Delhi District Court
Cbi vs Jitender Kumar on 22 January, 2026
CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019
IN THE COURT OF SPECIAL JUDGE, PC ACT (CBI-04),
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
CC No.122/2019 (CNR No. DLCT11-000544-20019)
R.C.DAI-2018-A-0034
PS: CBI,ACB,Delhi
Under Section: 120B IPC r/w Section 7, 7(A), 8,9,10 & 12
of Prevention of Corruption Act, 1988 (As amended in
2018)
CENTRAL BUREAU OF INVESTIGATION
(CBI)
VERSUS
1. Jitender Kumar @ Jitender Joon
S/o late Dharam Singh
Adhoc DANICS (Public Servant)
R/o G-8/20, GF, Sector-11, Rohini, Delhi
2. Dinesh Khurana
S/o late Darshan Kumar Khurana
Chartered Accountant ( Private Person)
R/o H. No.230, Sector-12, Part-II, Karnal (Haryana)
Present Address: R/o 1084-P, Urban Estate
Sector-13, Karnal, PO Karnal & District Karnal
Haryana-132001.
3. Girish Bhatia
S/o Late Pran Nath Bhatia
(Private Person/ Director M/s Nath Motors Pvt Ltd)
R/o H. No. 878, Ist Floor, New Friends Colony, New Delhi
Present Address: E-49, Ground Floor, GK-1
New Delhi.
4. M/s Nath Motors Pvt Ltd ( through its Directors)
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CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019
Address: A-30, Mohan Co-operative Industrial Estate,
Opp. Sarita Vihar, Delhi & 1187/7, Nai Wala, Karol
Bagh, New Delhi-05.
(Proceeded Exparte under Section 305 Cr.P.C
vide order dated 30.01.2021)
Date of Institution 03.01.2009
Date of Start of Arguments 17.07.2025
Date of Conclusion of 09.01.2026
Arguments
Date of Judgment 22.01.2026
INDEX
Sl. Title Pages
I FACTUAL MATRIX OF CASE 4-10
(i)Allegation 4-5
(ii) Investigation 5-10
II CHARGE 10
III PROSECUTION EVIDENCE (P.E) 11-36
(i) Formal Witnesses 11-12
(ii) Material Witnesses 12-36
IV STATEMENT OF ACCUSED (S.A) 36-38
V DEFENCE EVIDENCE 38
VI ARGUMENTS OF PARTIES 38-62
(i) Arguments of CBI 38-42
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CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019
(ii) Arguments of A-1 42-54
(iii)Arguments of A-2 54-59
(iv) Arguments of A-3 59-61
(v) Rebuttal Arguments of CBI 61-62
VII VALIDITY OF PROSECUTION SANCTION 62-71
VIII DEMAND & ACCEPTANCE OF BRIBE 71-167
(i) Legal Issue 71-77
(ii) Factual Matrix Qua the Allegation of 77
Demand of Bribe
(iii) Contact between the Parties 78-83
(iv) Legal Position as to the Admissibility of 83-94
Intercepted Calls
(v) Proof of Intercepted Calls 94-103
(vi) Identification of Speaker in Recorded 103-110
Conversation
(vii)Safe Custody of Recorded Conversations 110-120
(viii) Value of CFSL Report for proving the 120-138
Intercepted Calls
(ix) Circumstantial Evidence for Proving the 138-146
Demand of Bribe
(x) Place of Meeting of A-1 & A-2 on 05.11.2018 146-151
(xi) Motive of the Meeting dated 05.11.2018 151-162
(xii) Source/Generation of Bribe Amount 162-167
IX TRAP PROCEEDINGS/ACCEPTANCE OF 167-184
BRIBE
X CONCLUSION 184-185
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CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019
JUDGMENT:-
1. This judgment shall decide the case filed by the Central Bureau of Investigation (CBI), bearing R.C-DAI- 2018-A-0034 registered on source information at CBI,ACB, Delhi on 05.11.2018 against accused persons under Section 120B IPC r/w Section 7,7(A), 8,9,10 & 12 of the Prevention of Corruption Act, 1988.
I. FACTUAL MATRIX OF CASE
(i)Allegations
2. It is alleged in the FIR that Jitender Kumar @ Jitender Joon (hereinafter referred to as A-1), while working as Assistant Commissioner, Goods & Service Tax (GST), Enforcement Wing, Govt of NCT of Delhi had conducted a survey-cum-seizure operation against M/s Nath Motors Pvt Ltd ( hereinafter referred as to A-4) in the month of September 2018 and seized various incriminating documents regarding irregular financial dealings. It is further alleged that Girish Bhatia (hereinafter referred to as A-3) was the director of A-4/M/s Nath Motors Pvt Ltd while Dinesh Khurana (hereinafter referred to as A-2) was the Chartered Accountant (CA).
2.1 It is further alleged that after the survey operation, A-2 was maintaining regular contact with A-1. During such meetings, A-2 told A-3 that A-1 had demanded bribe of Page-4 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Rs.10 lakhs for not raising demand of tax for previous years and to maintain good relations in future. The source informed that A-1 had asked A-2 to pay bribe amount of Rs.10 lacs on 05.11.2018.
(ii) Investigation
3. After registration of the FIR, a trap team comprising of Inspector Shitanshu Sharma, Trap Laying Officer (TLO) , independent witnesses namely Jitender Kumar Thakur and Sh. Rakesh Kumar Singh and other CBI officers was constituted. The trap team members were explained the purpose of assembly and pre-trap memo was prepared. The trap team reached Trade and Tax Building, ITO at about 9:30 a.m in CBI vehicles. TLO was in regular touch with source who updated him about the movements/locations of the accused persons. One of the trap team followed A-1 to Khan Market, New Delhi . However at about 4:00 p.m, he again reached near Trade and Taxes building, ITO where A- 1 and A-2 had agreed to meet for transacting the bribe amount. One white colour Honda City car HR-05-AQ-0464 and one black colour Honda City car no. DL-4C-AW7349 were spotted parked at the corner on Ring Road facing Rajghat. Both the accused persons were seen talking and thereafter A-2 took A-1 towards back seat of his black Honda City and took out a cloth bag. They started walking Page-5 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 towards the white colour Honda City Car of A-1 who after taking keys from his driver opened the dicky of the car and A-2 put the said bag inside the dicky. The said incident was clearly witnessed by the trap team. The trap team members rushed to the spot and caught hold of both the accused persons.
3.1 The investigation revealed that on being challenged by the TLO regarding demand, offer and acceptance of bribe, A-1 got perplexed and kept mum. A-2 admitted having come there to deliver bribe money to A-1 on behalf of A-4/M/s Nath Motors Pvt Ltd. A-2 further disclosed that he had taken Rs.10 lacs from A-3's Honda Showroom, out of which he delivered Rs.6 lacs to A-1 in cloth bag and remaining Rs.4 lacs were kept under co-driver seat of his car. Thereafter, the cloth bag containing Rs.6 lacs ( 12 packets 0f Rs.500/- denomination) was recovered from the dicky .The remaining amount of Rs. 4 lacs was also recovered from car of A-2. The rough site plan was prepared at the spot. Thereafter, the trap team alongwith accused persons returned to CBI office where recovery memo dated 05.11.2018 was prepared and signed by all the members of trap team.
Page-6 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 3.2 The investigation revealed that Special Unit CBI, Delhi had intercepted telephonic conversation between the accused persons. The said calls were collected in two DVDs containing 92 and 02 intercepted conversations respectively . The transcription of said recorded calls was prepared. Out of 94 recorded calls, 26 calls were found to be incriminating/relevant to the present case. During investigation, specimen voice of accused persons were taken in the presence of independent witnesses. The details of phone numbers, ownership etc of relevant mobile phones are detailed in tabulated form in Para 18.07 of the chargesheet.
3.3 During further investigation, scrutiny of office files pertaining to M/s Nath Motors Pvt. Ltd ( A-4) revealed that on 26.06.2018 survey proposal in respect of M/s Nath Motors Private Limited was initiated by A-1 due to variation in stock position vis-a-vis balance sheet and tax liability/tax paid.The said inspection/survey proposal was approved by Commissioner, DGST,GNCTD who found it a fit case for conducting "Search and Seizure". Thereafter, on the strength of authorization, Inspection/survey of M/s Nath Motors Pvt. Ltd., was conducted by Delhi GST team headed by A-1 at the premises of A-4 i.e A-30, Mohan Cooperative Industrial Estate, Delhi on 28.06.2018.
Page-7 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 3.4 Investigation also revealed that accused A-2, C.A. represented A-4/M/s Nath Motors Pvt Ltd. during hearing before A-1 held on 02.07.2018, 13.07.2018, 16.07.2018, 24.07.2018, 03.08.2018, 20.08.2018, 04.09.2018, 11.09.2018 and 14.09.2018. Further, on 24.10.2018, an online report in this regards was submitted by A-1 which was approved by Commissioner (DGST) on 30.10.2018 and the file was sent to the ward concerned for assessment of tax liability.
3.5 Investigation further established that vide order dated 26.10.2018 issued by HR branch of Department of Trade and Taxes, entire team of officers of Enforcement-I branch including A-1 were transferred/placed at the disposal of services department, GNCT of Delhi with immediate effect. However, the same was not in the knowledge of accused private persons i.e.A-2 and A-3.
3.6 Investigation also revealed that on 05.11.2018, A-2 visited the office of A-4/M/s Nath Motors Pvt Ltd. and collected cash amount of Rs. 10 Lakhs and left the office at about 02 o'clock. Further, investigation revealed that A-1 demanded bribe money from A-2 to settle the matter of A- 4/M/s Nath Motors Pvt Ltd. A-2, accordingly, conveyed the said demand of bribe made by A-1 to accused A-3 who agreed to give bribe to A-1 for getting favorable report in Page-8 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the matter of survey/inspection of A-4/M/s Nath Motors Pvt Ltd.
3.7 The interceptions of calls also revealed that in the morning of 05.11.2018, A-2 visited the office of A-4/M/s Nath Motors Pvt Ltd. After leaving the said office, he was in touch with A-1 till reaching at the spot, where both the accused were caught hold by the trap team while giving and accepting the bribe amount of Rs. 6 Lakhs. The official records seized from the office of A-1 clearly revealed the motive/reward of demand, offer and acceptance of bribe/illegal gratifications by the accused public servant.
3.8 Investigation has further revealed that M/s Nath Motors Pvt. Ltd, was incorporated on 05.02.2003. The Sale and Service Office of the company in the name of "Delight Honda" is situated at A-30, Mohan Co-operative Industrial Estate, New Delhi. During the relevant period, the company had four directors namely Girish Bhatia (A-3), Sh. Gaurav Bhatia, Ms. Molika Garg and Sh. Rajesh Kumar. Out of the said Directors, Ms. Molkia Garg and Sh. Rajesh Kumar were paid employees of the company and had no shareholdings in the company. Sh. Girish Bhatia (A-3) is major shareholder and person-in-charge of the company.
Page-9 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 3.9 Thus, it is pleaded that the aforesaid facts disclosed commission of offences as mentioned in the chargesheet qua the accused persons. The prosecution sanction u/s 19 of Prevention of Corruption Act, 1988 has been obtained from Competent Authority of A-1 and placed on record.
(II) CHARGE
4. The Ld. Predecessor took cognizance of the offence on 04.04.2019 and accused persons were, accordingly, summoned. After supplying the copies and hearing the arguments on charge, charges were framed on 30.01.2021 for the offence punishable U/s 120B of IPC read with Section 7,7A,8, 9,10 & 12 of the Prevention of Corruption Act 1988 and Section 7 of PC Act against A-1, under Section U/s 120B of IPC read with Section 7,7A,8, 9,10 & 12 of the Prevention of Corruption Act 1988 and Section 7A,8,10 & 12 of PC Act against A-2 and A-3, under Section U/s 120B of IPC read with Section 7,7A,8, 9,10 & 12 of the Prevention of Corruption Act 1988 and Section 9 of PC Act against A-4. A-1, A-2 and A-3 not pleaded guilty and claimed trial. The charge framed against A-4 was kept unsigned as A-4 was proceeded exparte under Section 305 Cr.P.C.
Page-10 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 4.1 The prosecution in order to prove its case examined 28 witnesses following which statement of accused under Section 313 Cr.P.C was recorded. A-1 also led the Defence Evidence.
(III) PROSECUTION EVIDENCE (P.E)
(i) Formal Witnesses
5. PW-1 Pawan Singh is Alternate Nodal Officer, Vodafone Idea Limited. He proved the Customer Application Form of the mobile no. 9896204062 in the name of Sh. Dinesh Khurana as Ex. PW1/2 (colly) and CDR for the period 01.10.2018 to 05.11.2018 alongwith the requisite certificate under Section 65 of the Indian Evidence Act as Ex. PW1/3 (colly).
6. PW-8 Surender Kumar is the Nodal Officer, M/s. Bharti Airtel Limited. He proved the CDRs and CAF of mobile no.9810295568 alongwith the certified copies of the documents submitted by the customer Girish Bhatia as Ex. PW-8/2 (Colly), CDR for the period from 01.10.2018 to 05.11.2018 Ex. PW-8/3. He further proved the certified copy of CAF of mobile no.9818286888 in the name of Jitender Kumar ( A-1) alongwith the certified copies of the documents submitted by the customer as Ex. PW-8/4 (colly.) and CDR for the 01.10.2018 to 05.11.2018 as Ex.
Page-11 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 PW-8/6. Lastly, he proved the certified copy of CAF of mobile no.9667969404 in the name of Mahender Singh as Ex. PW-8/7, the CDR for the period from 01.10.2018 to 05.11.2018 as Ex. PW-8/8 and the Certificate under Section 65B of the Indian Evidence Act as Ex. PW-8/9.
7. PW-9 Sh. Saurabh Aggarwal is AGM (Regulatory), Vodafone Idea Limited. He also proved the the CAF and CDR of mobile number 9034004000 in the name of A-3 as Ex. PW-9/3 (Colly) and CDR of the said mobile number for the period 01.10.2018 to 05.11.2018 as Ex. PW-9/4 (Colly). He also proved the Certificate under Section 65B of the Indian Evidence Act as Ex. PW-9/5.
(ii) Material Witnesses
8. PW-2 Jitender Kumar Thakur, Manager, CBI, is independent witness. He deposed that on 4.11.2018, he was verbally instructed by HR department to attend CBI office. He reached the CBI office, but nothing happened there on that day and he was asked to report on the next day. On 05.11.2018, he reached the CBI office where 4-5 persons were already present. Inspector Shitanshu Sharma met him and informed that they had to go for conducting raid near Sale Tax Office, ITO. He was shown photograph of Dinesh Khurana ( A-2) and told that they had to trap the said person. They proceeded towards ITO in two vehicles. On Page-12 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the way Inspector Shitanshu Sharma received a call on his mobile and then they left towards Central Delhi. The vehicle was stopped on the way for about 5-10 minutes and it was decided that they should reach ITO. After some time, they reached the back-lane of sales tax office where one black car came and stationed at the corner of the road. He could see only the person sitting at the steering side. After 2-3 minutes, the car started moving towards ITO. In the meanwhile, Inspector Shitanshu Sharma instructed them to get scattered. Accordingly, the team members scattered and after some time he heard some noise. He rushed towards the black car and saw CBI team was holding one person. He was asked to conduct personal search of the said person. He found one I.D card of the person who was Jitender Joon. Thereafter, he was asked to search the dickey of the another car. He opened the dickey of the car and found some currency notes in a bag, some gift cards/marriage cards with 1-2 liquor bottles. He alongwith other independent witness also searched the black car and found 2-3 liquor bottles only. After that they all reached in CBI office alongwith their two cars and recovered material. Thereafter, the search black car was again conducted and some currency to the tune of around 23/24 thousand in paper envelope was found under the front seat of the driver side. The printed cloth bag containing the currency notes was opened in the CBI office Page-13 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 room and the same was counted. The amount was around Rs. 6/7 lakhs. The voice sample of A-1 was taken. The articles recovered from the car were thereafter signed by them. All the memos prepared during the night were also signed. Thereafter, he identified his signature on pre-trap memo Ex.PW2/1 (D-2), recovery memo and annexure A Ex.PW2/2 (D-3), car search memo of Honda City Ex.PW2/3 (D-4), car search memo of Honda Amaze Ex.PW2/4 (D-5), specimen voice recording memo Ex.PW2/5 (D-6), arrest memo of A-2 and A-1 Ex.PW2/6 and PW2/7 respectively. He also identified the trap money sealed in the white colour cloth bag as Ex.P-3. He also identified his signature on the brown envelope having specimen Ex.S-1 and Ex.S-2.
9. PW-3 Rakesh Kumar is also the independent witness who was part of the trap team led by Inspector/TLO Shishtanshu Sharma. He too has deposed on the lines of other independent witness Rakesh Kumar except on the aspect of the manner of recovery of the currency notes from the car of A-1 and A-2. He claimed that CBI officials had already recovered one white cloth bag, but claimed that it was recovered from Honda City car (belonging to A-2). He further claimed that the said bag was having loose currency notes of Rs.100 and Rs.500/- amounting to Rs.23/24 Page-14 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 thousand. He searched the Honda Amaze car ( belonging to A-1) and found few wine bottles, one gold chain, few silver/gold coins. After they left the spot and reached the CBI office, while they were sitting in the room, some CBI officials brought one bag to him and PW2. In the said bag, there were Rs.3/4 lacs in the denomination of Rs.500. He also raised question mark over the contents of document Ex.PW2/1, PW2/2 and Annexure-A of recovery memo Ex.PW3/1. He denied the suggestion of Ld. PP for CBI that during search of dickey of Honda Amaze car, cloth bag was recovered having 12 packets of currency notes of Rs.500 denomination.
10. PW-4 Sh. Naresh Mann deposed that he knows accused Jitender Kr. Joon being husband of his cousin Kiran. He claimed that the mobile number of Jitender Joon is 9818286888. He further deposed that he also knew Sh. Mahender Singh S/o Sh. Ishwar Singh R/o Naya Bans being his cousin. Sh. Mahender Singh uses mobile no. 9312176426. He further deposed that on 03.07.2015, he purchased white Honda Amaze Car bearing No. DL- 4CAW7349 and brother-in-law Jitender Joon used to borrow the said car from him occasionally. He further deposed that on 7th or 8th November 2018, he came to know Page-15 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 that Jitender Joon has been arrested by CBI. He also came to know that his Honda Car had also been seized by CBI.
11. PW-5 Sh. Mahender Singh is also a relative of A-1. He deposed that his family is on visiting terms with the family of Jitender Joon as they are having good relations. He further deposed that he knew the mobile number of Jitender Joon, is 9818286888. He further deposed that in November, 2018 he was using Mobile No. 9667969404 issued in his name and never gave any SIM issued in his name to Jitender Joon for his use. The witness was declared hostile by CBI and was cross-examined by Ld. Public Prosecutor.
12. PW-6 Chander Sain is the Staff Driver in Vidhan Sabha, Central Secretariat and deposed that he knew accused Jitender Joon as he was posted as OSD to the Speaker, Delhi Vidhan Sabha.
12.1 He further deposed that on 05.11.2018 at about 1 pm, Jitender Joon asked him to come to him for distributing certain gifts on the occasion of Diwali. He took half day leave from the office and met him at Vidhan Sabha. Jitender Joon came there driving a private car. He further stated that thereafter he drove the said car. He discarded the entire story of prosecution qua the subsequent events. PW-6 too Page-16 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 was declared hostile and was cross-examined by Ld. Public Prosecutor for CBI.
13. PW-7 Durgesh deposed that he was working as a driver in Nath Motors, Mathura Road, New Delhi. He further deposed that around 2 years back, during the festival of Diwali, he was asked by Mr. Rajesh Kumar, Manager of the company to drop the papers of a car at CBI office. On remaining aspects he turned hostile and was cross-examined by Ld. Public Prosecutor for CBI.
14. PW-10 Sh. Rajesh Kumar Sharma deposed that he worked with Nath Motors as Accountant from 2009 to 2019. He was promoted to the post of Senior Accountant, Accounts Manager and lastly to a Director. However, he was made a Director without any salary or any share in the company. There were two other Directors in the company Mr. Girish Bhatia and Ms. Molika Garg. Ms. Molika Garg was also without any stake or share in the company and Girish Bhatia was the only Director who was managing the affairs of the company.
14.1 He further stated that he knew Dinesh Khurana (A-2) as he was the Chartered Accountant of the said company. He was also managing two other companies namely Rain Automotive Pvt. Ltd. and Hana Motors Plaza Pvt. Ltd.
Page-17 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 14.2 He further deposed that one survey was conducted by VAT department in the office of Nath Motors and Jitender Joon ( A-1) was the member of said team. During the survey conducted in June 2018, he was enquired about the accounts, books of accounts, stock, sale purchase, number of vehicles sold and purchase and vehicles. He proved the notice issued by the survey team as Ex. PW- 10/A(colly.) (D-9) and the documents seized by the survey team as Ex. PW-10/B (colly.) (D-10).
14.3 He further deposed that he came to know about the present case in 2018. The officials of CBI visited the office of Nath Motors on the day of Dhanteras in 2018 when GM, Sales Manager, Sale Consultant and the complete staff was present. He was taken to CBI office at around 9.30 PM and made enquiries about Mr. Girish Bhatia and Mr. Dinesh Khurana. On the remaining aspects, he did not support the prosecution's case and was declared hostile. He was then cross-examined by Ld. Public Prosecutor.
15. PW-11 Dy. S.P Kumar Abhishek is the Sysytem Administrator at Special Unit, CBI and his duty was to operate and maintain the computer systems for interception of telephonic conversation. His duty involved coordination with different service providers for interception of calls after Page-18 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 receiving necessary legal permission as per the provisions Indian Telegraph Act. He further deposed that in the present case, the mobile numbers were legally and officially intercepted. Thereafter, he proved the seizure memo dated 05.11.2018 (D-12) as PW-11/A, the recording call information report alongwith the certificate issued under Section 65B of the Indian Evidence Act as Ex. PW-11/B (colly) and Ex. PW-11/C respectively. He also proved the seizure memo dated 05.12.2018 (D-13) as Ex. PW-11/D, the recorded call information report Ex. PW-11/E, Certificate under Section 65B of the Indian Evidence Act Ex. PW-11/F concerning a separate set of calls.
15.1 He also identified the signatures of Director, CBI namely Alok Kumar Verma, on orders of interception dated 12.10.2018, 06.10.2028, again dated 06.10.2018, 12.10.2018 and 24.10.2028 and got exhibited the same as Ex. PW-11/G, Ex. PW-11/H, Ex. PW-11/I, Ex. PW-11/J and PW-11/K, respectively. He further stated that he handed over one DVD having the calls in sealed condition to the IO through Seizure Memo Ex. PW-11/A.
16. PW-12 - Sh. A. K. Sajnani was the member of Survey Team. He deposed that he knew Jitender Joon who he was posted with him as Assistant Commissioner in the Enforcement Branch of Trade and Tax department.
Page-19 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Thereafter, he explained the duties as an Assistant Commissioner to deal with complaints and information either in their department.
