collected without valid permission was not admissible. However, in the instant case, voice recording as relied by the prosecution are not the outcome of intercepted calls or the telegraphic messages/calls. Therefore, the said judgment is distinguishable to the present case and does not apply. The voice recordings as relied by the prosecution are, however, subject to further scrutiny on other points which will be dealt with in the subsequent paragraphs.
Requirement of Certificate under Section 65 B of the Indian Evidence Act
14. The Ld. Counsel for the accused no. 1 further argued that the voice recordings as relied by the prosecution are not admissible without filing a certificate under Section 65B of the Indian Evidence Act, 1872 especially when the original device/DVR containing the voice recording has not been produced before this Court. He further argued that there is a difference in primary and secondary evidence and in the absence of production of primary evidence, the prosecution cannot prove the secondary evidence without following the established procedure of law. In this regard, he has also relied on the case of 'Anwar P.V. vs. P.K. Bhaseer, 2014 (10) SCC 473'.
15. It is an admitted case that the prosecution did not place on record the original DVR which captured the voice recordings at the relevant time of verification and trap proceedings. Ld. PP for CBI argued that there was a practice in the CBI to keep such original device in safe custody to avoid any Case No. CBI No. 47/19 Page No. 8 of 31 CBI vs. Jati Ram Meena & anr.
mal-functioning and corruption of data and a copy of the said data was made on a CD for the purpose of investigation as well as trial. The aforesaid submission of Ld. PP appears to be logical but as per law this Court can appreciate the evidence of both sides which include production of primary and/or secondary evidence subject to their proof. This court is also required to follow the specific provisions of the Indian Evidence Act, 1872 as well as the precedents of the Hon'ble Superior Courts.
16. The electronic record as produced on record is only a copy of data on a CD which is a secondary evidence only and Section 65B of the Indian Evidence Act provides a provision when such evidence can be treated as primary evidence upon filing a Certificate incorporating all the essential conditions as provided therein. For a reference, the Section 65B (1) of the said Act is reproduced as under:
"(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible."
17. The said requirement has been held mandatory by the Hon'ble Supreme Court of India in various cases including the latest case of 'Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, Civil Appeal No. 20825-20826 OF 2017 dated 14.07.2020' which was decided by three Judges Case No. CBI No. 47/19 Page No. 9 of 31 CBI vs. Jati Ram Meena & anr.
Bench of the Hon'ble Supreme Court of India consisting of Hon'ble Mr. Justice Rohinton Fali Nariman, S. Ravindra Bhat and V. Ramasubramanian and the relevant observations are as under:
"Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
18. Thus, it is clear that in the absence of production of original device/DVR and/or in the absence of production of a Certificate under Section 65B of the Indian Evidence Act, the electronic record produced on record Case No. CBI No. 47/19 Page No. 10 of 31 CBI vs. Jati Ram Meena & anr.
cannot be relied or read in evidence. However, this Court agrees with the submission of Ld. PP for CBI that a charge/fact can be proved even without electronic record if other admissible evidence is available on record. Therefore, this Court can take into consideration the other substantial piece of evidence by excluding the electronic record.
Admissibility of telephonic call details
19. After reaching the CBI office, the complainant was asked to make a telephonic call from his mobile phone i.e. 99XXXXX956 to the mobile number of accused no.1 i.e. 99XXXXX665. The relevant call details of the mobile phones have been placed on record from Bharti Airtel Ltd. (D-12). The counsel for the accused persons argued that said call details are not admissible being secondary evidence. However, the record reveals that a certificate under Section 65 B of the Indian Evidence Act has been placed on record which has been exhibited as Ex. PW10C, and therefore, this court is of the considered opinion that after filing of the said certificate on record, the said call details, mobile numbers, date, time, duration and the location tower are admissible.
Objection on the identification of voice recordings
20. The Ld. Counsel for the accused no.1 argued that the voice of the complainant and accused persons, are required to be identified by comparison of various specimen samples as is done in the case of identification of case property and accused in other usual TIP proceedings. In this regard, he also relied on the case of 'Nilesh Dinkar Paradkar vs. State of Maharashtra, 2011 ( 3) SCALE 473 (para 30).' The aforesaid argument is not required to be dealt Case No. CBI No. 47/19 Page No. 11 of 31 CBI vs. Jati Ram Meena & anr.
with now as the voice recording has already been excluded to be read in this case, as held in the preceding paragraph.