16.1 He further deposed that he joined Mr. Jitender Joon in the survey/raid in the present case against M/s Nath Motors. Jitender Joon had proposed the survey against Nath Motors and headed the survey team. He identified the Deployment Order dated 28.06.2018 (Part of D-10).
16.2 Thereafter, he deposed about the proceedings of the survey which are not that relevant. Thereafter, they asked the officer of the A-4 to produce the documents. They also bound them to produce the documents that were not produced at the time of inspection by issuing a notice in writing. Thereafter, they brought the documents handed over to us to their office for further scrutiny and inspection. After the physical survey at the premise of Nath Motors, his duty as a team member was over and all the subsequent dealings /correspondence were done by the team leader i.e Jitender Joon. He further deposed that some audios were played in the office of CBI and he was asked to identify the voice. He was unable to identify the voice contained therein despite repeated efforts. He was asked to sign certain document which he signed being scared.
Page-20 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 16.3 This witness was declared hostile and was cross- examined by Ld. Public Prosecutor. He identified his signatures on voice identification-cum-transcription memo Ex.PW12/1 (D-18).However, he denied that he had identified the voice of A-1.
17. PW-13 Inspector Harnam Singh deposed that on 05.11.2018, while he was working as Inspector CBI and had seized articles from Kumar Abhishek, Dy. SP, Special Unit, CBI on the instructions of I.O. Shitanshu Sharma. He identified his signature on Handing Over cum Seizure Memo Ex. PW11/A.
18. PW-14 Sh. Yogesh Gupta deposed that he joined Rain Automotive Pvt. Ltd in August 2014 in which Girish Bhatia ( A3) was one of the Director. Thereafter, Mr. Girish Bhatia started a new company in the name of Hana Motors Pvt. Ltd. at A-30, Mohan Cooperative Industrial Estate for sale of Hyundai Cars. He joined the said company. He further deposed that Girish Bhatia was also having another company in the name of Nath Motors Pvt. Ltd., at the same address. He further deposed that Dinesh Khurana (A2) was the Chartered Accountant of Nath Motors, Hana Motors and Rain Automotive Pvt. Ltd. He used to finalize the balance sheet of the companies and audit the accounts. He showed his ignorance about any raid Page-21 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 conducted at the premises of Nath Motors Pvt. Ltd. in June, 2018 as he was working in Hana Motors. On the remaining aspects he turned hostile and was cross examined by Ld. PP of CBI. He identified his signatures voice identification memo dated 04.12.2018(Ex. PW12/1) and got exhibited the transcriptions as Ex. PW14/1 (colly).
Thereafter, many recorded conversations contained in DVD-1/Q1 Ex. PW11/M were played before the witness, however, he failed to identify the voices contained in the said files.
19. PW-15 Sh. Dhir Singh Chauhan deposed that he was working as Accountant for Rain Automotive India Pvt. Ltd between 2011 to 2018 and Mr. Girish Bhatia was one of the Directors of the said company. He further stated that D. K. Khurana was the Chartered Accountant in the said company.
19.1 He identified his signatures on Voice Identification Memo dated 04.12.2018 alongwith the Transcription. He further stated that he had no telephonic conversation with the Director Girish Bhatia during his employment in the Rain Automotive India Pvt. Ltd. Thereafter, various recordings were played in the Court and he failed to identify the voices in the conversation contained in DVD Q-1 Ex.PW11/M. Page-22 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 The witness was declared hostile and was cross- examined by Ld. Public Prosecutor.
20. PW-16 Sh. P.P.S. Bhati is a retired official from DDA. He witnessed the search proceedings at the office of A-1. He identified his signatures on search memo of official premises of A-1 dated 05.11.2018 Ex. PW16/1.
21. PW-17 Sh. Sunil Kumar is the retired Principal Staff Officer, Ministry of Home Affairs. He identified the signatures on page no.4 to 10 (D-10) of Sh. Rajiv Gauba, the then Secretary to Govt of India, MHA on the interception order Ex. PW17/1 (Colly.)
22. PW-18 Sh. Deepak Kumar Tanwar ( FSL Expert) is the Principal Scientific Officer, CFSL, New Delhi, who deposed that he is the expert in forensic voice examination, having examined the crime exhibits for about 28 years. He further deposed that in the present case, vide letter dated 10.12.2018, five sealed parcels marked as DVD- 1, DVD-2, S-1, S-2 and S-3, specimen sealed impression and recorded calls information report, photocopy of transcript of recorded conversation were received from the S.P., CBI, ACB. He examined the exhibits by comparing the voices of A-1, A-2 and A-3 in Q-1 and Q-2 with their specimen voice samples. The voice spectrographic and Page-23 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 auditory examination of the questioned voice with the specimen voices were got conducted and on the basis of the same, it was opined that the questioned voices in Q-1 and Q- 2 are the probable voices of A-1, A-2 and A-3. The opinion has also been given with respect to the recorded conversation in Q-1 and Q-2 being in continuation and no form of tampering being detected. He proved the said report Ex.PW18/1. He further identified the letter of CBI Ex.PW- 18/2 vide which the articles were sent to CFSL for examination. Thereafter, he identified his signatures on the envelopes and articles i.e DVD-1/Q-1, DVD-2/Q-2, S-1,S-2 and S-3.
23. PW-19 Ms. Molika Garg deposed that she joined Nath Motors Pvt. Ltd., which was a dealer of Nisaan Motors in 2009.
23.1 She further stated that she never became the Vice President in Hana Motors Pvt. Ltd . She was not a Director of Nath Motors Pvt. Ltd. However, she was proposed as an additional Director in 2015-16 but same was not approved in the AGM. Apart from Mr. Girish Bhatia, his brothers namely Amit Bhatia, Gaurav Bhatia, his father Pran Nath Bhatia were the Directors of Nath Motors Pvt. Ltd. She further deposed that she knew Mr. Rajesh Kumar as he was working as an accountant in Nath Motors Pvt. Ltd.
Page-24 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 23.2 She further deposed that now she was working in Hyderabad in some other company. She worked with Nath Motors till November, 2018 and resigned from the job after CBI conducted a raid in the office of Nath Motors Pvt. Ltd. A-2 was the chartered accountant of Nath Motors Pvt. Ltd. She used to interact with A-2 only when he had some issues with his car. She further stated that she used to talk to A-3 when they were present in the office and rarely on the phone.
23.3 Thereafter, she narrated regarding the happenings that took place on 05.11.2018. She alongwith other female staff left around 12 to 1 pm because of Dhanteras. On the next day, she came to know that there was a CBI raid in the office of Nath Motors. She specifically denied having given Rs.70,000/- to A-2 as she was not dealing in the finance of the company.
23.4 She further stated that she went to CBI office in connection with the present case where some audio recordings were played in her presence. However, she failed to voices in the intercepted conversation. She identified her signatures on the voice identification memo and got exhibited the same as Ex. PW19/A (colly). She failed to Page-25 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 identify the recordings played in DVDs Ex.PW11/O and Ex.PW11/M. The witness was also declared hostile and cross- examined by Ld. Public Prosecutor.
24. PW-20 Dy. SP Sh. Manoj Kumar (the member of trap team) deposed that on 05.11.2018, he was posted as Inspector, CBI, New Delhi. On that day, he joined the trap team was constituted by TLO Shitanshu Sharma. He alongwith other CBI officials and two independent witnesses namely Sh. Jitender Kumar Thakur, Manager, SBI and Sh. Rakesh Kumar Singh, HC, Transport Department, GNCTD were part of the said trap team. Therafter he deposed on the lines of the case of CBI and proved the trap documents.
24.1 He further deposed that rough site plan was also prepared. Both the accused were arrested and their Specimen voice were taken. He also identified his signatures on recovery memo. He further deposed that the CBI brass seal was handed over to independent witness Jitender Kumar with directions to keep the same in safe custody. He also identified his signatures on recovery memo and Annexure-A (D-3) and car search memos.
25. PW-21 Sh. Vijay Kumar Dev (the Sanctioning Authority ) deposed that a request was received from ACB, Page-26 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 CBI, Delhi, seeking sanction for prosecution of Jitender Kumar @ Jitender Joon ( A-1), who at the relevant time, was working as Adhoc Danics / Assistant Commissioner (Enforcement-1), Trade and Tax Department, Govt. of NCT of Delhi. He further stated that alongwith the request letter, he received around 30 documents. After considering the documents, he came to the conclusion that a prima facie case is made out to accord sanction for the prosecution of Jitender Kumar @ Jitender Joon as required under Section 19 of the Prevention of Corruption Act. Accordingly, he accorded sanction vide order dated 27.02.2019 and proved the same as Ex. PW21/A (D-31).
26. PW-22 Inspector Shitanshu Sharma is the Trap Laying Officer (TLO). He has deposed on lines of the case of the prosecution.
26.1 He deposed that he was entrusted with the investigation of the present case on 05.11.2018 by SP CBI. He was handed over the copy of the FIR which was based upon source information. He constituted a trap team consisting of two independent witnesses namely Mr. Jitender Kumar Thakur, Manager, SBI and Mr. Rakesh Kumar Singh, HC, Transport Department and other CBI officials. The team members were explained about the Page-27 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 purpose of the assembly. Thereafter, he explained in detail about the proceedings of pre trap memo Ex.PW2/1 (D-2).
26.2 He further deposed that they left CBI office at around 9:00 a.m in the morning and reached ITO near Trade and Tax office around 9.35 am at. There, the source informed him that the transaction of bribe could take place near the vicinity of trade and tax office. The source informed that A1 would arrive in his Honda Amaze Car at the main gate of trade and tax office. He further deposed that at around 1:30 p.m, the source again informed him that A-1 was leaving for Khan Market. As A-1 left in his vehicle, one CBI team followed him and reached Khan Market, while he (TLO) alongwith other officials remained at ITO. Thereafter, the source again informed him that A-2 who is a CA was coming at Vaipar Bhawan in his Honda City Car and the transaction of bribe could take place in the vicinity of the said area. On receiving the said information, he directed CBI team officials to come back at Vaipar Bhawan office, GST office near ITO. The CBI team came back and they saw A-2 coming in his Honda City Car which was being driven by his driver. The source pointed out at A-2. The source further informed that transaction of bribe could take place at the Ring Road where A-1 was also reaching. The CBI team saw cars of A1 and A2 being parked at the service Page-28 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 road towards Raj Ghat side and both the accused persons were having conversation. Thereafter, A-2 came towards the backside of his car and took out one bag which was later found containing bribe amount. A-2 alongwith A-1 walked towards car of A1. A-1 took keys from the driver and opened the dicky of his car and A-2 put the bag in the left side of the dicky. The dickey was closed by A-1. All the trap team members witnessed the said transaction.
They immediately rushed to the spot. Inspector Harish apprehended A2, Inspector Manoj apprehended A-1 and the CBI team officials took into custody the drivers of both the cars. Both the accused were challenged for transaction and acceptance of bribe amount. A2 disclosed that he had taken Rs. 10 Lacs from A-3 and delivered Rs. 6 Lacs as bribe to A-1. He further disclosed that the remaining amount of Rs. 4 Lacs was kept in his car adjacent to driver seat. Accordingly, he directed independent witnesses Jitender Kumar Thakur to open the dicky of the car of A-1. He instructed the other independent witness to recover the bribe amount. Other independent witness Rajesh Kumar Singh recovered the bribe amount in a white cloth bag. He also counted the bribe amount.
26.3 He further deposed that thereafter the residential address of both the accused persons were taken and a search Page-29 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 warrant U/s 165 Cr.P.C was sent through Special Messenger to CBI office. A CBI team was also sent to apprehend A-3 of M/s. Nath Motors. A rough site plan was also prepared at the spot vide Ex. PW22/1.
26.4 He further deposed that thereafter, further proceedings were decided to be conducted at CBI office. They reached CBI office at about 6.30 pm where both the independent witnesses counted the recovered bribe amount and its GC numbers were mentioned in a separate memo. He identified his signature on the same. The bribe money was also seized and sealed with CBI brass seal.
26.5 He further deposed that CBI team official Raman Kumar Shukla came alongwith Ramesh Sharma (he incorrectly referred PW10 Rajesh Sharma as Ramesh Sharma), one of the directors of Nath Motors disclosed that he had handed over Rs. 10 Lacs to A-2 for handing over the same A-1 as bribe. Both the drivers were also interrogated. Thereafter, specimen voice of A-1 and A-2 was taken in the presence of independent witnesses and marked as S-1 and S-2. He thereafter identified his signature on voice recording memo dated 06.11.2018 ( Ex. PW2/5). The accused persons were arrested vide separate arrest-cum-personal search memos Ex.PW2/6 and PW2/7. He also identified the signatures of the S.P on the FIR Page-30 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Ex.PW22/2. Thereafter, he identified his signatures on the memory cards S-1 and S-2.
27. PW-23 DSP Pramod Kumar Tanwar (2 nd Investigating Officer ). He deposed that on 12.11.2018, the investigation of the present case was transferred to him. During the investigation, he issued notice to one of accused namely Girish Bhatia. The said accused joined the investigation on 13.11.2018. After the interrogation, he arrested A-3 Girish Bhatia. His specimen voice sample was taken before arresting him.
27.1 He also recorded the statements of the witnesses and also collected documents. He collected CAF and CDRs of mobiles of accused persons from mobile service providers. During the investigation, he got prepared transcription of call recordings and got identified the voices of accused persons through the acquainted persons and also prepared Voice Identification Memos. Further, he collected the orders of Director, CBI as well as MHA for call recordings of the mobiles of the accused persons .He also forwarded the recorded questioned voices and specimen voices of the accused persons to the CFSL, New Delhi for comparison. He also obtained the prosecution sanction against A-1 from the competent authority.
Page-31 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 27.2 After completion of the investigation, he filed the charge-sheet before the Hon'ble Court. He also identified the signatures of Inspector Sabeena Siddiqui and Inspector CMS Negion search list dated 05.11.2018 (Ex.PW16/1). He got exhibited production-cum-seizure memo dated 06.12.2018 as Ex. PW23/3. He further identified his signatures on production-cum-seizure memo dated 10.12.2018 (Ex. PW10/C) and stated that he seized the documents i.e. Company Master Data of M/s. Nath Motors Pvt. Ltd. and details of Director and Shareholdings of M/s. Nath Motors Pvt. Ltd. as on 31.08.2018 . He also had arrested A-3 and had identified his signatures on arrest-cum- personal search memo Ex.PW23/4. He also proved the voice identification memo dated 4.12.2018 Ex.PW12/1 & Ex.PW19/A (D-19) wherein the witnesses identified the questioned voices of A-1, A-2 and A-3. He also identified production-cum-seizure memo Ex.PW1/1, Forwarding letter Ex.PW1/1, production-cum-seizure memo Ex.PW9/2 and production-cum-seizure memo Ex.PW8/5 vide which the CAF and CDRs of concerned mobile phones were seized.
28. PW-24 Rahul is a witness of voice identification memo. He deposed that on 04.12.2018, visited CBI office where one of his colleague namely Sachin Sagar was also already present. They were made to hear some recorded Page-32 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 conversation. He identified his signature on Voice Identification Memo dated 04.12.2018 (Ex. PW12/1). He also identified his signatures on transcription { Ex. PW14/1 (Colly.) }, but stated that other signatories except his colleague Sachin Sagar did not sign the same in his presence.
PW-24 was also declared hostile and cross-examined by Ld. Public Prosecutor.
29. PW-25 Sh. Sachin Sagar is also a witness to voice identification memo and colleague of PW-24. He also identified his signatures on Voice Identification Memo dated 04.12.2018 ( Ex. PW12/1). He further stated that he had signed the said documents in a hurry and the witnesses namely Yogesh Gupta, Girish Bhatia, Dinesh Khurana, A. K. Sajnani and Dheer Singh were not present in the CBI office on that day.
PW-25 was also declared hostile and cross-examined by Ld. Public Prosecutor.
30. PW-26 C. M. S. Negi is the member of office (of A-1) search team. He deposed that in compliance to the search warrant, he alongwith the team leader Inspector Sabeena Siddiqui, the independent witness and subordinate staff of CBI reached the said premise at Bikarikar Bhawan.
Page-33 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 One Sh. Kuldeep Chand, Assistant Commissioner, was deputed for assisting the team in search.
30.1 During the search, the team leader Sabeena Siddiqui seized some incriminating documents pertaining to M/s. Nath Motors. The documents included a memo pertaining to audit of Nath Motors and a file of Nath Motors. He identified his signatures on search list Ex.PW16/1 and sealing memo dated 28.06.2018 Ex.PW10/A ( colly). Lastly, he identified the seized file pertaining to M/s Nath Motors Pvt. Ltd as Ex. PW-26/1.
31. PW-27 Sh.Vinay Kumar was the Special Commissioner in GST Department, NCT, Delhi at the relevant time. He deposed that in case of inspection or search, Assistant Commissioner used to take the authorization and constitute the team for the same after getting the approval from the Commissioner. After the conduct of the inspection or search, the Assistant Commissioner has to examine the documents seized and place the report with his findings for appropriate recommendation to Commissioner through his superior officer i.e. Special Commissioner.
31.1 He further deposed that A-1 was working as Assistant Commissioner at that point of time, in Page-34 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Enforcement-1 under him. On 05.11.2018, the Commissioner was on leave and he was designated as Special Commissioner-1. On that day, three CBI officials came to his office and narrated the incident that they had apprehended A-1 and further they wanted to search his office chamber. Thereafter, CBI team searched the office chamber of A-1 in the presence of one Assistant Commissioner Sh. Kuldeep Chand.
31.2 After referring to Ex. PW26/1, he stated that the said document was the authorization for inspection and search dated 28.06.2018 relating to M/s. Nath Motors Pvt. Ltd issued by the Commissioner in favour of A-1. He further deposed that deployment order dated 28.06.2018 issued by Commissioner VAT and Grant of Authority dated 28.06.2018 were issued by Commissioner in the favour of A-1.
31.3 He further stated that Survey Proposal dated 26.06.2018 was prepared by A-1 and submitted to him through e-office. The orders of Commissioner were conveyed by him to Sh. Jitender Kumar (A-1) on 27.06.2018 through e-office. Subsequently, on 27.06.2018 itself, the file was submitted in hard copy for issuance of deployment orders and authorization under DVAT-50/INS01. On receipt of approval on file, the same Page-35 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 was conveyed by him to Assistant Commissioner, Enforcement-1 for further necessary action. He further referred to survey proposal, note-sheets of file from Page No. 94 to 96 concerning the proceedings conducted on M/s. Nath Motors Pvt. Ltd. by A-1 which continued till 14.09.2018. Lastly the survey report was submitted by A-1 on 24.10.2018 ( All part of D-10 Ex.PW-26/1). He identified his signatures on production-cum-seizure memo Ex.PW23/3 vide which he had provided the attested copies of survey of M/s Nath Motors Pvt Ltd, attested copies of order dated 26.10.2018. He also identified the transfer order of A-1 dated 26.10.2018 as Ex.PW12/A1/B.
32. PW-28 Sh. Dheeraj Singh is the witness to voice identification proceedings. He deposed that he signed the documents without going through its contents. He further deposed that no other person except one official was present, who obtained his signature. Thereafter, he identified his signatures on Voice Identification Memo dated 08.12.2018 alongwith the Transcription Ex.PW19/A(colly.).
Thereafter, PW28 was declared hostile and cross- examined by Ld. Public Prosecutor.
(IV) STATEMENT OF ACCUSED (S.A)
33. After the conclusion of the prosecution evidence, separate statements of the accused persons were recorded Page-36 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 u/s 313 CrPC (351 of BNSS 2023) wherein they denied the case of prosecution. A-1 , A-2 and A-3 claimed that they have been falsely implicated in the present matter.
33.1 A-1 further claimed that he has been falsely implicated in the present matter by the CBI in order to achieve their target. He was neither posted in GST Department nor holding any office or any work was pending with him on 05.11.2018. He was transferred and relieved from GST Department on 26.10.2018 and he joined Services Department at Delhi Secretariat I.P Estate on 29.10.2018. He further claimed that no survey was conducted by him at M/s Nath Motors Pvt Ltd in the month of September 2018 as alleged in the FIR. A-1 also led evidence in defence.
33.2 A-2 further in the statement claimed that voice identification proceeding was illegal and not admissible. The same is based on manipulated and tampered documents. He also claimed that the report furnished FSL expert is based upon the annotation of the alleged speaker in the transcripts. The report is unreasoned one. No defence evidence was led by A-2.
33.3 A-3 further in the statement claimed that no one from M/s Nath Motors Pvt Ltd had handed over the money to A-
Page-37 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 2 to be delivered to A-1 . He further denied of having given the voice sample to CBI. No defence evidence was led by A-3.
(V) DEFENCE EVIDENCE
34. DW-1 Shashank Tyagi, Alternate Nodal officer, Vodafone Idea Ltd produced the Location Chart qua the CDR Ex.PW1/3 { (colly) (D21)} dated 05.11.2018 of Mobile No. 9896204062 and got exhibited the same as Ex.DW1/1 ( colly). He further deposed that as he had prepared the said Location Chart manually and signed the same.
35. DW-2 Surender Kumar, Nodal Officer, Bharti Airtel Ltd also produced the Location Chart of CDR Ex.PW8/6 (D-26) of Mobile No. 9818286888 and Ex.PW8/8 (D25) of mobile No. 9667969404 dated 05.11.2018 and got exhibited the same as Ex.DW2/1.
(VI) ARGUMENTS OF PARTIES
(i) Arguments of CBI
36. Shri Hari Mohan, Ld. Senior Public Prosecutor for CBI argued that the present FIR came to be registered on the basis of source information wherein it was disclosed that Page-38 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 A-1 Jitender Kumar who was the Assistant Commissioner, GST, GNCT, Delhi had demanded bribe of Rs.10 lacs for not raising demand of tax for previous years against A-4/ M/s Nath Motors Limited of A-3 Girish Bhatia. The bribe was to be paid by A-2 on behalf of A-3 and A-4 on 05.11.2018. He further argued that consequent to the said information, the trap was laid down and A-1 and A-2 were apprehended while A-2 had delivered bribe of Rs.6 lacs to A-1 near Trade and Tax Building, ITO, New Delhi on 05.11.2018 at about 4:30 p.m. 36.1 It is further argued that the said entire trap proceedings as well as recovery of bribe amount of Rs.6 lacs from custody of A-1 has been proved by an independent witness PW-2 Jitender Thakur. He also proved the various documents concerning the trap as well as pre-trap proceedings. It is further argued that the second independent witness PW3 too has partly supported their case though his version with respect to the amount of bribe recovered is in contradiction to their case. The other witnesses to the trap i.e PW22 Shitanshu Sharma as well as PW20 Inspector Manoj Kumar, all have deposed consistently about every aspect of the trap and A-1 being apprehended having accepted Rs.6 lacs as bribe.
Page-39 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 36.2 It is further argued that the mobile phones of A-1, A- 2 and A-3 were intercepted by the Special Unit of CBI before their apprehension after following the due procedure under the Indian Telegraph Act and the Rules framed thereunder. The CDRs of the said mobile numbers as well as the CAF have also been proved by them on record which also prove the intercepted calls exchanged between them during the relevant period before the acceptance of bribe by A-1.
36.3 It is further argued that the said intercepted calls and their transcripts have been proved on record vide voice identification memo Ex.PW12/1 (colly) (D-18) transcript Ex.PW14/1(colly) & voice identification-cum-transcription Ex.PW19/A (colly). The voice identification witnesses namely PW12 A.K Sajnani, PW14 Yogesh Gupta, PW15 Dheer Singh Chauhan and PW19 Ms. Mollica Garg though turned hostile with respect to the identification of the voices of the accused persons, but admitted the aforesaid voice identification proceedings. However, the said infirmity in non-identification of voices by the independent witnesses is inconsequential when seen in light of the expert voice identification report Ex.PW18/1 by FSL Expert PW-18 Sh. Deepak Kumar Tanwar. Apart from proving the identification of voices of the accused persons in the Page-40 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 recorded calls, he further proved the fact that the said audio recordings are continuous and no form of tampering has been detected. The said intercepted calls thus, reflects the clear demand of bribe by A-1 and the said demand being made to A-3 through his CA namely Dinesh Khurana ( A-
2).
36.4 It is further argued that as far as the arrangement of said bribe amount of Rs.10 lacs is concerned, PW10 Rajesh Sharma who was the Director of M/s Nath Motors Pvt Ltd (A-4) during the relevant time as well as Accounts Manager admitted to the fact that A-2 visited the show-room of M/s Nath Motors Pvt Ltd, in the morning of 05.11.2018. Though he turned hostile with respect to the factum of delivery of Rs.10 lacs by him as directed by A-3 to A-2.
Thus, it is lastly argued that the intercepted calls proved through voice identification memo Ex.PW12/1 and Ex.PW19/2 respectively alongwith the DVD -1 and DVD-2 prove their case of demand of bribe by A-1 in lieu of giving favourable report on the strength/authorisation of Survey of M/s Nath Motors Pvt Ltd, being the head of GST team. Though it is submitted that as on date of demand of bribe or its acceptance, the report had already been submitted by the A-1, but the said fact was never in the knowledge of A-2 or Page-41 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 A-3. Therefore, to get the favourable report, they agreed to pay the said illegal gratification to A-1.
37. Lastly, it is argued that as far as A-1 is concerned, the prosecution sanction under Section 19 of PC Act has also been proved by the Competent Authority PW-21 Vijay Kumar Dev, Chief Secretary, GNCT, Delhi vide Ex.PW21/A. Therefore, they have proved their case on standard of beyond reasonable doubt and all the accused persons are liable to be convicted being party to the criminal conspiracy hatched by them for paying illegal gratification to A-1 for giving favourable report in matter of survey/inspection of M/s Nath Motors Pvt Ltd.
37.1 In support of his pleas, Ld. Sr. PP for CBI relied upon the judgment of Hon'ble Supreme Court in Girish Sharma & Ors V. The State of Chhattisgarh & Ors. 2017 (4) RCR (Criminal) 21 and that of Hon'ble Delhi High Court in Aakash Deep Chouhan V. CBI & Anr, Crl. MC 204/2020 & Crl. MA 890/2020 dated 26.06.2025
(ii) Arguments of A-1
38. Per contra, Sh. Sanjeev Bhardwaj Ld. Counsel for A-1 argued that the prosecution has failed to prove their case on the standard of beyond reasonable doubt.
Page-42 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 38.1 On the factual aspects, it is argued that both the independent witnesses PW-2 Jitender Kumar Thakur and PW-3 Rakesh Kumar never saw the actual transaction of delivery of bribe amount by A-2 to A-1. The drivers of the said two accused persons also appeared in the witness box as PW-6 and PW-7 too discarded the entire case of the prosecution. PW-2 Jitender Kumar Thakur on the aspect of acceptance of bribe turned hostile, but despite that, he was not even cross-examined by the prosecution. Therefore, his version on the acceptance aspect has to be read against the prosecution.
38.2 It is further argued that on the aspect of demand of bribe, both the independent witnesses PW-2 Jitender Kumar Thakur and PW-3 Rakesh Kumar categorically stated that they never heard anything about the demand of bribe nor any conversation in this regard was heard by them.
38.3 Similarly, PW10 Rajesh Kumar Sharma, Director /Manager/Accountant at M/s Nath Motors Pvt Ltd, PW14 Yogesh Gupta, PW19 Molika Garg ( employees of A-4) , all the denied the story of prosecution with respect to the said aspect of handing over of Rs.10 lacs in cash to A-2 on the directions of A-2 to pay the bribe to A-1. It is further argued that on the aspect of acceptance of alleged bribe, again PW2 Jitender Kumar Thakur never saw the actual Page-43 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 occurrence as he for the first time saw A-1 and A-2 at this spot when they had already been apprehended by CBI. Similar is the version of other independent witnesses PW-3 Rakesh Kumar. The version of CBI witnesses i.e PW22 Inspector Shitanshu Sharma and PW20 Inspector Manoj Kumar is contrary on the said aspect as they stuck to the CBI version.
38.4 It is further argued on behalf of A-1 that on the aspect of recovery, the statement of all the witnesses i.e PW-2 Jitender Kumar Thakur, PW-3 Rakesh Kumar, both the independent witnesses, PW20 Inspector Manoj Kumar and PW22 Inspector Shitanshu Sharma, TLO, are contradictory to each other on the material aspects. As per the recovery memo Ex.PW2/2, the alleged recovery was effected from the dickey of car of A-1 by PW-3 Rakesh Kumar, but PW2 Jitender Kumar Thakur deposed to the contrary by claiming that he had effected the recovery which was approximately Rs.80,000-90,000/-. Similarly, PW-3 Rakesh Kumar gave a different story and claimed that when he reached at the spot, the bag was already in the hands of CBI officials which contained loose currency which was approximately Rs.23,000-24,000/-.
39. As far as the recovery from the car of A-2 is concerned, again the versions given by PW2 Jitender Kumar Page-44 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Thakur, PW3 Rakesh Kumar, PW20 Inspector Manoj Kumar and PW22 Inspector Shitanshu Sharma are in contradiction to each other. As per PW2 and PW3, search of the car of A-2 was carried out after they had come back to CBI building after apprehending them. They both sat in one room while the CBI officials were not there and after some time, PW-22 came there and asked them to accompany to the parking for the search of black car of A-2 wherein amount of Rs.23,000-24,000/- was recovered. Thus, the version of both independent witnesses is entirely in contradiction to the car search memo of A-2.
39.1 It is further argued that the crucial link of the availability of said amount with A-2 and how the said amount was arranged by him on the directions of A-3, too has remained unproved. PW10 Rajesh Kumar Sharma, Director/Accountant of A-4/M/s Nath Motors Pvt Ltd. as well as PW14 Yogesh Gupta and PW19 Ms. Molika Garg who were all the employees of A-4/M/s Nath Motors Pvt Ltd, contradicted the entire case of the prosecution. They turned hostile with respect to the delivery of Rs.10 lacs to A-2. They further discarded the claim of the prosecution that the said amount was given to A-2 on 05.11.2018 on the directions of A-3 for being given to A-1.
Page-45 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 39.2 It is further argued that the motive of the said alleged case of bribe as claimed by the prosecution is that a favourable survey report was to be given in lieu of the bribe by A-1 concerning A-4/M/s Nath Motors Pvt Ltd. However, the evidence which has come on record vide Ex.PW12/A-1- A(D-11), the survey report was already finalized by A-1 and submitted to Special Commissioner and Commissioner, GST, Department of Trade and Taxes, ITO, New Delhi on 24.10.2018. The said record has already been proved on record vide Ex.PW12/A-1-A. The note recommended levying of appropriate tax and penalty to be forwarded to Ward No.204 was approved by the Special Commissioner and lastly by the Commissioner, GST on 30.10.2018. Thus, as on the date of the alleged demand of bribe or acceptance thereof, no such report or survey was pending with A-1. The prosecution has also failed to show on record as to which of the previous years of demand of tax has not been raised or recommended by A-1 in his survey report. The said act was claimed to be the motive of the demand of a bribe and A-3 had agreed to pay the same.
39.3 It is further argued that as per the case of the prosecution the allegation that the survey was conducted in September 2018 by A-1 against A-4/M/s Nath Motors Pvt Ltd stands disproved through the admitted record. It is Page-46 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 further argued that as on 05.11.2018, A-1 was already transferred from GST vide transfer order dated 26.10.2018 Ex.PW12/A1/3. He was relieved with immediate effect. IO/PW23 Dy. SP Pramod Kumar admitted to the said fact. Thus, the alleged motive of demand of bribe and it being on account of giving a favourable survey report of A-4/M/s Nath Motors Pvt Ltd. by not raising the issues concerning previous tax dues or any tax evasion, has remained unproven.
40. On the legal aspect concerning admissibility of intercepted calls, it is argued that the intercepted calls placed on record vide DVD Ex.PW11/M(Q1) and PW11/N(Q2) and transcript Ex.PW14/1 ( colly) and Ex.PW19/A (colly) cannot be read in evidence as the mandatory compliance of Rule 419A of Indian Telegraph Rules has not been done. It is argued that as per Rule 419A (17), any such permission for interception of telephonic calls by the Competent Authority has to be forwarded to the concerned Review Committee within 7 days. No such approval of the order of the Review Committee for interception has been proved on record.
40.1 It is further argued that any such interception of telephonic calls has to be as per mandate under Section 5 (2) Indian Telegraph Act and the preliminary conditions for Page-47 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 issuance of such order is either on the 'occurrence of public emergency' or in 'interest of public safety' as has been laid down by Hon'ble Supreme Court in People's Union for Civil Liberties (PUCL) V. UOI (1997) 1 SCC 301. But no such material has been placed on record which shows any such public emergency or public safety. The interception orders identified by PW11 Kumar Abhishek as Ex.PW11/J to PW11/K and PW16 Sunil Kumar, Principal Staff Officer, MHA vide Ex.PW17/1 ( colly) have remained unproved . The mere identification of the signatures of the authors of the documents is no proof of the documents unless and until the contents of the documents are also proved. The competent witness for proving the contents of document never came in the witness box and thus, the interception orders have remained unproved.
40.2 It is further argued that as far as the recordings, the transcription or the voice identification proceedings are concerned, the same are false, fabricated and manipulated. All the voice identification witnesses namely PW12 A.K. Sajnani, PW14 Yogesh Gupta, PW15 Dhir Singh Chauhan and PW19 Molika Garg, turned hostile and also questioned the authenticity of the voice identification proceedings vide D-18 and D-19 respectively.
Page-48 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 40.3 It is further argued that the manipulation and tampering of intercepted calls by CBI is evident from the fact that the text contained in the transcription is not there in the alleged recordings as admitted by IO/PW23 Dy. SP Pramod Kumar in the cross-examination. It is further argued that no specimen voice of accused person was ever taken or recorded. PW2 Jitender Kumar Thakur denied the said fact that any such specimen voice sample of accused being taken in his presence. Similarly, PW3 Rakesh Kumar too failed to identify his alleged voice in specimen voice memory card Ex.P5 and Ex.P6.
40.4 It is further argued that the voice recordings are also liable to be rejected in view of an inadmissible certificate under Section 65 B of the Evidence Act Ex.PW11/C. The contents of the said certificate stand rebutted by PW11 in his cross-examination, wherein he claimed that the segregation of the calls transferred by him in DVD-1 Ex.PW11/M and DVD-2 Ex.PW11/O was done by the team. The said segregation process was never witnessed by him nor any document was prepared. He never heard the intercepted calls. Therefore, in the said backdrop the certificate given by him under Section 65 B of Indian Evidence Act is defective thereby rendering the contents of DVD-1 Page-49 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Ex.PW11/M and DVD-2 Ex.PW11/N respectively to be inadmissible.
40.5 It is further argued that the contradiction with respect to the factum of collection of said calls from Special Unit by the I.O, PW11 claimed that intercepted calls are never shared with any other branch of CBI and the same is kept as a secret. The said calls were officially collected by PW13 Inspector Harnam Singh from PW11 Kumar Abhishek of Special Unit on 05.11.2018. He admitted the fact that he collected the said DVD-1 at around 10:30/11:00 p.m from Kumar Abhishek and handed over to I.O after mid-night. Further, he admitted to the fact that authorisation for collecting the material was issued by S.P, ACB and was marked in the name S.P., S.U Branch, CBI. However, without any approval of SP, PW13 directly approached PW11 and collected the top secret material despite PW11 being neither the custodian nor having the authority to exercise the power of Nodal Officer. Further, no explanation is furnished as to why on 05.11.2018, the interception orders were not handed over despite handing over the alleged intercepted calls vide seizure memo Ex.PW11/A (D-12). The said interception orders were handed over after one month, vide seizure memo Ex.PW11/D (D-13) dated 05.12.2018. The said procedure reflects that the said Page-50 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 proceedings were never kept a secret and therefore, the possibility of tampering with the intercepted calls cannot be ruled out.
40.6 It is further argued that CFSL report of PW18 D.K. Tanwar Ex.PW18/1 is false and inadmissible. Firstly, the issue of qualification of PW18 in the field of voice identification is questionable as he had merely undergone one month training. He never quantified any percentage of comparison between the question and specimen voices in the auditory sheets Ex.PW18/D1 to Ex.PW18/D3, which reflects that the report is unreasoned one.
40.7 The spectrographic analysis is also inadmissible in absence of certificate under Section 65 B of Evidence Act as well as he having failed to mark general visual features in the spectrograms Ex.PW18/D1 to Ex.PW1/D3. He further admitted that their CFSL lab is not notified under Section 79A of Information Technology Act,2000 and therefore not competent to provide report on electronic evidence. Even the report furnished by him opines that 'probably' the voice of speakers in the questioned DVDs matches with the specimen voices. Such opinion is not conclusive and cannot be the basis for conviction in a criminal trial.
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41. It is further argued on behalf of A-1 that the important link evidence in the form of Malkhana deposit record has also not been produced intentionally by the prosecution .The said evidence is essential to rule out the possibility of tampering in the electronic evidence. No evidence has been produced to show the ingress and egress from the Malkhana with respect to the DVD-1 and DVD-2 as well as the specimen voice samples. The versions of PW22 Inspector Shitanshu Sharma and IO/PW23 Dy. SP Pramod Kumar with respect to the deposit of the exhibits in the Malkhana and thereafter submission of the same to the CFSL Lab, are in contradiction to each other.
41.1 It is further argued that the story of trap is also contradictory to the case presented by the prosecution. As per the allegations, the trap team had followed A-1 when he went towards Khan Market. However, PW2 and PW-3, both discarded the said story and stated that they had merely followed the accused till Delhi Zoo and not Khan Market.
41.2 The question mark has also been raised with respect to the authenticity of the various documents and memos as they all are ante-dated and ante-timed. Both PW2 and PW3 in the cross-examination admitted to the fact that they signed the documents on the asking of the CBI officials without going through the contents of the same. Similar is Page-52 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the version of PW12 A.K. Sajnani, PW14 Yogesh Gupta, PW15 Dhir Singh Chauhan and PW19 Molika Garg.
42. On the merits qua the trap proceedings ,it is argued by A-1 that the case of the prosecution concerning apprehension of A-1 and A-2 at the spot i.e near IIPA office, ITO, New Delhi at around 4:30/5:00p.m is rebutted through the location chart of mobile no. 9896204062 Ex.DW2/1 and the location of the said mobile phone during the said interval was at CBI building, at CGO Complex, New Delhi. Similarly, the location chart of other mobile no. 9667969404 Ex.DW2/2 which is planted upon A-1 also establishes the said fact. The timings mentioned in the house-search memo Ex.PW22/DA and Ex.PW22/DB as well as the office search also disproves the entire story as well as the contents of recovery memo Ex.PW2/2. The house-search was already initiated at about 4:30 p.m and 4:10 p.m when even the accused persons were not apprehended. No videography or photography of post trap proceedings was conducted by the CBI thereby violating the mandate of CBI Crime Manual.
43. Lastly, as far as the Prosecution Sanction against A-1 is concerned, it is argued that the Sanctioning Authority PW21 Vijay Kumar Dev accorded the same in a mechanical manner without corroborating the facts Page-53 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 regarding posting of A-1 with GST Department on 05.11.2018 nor any survey being conducted by him against A-4/M/s Nath Motors Pvt Ltd in September 2018.
(ii) Arguments of A-2
44. Dr. Sushil Gupta, Advocate, Ld. Counsel for A- 2 adopted the arguments of A-1 on the merits of the case concerning various factual infirmities in the trap story presented by the prosecution.
44.1 As far as the admissibility of intercepted calls is concerned, it is argued that the prosecution by using Section 5(2) of Telegraph Act has conducted the intercepted the telephone calls and the preliminary issue is whether the mandatory conditions for invoking the said provision i.e 'Public Emergency or Interest of Public Safety' was present there before the interception orders were passed. In this regard, the reliance is placed upon PUCL (supra) and Hukam Chand Shyam Lal Vs. Union of India & Ors. (1976) 2 SCC 128.
44.2 It is further argued that the provisions of Rule 419A of Indian Telegraph Rules are mandatory. It has been reiterated by Nine Judges Bench of Hon'ble Supreme Court in K.S Puttaswamy V. UOI (2007) 10 SCC 1 thereby Page-54 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 elevating the right of privacy to that of fundamental right. Any infringement of right to privacy which includes the private telephonic conversation has to be as per the due procedure established by law. No material has been produced by the prosecution which shows that the Competent Authority before passing the interception order had the material with them disclosing 'Public Emergency or Interest of Public Safety' which prompted the interception of telephone calls thereby violating accused persons Fundamental Right to Privacy. The reliance in this regard is placed upon the judgment of High Court of Karnataka in Dr. S.M. Mannan V. CBI 2024 SCC Online Kar 80 and that of Hon'ble High Court of Telangana in case Govt of India, Rep by the Secretary V. KLD Nagasree & Ors 2023 SCC Online AP 1834. The judgment of Hon'ble High Court of Madras in Sanjay Bhandari V. Secretary Govt of India, Ministry of Home Affairs & Anr. 2020 SCC Online Mad 28021 which expanded the scope of Section 5 (2) of Telegraph Act to include within its purview the offences under Prevention of Corruption Act has been held to be bad in law by the subsequent judgment in P.Kishore V. Union of India, 2025 SCC OnLine Mad 3053. Therefore, the judgment of Hon'ble Delhi High Court in Santosh Kumar Singh V. Union of India 2022 SCC OnLine Delhi 1774 and Aakash Page-55 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Deep Chouhan V. CBI (supra) which are also based upon the judgment of Sanjay Bhandari (supra) are bad in law.
44.3 It is further argued that no material has been presented by the prosecution which shows the compliance of Rule 419A of Indian Telegraph Rules as the request letter which was sent by the Investigating Authority to MHA has not been proved. The interception orders are silent with respect to the reasons of issuing of said directions thereby violating Rule 419A (2) of Indian Telegraph Act. The said issue has also been highlighted by Hon'ble Supreme Court in Anuradha Bhasin V. UOI (2020) 3 SCC 637. The sub- rule 3,5, 7 and 8 are all violated by the Competent Authority. No material has been produced by the prosecution which shows the communication of the interception orders to the service provider. Nor any material has come with respect to the mandatory forwarding of the said interception orders under Order 419A (17) to the Review Committee.
44.4 The question mark has also been raised on the legality of five interception orders issued by the Director, CBI on the ground that there was no emergency which that prompted for passing of said orders. On the very same day three interception orders were passed by Competent Authority i.e the Secretary, MHA.
Page-56 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 44.5 As regards the segregation of calls and the certificate under Section 65 B of Evidence Act issued by PW11, again a question mark has been raised as PW11 was never part of the team which segregated the calls and therefore, he could not have issued the certificate in question.
45. It is also argued that the specimen voice sample of the accused also have several discrepancies as the two independent witnesses denied the taking of specimen voice sample. The reliance is also placed upon the judgment of Hon'ble Supreme Court in Sudhir Choudhary V. CBI AIR 2016 SC 3772 wherein it has been held that the specimen voice should not contain incriminating part from the questioned voice, but should contain relevant words. No such mandate has been followed in the present case. 45.1 It is further argued that the transcription-cum-voice identification proceedings are in violation of Section 162 Cr.P.C thereby making them inadmissible.
46. Lastly, it is argued that the CFSL report Ex.PW18/1 is entirely based upon the transcription-cum- voice identification memo proceedings which itself is legally inadmissible and hence, the foundation of giving CFSL opinion is in the dock. The transcription-cum-voice Page-57 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 identification proceedings have not been proved in the Court which forms the basis of the CFSL proceedings. Therefore, the basis of CFSL report also goes. The reliance in this regard is placed upon the judgment of Hon'ble Delhi High Court in Devinder Singh v. CBI 2014 SCC OnLine Del 1261. It is further argued that the entire CFSL repot Ex.PW18/1 is bereft of reasoning. In absence of any such reasoning which is mandatorily required to be given under Section 51 of Evidence Act, the same is not liable to be acted upon. It is further argued that CFSL report given by PW18 is also not admissible in view of the fact that the expert is not the expert as defined under Section 45 (A) of Indian Evidence Act read with Section 79A Information Technology Act. Reliance in this regard is placed upon the judgment of Hon'ble Supreme Court in Nilesh Paradkar V. State (2011) 4 SCC 143 arguing that the mandate of said judgment has not been followed while comparing the voices. The reliance is also placed upon the judgment of Hon'ble Supreme Court in Ram Singh V Col. Ram Singh, AIR 1986 SC 3 by arguing that none of the stipulated conditions for making the tape-recorded conversation admissible has been fulfilled by the prosecution, on whom the burden of proof lies. Therefore, the said piece of electronic evidence is liable to be rejected.
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(iii) Arguments of A-3
47. Shri Ajit Kr. Singh & Sh Deepak Badana, Advocates, Ld. Counsel for A-3 too adopted the arguments advanced on behalf of A-1 on the factual aspects concerning the infirmities in the evidence produced by the prosecution.
47.1 On the factual aspect concerning the role of A-3 who is stated to be director of A-4/M/s Nath Motors Pvt Ltd, it is argued that the prosecution has failed to prove the allegation that employees of M/s Hana Motors withheld the amount received from Sales during the period from 01.11.2018 to 04.11.2018 for purpose of arranging the alleged bribe. All the relevant witnesses i.e PW10 Rajesh Kumar Sharma, PW15 Dhir Singh Chauan and PW19 Ms. Molika Garg discarded the case of prosecution regarding segregation of the said amount from the accounts of M/s Hana Motors Pvt Ltd also connected to A-3 for purposes of handing over to A-2 to be delivered as bribe to A-1.
47.2 It is further argued that no evidence has come on record that A-3 had directed to any of his employees to hand over any amount to A-2 for being paid as a bribe amount. No evidence has come regarding collection of amount by A-2 on that day i.e. 05.11.2018.
Page-59 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 47.3 It is also argued that the main crux of the allegations against him is that he agreed to pay Rs.10 lacs as bribe to A- 1 in lieu of his promise of not raising his demand of tax for previous years for A-4/M/s Nath Motors Pvt Ltd. However, no evidence has come on record which probalizes the said plea of the prosecution Rather, the evidence which has come on record is that A-1 already stood transferred from GST Department vide order dated 26.10.2018 Ex.PW12/A- 1/B and he was relieved. I.O/PW-23 admitted to the said fact of transfer of A-1 as on the alleged date of demand of bribe. As far as the survey report is concerned, the same was already uploaded on E-Office Portal by A-1 on 24.10.2028 i.e well before the alleged claim of demand of bribe or acceptance thereof.