Non examination of MHC(M), Road Certificate Rider and the IO
21. The Ld. Counsel for the accused no. 1 argued that the prosecution has miserably failed to prove the sample and the case property as the concerned MHC(M) and IO has not been examined. It is further stated that the official seal remains throughout with TLO/IO which creates doubt on the case of prosecution. In this regard he relied on the case of 'Jahan Singh vs. CBI- 2021 (1) JCC 35'. It is also claimed that in the absence of examination of IO, the defence of the accused persons was seriously prejudiced as there was no one to explain the contradictions which came on record during examination of material witnesses.
22. On the contrary, the Ld. PP for CBI argued that the IO was not examined as he expired during the course of trial before his examination. It is a settled proposition of law that a fact can be proved through a sole witness if the testimony of such witness is found natural, consistent and trustworthy. There are catina of judgments of Hon'ble Apex Court on the point that mere on account of non-examination of IO, the entire case of the prosecution cannot be thrown away and the testimony of other material witnesses including the eye witnesses is most important. In the instant case, the non examination of the IO was not intentional and deliberate and it was due to the fact that he expired and the prosecution was left with no option. Accordingly, this Court holds that the non-examination of the IO did not prejudice the accused persons where the other material witnesses were cross examined on record.
Case No. CBI No. 47/19 Page No. 12 of 3123. Regarding non-examination of the MHC(M) and Road Certificate Rider, same are the observations as opined above and what is important to prove physical case property is the production of the same through any official than the specific one. It is also not necessary that in every case, Road Certificate needs to be brought on record. This Court also does not find any substantial stand of the accused persons to raise any doubt on tampering of the case property. In view of the aforesaid observations, the aforesaid arguments are rejected.
Defect in prosecution sanction under Section 19 of the PC Act
24. The Ld. Counsel for the accused persons vehemently argued that the prosecution miserably failed to prove the prosecution sanction under Section 19 of the PC Act and the sanction orders placed on record are mechanical, defective and without application of mind and the competent officer has not been examined by prosecution, who has accorded the said sanction. It is further argued that there was only signature on the said sanction of the concerned authority without any word of approval. Reliance is placed in this regard on the case T.K. Ramesh Kumar vs. State -2015 (15) SCC 629- Pg 636- para 17 & 18). On the other hand, the record reveals that PW7 Sh. Devendra Kumar Sharma has specifically deposed that along with request of CBI, various documents consisting of details of sequence of events, transcripts of conversations, statements of witnesses and other documents, as collected by the CBI during investigation, were received in his office. PW-7 further deposed that the President of India was the competent authority to remove the accused J.R. Meena and Sh. S.K. Gupta, therefore, the file was placed to the concerned Minister since the Hon'ble President has delegated his power to him. He also Case No. CBI No. 47/19 Page No. 13 of 31 CBI vs. Jati Ram Meena & anr.
stated that after perusing the record, the authority competent in the present case accorded the sanctions for prosecution against both the accused persons. This witness has also identified his signature on the sanction orders (Ex. PW7/A ) (D-18) and (Ex. PW7/B (D-19). In his cross-examination, he reiterated that he processed sanction case after going through all the document/record given by the CBI.
25. From the aforesaid testimony, it is evident that the sanction orders were passed after going through all material documents and that it reflected the application of mind of the competent authority. The Ld. Counsel for the accused has pointed out that PW-7 deposed that "sanction was accorded by the competent authority and he was not the competent authority", and thus he argued that the competent authority has not been examined, therefore, this document was not proved on record. I do not find any substance in the aforesaid argument since the witness rightly said that he was not the competent authority as the competent authority was President of India and in the said sanction orders, it has been mentioned 'by Order and in the name of the President' which proves that it was given by the competent authority. It is not necessary that an official document can be proved by the competent authority only and when the sanction orders were signed by PW-7 himself, it can be said that the said documents have been proved by their author. He further deposed that file was sent to competent authority. As such, this court holds that the said prosecution sanctions were given after following the due process of law and on application of mind and the arguments raised are merit less.