47.4 As far as the legal arguments concerning the admissibility of intercepted calls are concerned, the arguments advanced on behalf of A-1 and A-2 were also adopted. The additional arguments qua A-3 on the said aspect is specimen voice recording memo dated 13.11.2018 Ex.PW23/2 of A-3 being false and fabricated. As per the said proceedings, after recording the voice sample, the seal was handed over to independent witness to PW17 Sunil Kumar in the presence of another independent witness Shailender Singh. None of the said two independent Page-60 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 witnesses have been examined by the prosecution, nor any such seal has been produced before the Court. Therefore, the integrity of the specimen voice sample of A-3 is itself doubtful.
47.5 Ld. Counsel(s) for A-1 and A-3 also relied upon the judgments referred in the arguments of A-2
(iv) Rebuttal Arguments of CBI
48. In rebuttal, Ld. Sr. PP for CBI argued that the reliance placed by all the accused persons on the judgment of Hon'ble Supreme Court in Col. Ram Singh V Col. Ram Singh (supra) is misplaced. The said judgment was delivered in a civil case wherein no such report of CFSL was there vouching for the integrity of the tape-recorded conversation, which is not the case herein.
48.1 It is further argued that the voice identification report given by the expert is admissible under Section 45 and 47 of Indian Evidence Act. As far as the inconsistencies or contradictions in the testimonies of PW-2 and PW-3, the independent witnesses to trap are concerned, it is argued that the same are not material and such contradictions do occur with the passage of time. The chain of custody of DVDs having the intercepted calls was never broken at any point of time and the report of expert corroborate the said fact. As far as the legal validity of interception calls is concerned, the reliance is placed upon the statutory presumption under Page-61 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Section 114 of Indian Evidence Act and legality is attached to the orders passed by the Competent Authorities.
49. Heard and Considered the record.
(VII) VALIDITY OF PROSECUTION SANCTION
50. The first and foremost issue to be considered is the validity of the prosecution sanction under Section 19 of the Prevention of Corruption Act against A-1. It is the case of the prosecution herein that A-1 being the Public Servant i.e. Assistant Commissioner (Enforcement) Trade and Taxes Department, GNCT of Delhi abused his office and demanded and accepted bribe from A-3 through A-2. Therefore, only in case of valid prosecution sanction against A-1, the case of the prosecution can succeed against him.
51. The issue of prosecution sanction and it being a mandatory requirement as stipulated under Section 19 of PC Act is no longer res integra. Any prosecution of the public servant for the offences under Section 7,10,11 and 13 of Prevention of Corruption Act requires a mandatory prosecution sanction from the employer. It must be accorded by Competent Authority i.e his employer who is competent to remove him from his office at the time when the offence is alleged to have been committed. In the present case in hand, it is not in dispute that A-1 was indeed a public Page-62 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 servant being working as Assistant Commissioner, Delhi GST and was posted at Trade and Taxes Department GNTCD at the time of commission of offence. The prosecution in compliance of the said mandatory condition, approached the employer and accordingly, the sanction has been accorded by the then Chief Secretary, Vijay Kumar Dev, GNCT of Delhi vide sanction order dated 27.02.2019 Ex.PW21/A. 51.1 The said sanction has been proved by the sanctioning authority (PW21) who stepped into the witness box and proved the sanction order Ex. PW21/A dated 27.02.2019. The first and foremost aspect to be considered is the competency of the sanctioning authority and whether he was indeed the removal authority of A-1 at the relevant time when the sanction was accorded. The competent authority in the sanction order which is a detailed sanction order having the detailed reasoning for reaching to the conclusion, records the specific averment regarding its competency. It has been specifically averred that the "undersigned" being competent authority to remove Jitender Kumar ad-hoc Danics, the then Assistant Commissioner (Enforcement) Trade and Taxes Department, GNCT of Delhi during his office. The said competency of the competent authority and the specific assertion to this effect was never Page-63 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 challenged by A-1 in the cross-examination of PW21. Therefore, on the first and foremost aspect of PW21 being the competent authority to accord the sanction under Section 19 read with Section 7 of Prevention of Corruption Act there is no dispute and the same stands proved through the version of PW21 as well as the sanction order Ex. PW21/A.
52. The next crucial issue to be seen with respect to the validity of the prosecution sanction is the fact whether the same has been accorded after due application of mind or not. It is the case of A-1 that sanction has been accorded mechanically without application of mind as the fact of transfer of A-1 from the office of Trade and Taxes Department, GNCT of Delhi on 5 th of November, 2018 was never considered nor the fact of no survey being conducted by him at M/s Nath Motors Pvt. Ltd. in September 2018. PW-21 was cross-examined in this regard wherein the witness expressed ignorance as to whether he was not posted in GST Department, GNCT of Delhi on 5 th of November 2018 being already transferred. As far as the aspect of survey is concerned, he claimed that he had pursued the survey report of the month of September 2018 submitted by A-1. PW-21 further clarified that it was in the bunch of papers mentioned at serial no. 9 of the documents provided by the CBI. As far as the said bunch of papers mentioned at Page-64 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 serial no. 9 of Sanction order are concerned, the said documents form part of D-9 Ex. PW10/A (colly).
52.1 There is no such survey report in the said bunch of papers, on the contrary the survey report is the part of Ex. PW23/3 (D-11). The said documents were also forwarded to the competent authority (PW-21) vide serial no. (xi) of the list of documents as mentioned in the sanction order. It is also proved on record that there is no survey report of M/s Nath Motors pvt. Ltd. submitted by A-1 of September 2018. The only survey report submitted by A-1 is dated 24th of October 2018 (Ex. PW12/A/1-A).
52.2 The mere incorrect response given by PW21 qua the month of the survey report of A-1 does not per se reflect non-application of mind by the competent authority. He in the cross examination itself clarified on the said aspect of having gone through the survey report Ex. PW-12/A1-A by claiming that if the same was part of the documents provided by CBI, then he had gone through the said documents as already discussed in the sanction order Ex. PW21/A(D31). The list of documents supplied by the CBI to the competent authority is duly enumerated from serial number (i) to (xxx). The documents listed at serial no.(xii) are the documents that form part of court record vide Ex. PW12/A-1-A (D-11). It includes the survey report of 24 th Page-65 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 October 2018. In that scenario, no assumption can be drawn that there was no perusal of the said survey report by the competent authority before according the prosecution sanction.
53. The next limb of arguments advanced on behalf of A-1, is that the non-application of mind was reflected from the incorrect fact regarding the posting detail and survey report submitted by him being recorded in the sanction order Ex. PW21/A. The basis for said arguments advanced on behalf of A-1 is the assertion made at page no. 3 para-1 of the sanction order Ex. PW21/A. The said assertions when read holistically and purposely reflect that para one is nothing but reproduction of allegations in the FIR in brief. It is also the matter of record that the FIR was registered on source information and the information supplied by the source with respect to posting details of A-1 or survey being conducted in September 2018 by A-1 of Nath Motors Pvt. Ltd. during investigation was found to be not as per the collected record.
53.1 The second last para of sanction order Ex. PW21/A itself clarifies the said position regarding A-1 being no longer in the office of Trade and Taxes , GNTCD at the time of according of the sanction. In the said backdrop when the entire material was considered by the sanctioning authority, Page-66 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 which included the survey report Ex. PW12/A1-A as well as his transfer order from the Tax Department vide Ex. PW12/A1-B dated 26.10.2018, it cannot be assumed that the sanction has been accorded without considering the said record thereby reflecting non application of mind.
54. The last argument advanced on the said aspect by A-1 concerns the non-consideration of crucial evidence before according the sanction i.e. CFSL report and alleged call recordings. As far as the CFSL report of the alleged intercepted calls exchanged between the accused persons is concerned, the said report came to be furnished to CBI only after 27th Feb.2019. Rather the report was collected by the CBI on 2nd of February 2021 as reflected from the receipt on letter Ex. PW18/3 dated 23rd of October 2019. In the said backdrop, there was no question of forwarding of the CFSL report to the competent authority as it was not in existence as on date of according of the prosecution sanction . Thus, the issue to be considered is whether the non-consideration of CFSL report itself can be the ground for reaching to the conclusion that sanction has been accorded without application of mind.
55. To appreciate the said contention advanced on behalf of A-1, the allegations levelled by the Investigating Authority after finalization of the investigation which came Page-67 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 to be forwarded to the competent authority needs consideration. As per the allegations the telephonic calls of the accused persons were intercepted which reflected the bribe being sought by A-1 while finalizing the survey report of taxation qua M/s Nath Motors Pvt. Ltd. Accordingly, the trap was led and A-1 was apprehended as per the allegations while accepting bribe of Rs 6 lacs from A-2.
55.1 The CFSL report was only a corroborative piece of evidence with respect to the voice identification proceedings qua the intercepted calls. The intercepted calls, the transcripts and the voice identification proceedings involving the witnesses acquainted with the voices speaker were duly forwarded to the sanction authority as reflected from the sanction order (Ex. PW21/A) itself. It is not the case of the A-1 that the said material i.e. the transcript and the voice identification proceedings being not forwarded to the sanctioning authority. It is only the CFSL report which was not available and hence never forwarded.
55.2 As far as the alleged recordings are concerned, two copies were provided to the Investigating Officer by Special Unit CBI vide Seizure Memo Ex. PW11/A (D-12) & Ex. PW11/D (D-13), one such copy of the intercepted calls was in sealed cover and other being unsealed for the purpose of investigation. Only the sealed envelope of the DVD having Page-68 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 intercepted calls was forwarded to the CFSL. The investigating copy always remained with the CBI and no assumption can be drawn that the same being not forwarded or considered by the competent authority while according the prosecution sanction. Even otherwise, the transcripts of the intercepted calls as well as the statements of identification witnesses to the said alleged call recordings was available with the Competent Authority and has been duly considered as per the contents of sanction order (Ex. PW21/A) itself.
55.3 The CFSL report is only a corroborative piece of evidence as to the voice identification and hence non- consideration of the same by competent authority is inconsequential. Even otherwise the Court while deciding the issue as to the validity of the prosecution sanction or adequacy of material considered by the Sanctioning Authority, cannot sit as an Appellate Court. In this regard, the judgment of Hon'ble Supreme Court in Vinod Kumar Garg V. State of NCT of Delhi, 2020 (2) SCC 88 is relevant and addresses the issue in hand. The relevant para is reproduced hereunder for the sake of convenience:
"25. On the said aspect, the later decision of this Court in State of Maharashtra Vs. Mahesh G. Jain, (2013) Part 8 SCC 119 has referred to several decisions to expound onthe following principles of law governing the validity of sanction:
Page-69 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 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 prima 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.
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."
The contention of the appellant,therefore, fails and is rejected........"
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56. The non-consideration of CFSL report being not an existence is in consequential as it cannot be said that the said CFSL report could have tilted the balance in favour of A-1 before the competent authority .Rather CFSL report too corroborates the case of the prosecution regarding the identification of the voices, including that of A-1. The competent authority was only supposed to form a prima facie opinion on the material presented before it by the Investigating Authority. Further, the said opinion must be formed after due consideration of entire material. In the said backdrop, it cannot be concluded that the sanction has been accorded in a mechanical manner or without application of mind. Arguments advanced on behalf of A-1 are accordingly liable to be rejected and it is held that prosecution sanction has been duly accorded by the Competent Authority.
(VIII) DEMAND AND ACCEPTANCE OF BRIBE
(i) Legal Issue
57. The crux of the case against the accused person herein revolves around the role played by A-1 Jitender Kumar @ Jitender Joon, who was working as Assistant Commissioner, GST, Enforcement Wing, Govt of NCT of Delhi. The only substantive charge against said main accused is under Section 7 of the P.C Act read with Section 120B of IPC. It is alleged that a criminal conspiracy was Page-71 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 hatched by him alongwith other accused persons as named and object of the same was obtain bribe from A-3 and A-4 in lieu of giving undue advantage to A-3 and his company (A-
4) in the matter of tax survey pending with him. The period of the said criminal conspiracy is between June 2018 till 5th November 2018. In pursuance of the said conspiracy only the alleged substantive offence u/s 7 of PC Act was allegedly committed. The entire case of the prosecution is primarily based upon the proof of commission of said offence and the conspiracy thereof. The other substantive offences charged against the remaining accused are in a way dependent upon the outcome of said main charge.
58. The substantive offence under Section 7 of PC Act concerns the demand and acceptance of bribe by A-1 of amount of Rs.10 lacs from A-2 who in turned delivered Rs.6 lacs on behalf of A-3, the director/owner of A-4/M/s Nath Motors Pvt Ltd. on 05.11.2018.
58.1 The Section 7 of P.C. Act as amended with effect from 18th June 2018 is the substantive charge levelled against A-1. Therefore, the ingredients of the said offence need to be deciphered before proceeding to the factual matrix of the case. Section 7 of PC Act as amended is reproduced hereunder :-
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7. Offence relating to public servant being bribed.--
Any public servant who,--
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
59. The charge framed against the accused no.1 as per the allegations is covered under Section 7 (a) of the P.C Act and thus the interpretation of the law on the said issue even prior to amendment becomes relevant . The settled preposition of law by the Hon'ble Supreme Court prior to the amendment of Section 7 of P.C. Act, was that for the successful prosecution of the offender, the prosecution has the obligation of proving the demand and acceptance of bribe as sine-quo-non.
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60. The said legal requirement has been discussed in the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh (2015) 10 SCC 152 and the Hon'ble Supreme Court summarised the well-settled position of the law on the subject as under:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)
(i) and(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."
61. Recently, again the Constitutional Bench of Hon'ble Supreme Court explained about the said essential ingredients of an offence under Section 7 and Section 13(1)
(d) of P.C. Act in Neeraj Dutta V. State (Govt. of NCT of Delhi) (2023) 4 SCC 731, as under:
"68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the Accused public servant Under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of the Accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence Page-74 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence Under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence Under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, Under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment Under Section 13(1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of Page-75 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 course, a presumption of fact is subject to rebuttal by the Accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the Accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
62. The amendment in the provision under Section 7 of PC Act w.e.f 18.06.2018 also does not make much difference as the heading of the offence still remains"Offence relating to public servant being bribed". The sum and substance of Section 7 even post-amendment remains the same as discussed by Hon'ble Supreme Court in Neeraj Dutta (supra), Para-68 (d) (i) (ii). The use of words "obtains" or "acceptance of undue advantage" even in the new provisions makes it apparent that the proposition of law as discussed above still holds the fields and burden upon the prosecution is still there that the "demand" and "acceptance"
Page-76 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 of illegal gratification or undue advantage by the public servant has to be proved being "sine-quo-non".
62.1 The only addition post-amendment is clause (c) of Section 7 of PC Act wherein even the dishonest act of public servant in discharging improper or dishonest a public duty in anticipation or inconsequence of accepting undue advantage in future too has been made punishable. Thus, the scope of Section 7 of PC Act has been in a way, enlarged that even where the public servant acts dishonestly in performing any public duty wherein at the time of performance of said public duty, no such demand of bribe has been made, but the said duty has been done dishonestly in anticipation of accepting undue advantage in future.
(ii) Factual Matrix Qua the Allegation of Demand of Bribe
63. Now, coming to the factual matrix in light of the said legal position qua proving of demand and acceptance of bribe. The first and foremost aspect as per the case of the prosecution to be seen is demand of bribe by A-1 through A- 2 from A-3 being the director /owner of A-4/M/s Nath Motors Pvt Ltd. It is the case of the prosecution itself that the demand of bribe allegedly emanated from A-1 and the motive of the said demand seeking said bribe was to give favourable report in the matter of survey /inspection of A- 4/M/s Nath Motors Pvt Ltd. pending with A-1.
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(iii) Contact between the Parties
64. In the said backdrop, the first aspect to be considered is the contact of A-1 with A-2 or A-3 and the context of the said contact. As per the case of the prosecution the said fact regarding the manner in which A-1 vis-a-vis A-2 and A-3 came in contact is the assignment of survey-cum-search operation against A-4/M/s Nath Motors Pvt Ltd to A-1 working as Assistant Commissioner, Trade and Taxes, GST, GNCT of Delhi.
64.1 As per chargesheet,it has been alleged that the said survey was, in fact, carried out on A-4/M/s Nath Motors Pvt Ltd by A-1 on 28.06.2018 and not in September 2018 as initially claimed in FIR. The prosecution has proved on record the requisite documents vide Ex.PW23/3 (D-11). The survey proposal and the proceedings conducted thereafter have been proved on record by PW27 Vinay Kumar ,the then Special Commissioner, Department of Trade and Taxes, GNCT of Delhi.
64.2 The survey proposal dated 26.6.2018 was initiated vide Note-I by A-1 Ex.PW12/A-1/A {Part of Ex.PW23/3 (D11)}. In the said proposal, A-1 elaborated about the profile of A-4/M/s Nath Motors Pvt Ltd having TIN No. 07880054696, Registered Dealer with Ward No. 204 engaged in the business of vehicle sales. It is further noted Page-78 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 down that it is basically a Honda Car dealer and also having the service station. The details of GTO and Tax Paid for the last five years were also enumerated and thereafter, a table was made after scrutiny of Annexures submitted by the dealer. It was observed by A-1 with the following part of the noting:
"As per data analysis still there is huge difference in stock exist which needs to be verified through physical inspection as the dealer never accounted this amount in the books.
Moreover, this the dealer has revised his return for the 1st Qtr. of 2017-2018 for 7 times, this may also be a suspicious activity of the dealer and the same is required to be verified.
In view of above, inspection of the dealer may be conducted to verify these facts and to safeguard the Govt Revenue."
64.3 The said proposal was accepted by PW-27 Vinay Kumar, the then Special Commissioner on the same day at 5:47 p.m and lastly the same was approved by Commissioner H. Rajesh Prasad at 5:56 p.m. He further ordered for conducting search and seizure under Section 60 DVAT Act 2004 and Section 67 of DGST Tax Act 2017. The same sequence of events are also recorded separately in file Ex.PW26/1 ( collectively) (Part of D-10).
64.4 In terms of the said survey proposal dated 26.06.2018, the authorisation for inspection/search under Rule 139 (2) was issued by H. Rajesh Prasad, Page-79 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Commissioner, DGST (Part of Ex.PW26/1 ( colly). The deployment order and the grant of authority in favour of A-1, were issued on 28.06.2018 by the Commissioner, VAT. The said grant of authority by the Commissioner was based upon the statutory exercise of the power under Delhi Value Added Tax Act and Rules framed thereunder.
65. Thus, in terms of the authority available with the Commissioner, VAT, he delegated the said authority in favour of A-1 for carrying out search and seizure procedure at one of dealers place i.e A-4/M/s Nath Motors Pvt Ltd. The basis for the same was the preliminary exercise carried out by A-1.
65.1 In pursuance of the said powers being delegated to A-1, the search and seizure operation was carried out. Two orders were passed by A-1 vide Ex.PW10/A on the very same day i.e 28.06.2018 after the search at the premises of A-4/M/s Nath Motors Pvt Ltd, situated at A-30 , Block B, Mathura Road, Mohan Co-operative Industrial Industrial Estate, New Delhi-110044. The sealing of the premises was ordered by A-1 on account of non-production of requisite documents and permission as well as non co-operation during the inspection. The dealer was accordingly directed to be present on the next day at 12:00 p.m for completion of search proceedings as well as was given the liberty to move Page-80 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the application for desealing to the signatory of the said Sealing Memo alongwith upto dates books of accounts. Only after the said proceedings, the real contact came to be established between A-1 , A-2 and A-3.
65.2 As far as the said part of the proceedings are concerned, there is no challenge on behalf of A-1, rather the case of the accused is that he carried out the proceedings diligently without being influenced by anyone.
65.3 The proceedings conducted thereafter are also part of Ex.PW26/1 (colly). Though it is not clear from the said record, if any proceedings were conducted by A-1 with effect from 29.06.2018 till 01.07.2018.
65.4 As per the proceedings recorded by A-1 ((Part of Ex.PW26/1 (colly) {also marked as Mark PW10/X2 ( colly) } Dinesh Khurana, C.A. (A-2 herein), represented A-4/M/s Nath Motors Pvt Ltd and did the needful in supplying requisite documents. The last proceedings recorded by A-1 is that of 14th September 2018 wherein on account of non-appearance of anyone on behalf of A-4 the following observation was made { Ex.PW26/1 (colly) & Mark PW10/X-2 ( colly) ( D-10) } :
" None appeared on 14.09.2018. Sh. Dinesh Khurana, C.A was directed on his mobile 9896204062 to submit Page-81 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the details of tax and other relevant documents immediately, however, he requested that he is suffering from dengue and needs some time to furnish the details."
66. It is thus apparent from the record that none appeared, nor any compliance was made qua submission of documents as directed vide order dated 11.09.2018 of A-1 (Part of Ex.PW26/1 (colly).
66.1 Apart from A-2 Dinesh Khurana, CA of M/s Nath Motors Pvt Ltd (A-4), one another person namely Rajesh Kumar, Director of M/s Nath Motors Pvt Ltd also had the role in the said proceedings and even his statement dated 28.06.2018 was also recorded wherein he gave no objection to the survey conducted on that day.He also sought 4 to 5 hours for the preparation of record. The said Rajesh Kumar was cited as a prosecution witness and has been examined as PW10. The role of said PW10 Rajesh Kumar and the version given by him shall be discussed in the later part of the judgment.
66.2 Thus, the said documents proved on record by the prosecution, proves the fact of official contact between A-1 on the one side and A-2 and A-3 on the other side. The said initial contact occurred on account of the survey/search being carried out by team led by A-1 at the premises of M/s Nath Motors Pvt. Ltd. (A-4) and consequently, the quasi Page-82 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 judicial proceedings under the DVAT Act being carried out by A-1. Therein A-2 was authorized to represent A-3 vide Power of Attorney dated 9th July 2018 (part of Ex. 26/1 { ( colly) (D10) }. Till the said part of the case of the prosecution is concerned, there is no dispute, rather the accused persons admit to the same.
66.3 The said official contact only led to the registration of the FIR in question and prior thereto the mobile connections of all the accused being put on interception by virtue of interception orders Ex. PW17/1 (colly). The prosecution has primarily placed reliance upon the said intercepted calls exchanged between above referred accused persons or by A- 2 & A-3 with other employees of M/s Nath Motors Pvt. Ltd., to prove the factum of demand of bribe by A-1. Therefore, before discussing the issue as to whether the prosecution has been able to prove the said tape recorded conversation through intercepted calls or not or the demand of bribe being made in the calls, the legal objection qua its admissibility needs to be addressed here.
(iv)Legal Position as to the Admissibility of Intercepted Calls
67. All the accused persons vehemently questioned the admissibility of the said interception orders Ex. PW17/1 (colly) and Ex. PW11/G, H, I, & J issued by the Secretary, Page-83 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Ministry of Home Affairs, Government of India or the Director CBI, New Delhi respectively. The objections raised on behalf of the accused persons on the said issue of admissibility of said interception orders are two fold.
67.1 The first concerns the non-applicability of preliminary conditions under Section 5 (2) of Indian Telegraph Act, 1885 and secondly non-compliance of Rule 419(A) of Indian Telegraph Rules,1951. It has been argued on behalf of the accused persons that any such interception orders under Section 5(2) of the Act ,can be passed only on the existence of two preliminary conditions i.e. existence of public emergency or in interest of public safety. They argued that none of the said interception orders passed either by the Secretary Ministry of Home Affairs, New Delhi or the Director, CBI, New Delhi records any such public emergency or public safety. Similarly, as regards the non- compliance of mandatory condition under Rule 419 (A) of Indian Telegraph Rules, 1951, it is argued that none of the stipulated conditions have been complied with, specifically the condition under Rule 419 (A) Sub-Rule (2), (16) & (17).
68. The crux of the argument advanced on behalf of the accused is based on the interpretation of the law on the subject of breach of right to privacy on account of interception of telephone calls of any citizen in light of the Page-84 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 judgment of Hon'ble Supreme Court PUCL vs. Union of India (supra) and K. S. Puttaswami vs. Union of India (supra). The said contention of the accused persons has to be seen in the context of the case in hand and the object behind the interception of telephonic calls by the Investigating authority. No doubt, the compliance of the preliminary condition as stipulated under Section 5 (2) of the Indian Telegraph Act and as well as the due procedure established by law under Rule 4 (1) (9) (A) of the Telegraph Rules has to be strictly done by the Investigating authority before proceedings with the interception of calls. Any such interception of a mobile conversation between individuals entails serious consequences, including breach of the right to privacy, which has now been recognized as Fundamental Right. Any such breach therefore, has to be as per the procedure established by law.
68.1 It is not in dispute that the Competent Authority as required under Section 5 (2) Indian Telegraph Act 1885 and Rule 419 A (1) i.e the Home Secretary/ Joint Secretary, Ministry of Home Affairs (MHA), Govt of India or Director CBI, passed the interception orders of the mobile numbers as mentioned vide Exhibit PW17/1 (colly) and Ex. PW11/G, H, I, & J respectively. The reasons for the same are duly recorded therein.
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69. Thus, the only issue to be seen herein is as to whether while passing of said interception orders under Section 5(2) of Indian Telegraph Act, the information was there before the competent authority disclosing the existence of "public emergency" or it being in the "interest of public order". The said interception orders categorically record the said fact that the Competent Authority was satisfied about the existence of the said two preliminary conditions.
70. The first set of interception order Ex.PW17/1 (colly) were passed by the then Secretary, MHA, Govt of India and have been proved by PW17 Sunil Kumar who worked as Principal Staff Officer to the Secretary, MHA. The cross-examination of the said witness clarifies that he not merely identified the signatures of the Secretary, but rather specifically deposed that he dealt with the present case in hand. He personally put the file before the Home Secretary. He further explained as to the procedure of passing of such orders and the same being done pursuant to the request received from various law enforcement agencies. Thus, the version of PW17 proves the contents of the said interception orders also. He explained the entire process apart from identifying the signatures of the Competent Authority/author of the document. No question ever was put to the said witness with respect to above referred two Page-86 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 preliminary conditions as stipulated under Section 5 (2) of Indian Telegraph Act or as to conditions which prompted the competent authority to pass the orders.
71. Be that as it may be, the issue to be seen is as to whether the Investigating Authority, having provided the information to the competent authority of the proposed exchange of bribe and the same being given to the public servants to influence their decision in pending survey/inquiry case , was a valid ground for passing of the interception orders or not. The said issue has been directly addressed by the Hon'ble Delhi High Court in Aakash Deep Chouhan V. CBI (supra) which is also relied upon by CBI. The very same argument was advanced before the Hon'ble High Court qua the admissibility of intercepted calls on the same grounds and was discarded by Hon'ble High Court observing as under :
"(28) This Court finds merit in the said argument. The threat posed by corruption cannot be understated.
Corruption has a pervasive impact on a nation's economy and the same can impact anything from infrastructural development to resource allocation. Corruption by a public servant has far reaching consequences as it serves to not only erode public trust and cast aspersions on the integrity of public institutions, but also renders the public at large susceptible and vulnerable by threatening the economic safety of the country. The pervasive nature of corruption has been recognised by many Courts and it has been noted that the same undermines the core values of Indian Preambular vision [Ref. Subramanian Swamy v. Manmohan Singh: (2012) 3 SCC 64]. In the case of Sanjay Page-87 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Bhandari v. Ministry of Home Affairs: 2020 SCC OnLine Mad 28021, the Hon'ble High Court of Madras had dismissed the writ petitions that were filed challenging the order directing interception of certain mobile number. The Hon'ble High Court had elaborated upon the scope of "public safety" as expounded by the Hon'ble Apex Court in People's Union for Civil Liberties (PUCL) v. Union of India (supra) in view of the new technology and observed as under:
"12. The five circumstances laid under Section (5)(2) of the Indian Telegraph Act related to the public emergency or interest of the public safety. The authority is within the powers conferred by the Act to order for lawful interception. It would also be seen that not only the bodily injury to the members of the public or the injury to a minimum number of persons would constitute public safety. With the latest communication tools in the form of powerful mobile phones becoming available in every hand in the country which are equipped with applications ensuring encrypted communication. The available avenues with the potential criminals have increased manifolds and it is becoming increasingly difficult to prevent and detect crime. Restricting the concept of public safety to the mere "situations that would be apparent to the reasonable persons" will exclude most of the actual threats which present the most grave circumstances like terrorist attacks, corruption at high places, economic and organized crimes, most of which are hatched in the most secretive of manners. In most of the circumstances, threat to public safety is from hidden factor which are neither apparent nor obvious to the general public and members of the law enforcement community and the information about these circumstances and factors cannot be connected by any other reasonable means. In addition, most of such information, is sensitive in nature, which may not be circulated in the public domain.
Therefore, the first respondent passed the order Page-88 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 to intercept phone messages of the petitioners herein."
(emphasis supplied) Relying upon the dictum in the case of Sanjay Bhandari v. Ministry of Home Affairs (supra), a Coordinate Bench of this Court in Santosh Kumar v. Union of India: (2022) 4 HCC (Del) 697 had dismissed writ petitions challenging orders of Ministry of Home Affairs which permitted interception of telephonic calls of the petitioner therein. It was noted that disclosure of elaborate reasons in interception orders would be against the modified disclosure requirements. The relevant portion of the said judgment is as under:
"48. The disclosure of elaborate reasons for interception orders would be against the modified disclosure requirements of procedural fairness which have been universally deemed acceptable for the protection of other facets of public including the source of information leading to the detection of crime or other wrong doing, sensitive intelligence information and other information supplied in confidence for the purpose of Government or discharge of certain public functions.
Furthermore, the Rule 419-A of the Telegraph Rules provide for extreme secrecy, utmost care and precaution in the matter of interception as it affects privacy.
54. It is pertinent to point that the present matter pertains to corruption and through the order of Sanjay Bhandhari case [Sanjay Bhandari V. Govt of India, Ministry of Home Affairs 2020 SC OnLine Mad 28021]the same was held to be a matter which endangers public safety since economic crimes ultimately Page-89 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 affect the economic stability and safety of the country and its citizens.
(emphasis supplied)
72. Thus, the corruption has been recognized as one of the crucial factors having pervasive impact on nation's economy, thereby having bearing on the public safety at large. In the present case in too, the allegations were that M/s Nath Motors Pvt Ltd was evading the GST thereby putting the dent upon the coffer of the State. The note of A-1 dated 26.09.2018 (Part Ex.PW12/A-1) as discussed above records the said fact and in case the said evasion of taxes by the large business entities which is the case herein, is not stopped by the State, it will render the public at large vulnerable. Any such large scale evasion of taxes affect the very economic safety and foundation of a sovereign nation.
73. In view of the said reasons, the first limb of arguments concerning non-applicability of preliminary conditions Section 5(2) of Indian Telegraph Act as argued on behalf of the accused persons before passing of the interception orders is liable to be rejected. The judgment passed in Govt of India, Rep by the Secretary V. KLD Nagasree (supra) of Hon'ble High Court of Andhra Pradesh and P.Kishore (supra ) of Hon'ble High Court of Madras are not binding in view of the above-referred binding judgment of Hon'ble Delhi High Court .
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74. The next limb of arguments advanced on behalf of the accused persons concerns the non-following of the due procedure established by law under Rule 419A of Indian Telegraph Rules 1951. The main crux of the argument concerning non-following of the said due procedure established by law concerns "no review" of the orders by the Review Committee within seven days as stipulated under Rule 419 A (16) & (17) respectively. The said challenge is primarily on the account of the non-following of the 'due process of law' as enshrined under Rule 419A of Indian Telegraph Rules 1951. The reliance in this regard has also been placed upon the judgment of the Hon'ble Supreme Court in PUCL V. UOI (supra) and of the Hon'ble Delhi High Court in Jatinder Pal Singh (supra).
75. The crux of the issue is the compliance of Rule 419A(2),(16 and 17), which is the mandatory review of said orders of interception by the Review Committee within a period of 07 days. As per Rule 419A (16), the Review Committee is headed by the Cabinet Secretary, Secretary to the Government of India, In-charge, Legal Affairs and Secretary to the Government of India, Ministry of Telecommunications, being the members. Thus, a second layer of scrutiny is envisaged under Rule 419A (2) of Indian Telegraph Rules 1951 qua all the orders of interception Page-91 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 passed by the Competent Authority. The reason for said second stage of independent scrutiny of any such order by three senior independent officers is apparent. Any such interception of private conversations between two individuals entail serious consequences and thus, interception must be within the strict four corners of the law. In the said backdrop, the second layer of scrutiny is envisaged.
75.1 The said strict following of the due procedure has also been highlighted by the Hon'ble Supreme Court in a series of judgments starting from PUCL V. UOI (supra), which has been again reiterated in a Constitutional Bench Judgment viz; K.S. Puttaswamy (Privacy) V. UOI (supra).
76. In the present case in hand, though the prosecution has failed to file any record showing the forwarding of said interception orders Ex.PW17/1 (colly) to the Review Committee and its fate thereafter. However, the issue to be seen as to whether the lack of said material itself will have the bearings on the admissibility of intercepted calls or not.
76.1 PW17 Sunil Kumar, the Principal Staff Officer to the Secretary, MHA, Govt of India, who has proved the said interception orders, was never cross-examined on the said aspect. It has already been observed above that his role was Page-92 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 not that of merely identifying the signatures of the Competent Authority on interception orders, but rather that of proving the contents of the same. He was involved in the entire process right from the beginning. But despite that, none of the accused persons preferred to cross-examine him on the aspect of compliance with sub clauses 16 and 17 of Rule 419A of the Indian Telegraph Rule 1951. Therefore, the version of PW17 has to be read against them.
77. Even otherwise, the said issue of admissibility and its reliability is altogether a different proposition under the Indian Evidence Act vis-a-vis the proposition of it not being done as per the procedure established by law. The mere fact that the procedure established by law is not followed strictly will not render any 'relevant' piece of evidence to be 'inadmissible', though the said deviation may have bearing on acts of the concerned Investigation Authority. The issue of admissibility of the evidence rests with relevance and reliability rather than how the same has been procured. The very same issue has been discussed by the Hon'ble Supreme Court in State of NCT of Delhi V. Navjot Singh Sandhu @ Afsan Guru , 2005 11 SCC 600 and the relevant portion of the said judgment concerning the very issue of interception of calls and its admissibility is reproduced hereunder :
"Interception of phone calls Page-93 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019
153. The legality and admissibility of intercepted telephone calls arises in the context of telephone conversation between Shaukat and his wife Afsan Guru on 14th December at 2009 hrs and the conversation between Gilani and his brother Shah Faizal on the same day at 1222 hrs. ...It is contended by the learned Senior Counsel appearing for the two accused Shaukat and Gilani, that even Rule 419-A, has not been complied with in the instant case, and, therefore, the tape-recorded conversation obtained by such interception cannot be utilised by the prosecution to incriminate the said accused. It is the contention of the learned counsel for the State Mr Gopal Subramanium, that there was substantial compliance with Rule 419-A and, in any case, even if the interception did not take place in strict conformity with the Rule, that does not affect the admissibility of the communications so recorded. In other words, his submission is that the illegality or irregularity in the interception does not affect its admissibility in evidence there being no specific embargo against the admissibility in the Telegraph Act or in the Rules. Irrespective of the merit in the first contention of Mr Gopal Subramanium, we find force in the alternative contention advanced by him.
154. In regard to the first aspect, two infirmities are pointed out in the relevant orders authorising and confirming the interception in respect of specified telephone numbers. It is not shown by the prosecution that the Joint Director, Intelligence Bureau who authorised the interception, holds the rank of Joint Secretary to the Government of India. Secondly, the confirmation orders passed by the Home Secretary (contained in Vol. 7 of the lower court record, p. 447, etc.) would indicate that the confirmation was prospective. We are distressed to note that the confirmation orders should be passed by a senior officer of the Government of India in such a careless manner, that too, in an important case of this nature. However, these deficiencies or inadequacies do not, in our view, preclude the admission of intercepted telephonic communication in evidence. It is to be noted that unlike the proviso to Section 45 of Page-94 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 POTA, Section 5(2) of the Telegraph Act or Rule 419-A does not deal with any rule of evidence. The non-compliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility. The legal position regarding the question of admissibility of the tape-recorded conversation illegally collected or obtained is no longer res integra in view of the decision of this Court in R.M. Malkani v. State of Maharashtra [(1973) 1 SCC 471 : 1973 SCC (Cri) 399]. In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Adverting to the argument that Section 25 of the Telegraph Act, 1885 was contravened the learned Judges held that there was no violation. At the same time, the question of admissibility of evidence illegally obtained was discussed. The law was laid down as follows: (SCC p. 477, para 24) 'There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against with offence. a an party charged See Jones v. Owens [(1870) 34 JP 759] The Judicial Committee in Kuruma v. R. [(1955) 1 All ER 236: 1955 AC 197: (1955) 2 WLR 223 (PC)] dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course Page-95 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 always a word of caution. It is that the judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.' (emphasis supplied)
78. Thus it has been clearly held by Hon'ble Supreme Court on the admissibility of evidence by holding that even if it is not procured in the manner or the procedure established by law, it will not have bearing on its admissibility. The argument advanced on behalf of the accused persons that the said judgment is no longer applicable in view of the Constitutional Bench Judgment of Hon'ble Supreme Court in K.S Puttaswamy (supra) is also an argument against the record. The said judgment was never overruled by the Hon'ble Supreme Court in any of the relied upon subsequent judgments. Therefore, the findings on the issue of admissibility of evidence de-hors of its means of procurement still hold's the field. The said view further gets fortified by the recent judgment of Hon'ble Delhi High Court in Akashdeep Chauhan (supra) wherein the said view of Hon'ble Supreme Court in Navjot Sandhu (supra) has been relied upon and it has been observed as under :
"39. The admissibility of any piece of evidence rests on its reliability, instead of how that evidence came to be procured. That is not to say that such evidence Page-96 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 cannot be disallowed if the evidence is colored by breach of the privacy of the accused, however, even then, the judicial discretion will need to be exercised at the time of stage of adjudication rather than at the time of admitting the evidence on record.
40. Having observed that the interceptions were lawful, the same are reliable and admissible."
79. In the light of the said reasons, the said two-fold arguments advanced on behalf of the accused persons questioning the legality of the interception orders and the admissibility of intercepted calls passing of the said orders is liable to rejected.
(v) Proof of Intercepted Calls
80. Now coming to the factual matrix of the case in hand. It is well settled position of law that in a case under Section 7 of Prevention of Corruption Act "demand and acceptance of bribe" are sine-quo-non. The prosecution for proving the factum of the demand of bribe by A-1 from A-3 through A-2 has primarily relied upon the intercepted calls when the said alleged demand was raised.
81. In the said backdrop, the next crucial issue is whether the prosecution has proved the intercepted calls /telephonic conversation/ recorded conversation or not as well as the "identification of voices" in the said conversation. The landmark decision as to mandate of the law on the said Page-97 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 subject by the Hon'ble Supreme Court is that of Ram Singh V. Col. Ram Singh (supra) and Nilesh Dinkar Paradkar (supra) case. It is the case of accused persons that the prosecution has failed to fulfill all the conditions as laid down by Hon'ble Supreme Court in the above-referred judgments and accordingly, the said piece of evidence which is at best corroborative evidence only, cannot be read against them.
81.1 On the contrary, the Ld. Senior PP for CBI argued firstly qua the applicability of judgment of Ram Singh vs. Col. Ram Singh and secondly that the identification of the voices in the recorded conversation has been proved by them through PW-12 A.K. Sajnani, PW-14 Yogesh Gupta and PW-15 Dheer Singh Chauhan as they never disputed the voice-cum-identification memo Ex. PW-12/1 and the transcription Ex. PW14/1 (colly). It is further , argued that merely because the said witnesses turned hostile with respect to the identification of the voices is inconsequential, as they proved the voice identification proceedings Ex. PW12/1 as well as transcription of the same being true and correct.
82. Before coming to the factual aspect concerning the said aspect of said recorded conversation/intercepted calls, the legal principles concerning the proof of voice Page-98 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 recordings requires consideration. The Hon'ble Supreme Court in Nilesh Dinkar Paradkar (supra) case considered the development of law on the said field by taking into account the previous judgments as well as the position of law in U.S and England by observing as follows:
"In the case of Ram Singh & Ors. Vs. Col. Ram Singh, again this Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows:-
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence -- direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody. (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
In Ram Singh's case (supra), this Court also notices with approval the observations made by the Court of 5 1985 Page-99 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 (Supp) SCC 611 Appeal in England in the case of R. Vs. Maqsud Ali. In the aforesaid case, Marshall, J. observed thus:-
"We can see no difference in principle between a tape-recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape- recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged."
83. Thus, it is apparent that though Hon'ble Supreme Court recognised the relevance and admissibility of recorded conversations, but highlighted the dangers attached to the said piece of evidence in view of the advantages gained by new techniques and devices. Therefore, certain safeguards and parameters were set out before any such evidence is to be considered by the Court. The said dangers as highlighted have gained even more traction with the passage of time and with the advent of Artificial Intelligence, including deepfake calls.
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84. Now coming to the first argument of the CBI that the said judgment of Hon'ble Supreme Court of Ram Singh Vs. Col. Ram Singh (Supra) is distinguishable on facts as that case was a civil case and there was no FSL proof of a recorded conversation. Therefore, as per CBI the said conditions stipulated as discussed above will not in strict sense apply in the present case. They have filed on record the FSL report showing no tampering qua the recorded calls. The said argument advanced on behalf of the CBI is apparently against the true purport and intent of the above discussed judgment. The firstly said judgment cannot be said to be applicable only for the civil proceedings which is apparent from the series of subsequent judgment wherein the said principles were reiterated including with the judgment in Nilesh Dinakar Pradakar (Supra). Even in trap case involving the tape-recorded conversation and despite the availability of FSL report , the Hon'ble Delhi High Court in Ashish Kumar Dubey (Supra) appreciated the tape recorded conversations on the basis of principles as set out in judgment of Ram Singh Vs. Col. Ram Singh (Supra). Hence, the argument of CBI qua non-applicability of judgment is rejected.
85. Now coming to the factual matrix concerning the recorded conversation which concerns the demand of Page-101 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 bribe raised by A-1 from A-3 through their CA Dinesh Khurana (A-2 herein). It has already been discussed above that the said contact between them established on account of a GST tax evasion detection and raid being conducted at the premises of A-3 & A-4 by the GST enforcement team, which was led by A-1.
85.1 It has also been proved on record through the admitted record Ex. PW-26/1 that pursuant to the said raid which was authorized by Commissioner (GST), GNCT of Delhi, the subsequent proceedings started w.e.f July, 2018 till the submission of report on 24th October, 2018. It is the A-1 only who was involved in the entire process and nature of proceedings was a kind of quasi-judicial process wherein A-2, the CA of M/s Nath Motors Pvt. Ltd. owned by A-3, represented them. He also provided the necessary documents and details thereof. In this manner, the contact established between parties named herein and it is the case of the prosecution on account of the said contact, A-1 misused his office and demanded bribe of Rs 10 lacs in order for giving favourable report of survey/inspection.
85.2 To prove the said aspect of demand of bribe with alleged motive, the prosecution has primarily placed reliance upon the recorded conversation. Apart from that certain other circumstantial evidence too has been brought Page-102 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 on record which will be discussed in the later part of the judgment.
85.3 At this stage, the foremost issue to be seen as to whether the conversation which took place between A-1, A- 2, A-3 and other employees of A-4/A-3 which was intercepted has been proved on record as per the six mandatory conditions put forth by the Hon'ble Supreme Court considered in Ram Singh Vs. Col Ram Singh case (supra) or not.
(vii) Identification of Speaker in Recorded Conversations
86. The first and foremost condition is the identification of the voice of the speaker and two modes of said proof have been provided. Either the maker/speaker will prove the said recorded conversation or in case the same is denied by the maker, it can be proved by others who recognize his/her voice. It is also clearly stipulated by Hon'ble Supreme Court that where the voice is denied by the maker, it will require very strict proof to determine whether or not it was really the voice of the speaker alleged. In the present case in hand none of the accused persons i.e. A-1, A-2 & A-3 whose telephonic calls were put on interception after obtaining requisite permission under Section 5(2) of Telegraph Act admitted their conversation. Thus, prosecution roped in acquaintances of the said speakers during investigation who Page-103 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 participated in the said exercise of identification on 4th of December 2018. The proceedings qua Q-2 recorded calls were recorded vide voice identification memo ex. PW12/1 (D-18).
86.1 The first witness in this category is PW-12 A.K. Sajnani who was the colleague of A-1 at the office of Trade and Taxes, GNCT of Delhi during the relevant time .He has been examined as PW-12 wherein he admitted to the fact that he knows A-1 as he was posted with him in the Trade and Taxes Department. He further admitted to the fact that he was a part of the team led by A-1 which carried out the survey, raid at the premises of M/s Nath Motors Pvt. Ltd. (A-4). However, as far as authenticity of the voice identification proceedings Ex. PW12/1 (D-18) is concerned, he discarded the entire case of prosecution. He claimed that audio was played in the office of CBI but he could not identify any voice despite repeated efforts.
86.2 In the cross-examination, he further put a question mark over the authenticity of the said proceedings by claiming that no other person was present when he signed the voice identification memo Ex. PW12/1, thereby disputing the presence of independent witnesses i.e. PW-24 Rahul and PW-25 Sachin Sagar respectively. Thus, none of Page-104 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the 92 calls in DVD-1 (Ex.PW11/M) alleged to have been recorded has been proved by PW-12 qua one of the makers of the said calls i.e. A-1.