26. In the case of 'Surender Singh Mand vs. State of Punjab 2016 (8) SCC 722', as relied by the Ld. Counsel for the accused no.1, the main Case No. CBI No. 47/19 Page No. 14 of 31 CBI vs. Jati Ram Meena & anr.
principles of applicability of Section 197 Cr.P.C. were discussed and a distinction has been drawn with regard to the requirement of obtaining of sanction under Section 197 Cr.P.C. when an offence is committed by a public servant "while acting or purporting to act in the discharge of his official duty"
and in the offences which are committed by the public servants outside the purview of official duty. It was laid down in the said case that a prosecution sanction under Section 197 Cr.P.C. or Section 19 of PC Act is mandatory when offence is committed by a public servant in discharge of his official duty but there is no discussion on the point of appreciation, defect or application of mind while giving such sanction, as argued by the Ld. Counsel for the accused no. 1 in the said judgment.
27. The Ld. Counsel for the accused no.1 further argued that the non- application of mind is reflected from the fact that the CBI had sent draft sanction orders and the concerned authority gave the sanction orders verbatim on the same draft sanction orders. On the contrary, Ld. PP for CBI relied on the case of 'Neera Yadav vs. CBI (Bharat Sangh)', in case no. Crmn. Revision no. 2282 of 2004, Hon'ble Allahabad High Court and argued that mere supply of draft sanction order does not mean that there was no application of mind.
28. In my considered opinion, what is important to be seen is the appreciation of the documents, facts and materials which are assessed by the Sanctioning Authority and not specific usages of the phrase 'application of mind'. The application of the mind is an abstract perception which cannot be seen but it is required to be gathered or inferred from the actual assessment of the material. In the instant case, PW-7 specifically deposed that at the time of Case No. CBI No. 47/19 Page No. 15 of 31 CBI vs. Jati Ram Meena & anr.
grant of sanction, the entire record was perused. Therefore, this Court holds that the prosecution sanction was duly issued after application of mind on the basis of the relevant records which were supplied to them. The other points as raised for claiming defect in the sanction orders are also merit less.
29. It is further argued that the offences under the IPC and the PC Act are different and, therefore, different prosecution sanctions are required to be obtained and filed by CBI for the respective offences under IPC and special law. In this regard, reliance is placed on the case of Surender Singh Mand vs. State of Punjab 2016 (8) SCC 722. In the latter part of this judgment, this court has held that the prosecution has failed to prove the offence under Section 120B of IPC, therefore, the sanction under Section 197 Cr.PC is not required and therefore, aforesaid argument also becomes redundant.
Findings against the accused no.2
30. The original DVR containing the voice recording of telephonic conversion as well as personal conversation between complainant, accused no.1 and accused no.2 (individually or collectively) has not been produced on record. It is a admitted case that the investigating agency as well as prosecution relied on a CD which contained copy of the data of the said original DVR and/or its inbuilt memory. It has already been held above that in the absence of production of original device/DVR and/or in the absence of production of a Certificate under Section 65B of the Indian Evidence Act, the electronic record produced on record cannot be relied or read in evidence. Therefore, the voice recording which is the main foundation of the prosecution's case against the accused no.2 cannot be relied in evidence.
Case No. CBI No. 47/19 Page No. 16 of 3131. The entire case of the prosecution is based on the plea that the accused no.2 demanded bribe through accused no.1 but there is no direct evidence that the accused no.2 himself has ever demanded any amount from the complainant and during cross-examination, the complainant admitted that no demand of bribe was made directly by the accused no.2 from him. The entire conversation between the complainant and the accused no. 1 relating to the allegation that accused no.1 told to the complainant that the accused no.2 has demanded bribe comes within the category of 'hearsay evidence' qua the accused no.2 which is not admissible under law.
32. Even if it is presumed for the sake of arguments that the voice recording of the conversation between the complainant and accused no.1 is admissible on record, then also it is observed that the accused no.1 was not clear and certain that the accused no.2 has agreed to receive the amount or doing the work of the complainant which is reflected from his voice conversation as under:
" शशककयतकतकर - बकत हह ई उनसस महकरकज सस गगपक जज सस अशभयगक : हकह हह ई थज शशककयतकतकर : हह अशभयगक : सगबह हज हह गई थज शशककयतकतकर : अचछक तह कहकह कक पहगकम, तह बगलक लह उनकह अशभयगक : अभज तह गए हह वह कहज मजशटटग मम, ३ बजस तक आएगक शशखयकतकतकर : 03 बजस तक आएगक अशभयगक : वह आपकक मनक कर रहक हह वह, पतक नहज कयय, पतक नहह कयय, मस रस समझ मम नहज आ रहक हह "
........
"अशभयगक - नहह बह ठ कर मम खग द बह ठठट ग क, उसकस सकथ उसकस सकथ बह ठठट ग क शमलनक पडस ग क न उसकस सकथ, हमम दहनय बह ठ कर मनकएट गस उसकह कहहगस उसकह".Case No. CBI No. 47/19 Page No. 17 of 31
33. Likewise from the conversation recording (Q2), which took place between the accused no.1 and accused no.2, it is seen that there are various deviations and no certainty to show agreement of the accused no.2 to receive the amount in specific terms. When the voice recording (Q2) was heard by the undersigned, the accused no.2 was also heard at one place saying that he will not receive any amount nor will meet complainant,. It is also noticed that at the end of transcription document, some part of voice of accused no.2 was not typed. From the said conversation as recorded in the CD but not mentioned in transcription, it is heard that before the CBI team entered into the office of accused no.2, he was reading a letter to show his inability to upgrade the ACR of complainant but the said part has not been mentioned in the transcription document. Moreover, the talks between both the accused persons were midway when the CBI team raided the office of accused no.2, therefore, it cannot be said with certainty that accused no.2 had agreed to receive the amount of bribe for correcting the ACR of the complainant or not. Thus he is entitled for giving benefit of doubt.
34. After reading entire conversation of the accused no.1 and accused no.2 which has been relied by the prosecution (if it is presumed to be admissible) as a whole also, it is observed that there was no agreement to receive the amount nor the other essential ingredients of Section 7 of PC Act like, 'accepts or obtains or attempts to obtains from any person, for himself or for any other person, any gratification' are present. Admittedly the tainted money was retained by the CBI team after its recovery from accused no.1 and it was not offered to accused no.2, therefore, there was no attempt or actual acceptance of the said amount by the accused no.2.
Case No. CBI No. 47/19 Page No. 18 of 3135. The Ld. Counsel for the accused no.2 heavily relied on certain judgments and argued that since the accused no.2 was not in a position to change or recommend changes in the up-gradation of the ACR of complainant, no occasion had arisen or could have arisen for demanding any amount of bribe by him from the complainant. From the defence evidence led by the accused no.2 and the relevant circular, notifications, rules and official order (rejecting the appeal of the complainant) produced on record, this court finds substance in the aforesaid argument that accused no.2 was not in a position to correct/review ACR grading in question especially keeping in mind the fact that the essential ingredients of the alleged offence under Section 7 of PC Act have not been proved on record, as observed above.
36. It is a settled proposition of law that the entire burden of proving a fact is upon the prosecution (unless there is a presumption to the contrary). The prosecution did not prove conversation which took place between the accused no. 1 and 2 as accused no. 1 was not a witness of the prosecution and instead he was also facing trial of the present case. As per Section 306 to 308 Cr.P.C., an accused can become a witness of the prosecution but for that purpose, specific proceedings are required to be held for making such accused as an approver witness but no such steps were taken in this regard. Therefore, the conversation of the accused no. 1 with the accused no.2 (though it is not admissible on other ground also) cannot be considered at all.
37. As regards the offences under Section 120 B IPC and Section 13 of PC Act also, this court does not find any material to prove a conspiracy between the accused no.1 and 2 for commission of the aforesaid offences and for proving the criminal misconduct on the part of the accused no.2.
Case No. CBI No. 47/19 Page No. 19 of 31Accordingly, this court holds that the accused no.2 deserves to be acquitted from all the aforesaid charges.