86.3 The next witness cited by the prosecution for proving the voice identification proceedings concerning the above- referred ninety-two calls in DVD-1 (Ex.PW11/M) is PW-14 Yogesh Gupta. As per the case of the prosecution, he, being the employee at M/s Hana Motors Pvt. Ltd. at A-13, Mohan Co-operative Industrial Area, also owned by A-3 ,was acquainted with the voice of A-2 & A-3. However, PW-14 also turned hostile with respect to the authenticity of the proceedings recorded vide voice identification memo Ex. PW12/1. He went to the extent of claiming that he never had any telephonic conversation with A-2. He further questioned the authenticity of the said voice identification memo Ex. PW12/1 as well as transcription Ex. PW14/1 (colly) by claiming that bunch of documents were given to him for signature in the evening at CBI office and he signed the same without going through the same. He further discarded the case of the prosecution by denying the presence of the independent witnesses i.e. PW-24 Rahul and PW-25 Sachin Sagar respectively.
86.4 The last witness cited by the prosecution for proving the said ninety two calls in DVD-2 involving the recorded Page-105 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 calls of the accused persons is PW-15 Dheer Singh Chauhan who as per them identified the voice of A-2 & A-3 during the investigation. He was also working as an Accountant in one of the company run by A-3 i.e. M/s Rain Automotive India Pvt. Ltd. during the relevant period. He also did not support the case of the prosecution and denied having identified any of the voices of the recorded conversation when played at CBI office. Even in Court he failed to identify the voice of said conversation. Though his claim of having no telephonic conversation with A-2 & A-3 stands rebutted in the cross-examination of CBI, but the said fact alone does not help the case of the prosecution. That without the identification of the voices of the accused persons in the Court nothing much deciphered through the fact of he having exchanged calls with A-2 or A-3.
87. It is the case of the prosecution that the said voice identification proceedings were conducted on 4th December 2018 as recorded vide memo Ex. PW12/1 in the presence of two independent witnesses i.e. PW-24 Rahul, Junior Assistant, Lok Nayak Hospitall and PW-25 Sachin Sagar, Junior Assistant, Delhi Subordinate Services Selection Board. As per the case of the prosecution they were present when said ninety-two recordings in DVD-II were played and identified by acquaintances of the accused i.e PW-12, PW-
Page-106 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 14 & PW-15. However, both of them also put a big question mark over the authenticity of the said identification proceedings. Both of them simply vouched for the proceedings qua matching of transcript with the recordings. As far as the identification of voices aspect goes, both of them denied the presence of above-noted identification witnesses or they having identified the voices of the accused persons in their presence. Thus, the version of both the said independent witnesses having no connection with either of the accused persons and being independent government official align with version given by PW-12, PW-14 and PW-
15. They too had denied the presence of any other witnesses apart from them while the recordings were played. In the said backdrop the arguments advanced on behalf of the prosecution that the proceedings Ex. PW-12/1 and transcripts Ex. PW-14/1 (colly) stands proved by them is clear misreading and mis-interpretation of the version given by the prosecution witnesses. All the above-referred witnesses i.e. PW-12, PW-14 and PW-15 firstly questioned the voice identification proceedings during investigation and secondly while deposing in the Court failed to identify the speakers in the said recorded conversation in 92 incriminating calls. Accordingly, as far as the said 92 incriminating calls in DVD-I (Ex.PW11/M) are concerned, which primarily concerns the demand for a bribe involving Page-107 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the accused persons, the first condition of the Hon'ble Supreme Court in Ram Singh Vs. Col. Ram Singh (supra) remains not satisfied.
88. The next set of incriminating calls (2 in number ) in DVD-2 are part of voice identification memo Ex. PW-19/A (colly) ( D-19). As per the case of the prosecution, one Ms. Molika Garg (PW-19) identified the four incriminating calls which included the 02 calls in DVD-2 (being the employee/Director with A-3). The said proceedings were carried out in the presence of an independent witness, PW- 28 Dheeraj Singh, Senior Secretariat Assistant, CPWD, New Delhi.
88.1 The identification witness PW-19 Molika Garg was the Director with M/s Nath Motors Pvt. Ltd. (A-4) though she claimed that her appointment as Additional Director was never approved by AGM. The issue of her appointment as Director or its approval is not relevant. The only issue is whether she being acquainted with the voice of A-2 and A-3, proves the fact of identifying of their voices or not. The said four incriminating calls were played before her, but she failed to identify any of the voices in the said conversation. The other calls were also played involving A- 2 and A-3, wherein she again failed to identify any of the speakers in the said conversation. Though, in the cross-
Page-108 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 examination conducted by the prosecution she admitted to the fact that she used to have telephonic conversations with A-3 as and when required during the course of her duties.
88.2 She was even confronted with the telephonic calls exchanged between her mobile number and that of A-3's mobile number during the relevant period of October- November 2018. However, mere exchange of said calls and the admission thereof by PW-19 will not satisfy the mandatory condition of identification of voices in the recorded calls by the acquaintance of the speaker. Her version could have also been termed as falsehood in case the authenticity of the said identification proceedings was proved by the prosecution. However the case of prosecution also falters on the said aspect.
88.3 The independent witness PW-28 whose presence was specifically ensured to give authenticity to the said proceedings only. However, the version of said independent witness PW-28 Dheeraj Singh also put a question mark over the authenticity of the said proceedings . He deposed that no other person was present on 8th December 2018 when the said identification proceedings were carried out except one official. He even denied the presence of the identifier i.e. PW-19 Ms Molika Garg. He further, in cross examination, claimed that he signed the documents in good faith of CBI.
Page-109 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 There is no reason to disbelieve his version, who is an independent government official having no connection with the accused. Thus, in the end, it has to be again concluded that there is a big question mark over the authenticity of voice identification proceedings Ex. PW-19/A (colly) ( D-
19) qua 02 incriminating calls. The prosecution has failed to fulfill the above-referred criteria of identification of voices in recorded conversation through the acquaintances of the alleged speakers.
(vii) Safe Custody of Recorded Conversations
89. Another crucial condition stipulated by Hon'ble Supreme Court for proving the said evidence is condition no.5 i.e "(5) The recorded cassette must be carefully sealed and kept in safe or official custody". It has to be proved that the conversation was carefully sealed and kept in safe or official custody. The onus of proving is on the party relying upon the same. The condition no.3 also in a way is connected to the condition no.5 and in order to rule of the possibility of tampering or erasure of any part of tape recorded conversation, the party relying upon the said relevant material has to satisfy the court on the said aspect also.
90. In the present case in hand, it has already been observed above that the entire factum of demand for a bribe Page-110 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 is primarily based upon the intercepted calls exchanged between the accused persons or by the accused with their respective employees. As per the case of the prosecution, the calls exchanged between the accused persons were intercepted w.e.f. 26.09.2018 till 5th of November 2018 when the trap was laid and A-1 and A-2 were apprehended.
91. The prosecution has placed reliance upon the interception orders Ex. PW17/1 (colly) passed by the Secretary, Ministry of Home Affairs, Government of India under Section 5 (2) of Indian Telegraph Act read with Rule 419 (A) of Indian Telegraph Rules. Five interception orders Ex. PW11/G, Ex. PW11/H, Ex. PW11/I, Ex. PW11/J & Ex. PW11/K were passed by the Director, Central Bureau of Investigation (CBI) under Section 7 of Indian Telegraph Act read with Rule 419 (A) of Indian Telegraph Rules. Accordingly, the calls were intercepted and recorded conversation came into picture. Though it is not clear from the entire record as to the total number of intercepted calls, the prosecution has placed reliance upon only 94 intercepted calls during the aforesaid period by claiming that these are the relevant and incriminating calls against the accused. The issue of the admissibility of said piece of evidence and objection thereof raised on behalf of the accused persons has already been rejected. The issue at this stage is as to whether Page-111 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the said intercepted calls/recorded conversation satisfies the mandate as stipulated by Hon'ble Supreme Court in Ram Singh vs. Col. Ram Singh (supra) specifically in condition no.3 and 5 in para-32.
92. It is the case of the prosecution that the said recorded calls were intercepted by Special Unit, CBI in terms of the authorization issued by the Secretary, Ministry of Home Affairs and Director, CBI. The record thereof was provided to the Investigating Officer in the present case by PW-11 Dy.SP Kumar Abhishek who at the relevant time was working as a System Administrator, Special Unit, CBI. He deposed that after obtaining the legal permission for interception, the mobile numbers were legally and officially intercepted. He provided the relevant 94 calls in DVD- Q1(Ex. PW11/M) & DVD-Q2 (Ex. PW11/O) respectively. The said two DVDs were provided in sealed envelopes alongwith unsealed copy of DVD for investigation purposes. Apart from that, one recorded call information report, certificate under Section 65B and the original interception orders were also provided.
92.1 The first set of documents provided by him form part of handing over cum seizure memo (D-12) Ex. PW11/A dated 5th November 2018. The said record was taken over from PW11 by PW13 Inspector Harnam Singh who was Page-112 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 deputed by the Investigating Officer. The DVD-Q1 (Ex. PW11/M) having 92 calls was provided. The second set of calls vide DVD-Q2 (Ex. PW11/O) and all the interception orders were provided vide handing over cum seizure memo dated 5th December 2018 Ex. PW11/D (D-13). The said record was provided to the last Investigating Officer PW23 DSP Pramod Kumar Tanwar.
92.2 Considering the said sequence of events starting from the passing of the interception orders , interception of the calls and the delivery of the said relevant recorded calls to the Investigating Officers, the first and foremost issue is as to how the first Investigating Officer PW22 Inspector Shitanshu Sharma became aware about the said intercepted calls. The said issue is closely linked to the fact of safe custody of recorded conversation. He in the cross examination claimed that the investigation of the present case was assigned to him on 5 th November 2018 after the registration of the FIR on the very same day. Thereafter he laid the trap and apprehended A-1 & A-2 while allegedly exchanging the bribe. He remained the Investigating Officer till 6th November 2018 and thereafter the investigation was taken over by PW23 DSP Pramod Kumar Tanwar on 12 th of November 2018. However, PW-22 was aware about the intercepted calls of the accused persons from the starting Page-113 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 point itself. The said response of PW22 regarding the knowledge of intercepted calls is put into dock by the response given by PW-11 Dy.SP Kumar Abhishek from Special Unit, CBI. PW-11 claimed that intercepted calls were never shared with any other branch of CBI and same are kept secret. If that was the scenario then how come on the very first day of registration of FIR i.e. 5 th of November 2018 the first Investigating Officer was aware about the intercepted calls.
92.3 The FIR Ex.PW22/2, which was recorded in the early morning hours i.e. 7:30 AM is based upon the source information. The entire FIR is silent with respect to the interception of mobile phone calls of the accused persons. PW-22 failed to disclose the source of information regarding the intercepted calls, which put a dent as to the chain of custody of the intercepted calls during the relevant period starting w.e.f the date of the interception till the alleged date of delivery of calls (midnight 5/6 November 2018 ) to the Investigating Officer of the present case.
93. The next issue to be considered is the non- providing of the interception orders by the Special Unit on 5th of November 2018 vide handing over cum seizure memo Ex. PW11/A. Admittedly, all the interception orders Ex.
Page-114 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 PW11/G, Ex. PW11/H, Ex. PW11/I, Ex. PW11/J & Ex. PW11/K were already in existence and available with the Special Unit as on 5th of November 2018. However the same never came to be supplied to PW-13 Harnam Singh on 5 th of November 2018. The said orders were handed over to PW- 23 Pramod Kumar Tanwar on 5th of December 2018 i.e. after lapse of around one month of the registration of the present case. Even the proceedings concerning taking of the specimen voices of the accused persons or the voice identification proceedings vide memo Ex. PW12/1 , were got conducted even without the availability of the said crucial piece of evidence. In the said backdrop, non- furnishing of any explanation as to the non-supply of interception orders on 5th of November 2018 despite its availability with Special Unit while supplying DVD-Q1 containing 92 calls, an adverse inference has to be drawn against the prosecution. The said default also raises a question mark over the passing of the interception orders on the dates as alleged therein.
94. The crucial issue in hand concerning the admissibility of the said piece of evidence through 94 recorded calls is the sealing process and it being kept in safe or official custody as stipulated by Hon'ble Supreme Court in Ram Singh (Supra).
Page-115 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 94.1 As has already been discussed the first set of 92 intercepted calls were delivered through DVD-1 (Ex. PW11/M) in a sealed envelope to PW13 Inspector Harnam Singh of CBI, ACB. The first and foremost aspect in this regard is the custody of said CBI brass seal used for sealing of the said parcel. The impression of the said CBI seal was embossed on handing over cum seizure memo Ex. PW11/A which reflects that it is a seal concerning Special Unit, CBI, New Delhi without having any distinct number. No explanation is furnished by PW-11 or the Investigating Officer or PW-13 as to the custody of the said seal after its use while sealing DVD-I (Ex. PW11/M). It is unclear whether the said seal remained with the Special Unit or any other independent witness until the time the said DVD-1 came to be deposited with CFSL on 11th December 2018, vide forwarding letter Ex. PW18/2. Similar is the situation concerning the two intercepted calls provided through DVD- 2 vide handing over cum seizure memo Ex.PW11/D.
95. The next crucial issue in this regard is the missing link evidence concerning the chain of custody of the said two sealed DVDs (Ex. PW11/M & Ex. PW11/O) respectively. No evidence has been produced to show the said safe custody, while DVDs remained in the custody of Page-116 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the Anti-Corruption Branch, New Delhi till its deposit with CFSL, New Delhi on 11th of December 2018.
95.1 PW-13, in cross-examination, explained the said custody by deposing that he handed over the articles mentioned in Ex. PW11/A to the Investigating Officer after mid-night of 5th November 2018. He never deposited the same in the Malkhana of CBI. The first Investigating Officer PW-22 Inspector Shitanshu Sharma remained completely silent in this regard, and it is not clear whether custody of the said sealed DVD-I remained with him or he deposited the same in Malkhana. He in the cross-examination, claimed that the case property was deposited by him in Malkhana on 6th November 2018 and the same were taken out for production in the Court from Malkhana. No entry with respect to the deposit of the case property or its outward journey from the Malkhana was ever collected by him for the reasons best known to him. Despite it being a crucial piece of link evidence showing safe or official custody of sealed articles, having recorded conversations, no evidence has been brought on record.
95.2 As far as the second set of two calls handed over to the Investigating Officer PW-23 vide DVD-2 (Ex. PW11/O), again no evidence has been brought on record showing the Page-117 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 deposit the said DVD in the Malkhana from 5 th December 2018 till its deposit in CFSL on 11th of December.
95.3 PW-23 in the cross-examination claimed that he was involved in forwarding the sealed exhibit to CFSL vide forwarding letter Ex. PW18/2. He further deposed that before the assignment of the case to him on 12th of November 2018, the case property was already deposited with the Malkhana. He admitted to the fact that the stamp of Malkhana on the various seizure memos regarding deposit of the case property is silent qua the date of deposit. So in the absence of the said evidence concerning the date of deposit of case property with Malkhana, no presumption can be drawn regarding the deposit of the sealed DVD-I & DVD-II (Ex. PW11/M & Ex. PW11/O) containing the alleged recorded calls to having remained in the official and safe custody right from its delivery w.e.f. 5 th of November 2018 and 5th of December 2018 respectively till its deposit with CFSL on 11th of December 2018.
The said fact becomes more relevant when seen in light of the fact that status of investigation from 7.11.2018 till 11.11.2018 is unclear. PW22 claimed that he handed over the investigation to next I.O on 06.11.2018, on the contrary, PW23 claimed that he took over file only on 12.11.2018.
Page-118 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 95.4 The next connected issue concerning the movement of the said sealed articles and their safe or official custody concerns the withdrawal of sealed pullandas from CBI Malkhana and deposit of the same in CFSL, New Delhi, vide forwarding letter Ex. PW18/2. PW23/IO Parmod Tanwar claimed that the forwarding letter was drafted by him, and he got it signed by the SP concerned before depositing the case property personally with the CFSL. However , as per the noting on said letter, the case property, including the above-referred two sealed DVDs (Ex. PW11/M & Ex. PW11/O) was deposited in the Physics Division of CFSL, New Delhi through Sh. Sanjeev Chauhan SI, ACB, Delhi. It is, though not clear from the record as to whether he received the case property from the Malkhana on the very day of drafting of the said forwarding letter i.e. 10 th December 2018 or on the next date i.e. 11th December 2018 . It is also not clear whether the custody was handed over to him by PW-23 or not. Thus, the said issue of safe or official custody of the sealed articles during the period we.f 5th Novermber/5th December till its deposit with CFSL on 11th December 2018 has remained unproven.
No presumption can be drawn that the sanctity of intercepted calls received from Special unit, CBI was maintained, or indeed that the said calls only were forwarded to CFSL for examination. In absence of said Page-119 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 material, the opinion of FSL Expert/PW18 on issue of tampering also becomes inconsequential. In the end, it has to be concluded that the material presented by the prosecution does not satisfy the mandatory condition no. 5. The condition no. 3 which is connected to condition no.5 as stipulated in Ram Singh Vs. Col. Ram Singh (supra) also has not been proved due to want of crucial link evidence.
(viii)Value of CFSL Report for Proving the Intercepted Calls
96. The Ld. Sr. PP argued that though the voice identification witnesses turned hostile, however the same is in consequential as the CFSL report Ex. PW18/1 dated 31 st of October 2019 proves the identity of voices of accused persons in the intercepted incriminating calls. It is further argued that the said report also rules out the possibility of tampering, if any, in the said recorded calls. Therefore, the said report, which has been duly proved in itself proves the admissibility of the recorded intercepted calls.
97. Per contra, Ld. Counsel for A-1 argued that the report given by the FSL expert PW18 is inadmissible in evidence. It is argued that basis for the same is the alleged intercepted calls provided in two DVD's. The DVD's have remained unproven as firstly the certificate under Section 65 B (Ex. PW11/F) given by PW11 Kumar Abhishek is Page-120 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 inadmissible. The said witness neither segregated the calls nor was the part of the said process which renders the certificate (Ex. PW11/F) to be invalid, defective and illegal. The said certificate is also silent as to the identification of the hard disk/computers involved in the intercepted calls, which were subsequently handed over by PW-11 in two DVDs (Ex. PW11/M & Ex. PW11/O). It is further argued that PW-18 FSL expert Deepak Kumar Tanwar does not possess requisite qualification in the field of voice identification as admitted by him.
97.1 Lastly, it is argued that no material is placed on record by the prosecution showing ingress and egress of the case property in/from the Malkhana as such the possibility of tampering during transit or during the custody of CBI prior to its deposit with CFSL cannot be ruled out.
98. Ld. Counsel for A-2 also argued that the report furnished by PW-18 is also inadmissible since the entire report is based upon the transcription cum voice identification memo. As the the foundation of giving the said CFSL opinion i.e. transcription cum voice identification itself as remained unproven and inadmissible, the entire opinion of CFSL report goes . PW-18 admitted to the fact that the transcription along with the identification memos, were also forwarded and on the basis of same only Page-121 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 segregation of voice was got done by him which is the basis of his report/opinion. The said voice identification proceedings have remained unproven and accordingly the report is liable to be rejected.
98.1 It is further argued that the report is the bereft of the reasonings for arriving at the conclusion and as such in terms of Section 51 of the Indian Evidence Act it is inadmissible. The arguments with respect to the non- notification of the CFSL under Section 79A of the Information Technology Act read with Section 45 A of the Indian Evidence Act too has been advanced.
98.2 It is further argued that the specimen sample as per the CFSL letter contains the words mentioned in transcription of call no. 92, whereas the specimen examined by CFSL contains the other words which are not available in the call no. 92. The worksheet and spectrograph provided by the expert also shows discrepancies between the questioned voice and the specimen voice thereby rendering the opinion is inadmissible. The Ld. Counsel for A-3 also argued on the similar lines by claiming that the CFSL report is inadmissible. It is further argued that as far as A-3 is concerned even the process of taking of the voice samples is also not proved.
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99. Before considering the issue concerning the appreciation and value to be attached to the CFSL report Ex. PW18/1 dated 21.10.2019, the first and foremost issue to be considered is its admissibility in view of the legal objection raised firstly on account of the non-notification of the CFSL Lab under Section 79A of Information Technology Act. Secondly, CFSL expert PW-18 Deepak Kumar Tanwar being not the expert in terms of Section 45 of the Indian Evidence Act.
99.1 Before appreciating the said contention, the sequence as to how role of PW18 came into picture needs delineation. It is a matter of record that the questioned voices i.e recorded conversations of the accused persons, were alleged to be intercepted in pursuance of the authorisation orders issued by the competent authority. The said process of interception came to done by Special Unit CBI. The said recorded /intercepted calls were further truncated to relevant 94 calls which were handed over to the Investigating Officer of CBI, ACB, New Delhi by PW11 System Administrator, Special Unit CBI, New Delhi vide handing over cum seizure memo Ex. PW11/A and Ex. PW11/D respectively.
99.2 Accordingly, the sample voices of A-1, A-2 & A-3 came to be recorded during investigation by the Investigating Officer vide specimen recoding memo Ex.
Page-123 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 PW2/5 and Ex. PW32/2 respectively. The said sealed pullandas having two sealed DVDs containing 92 and two calls separately as well as 3 memory cards containing 3 specimen voices of the accused persons were submitted with CFSL, New Delhi vide forwarding letter Ex. PW18/2 dated 10th of December 2018 along with 4 specimen seals. Accordingly the report Ex. PW18/1 dated 21 st of October 2019 qua the queries raised came to be furnished by PW18 Deepak Kumar Tanwar, Principal Scientific Officer, Physics, CFSL, New Delhi.
100. The first and foremost issue raised on behalf of the accused persons qua admissibility of the said report, is the non-notification of CFSL, New Delhi under Section 79 A of Information Technology Act. PW18 admitted to the said suggestion by the accused persons that they are not notified to provide expert opinion on electronic evidence.
100.1 The said objection on the face of it appears to be a misinterpretation of object behind incorporation of Section 79A of Information Technology Act. The said notification is not the mandatory requirement for providing expert opinion on electronic evidence. It is only discretionary certification that any body, agency or Department of the Centre or State Government examining the electronic evidence has to to apply for. It only adds a kind of additional certification and Page-124 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 feather in their cap. The absence of said certification does not render the said lab to be incompetent in examining the electronic evidence as seems to be the argument of Ld. Counsel for the accused. The said issue has also been addressed to recently by the Hon'ble Delhi High Court in case titled Ravi Mohan Sharma vs CBI Cr. MC 7/2025 (2025 DHC 1854) and it was held that Section 79A of IT Act uses the word 'may' which means discretion is vested with Central Govt. to designate any authority as an expert of electronic evidence. The absence of the same in respect of the CFSL Lab, the opinion based on scientific examination given by a person well versed or skilled in such science, does not render the report to be inadmissible.
101. Accordingly the said contention of non-notification of CFSL Lab under Section 79A of Information Technology Act thereby rendering the report to be inadmissible is rejected.
102. The second limb of objection advanced on behalf of the accused persons qua the admissibility of CFSL report Ex. PW18/1 is on account of the fact that PW18 is not the expert in the field of voice identification due to a lack of requisite academic qualification.