Findings against accused no.1 Arguments on the point of previous enmity and receiving of amount "As a motive or reward"
38. The Section 7 of the PC Act, 1988 uses the words "as a motive or reward for doing or forbearing to do any official act." The Ld. Counsel for accused no.1 argued that the present case is a result of revenge and vengeance since the ACR of complainant was graded as "below average" by the accused no. 2 and despite filing of appeal by complainant, the said ACR was not upgraded because the accused no. 2 did not send his positive comments for review of the said ACR which resulted in dismissal of the said appeal. It is further stated that after decision of the appeal, Sh. S.K. Gupta was left with no power to overwrite the said grading or the said decision and the complainant was also well aware of the said fact since he had already been communicated the decision of rejection of his appeal. Therefore, no occasion arose for demand of bribe by the accused no. 1 and/or accused no.2 and, therefore, there was no motive or reward for the aforesaid allegations of the complainant. In this regard, Ld. Counsel for the accused no.1 relied on a case of State through CBI Vs. Kishore Kumar, Kanungo (2019 (261) DLT 518 - para 25,26,27 & 28 CRLA 792/2003).
39. From the perusal of the said decision, it is seen that it was an appeal filed by the CBI against an acquittal judgment in which the findings of the Ld. Trial Court were affirmed and the said appeal was dismissed by the Hon'ble High Court of Delhi by holding that there was no motive or reward for Case No. CBI No. 47/19 Page No. 20 of 31 CBI vs. Jati Ram Meena & anr.
demanding of bribe. However, from the perusal of the said judgment, it is seen that the said judgment of the Trial Court was not based alone on the point of absence of motive or reward but there were other infirmities, illegalities, contradictions in the testimony of witnesses and many other grounds on which accused was acquitted, which were the basis of dismissal of appeal. Accordingly, this Court is of the considered opinion that the said judgment is distinguishable to the facts of the present case.
40. The explanation (d) of Section 7 of PC Act defines the words "A motive or reward for doing". The same is reproduced as under:
"A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression."
41. From the aforesaid definition, it is clear that even if a public servant who receives gratification for doing something or for forbearing to do something, does not intend or is not in a position to do or has not done that thing for which the gratification was taken, in that case also the said Section 7 of the PC Act applies. However, the aforesaid plea of not having a power to do an act, can be considered as one of the factors to decide innocence while examining the defence of the accused keeping in mind the entire facts and circumstances of the case. In the instant case, the prosecution has duly proved on record the factum of receiving of gratification by the accused no. 1 from the complainant and, therefore, as per Section 20 of the PC Act, a presumption arises that the accused has accepted the gratification as a motive or reward such as is mentioned in Section 7 unless the contrary is proved. The said Section 20 of PC Act is reproduced as under:
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(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (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 person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, 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 sub-sections (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 interference of corruption may fairly be drawn."
42. On this point, the Ld. PP relied on four cases, namely, 'M. Narsinga Rao Vs. State of AP Supreme Court 2001 CRL L. J. 515; Mad- hukar Bhaskar Rao Joshi v. State of Maharashtra, 2000 AIR SCW 4018; Syed Ahmed Vs. State of Karnatka 2012 (8) SCC 527 and Mahesh Pal Singh Vs. State of NCT of Delhi in Crl. A. No. 645 of 2010."
43. From the plain reading of the aforesaid Section 20 of the PC Act, Case No. CBI No. 47/19 Page No. 22 of 31 CBI vs. Jati Ram Meena & anr.
it is clear that once the prosecution proved on record the acceptance of the bribe amount, the onus is shifted upon the accused to prove that the said amount was not received towards a motive or reward as mentioned in Section
7. The sub clause (3) of Section 20 of PC Act provides that the Court may decline to draw such presumption if the gratification amount is trivial that no inference of corruption may fairly be drawn. In the instant case the bribe amount was Rs. 45,000 which cannot be treated as "trivial" and, therefore, the said sub-clause (3) does not apply. Thus it is held that the entire onus is upon the accused no. 1 to discharge the said burden.
44. In the instant case, as regards offence under Section 7 of the PC Act, accused no.1 has been charged for demanding and accepting a bribe of Rs.45,000 (Rs.60,000 initially) from the complainant to get corrected the grading of his ACR from the accused no.2. Upon filing of complaint (Ex. PW5/A) dated 01.06.2011 by the complainant in the CBI office, the law was put into motion. Thereupon proceedings took place, inter alia, into three stages i.e. (i) verification of the complaint, (ii) preparation of laying of trap and
(iii) laying of trap.