Page-125 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019
103. PW18 while deposing before the court, claimed that he has been working in the field of forensic voice examination and forensic physical examination of crime exhibits for the last more than 28 years. He has examined the voices of more than 3000 persons and given an opinion on them. He has further claimed that he has deposed in the different courts of the country in respect of his voice examination reports. He further claimed that he has undergone one month of training on the subject of speaker identification and allied areas from University of Trier, Germany. Thus, a comprehensive overview of the expertise in the said field was given by the witness. Though in the cross-examination, he admitted to the fact that he has not done any formal degree/ diploma in the field of linguistics and phonetics from any institution or university. He further admitted to the fact that he was not taught with the voice examination relating to the Hindi Language during the training period undergone by him in Germany.
103.1 However the fact remains that the said claim of PW18 qua having undergone one month training on the said specific subject only from the University of Trier, Germany is not disputed or challenged by the accused persons. The challenge is only confined on the aspect that the said training being not related to the Hindi language. The said Page-126 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 aspect alone will not render the training in speaker identification or voice identification to be incomplete or put a question mark over the expertise acquired by PW18 . The modules of any such training programs are more addressed to the theories in the said field and their application. 103.2 Even otherwise, the cross-examination conducted of PW18/A1 further corroborates the plea of PW18 regarding his expertise in the said field and he being a specially skilled person in the field of voice examination. He was aware of the various books authored by famous author like Oscar Tosi and Harry Hollein on the subject in question. Apart from that, on the intricacies of the process involved in the voice identification including auditory analysis, spectrograms analysis etc. the responses given by him shows his expertise as well as experience in the said field. The mere non-possession of a formal qualification in the said field of voice identification will not render the expertise of PW18 to be lesser as compared to expert who acquired a full-fledged qualification in the said field.
103.3 More than the qualification in the said field, it is the experience in the said field and the application of various theories of the said science that are more relevant in deciding whether the expert is, an authority on the said subject. The claim of PW18 that he has examined more than Page-127 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 3000 persons voices and given opinion on them in different courts of the country is neither challenged or rebutted which reflects upon his authority as well as his vast experience in the said field. The said evidence rebuts the claim of the accused persons regarding he being not expert in terms of the Section 45 of the Indian Evidence Act.
104. Now coming to the value to be attached to the findings given by PW18. The first limb of argument concerns the issue that the report Ex. PW18/1 is bereft of any reasons therein. The said arguments advanced on behalf of the accused persons also appears to be against the record as well as the holistic reading of the entire evidence and the report furnished by PW18. As far as the report is concerned, it is a detailed report wherein every step carried out by PW18 while examining the exhibits has been given in brief, along with the methods adopted by the expert.
104.1 Certain common clue sentences were firstly segregated from the questioned voices and specimen voices for voice spectrographic analysis and thereafter the said utterances/sentences of the questioned speaker were analysed on the basis of their auditory features. The said auditory features were checked on the parameters of phonetic and linguistic features. The said process was further subjected to spectrographic analysis on a computer Page-128 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 voice spectrograph for their voice grams. The acoustic features i.e. formant frequencies distribution, intonation pattern, number of formants and other general visual features in their voice grans were thereafter compared with the respective features in the specimen utterances. Based on the said extensive process, the opinion has been furnished qua the identity of the voices in the questioned recording vis-a-vis the specimen voices.
104.2 Further, PW-18 while deposing before the court again explained the said process for reaching to the conclusion, which was subjected to the extensive cross- examination on behalf of the accused persons. All the said parameters adopted by him for reaching to the conclusion were extensively questioned in the cross examination and the responses given by the witnesses does not in any manner reflect the report furnished by him to be unreasoned one. Apart from that, even the auditory sheet and spectrograms were produced in the cross-examination as Ex. PW18/D1 to Ex. PW18/D3 and the significance of the said sheets was explained. It was further explained by the expert that the quantification or percentage of comparison between the questioned and specimen voice is not recoded in the auditory sheets as the same is not possible. In light of the said reasons, the arguments advanced on behalf of the Page-129 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 accused persons questioning the admissibility of voice examination report being bereft of the reason is liable to be rejected.
105. The next issue to be considered is value be attached to the report of the expert Ex. PW18/1 in light of the fact that the voice identification proceedings and transcription thereof vide Ex. PW12/1 (D-18) and Ex. PW19/A (colly) (D-19) having remained unproved.
105.1 It has already been observed in the earlier part of the judgment that as far as the voice identification proceedings are concerned, the first set of 92 calls as per the case of the prosecution during investigation were identified by PW-14 Yogesh Gupta, PW-15 Dhir Singh Chauhan and PW-12 A.K. Sajnani. PW-12 as per the case of the prosecution, identified the voice of A-1 in the recorded conversation being his co- employee at the Trade and Taxes Department, GNCT of Delhi. Further as per the proceedings , PW-14 Yogesh Gupta and PW-15 Dhir Singh Chauhan identified the voices of A-2 and A-3 being employed with M/s Nath Motors Pvt. Ltd. or the other companies owned by A-3.
105.2 However, while deposing before the Court PW-14 and PW-15 both deposed that none of voices were identified by them when the same were played at the CBI office. Similar is the case concerning PW-12 who too discarded the Page-130 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 authenticity of the proceedings recorded vide voice identification memo Ex. PW12/1.
105.3 Similar is the case the qua the other calls identified vide voice identification memo Ex. PW19/A . Four voice calls were allegedly identified as that of A-2 and A-3 by PW-19 Ms. Molika Garg who too was employed with M/s Nath Motors Pvt. Ltd. She too while deposing in court, claimed that she had not identified any of the voices at CBI office and was merely asked to sign the said documents. Thus, the voice identification proceedings based on which the transcripts were prepared have remained unproven.
105.4 It is also the matter of record that only after conclusion of said voice identification proceedings, the questioned voices in DVD-Q1 and DVD-Q2 along with specimen voice of accused persons were forwarded to CFSL for expert opinion vide forwarding letter Ex. PW18/2 dated 10th of December 2018. Though the said letter is silent with respect to the forwarding of the voice identification proceedings and transcript. However PW-18 Deepak Kumar Tanwar, CFSL expert in clear terms deposed that apart from the said five sealed parcels, photocopy of the transcripts were also forwarded by SP, CBI, ACB for voice examination. The transcripts had the annotations identifying Page-131 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the voices of various speakers by writing down their names. On the basis of said information only, the expert PW-18 carried out the process of selecting the clue words as narrated in the report Ex. PW18/1. Therefore, the arguments has been advanced on behalf of the accused persons that the foundation for giving the CFSL opinion is itself shaken due to the question mark being raised over the voice identification proceedings and the preparation of the transcript vide memo Ex. PW-12/1 (D-18 ) {Ex.PW19/A ( colly) (D-19) }. It is the correct analysis of the facts.
105.5 The very start of such an exercise by a CFSL expert, was based on the prior identification proceedings carried out during investigation. However, the said voice identification have remained unproved. The said issue has been also addressed by Hon'ble Delhi High Court in Devender Singh Vs. CBI (supra) by categorically observing that comparison of the specimen voice of the accused with the voice on a tape by the expert presupposes the voice on the tape being correctly identified as that of the accused. Thus, in the absence of proof of the voice identification proceedings, the very foundation of the CFSL Report crumbled.
106. The second issue to be considered herein qua the value to be attached to the CFSL report Ex. PW18/1 is the manner of taking of specimen voice sample of the accused Page-132 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 persons. The specimen voice sample of A-1 and A-2, as per the case of the prosecution were taken on 5th of November 2018 i.e. the day of trap after their apprehension vide memo Ex. PW22/5. The said specimen voices were taken by TLO PW-22 Inspector Shitanshu Sharma in the presence of independent witnesses PW-2 Jitender Kumar Thakur and PW-3 Rakesh Kumar respectively. As per the contents of the said specimen memo some sentences existing in the recorded conversation were selected and noted down on the sheet of paper. Thereafter, the same were read out by the accused persons to record their specimen voices.
106.1 PW-22 further explained the said process by deposing that he had prepared the rough transcription in this regard around midnight on the intervening night of 5th/6th November 2018. Further, certain lines were selected by him from the conversation for taking the specimen voices, however the same are not placed on record. The said rough transcription is also not placed on record.
106.2 The said claim of recording the specimen voices of 5th of November 2018 also appears to be in the dock in the light of the version given by PW-13 Inspector Harnam Singh, who had collected the recorded conversation in two DVDs from PW-11 Dy.SP Kumar Abhishek of Special Unit, CBI. PW-13 in cross-examination claimed that he reached Page-133 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the Special Unit at around 10:30-11:00 PM on 5 th of November 2018 after being instructed to collect the record. He directly met Kumar Abhishek, who provided him with the articles as mentioned in the handing over cum seizure memo Ex. PW11/A (D-12). Therefore, he further claimed that he handed over the said articles to the IO after midnight of 5th of November 2018 and did not deposit the same in Malkhana of CBI. So, it is apparent from the said consistent version of PW13 that he went to Special Unit for collecting the recorded conversation at around 10:30 AM-11:00 AM and came back to office of CBI, ACB and handed over the said articles to the IO (PW22) after mid-night of 5 th of November 2018. If the said version of PW-13 is correct, then how come the specimen voices came to be recorded on 5th of November 2018 itself and that too after preparation of rough transcription by PW22.
106.3 The said discrepency in taking the specimen voice sample of A1 and A2 also raises a question mark over the value to be attached to the CFSL Report Ex. PW18/1. As far as A-3 is concerned, his specimen voice came to be recorded on 13th of November 2018 vide memo Exhibit PW23/2 by second IO PW23/DSP Pramod Kumar Tanwar. The said specimen voice sample is also questioned on behalf of A-3 by arguing that none of the independent witnesses, Page-134 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Shailendra Singh or Sunil Kumar have been examined by the prosecution nor the seal handed over to independent witness after sealing the specimen voice storage device came to be produced before the Court. The mere non- examination of said independent witnesses cannot be the sole reason for discarding the version of IO PW23. Further no worthwhile contradiction has been brought forth on his behalf in the cross-examination on the said specific issue, apart from giving a bald suggestion that the sample voices were never taken.
107. Another crucial issue which has bearing on the authenticity of CFSL opinion report Ex. PW18/1 is the identity of the text used in specimen voices of A-1 & A-2 . Vide forwarding letter of CBI Ex. PW18/2 dated 10 th of December 2018 the sealed parcels were forwarded to CFSL for examination. The said letter at page-3 has a chart which describes the description of the exhibits, how when and whom found, source of the exhibits and lastly remarks. As far as the specimen voice of A-1 and A-2 is concerned, the said chart reads as under:
Sl. Description of the How, when Source of Remarks No exhibit and whom the found exhibit 3 One sealed brown Got recorded Accused Specimen was envelope marked as S- by I.O. in Jitender taken from voice 1 in RC 34(A)/2018 presence of Kumar @ file name : 21-
Page-135 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 containing sample independent Jitender 214083-0-23- voice of accused witness on Joon 20181105- Jitender Kumar @ 06.11.2018 152348.wav. Jitender Joon in a memory Card.
(MR. I Memo. I, Sl.
No. 1) 4 One sealed brown Got recorded Accused Specimen was envelope marked as S- by I.O. in Dinesh taken from Voice 2 in RC 34(A)/2018 presence of Khurana File Name : 21- containing sample independent 214083-0-23-
voice of accused witness on 20181105-
Dinesh Khurana in a 06.11.2018 152348.wav.
memory Card
(MR. I Memo. 1, Sl.
No. 2)
108. The specimen voice of A-1 & A-2 were taken from the recorded conversation vide File No. 21-214083-0-23- 20181105-152348.wav The said file as per the call information report Ex. PW11/D is 92nd call exchanged on 05th of November 2018 at 15:23:48 PM. The transcript of the said file is part of Ex. PW14/1 (colly). The expert in his report Ex. PW18/1 records that the specimen voice S-1was of duration 43 seconds, starting with sentence "Aa Jao Kar Diya Hai Maano.........". Similarly, the exhibit S-2 concerns A-2 and the duration of the specimen voice is one minute starting with the sentence "Phir ye Information To Aage Chali Gayi Hogi..." The said starting sentences or the common clearly audible words in Ex. S-1 & S-2 are not at all Page-136 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 related to the conversation in recorded conversation call no. 92 part of Ex. PW14/1 (colly)( part of D18) .None of the said common clearly words or the sentence finds mention in the transcription of the said recorded conversation. No explanation is furnished by the prosecution as to the said material contradiction between the report Ex. PW18/1 and their own forwarding letter Ex. PW18/2 mentioning the source of the specimen voice of A-1 & A-2. The said material contradiction also put a question mark over the value to be attached to the FSL report.
108.1 Even if all the said issues which put a question mark over the admissibility and reliability of FSL report are discarded, even then, not much reliance can be placed upon the FSL report Ex. PW18/1. The opinion given by expert PW18 in the report clearly records the fact that as per him the questioned voices are 'probable voices' of the accused persons whose specimen voices were forwarded to and used for comparison.
109. In the said backdrop, the issue is as to whether the said report which is only a probable opinion qua the identification of the voice can be solely relied upon by the Court or not, when the alleged acquaintances of the speakers have turned hostile and the sanctity of parcels having recorded conversation being in the dock. The said issue is Page-137 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 addressed by the Hon'ble Delhi High Court in Ajay Gupta V. State Criminal 469/2003 dated 28.10.2022 holding as under :
"148. Furthermore, the FSL result dated 31.09.1997 only states that the questioned voice samples marked Q1, Q2 which were then matched with S1, the voice samples of the appellant were "probably" of the same speaker. Apparently, the accused cannot be held guilty on the basis of probabilities in a criminal trial. In the circumstances, of the case, the appellant is thus acquitted in relation to the allegations in RC No.80(A)/96/CBI/ACB/New Delhi qua the alleged commission of offences punishable under Section 7 and Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988."
110. Thus, in view of the said legal position , it has to be held that the accused cannot be held liable on the basis of probabilities in a criminal trial when the onus is upon the prosecution to prove its case on the standard of beyond a reasonable doubt. In the light of the said discussed reasons above, it has to be held that the prosecution has failed to prove the admissibility of the recorded conversation in the light of the well-settled legal principles as enunciated by Hon'ble Supreme Court in Ram Singh Vs. Col Ram Singh (supra) and consistently followed thereafter.
(ix)Circumstantial Evidence for proving the Demand of Bribe Page-138 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019
111. Though the prosecution solely placed reliance on the recorded conversation to prove the factum of demand of bribe which has been held to be not proved in evidence. The issue to be seen is whether, after discarding the said material evidence, the remaining circumstantial evidence points towards the said inference of demand of bribe being raised by A-1 to A-2 and A-3 or not.
112. It is well settled proposition of law that even in absence of direct evidence concerning demand of bribe, the said factual aspect can be proved by the prosecution based on circumstantial evidence. The said issue has been directly addressed by Constitution Bench of Hon'ble Supreme Court in Neeraj Dutta (supra) by laying down the said relevant principles as under in Para -68:
"...............................................................
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
............................................................"
113. The said issue concerning the prosecution of the public servants qua the allegations of demand and acceptance of bribe and the culpability being decided based on the circumstantial evidence was the very issue before the Constitution Bench of Hon'ble Supreme Court in Neeraj Dutta (supra) case. It has been held that it is permissible to Page-139 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 draw an inferential deduction of the culpability of the public servant. The said inference can be drawn based on the proved circumstantial evidence in the absence of direct evidence of demand and acceptance of gratification. As far as the legal position qua the principles for admissibility of the circumstantial evidence are concerned, the same were laid down by the Hon'ble Supreme Court in landmark case titled as Sharad Birdhi Chand Sarda V. State of Maharashtra, AIR 1984 AIR 1622 and recently again reiterated by Hon'ble Delhi High Court in Om Prakash V. CBI, Crl. Appeal No.134/2016 dated 05.09.2017. The relevant Paragraph 4.5 is reproduced hereunder for the sake of convenience:
The Supreme Court in the decision reported as (2005) 12 SCC 631 K.R. Purushothaman v. State of Kerala drawing the distinction between suspicion and legal proof held that even in the case of conspiracy though inference is required to be drawn but the same should be based on circumstances giving rise to conclusion or irresistible inference. It was held:
"14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Mohd. Yusuf Momin v. State of Maharashtra [(1970) 1 SCC 696 : 1970 SCC (Cri) 274 : AIR 1971 SC 885] , that: (SCC pp. 699-700, para 7) Page-140 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
114. In light of the said settled position of law, the case of the prosecution and the circumstantial evidence presented by them has to be judged. The first set of incriminating circumstantial evidence produced by the prosecution is the Call Detail Record (CDR) of the accused persons facing trial herein.
114.1 The A-1 after being apprehended consequent to the trap being laid was arrested vide arrest-cum-personal search memo Ex.PW2/7. In the personal search, two mobile phones having Airtel SIM no 9667969404 and 9818286888 were recovered. Similarly, A-2 was apprehended upon the trap alongwith A-1. He too was arrested vide arrest-cum-personal search memo Ex.PW2/6 and from his possession also two mobile connections with no. 9896204062 and 9034004000 were seized. As far as A-3 is concerned, he was alleged to be using mobile no.9810295568. The CDRs as well as CAF details of all the said mobile numbers have been proved on record.
115. Before appreciating the CDRs and calls exchanged between the accused persons, the first and Page-141 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 foremost issue to be seen is the argument advanced on behalf of A-1 that he had no connection with mobile no.9667969404 and the same has been planted upon him by the CBI. In this regard, the reliance has been placed by him on the version of the subscriber of the said mobile connection PW-5 Mahinder Singh. PW5 claimed that in November 2018 , he was using the said mobile number which was issued in his name and he had never given the said SIM to A-1 or his sister Kiran (wife of A-1). He was declared hostile by the prosecution wherein he denied the suggestion that the said number was being used by A-1 or he had given the said SIM to his wife. Similarly, PW4 Naresh Maan who is also related to A-1 corroborated the said plea of the accused by claiming that the mobile being used by A-1 was 9818286888.
115.1 The issue to be seen is whether the testimony of PW5 inspires confidence in this regard or not. No explanation was furnished by him as to how come at the time of arrest of A-1, he was found in possession of said mobile number in his name that too in a separate handset. It is not the case of PW5 that the said mobile SIM was forcibly taken from him after the arrest of A-1 by CBI and thereafter planted upon A-1. No such defence was ever put to PW22 Insp Shitsanshu Sharma who arrested A-1.Therefore, the contention Page-142 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 advanced on behalf of A-1 that he had no connection with the said SIM with mobile number 9667969404 is liable to rejected.
115.2 The next issue to be considered is the exchange of calls amongst the accused persons during the relevant period after the survey of premises M/s Nath Motors Pvt Ltd (A-4). by the team led by A-1 till 05.11.2018 when they were apprehended. As far as the exchange of calls between A-2 and A-3 is concerned, nothing much can be deciphered from therein. Admittedly, A-2 was working as C.A for the firm A- 4/M/s Nath Motors Pvt Ltd, owned by A-3. It was natural for them to exchange the calls during the above-referred period and thus no adverse inference can be drawn against them .
However, as far as A-1 is concerned, the exchange of calls by him with A-2 is certainly an incriminating circumstance which needs consideration herein.
115.3 The CDR of mobile 9896204062 belonging to A-2 has been proved on record as Ex.PW1/3 (colly). Similarly, the CDR of mobile no. 9667969404 belonging to A-1 has been proved on record as Ex.PW8/8. The scrutiny of the said two CDRs reflects exchange of telephone calls between A-1 and A-2 during the relevant period. Even on the day of trap, 4 calls were exchanged between them which were long duration calls.
Page-143 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 115.4 It has already been observed in the earlier part of the judgment that the formal contact between A-1 and A-2 came to be established consequent to the survey/raid of the premises being conducted by A-1. He was authorised by the Commissioner, Trade and Taxation, GNCT of Delhi in terms of survey proposal dated 26.06.2018 Ex.PW10/B (colly). Consequent to the said survey, the regular proceedings were initiated by A-1 being the Competent Authority under DVAT 2004 and DGST Act 2017. The entire file concerning the said proposal and proceedings initiated thereafter has been proved on record as Ex.PW26/1 (D10). The said proceedings were recorded by A-1 after the said survey starting with effect from 2nd July 2018.
115.5 The proceedings reflect that the nature of the said proceedings were a kind of quasi-judicial proceedings. A-2 being C.A of A-4/M/s Nath Motors Pvt Ltd. appeared before the Quasi-Judicial Authority (A-1) based on power of attorney executed by A-4/M/s Nath Motors Pvt Ltd through A-3. The said proceedings are recorded in a manner in which judicial proceedings are recorded by recording the presence of the parties as well as the proceedings conducted on a given day. A regular date of hearing used to be given after the adjournment by A-1 . The last proceedings recorded is 14.09.2018 which is as under :
Page-144 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 "None appeared on 14.09.3018, Sh. Dinesh Khurana, C.A was directed on his phone 9896204062 to submit the details of tax and other relevant document immediately, however, he requested that he is suffering from dengue and needs some time for furnishing the details."
116. It is apparent from the record that thereafter no proceedings were drawn and lastly the said quasi-judicial proceedings came to be concluded by A-1 with submission of his report Ex.PW12/A-1-A dated 24.10.2018. In the light of the said nature of proceedings and the contact between A- 1 and A-2 being a strictly official/formal contact, the issue to be seen is whether the regular telephonic conversation between them was justified or not. As far as the telephonic conversation till 14.09.2018 is concerned, the justification could be there as the proceedings itself records the fact that A-2 used to be telephonically contacted with respect to the proceedings of the given day in case of his non-availability.
However, any such contact after 14.09.2018 will certainly raise an adverse inference against A-1. The question of any conversation by him with A-2, more specifically after the submission of the report on 24.10.2018, and A-1 having been transferred from the Trade and Taxes Department to Service Department, GNCT of Delhi, certainly warrants explanation from A-1 and A-2. The CDR of A-1 as well as A-2 reflects that apart from four calls exchanged on 05.11.2018 prior to their apprehension, there were regular calls exchanged Page-145 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 between them on 15.10.2018, 01.10.2018, 02.11.2018 and 03.11.2018. So, the said piece of circumstantial evidence required explanation from the accused persons as they alone were privy to the context of the conversation between them. However, no explanation is furnished by them despite shifting of onus upon them in terms of Section 106 of Indian Evidence Act.
(x) Place of Meeting of A-1 & A-2 on 05th November 2018
117. The next set of incriminating circumstances against A-1 and A-2 is their place of meeting and apprehension on 05.11.2018. It is a matter of record and admitted fact that as on 05.11.2018, A-1 already stood transferred from Trade and Taxation Department and had no role at all concerning the inspection/survey or subsequent proceedings against A- 4/M/s Nath Motors Pvt Ltd. It has also been observed earlier that consequent to the assignment of survey proceedings to A-1, the Quasi-Judicial proceedings were conducted by him as recorded in proceedings/ordersheets (Part of Ex.PW26/1, D-10), starting with effect from 02.07.2018 till 14.09.2018. It is also matter of record that A-2 being the Chartered Accountant of A-4/M/s Nath Motors Pvt Ltd., was the authorised representative of the company who used to appear before A-1 in the said Quasi- Judicial proceedings. In the light of said facts which are Page-146 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 matter of record and not disputed, the issue to be seen is the relevance of the place of meeting between A-1 and A-2 on 05.11.2018. The connected aspect to the said issue is as to whether the said meeting was a chance meeting wherein A-1 and A-2 somehow came together at a same time and thus, had a conversation or whether it was a pre-arranged meeting.