45. It has already been held in the preceding paragraphs that the voice recordings which were recorded in the DVR are not admissible since the original DVR on which such recordings took place has not been placed on record and copy of said data in the CD as well as transcriptions were in the nature of secondary evidence for which step has not been taken under Section Section 65 and 65B of Indian Evidence Act respectively. Therefore, the said voice recordings are not admissible in evidence. Be that as it may, this court finds various direct evidences on record which are being discussed now.
Case No. CBI No. 47/19 Page No. 23 of 3146. The complainant (PW-5) specifically deposed that in March, 2011, he came to know that his representation was disposed off and remarks in his ACR could only be expunged with the consent of Sh. S.K. Gupta and then, he met accused no.1, to which accused no.1 told that he would talk to accused no.2. Complainant further deposed that after two weeks, he again met to accused no.2 and the latter told that accused no.1 has been demanding money to get said ACR corrected on payment of Rs. 65,000 but the accused no. 1 made him agreed for Rs.60,000. When the complainant filed a complaint to the CBI office, as the verification process, a mobile call was made by the complainant from his mobile phone to the accused no.1 which was heard on speaker mode. The said conversation is admissible being the direct evidence as per Section 60 of the Indian Evidence Act. The verification memo reveals that a bribe amount of Rs.60,000 was demanded by the accused no.1 on behalf of accused no.2 and the accused no. 1 has also given direction to the complainant to come on the next day i. e. 02.06.2011 along with bribe amount of Rs. 60,000.
47. The prosecution also examined the independent witness, Sh. Laxmi Narayan who specifically deposed in his examination-in-chief that he had heard the conversation which took place between the complainant and accused no.1 on 01.06.2011 where a demand of Rs. 60,000 was made by the accused no. 1 on behalf of accused no.2 and that the complainant was directed to come on the next date along with the bribe amount of Rs. 60,000. Despite cross examination of the said witnesses, nothing contrary came on record to disbelieve their testimony on this point.
48. The prosecution also examined various witnesses who were the Case No. CBI No. 47/19 Page No. 24 of 31 CBI vs. Jati Ram Meena & anr.
members of the trap team who deposed, in corroboration with each other, about the process of laying a trap, the arrangement and placing of bribe amount of Rs.45,000 in the pocket of complainant, noting down the serial numbers of the said currency notes and their denomination, the treatment of the said currency notes with the phenolphthalein powder, the operation of the running of DVR, giving of signal after delivery of the bribe amount etc. All these preparatory works have been mentioned in the handing over memo Ex.PW5/C which bears signatures of most of the members of the said trap team and, therefore, the said document stands proved. Despite cross examination of the relevant witnesses, nothing contrary or concrete came on record to disbelieve their version on this point.
49. There comes the most important stage of the case of prosecution. i.e. laying of trap, delivery of bribe amount and its recovery. From the recovery memo (Ex.PW5/D), it is evident that the accused no.1 was working in high security zone and it was not possible to send the shadow witness along with the complainant. Accordingly, the complainant alone went to the office of accused no. 1 whereas the entire team waited outside the main gate of the said office. As such to that extent, only the evidence of the complainant is important and all other witnesses are not required to be discussed here. The PW-5 Sh. Khyali Ram Meena (complainant) deposed that the DVR was kept in his pocket of shirt in switched on position and he went upstairs to the office of accused no. 1 and met him. The complainant further deposed that the accused no. 1 immediately asked him if he has brought money to which he answered in positive and said that the notes are of 100 rupees denomination and because of bunch of bundles of notes and that his office was in High Security Zone, he could not bring the money there. Then, he requested accused no. 1 to come to Case No. CBI No. 47/19 Page No. 25 of 31 CBI vs. Jati Ram Meena & anr.
the parking place. The complainant further deposed that the accused no. 1 told him that he will come down stairs. After 10 minutes, he received a call from the mobile of accused no. 1 who asked him to meet at the reception. Accordingly, the complainant met him and after holding talks for around 5 minutes, the accused no. 1 asked about the money by making a gesture to which complainant told that the money is in the vehicle which has been parked in the parking. Thereafter, he took the accused no. 1 in the parking, took out his money from the pocket of his pant and gave it to the accused no.1. It is further deposed that the accused no. 1 took the said money in his right hand and kept it on the front right pocket of his pant, to which immediately complainant gave a signal by rubbing his hand on his face. Consequently, Insp. Gaurav Singh came there and apprehended the accused no. 1.
50. The other team members also reached there and thereafter Sh. G. S. Bairwa, independent witness took out the said money from the possession of the pant of accused and said notes were sealed and before sealing the same, hands of accused no.1 were got washed in sodium carbonate solution which turned pink. The said solution was also sealed in a bottle with the seal of CBI and the seal was given to Sh. G.S.Bairwa. Despite cross examination of the complainant, nothing concrete came on record to disbelieve the said version to discard his testimony. The other team members also deposed in corroboration with each other about the proceedings which took place after apprehension of the accused no.1.
51. The aforesaid evidence, undoubtedly proved the receiving of amount of Rs. 45,000 by the accused no.1 from the complainant. The serial numbers of the said currency notes also tallied with the serial number of the Case No. CBI No. 47/19 Page No. 26 of 31 CBI vs. Jati Ram Meena & anr.
notes which were noted by the CBI team and placed on record. The seizure of the money, relevant cloth of the accused no. 1, having presence of phenolph- thalein powder also proved on record.
52. All the incriminating evidence has been put to accused in the form of a statement under Section 313 Cr.PC but he denied all the incriminating evidence. On the point of demand of bribe and making of telephonic calls on 01.06.2011 and 02.06.2011, he straightway denied said evidence. The call details have already been proved on record which show that the version of accused no.1 is not correct on the point of CDRs.
53. On the point of receiving of bribe amount, on 02.06.2011 at the parking place, the accused no.1 gave following explanation in his statement under Section 313 Cr.PC:
"Ans. It is incorrect, false and fabricated. At about 4/4.30 PM, I came downstairs to take juice. I saw Khyali Ram Meena and he told me to accompany him to the office of S.K. Gupta for some work. I refused to accompany as I had to do some urgent official work. Immediately thereafter, 4-5 persons surrounded me and threatened me to accompany them to the office of S.K. Gupta under force. When I refused, one of the persons told me that they are from CBI and I have to accompany them or they threatened that they had a gun and he can shoot me for disobedience. I also raised an alarm. Lot of persons including security guard also assemble there but these persons forcibly taken me in the parking area without informing my superiors and forced me to go to the office of S.K. Gupta along with them."
54. From the aforesaid version of the accused, it is seen that the accused no.1 took a plea of his false implication by the CBI officers as well as Case No. CBI No. 47/19 Page No. 27 of 31 CBI vs. Jati Ram Meena & anr.
complainant but accused no. 1 did not prove any complaint being filed against the complainant and/or the other CBI officers at the relevant point of time. Therefore, the said version of the accused is not trustworthy to discard the overwhelming incriminating evidence. The accused no.1 also examined one witness in his defence, namely, Sh. Ram Dayal (DW-1) who deposed that on 02.06.2011 at 4.00PM he was talking to the accused no.1, then one person reached there and requested him to accompany which accused no.1 refused and commotion started there. DW-1 further stated that all of a sudden 4-5 persons appeared and tried to drive accused no.1 and on asking them, they told that they are the CBI officers. The said DW-1 also claimed that no packet or item was given in his presence to accused no.1 nor any packet/item was recovered in his presence and thereafter, he went to the house of the accused no.1 to inform about the incident.
55. Ld. PP for CBI cross-examined the said witness and when he was asked whether he tried to dial 100 number or attempted to call police, to which he denied. From the sole testimony of DW-1, it cannot be said that the entire case of the complainant and CBI is false and rather the DW-1 is found to be an interested witness being known to the accused no.1 and in the absence of any complaint to the police and pursuing the said complaint by the complainant, the version of the accused no.1 as well as DW-1, does not create any dent on the entire case of the prosecution which has been duly proved on record through various witnesses and documentary evidence. Ordinarily, the evidence of the accused is appreciated on the basis of preponderance of probability but when a presumption has been drawn under Section 20 of the PC Act against the accused no.1, he was required to discharge the said onus by leading cogent, probable and strong evidence but he failed to do so.
Case No. CBI No. 47/19 Page No. 28 of 3156. The Ld. Counsel for the accused persons argued that the alleged recovered money was not sent with the accused no. 1 for handing it over to the accused no. 2 and this shows that the entire case of CBI was fabricated and manipulated and there was no demand ever made for bribe by either accused no. 1 or accused no. 2. In the recovery memo, it has been mentioned that the recovered money was not given to the accused no. 1 when he was directed to meet the accused no. 2 in his office because there was a possibility that both the accused persons might destroy the material evidence and this was decided in consultation with the independent witnesses that the money should not be sent with the accused no.1. From the aforesaid explanation, this Court is of the considered opinion that the aforesaid apprehension of the CBI team was reasonable and justified since the alleged recovered bribe money from accused no.1 was the most important piece of evidence and supposedly if it would have been destroyed, the case of accused no. 1 would become hollow.
Argument on contradictions
57. The Ld. Counsel for the accused no. 1 has also argued that the case of the prosecution is doubtful because there are contradictions in the testimonies of PWs regarding handover of seals, custody of the seal from the period of 01.06.2011 to 10.06.2011 etc. He also pointed out that when the said seal remained with the VO/TLO during the aforesaid period, the possibility of tampering of case property cannot be ruled out. It was further stated that the handwash/articles were not seized at the place of alleged trap and PWs deposed in parrot like manner during examination in chief but they forgot everything during cross examination. In view of substantial evidence produced on record by the prosecution, this court is of the considered opinion that the Case No. CBI No. 47/19 Page No. 29 of 31 CBI vs. Jati Ram Meena & anr.
aforesaid points do not go to the root of the matter.
58. It is also a settled proposition of law that this court is not required to test the ability or strength of memory of the witnesses but to appreciate the true facts. There are various precedents of the Hon'ble Superior Courts which lay down that the witnesses are human being and they are not the tape recorder. As such, it is usual for the witnesses to forget some points and they are not supposed to give each and every minute details of all the events and circumstances. With the passage of time, the memory also get faded and as such the aforesaid minor inconsistencies are not found sufficient to disbelieve the entire case of the prosecution, which has been proved otherwise.
59. In the light of aforesaid analysis of the evidence, this court holds that the prosecution duly proved on record, the charge against the accused no.1 punishable under Section 7 of the PC Act.
60. Since the prosecution failed to prove the allegations against the accused no.2 (as already described in detail above) and to bring on record the relevant evidence showing meeting of mind between the accused no.1 and 2, the essential ingredients of offence of conspiracy are missing. Accordingly, it is held that the prosecution failed to prove the offence under Section 120B of the IPC against both the accused persons.
61. So far as the offence under Section 13(1)(d) punishable under Section 13 (2) of the PC Act against the accused no.1 is concerned, this court finds that the accused no.1 not only misguided the complainant by putting him into a believe that by payment of bribe amount, the ACR could be corrected Case No. CBI No. 47/19 Page No. 30 of 31 CBI vs. Jati Ram Meena & anr.
but also he obtained the bribe amount by corrupt and illegal means and by abusing his position as a public servant, thereby the essential ingredients of the sub-Section (i) & (ii) of Section 13 (1) (d) of the PC Act stand proved.
Conclusion
62. In view of my aforesaid findings, accused no.1 is convicted for the offences under Section 7 and sub-Section (i) & (ii) of Section 13 (1) (d) r/w Section 13 (2) of the PC Act. He is acquitted for the offence under Section 120-B IPC. The accused no.2 is acquitted from all the charges. As per Section 437 A Cr.PC, the accused no.2 is directed to furnish personal bond and surety bond in the sum of Rs. 25,000 each to appear before the higher court as and when such court issues notice in respect of any appeal or petition to be filed against this judgment and such bail bonds shall be in force for six months.
63. Put up for argument on quantum of sentence in respect of accused no.1 on 01.08.2022. Copy of judgment be given dasti to the CBI as well as accused persons/their counsels.
NARESH Digitally signed
by NARESH
Announced in the open court KUMAR KUMAR LAKA
Date: 2022.07.29
today on 29.07.2022 LAKA 15:13:31 +0530
(Naresh Kumar Laka)
Special Judge (PC Act)(CBI-20)
Rouse Avenue Districts Courts
New Delhi/29.07.2022
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CBI vs. Jati Ram Meena & anr.