117.1 As regards the issue of the presence of A-1 and A-2 at Ring Road, near ITO, near Trade and Taxation Office is concerned, the said fact is not disputed on behalf of the accused persons. The two independent witnesses namely PW2 Jitender Kumar Thakur and PW3 Rakesh Kumar who were part of the trap proceedings categorically deposed about the said fact of presence of said accused persons and they having met together before being apprehended by CBI officials. Rather, A-1 in the cross-examination of said witnesses raised certain issues qua their presence and meeting which are like admission of the said factual aspect. The said responses given by PW2 are reproduced hereunder for the sake of convenience:
"I had seen accused Jitender Joon and Dinesh Khurana for the first time at the spot and they were under apprehension of CBI. It is correct that 05.11.2018 was Dhan Teras festival. When I reached at the spot, the accused Jitender Joon and Dinesh Khurana were making protest before CBI officials. I cannot tell exactly whether accused Jitender Joon and Dinesh Khurana Page-147 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 were saying that they have met for Diwali greetings, however, they were making protests."
117.2 As far as A-2 is concerned, he too in the cross- examination never disputed the said version of PW2 concerning their presence at the spot and meeting each other when they were apprehended by the CBI officials. Similarly, the second independent witness PW-3 Rakesh Kumar too deposed on the same lines qua their presence and meeting , before their apprehension though he turned hostile to the other aspects of case of the prosecution. The version of PW22 TLO Shistanshu Sharma and PW20 Inspector Manoj Kumar on the said aspect too is not challenged.
118. In light of the said fact regarding the presence and meeting of A-1 and A-2 on 05.11.2018 prior to their apprehension and that too near the earlier office of A-1 is a relevant incriminating circumstance. The connected issue to the said relevant fact is as to whether the meeting admittedly outside any official premises of A-1 was a pre-scheduled one or just a bump up. The call detail records of both A-1 and A-2 i.e Ex.PW1/3 ( colly) of A-2 and Ex.PW8/8 of A-1 prove on record the fact that prior to their apprehension at about 4:00 p.m on 05.11.2018, a series of calls were exchanged between them on the very same day. The last call exchanged prior to the meeting was at about 15:25:31 p.m Page-148 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 and duration of the said call was 210 seconds. Thus, the said calls goes on to prove that the said meeting was a pre- scheduled meet between A-1 and A-2 despite their being no purpose of the same.
118.1 The said issue when seen in light of the fact that A-1 already stood transferred from Trade and Taxation Department on 26.10.2018 itself and as per his own case he had no business left with the case being dealt by the department against A-4/M/s Nath Motors Pvt Ltd.
118.2 A-1 in his statement under Section 313 Cr.P.C in response to Question no.4 claimed as under:
Q-4 It has also come in evidence of PW22 against you that A1 Jitender Kumar @ Jitender Joon was required to submit a report to the Commissioner, GST, for further assessment of tax of M/s Naht Motors. What have you to say ?
Ans. It is a matter of record. Only one survey of M/s Nath Motors was conducted in the month of June 2018 and a report of the same was submitted by me digitally through e-office on dated 24.10.2018, which was approved by Commissioner with directions to ward authority for assessment as per law. Further, on the day of registration of FIR, I was neither posted in GST department nor any work was pending with me nor I had any concern/ role after submission of report dated 24.10.2018.
118.3 Even though there was nothing left with A-1, there was no occasion for him to have a pre-scheduled meeting Page-149 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 with A-2 knowing the fact that he had dealt with the matter involving the company which was being represented by A-2.
The nature of the proceedings were Quasi-Judicial in nature, wherein certain recommendations were made in report dated 24.10.2018 Ex.PW12/A1-1. The said recommendations were part of official work for which secrecy was to be maintained.
118.4 The said aspect of proceedings pending before A-1 being in the nature Quasi-Judicial proceedings is further fortified through authorisation for inspection/search dated 26.06.2018 issued by Commissioner, DGST {(Part of Ex.PW26/1, D-10)}. Vide the said authorisation, A-1 was authorised to conduct the proceedings under the Act by inspecting the premises as well as seizing or seeking production of relevant records, goods, other things. The nature of the said proceedings for which the authorisation was given is further clarified from the last paragraph of said authorisation which is reproduced hereunder for the sake of clarity and convenience:
"Any attempt on the part of the person to mislead, tamper with the evidence, refusal to answer the question relevant to inspection/ search operations, making of false statement or providing false evidence is punishable with imprisonment and /or under the Act read with Section 179,181,191 and 418 of Indian Penal Code."
Page-150 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 118.5 Thus, it is apparent from the very content of the said authorisation that the proceedings being conducted by A-1 were in nature of quasi judicial proceedings and the persons appearing before the authority were liable to proceeded under Section 179,181,191 and 418 of Indian Penal Code for misleading, tampering with the evidence, refusal to answer etc. But despite that A-1 met A-2 outside the office pemises.
118.6 The A-1 and A-2 remained silent with respect to the purpose of the said pre-scheduled meeting despite the said purpose being within their special knowledge and onus being upon them under Section 106 of Indian Evidence Act for explaining the matters within their special knowledge. In light of said facts, the said incriminating circumstance too has to be read against accused persons as both A-1 and A-2 who have failed to discharge the onus upon them.
(xi) Motive of the Meeting dated 05th November 2018
119. The next crucial aspect to be considered in the chain of circumstantial evidence against the accused person on the aspect of demand of bribe,is the motive or undue advantage sought from A-1 by A-2 and A-3 concerning the pending taxation proceedings.
Page-151 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 119.1 Though originally in the FIR it was alleged that A-1 had conducted survey-cum-seizure procedure against A-4/M/s Nath Motors Pvt Ltd ( company belonging to A-3) in September 2018 and A-1 was demanding bribe of Rs.10 lacs for not raising demand of tax for the previous years and interest as well as for maintaining goodwill for the future. However, during investigation it transpired that the survey was carried out at premises of A-4/M/s Nath Motors Pvt Ltd by Delhi GST team headed by A-1 on 28.06.2018. A-1 finalised the said survey/inspection report after holding multiple hearings by giving the opportunity of hearing to the representative of A-4/M/s Nath Motors Pvt Ltd, who was represented by A-2 from July 2018 till 14.09.2018. The said report was then submitted online on 24.10.2018 by A-1 which was approved by the Commissioner, DGST on 30.10.2018. The file was then forwarded to the concerned ward for assessment of tax liability.
119.2 It was also found during the investigation that vide order dated 26.10.2018 issued by H.R Branch of Department of Trade and Taxations, entire team of officers of Enforcement including A-1 were transferred and placed at the disposal of Services Department, GNCT Delhi with immediate effect. It is further alleged by the prosecution that the said fact of transfer of A-1 was not in the knowledge Page-152 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 of accused persons i.e A-2 and A-3 and it is thus concluded that A-1 demanded bribe money from A-2 to settle the matter of A-4/M/s Nath Motors Pvt Ltd and A-3 .They then agreed to pay the said amount for getting favourable report in respect of survey/inspection. The said alleged bribe amount, as per the case of the prosecution, was paid on 05.11.2018.
119.3 Thus, the investigation itself establishes the fact that firstly, no inspection or survey was conducted in September 2018, rather the raid was conducted on 28.06.2018 by A-1 by searching the premises of A-4/M/s Nath Motors Pvt Ltd at A-30, Mohan Cooperative Industrial Estate, Delhi. Though it is admitted fact that the proceedings remained with A-1 in September,2018 .
120. Another fact which is admitted by the prosecution and it being in contradiction to the contents of the FIR is the survey/inspection report being already submitted by A-1 on 24.10.2018. Rather the same was already approved by Commissioner, DGST on 30.10.2018. So in the said backdrop, there was no question of giving a favourable report in the matter of survey/inspection of A-4/M/s Nath Motors Pvt Ltd or it being pending with A-1. The case of the prosecution is based upon premise that the motive of demand of bribe by A-1 was on the account of getting the favourable report in respect of the survey/inspection , as the factum of Page-153 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 transfer of A-1 was not in the knowledge of A-2 and A-3. However, no evidence has come on record to prove the said averment of the prosecution regarding lack of knowledge of A-2 and A-3 regarding transfer of A-1 from the Department of Trade and Taxes vide order dated 26.10.2018 or they being unaware of submission of survey report on 24.10.2018.
120.1 The limited issue to be seen is whether from the circumstances proved on record, an inference can be drawn regarding the said lack of knowledge of A-2 and A-3 regarding the transfer of A-1 on 26.10.2018, that too with immediate effect.
120.2 In this regard, the versions given by PW22 Shistantshu Sharma, TLO and that of PW23 Inspector Parmod Kumar Tanwar, I.O are the most crucial one. As far as PW22 is concerned, he in the cross-examination claimed that he remained I.O in the present case till 06.11.2018. So effectively, he was the I.O for two days, starting from the early morning of 05.11.2018 till 06.11.2018 when the entire trap and the proceedings thereafter took place. He admitted to the fact that he had neither seen or read the report of survey dated 24.10.2018 Ex.PW12/A1/A (D11). He further claimed that he was not aware as to the transfer of A-1 vide order dated 26.10.2018 Ex.PW12/A1/B. He further admitted Page-154 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 to the fact that it was not in his knowledge that A-1 was no longer posted in the GST Department on the day of trap i.e 05.11.2018. Though he claimed that source had informed that A-1 was working as Assistant Commissioner in GST and had demanded bribe which he would accept on 05.11.2018. Thus, till 06.11.2018, the said fact of A-1 being no longer posted in the office of Trade and Taxes and he having already submitted the inspection/ survey report on 24.10.2018 was never in knowledge of Trap Laying Officer.
120.3 PW-23 Inspector Parmod Kumar Tanwar, 2 nd I.O, who took up the investigation on 12.11.2018, admitted to the fact that after reviewing the documents seized vide seizure memo Ex.PW23/3 (D11) which also had the survey report dated 24.10.2018, no work was pending with A-1 after 24.10.2018. He further admitted to the fact that after submission of the report, A-1 had no authority to advance any favour to A-4/M/s Nath Motors Pvt Ltd. He further admitted to the fact that as on 05.11.2018, A-1 was no longer posted in GST Department being already relieved in compliance of order dated 26.10.2018 Ex.PW12/A1/B. He though never made any effort of finding out his new place of posting. Thus, it is apparent from the version of both the said Investigating Officers that as on the day of trap i.e 05.11.2018 or even prior thereto, no work of A-4/M/s Nath Page-155 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Motors Pvt Ltd was pending with A-1 having already submitted the report on 24.10.2018 and had no authority to do any favour thereafter.
120.4 The record Ex.Pw23/3 also reflects that the said report was submitted 'Online' with digital signature, which came to be accepted firstly by PW27 Vinay Kumar, the then Special Commissioner and H. Rajesh Prasad, the then Commissioner, on 30.10.2018 at 12:46 p.m. The last note is that of the Commissioner whereby he ordered that the matter be sent to the concerned Ward for tax assessment as per law. Thus, findings and the recommendation of A-1 were accepted at higher level's after scrutiny and his recommendation was accepted in toto.
120.5 Thus, in the said backdrop, the first issue to be seen is whether any favour or undue advantage was given to A-4/M/s Nath Motors Pvt Ltd as is the case alleged by the prosecution that the demand of bribe was raised and secondly the submission of report being not in knowledge of A-2 and A-3. The answer to the first issue is addressed by PW23 Dy.SP Pramod Kumar Tanwar in the cross- examination. The pointed questions were put on the very said aspect on behalf of A-1 which are reproduced hereunder for the sake of clarity and convenience:
Q: I put it to you that the said report was uploaded on e-office, which was approved by Page-156 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 HOD/Commissioner GST & thereafter, forwarded to Ward Authority for assessment of tax as per rules, as the report had no flaws. What have you to say?
Ans. I can not comment.
Q: Can you show any material from the
report Ex. PW12/A1/A (D11, page no. 4 to 8 ) which shows that any favour was done by A1 in the survey /inspection?
Ans. There is nothing as such in this report.
Q: Is it correct that no favour was ever done by A1 in the survey/inspection report dated 24.10.2018 of M/s.Nath Motors and for this reason, you had neither mentioned any detail/ description of any such document in the Charge Sheet not put any specific mark on any such document nor you are able to point out any such document or material today?
Ans. It is correct as far as the report dated 24.10.2018, however, the favour is reflected from the recorded conversation.
121. Thus, it is apparent from categorical responses of PW23 that no favour was done by A-1 in the survey/inspection report Ex.PW12/A1/A dated 24.10.2018. He was further cross-examined with respect to the issue qua non-raising of demand of tax for previous years which was the original allegation as well as favour sought by the accused persons from A-1, to which PW23 expressed ignorance. He further claimed that he recorded statement of Vinay Kumar , Special Commissioner on the said aspect.
Page-157 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 121.1 The said Special Commissioner has been examined as PW27 who proved the entire chain of events staring with effect from submission of proposal of A-1 on 26.06.2018 till the acceptance of said survey report on 30.10.2018. He admitted to the fact that no illegality was found by them in the survey report. Rather, he went on to explain the said contents by claiming that prima facie the observations were detailed and due consideration was to be done by the Assessing Authority under the provisions of relevant Act. Accordingly, the recommendation of A-1 for forwarding the case to concerned Ward for assessment of tax and penalty considering the discrepancies was forwarded to the concerned Ward.
121.2 In the said backdrop, the contention of the prosecution that a favourable report was agreed to be given by A-1with respect to the tax evasion for the previous assessment years starting with effect from 2016-2017 till 2018-2019 ( uptill June 2018) on account of bribe has remained unproved. The proceedings carried out with respect to levying of the tax and penalty from the concerned Ward i.e Ward No.4 and the findings of the said Assessing Officer could have thrown further light over the fact as to whether any favour was indeed given in the findings recorded in survey report dated 24.10.2018 or the contents of Page-158 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 the documents being favorably read or misread due to malafide intention of A-1. However, no such investigation was got conducted even though it came to the knowledge of Investigating Authority during investigation itself that the survey report already stood submitted by A-1 around 10 days prior to the registration of the FIR. In light of the said evidence, no assumption can be drawn regarding any undue favour being shown by A-1 A-4/M/s Nath Motors Pvt Ltd in consequence of demand of bribe and its acceptance at a future date.
121.3 The next crucial issue on the said aspect is as to whether the cumulative reading of the said circumstantial evidence warrants this Court to draw the inference that the factum of submission of report or the transfer of A-1 from Trade and Taxes Department on 26.10.2018 was never in the knowledge of A-2 and A-3 when the demand of bribe was raised. The said aspect needs appreciation keeping in view the conduct of the parties, their backgrounds and their professions.
121.4 It is the matter of record that A-3 was running a flourishing business of car dealings by operating more than one company as deposed by PW10 Rajesh Kumar Sharma who employed with A-4/M/s Nath Motors Pvt Ltd and PW19 Ms. Molika Garg, Director of the said company. Ms. Page-159 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Molika Garg joined M/s Nath Motors Pvt Ltd in the year 2013 when it was having the dealership of Nissan Motors and subsequently, they gave up the said dealership and took the dealership of Honda Cars. Apart from that , Hyundai Motors dealership was also taken up by one of the sister companies in the year 2015-2016 by the name of M/s Hana Motors Pvt Ltd. A-3 was running another firm in the name of M/s Rain Automotive Pvt Ltd and had the dealership of Ford Cars. Thus, A-3 had a vast experience in running car dealerships of major automobile makers. The total turnover for the period 2016-2017, 2017-2018 shows expanse of his business. In the said backdrop, it is hard to assume that a person having such a vast business network would be ignorant of the fact of the said submission of survey report dated 24.10.2018 and the transfer of concerned official i.e A-1, even after ten days.
121.5 Similarly, A-2 was the Chartered Accountant of the said three firms owned by A-3. He too had vast experience in the same field. He is the person who was authorised to appear before A-1 in the Quasi-Judicial proceedings conducted by A-3 by executing the power of attorney in his favour. He regularly appeared before A-1 at his office in Department of Trade and Taxes Department right from 02.07.2018 till 11.09.2018. He also had regular telephonic Page-160 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 conversation with A-1. In the said backdrop, it cannot be presumed that he was also not aware of the finalisation of the said survey report or the consequent transfer of A-1 on 26.10.2018 i.e around 10 days prior to the demand of bribe or its delivery.
122. Another issue concerning the said lack of knowledge aspect , is the proceedings initiated by concerned Ward No.204 after forwarding of the matter to them on 30.10.2018. It cannot be assumed that no action was taken upon the said survey report for assessment of tax liability by the concerned Assessing Officer of Ward No.205 till 05.11.2018 and thereby probalising the case of prosecution that A-2 and A-3 were unaware about the submission of report as well as transfer of A-1. No such evidence has been collected by the prosecution for the reasons best known to them. Any such evidence from Ward No.204 could have thrown light over the said fact as to the initiation of the proceedings by them and whether any notice was issued to A-4/M/s Nath Motors Pvt Ltd till 05.11.2018 or not . Hence the case of prosecution that A-2 And A-3 were unaware of submission of report by A-1 and transfer at the time of demand of bribe has remained unproved . In the end, the sum and substance of the above-said discussion shows that no presumption can be drawn that proves the motive of the Page-161 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 demand of bribe and the said motive of giving undue advantage or favour in the form of a favourable report by A-1.
(xii) Source/Generation of Bribe Amount
123. The next crucial circumstance concerns the alleged delivery of bribe amount, its acceptance and trap. The precursor to the said issue is the generation and source of the said alleged bribe amount. The said bribe amount is alleged to be Rs.10 lacs which was arranged, as per the case of the prosecution, by A-2 from the office of A-4/M/s Nath Motors Pvt Ltd and on the directions of A-3. Though as per the allegations itself, out of the said demanded amount of Rs.10 lacs, a sum of Rs.6 lacs was allegedly delivered by A- 2 to A-1 on 05.11.2018. The charge under Section 7A, 8,10 and 12 of PC Act framed against A-2 and A-3 concerns the very said fact of generation and source of said delivery of amount of Rs.10 lacs to A-2 on the instructions of A-3.
124. The prosecution to prove the said fact of source and generation of the alleged bribe amount of Rs.10 lacs primarily placed reliance upon the oral version of employees/ directors of A-4/M/s Nath Motors Pvt Ltd. Their statements were also recorded under Section 161 Cr.P.C.
Page-162 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 124.1 The first such witness is PW10 Rajesh Kumar Sharma who joined M/s Nath Motors Pvt Ltd as accountant and left in March2019. He was lastly working as a Director, without any salary or share in the company. He though admitted to the fact that A-2 was the Chartered Accountant in the said company and he used to have normal regular dealings with him as required in the office. He further admitted to the fact of visit of A-2 at the office of A-4/M/s Nath Motors Pvt Ltd in the morning hours on 05.11.2018. On the remaining aspects, be it instruction of A-3 to hand over amount of Rs.10 lacs in cash to A-2 or he having handed over the said amount as per the instructions or Rs.5 lacs in cash being arranged from Yogesh Gupta who was looking after the accounts of another M/s Hana Motors Plaza Ltd ( also belonging to A-3), he discarded the case of the prosecution . He also denied that Rs.10 lacs in cloth carry bag were handed over by him to A-2 on the oral directions of A-3. He further denied the case of the prosecution with respect to the alleged meeting with A-2 at Karnal in the last week of October 2018 wherein A-2 had asked him to arrange Rs.10 lacs in cash as GST official who had conducted the Vat Survey in the office of A-4/M/s Nath Motors Pvt Ltd was pressuring him. Thus, PW10 on the crucial aspects concerning delivery of Rs.10 lacs to A-2 on the directions of Page-163 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 A-3 in the morning hours of 05.11.2018, discarded the entire case of prosecution.
124.2 The second witness cited by the prosecution in this regard is PW14 Yogesh Gupta who was working as Accountant with M/s Hana Motors Pvt and M/s Rain Automotive Pvt Ltd (both belonging to A-3). He too denied the case of the prosecution that cash to the tune of Rs.5 lacs was handed over by him to PW10 for further being handed over to A-2 as per the instructions of A-3. He also denied visiting the office of A-2 at Karnal wherein A-2 having informed him regarding the raid at A-4/M/s Nath Motors Pvt Ltd or A-2 being liasioning with A-1 in this regard. Rather, he went on to the extent of claiming that they never used to deal in cash. He denied the suggestion that on the instruction of PW-10 that after generating the amount w.e.f 1.11.2018 to 04.11.2018 , he handed over Rs.5 lacs on 05.11.2018 at the cash counter of A-4/M/s Nath Motors Pvt Ltd. Thus, he too has discarded the case of the prosecution & deposed on the lines of PW10 on the aspect of generation and flow of cash from the office of A-4/M/s Nath Motors Pvt Ltd or other concerns connected to A-3 on 05.11.2018 and it being handed over to A-2.
124.3 The last witness in this regard is PW19 Molika Garg who at the relevant point of time was also working with M/s Page-164 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Nath Motors Pvt Ltd. She further claimed that she worked with said firm till November 2018 and resigned after the CBI raid. At the time of recording of her deposition, she was working at Hyderabad in some other company. She admitted to the fact of mobile conversation with A-2 and A-3 though disputed the mobile number attributed to her . The mobile no. 9891254777 is attributed to her and she claimed that it is an official number of CUG (Close User Group). She denied the claim of prosecution with respect to delivery of Rs.70,000/- in cash to purchase gifts to A-2 on 05.11.2018 or Rs.10 lacs in cash being discussed during telephonic conversation. Thus, her role is only confined as to the allegation regarding delivery of Rs.70,000/- in cash for purchase of gifts to A-2, which she denied. Though the explanation given by her with respect to the mobile number 98912 54777 that it used to be at the reception of the office and being not exclusively used by her appears to be a false plea. It cannot believed that an official CUG number is kept at the reception of car dealership office. Therefore, the version of PW19 in this regard is liable to be rejected. However, the said piece of evidence regarding calls being made through her number to A-2 or A-3 by itself does not help the case of the prosecution on the aspect of generation and source of Rs.10 lacs or it being delivered to A-2 on 05.11.2018.
Page-165 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 124.4 Another aspect on the issue of generation of cash is the version given by PW14 Yogesh Gupta, Accountant with M/s Haana Motors Pvt Ltd ( also belonging to A-3). He claimed that no cash dealing used to be done at their office and hence, there was no question of delivery of Rs.5 lacs in cash on 05.11.2018.
124.5 Thus issue to be seen is the availability of cash with A-4 or the other companies of A-3 on any given day. The only document drawn in this regard is physical cash available with A-4/M/s Nath Motors Pvt Ltd on the day of survey i.e 28.06.2018 which is part of Ex.PW26/1 (D10). As per the same , the cash availability of the entire day in June 2018 was merely Rs.46,430/-. In the said backdrop, the issue of generation and source of Rs.10 lacs allegedly delivered to A-2 by PW10 should have been investigated by putting either specific queries to PW10 and PW14 or by looking into the daily accounts statements of A-4/M/s Nath Motors Pvt Ltd and M/s Haana Motors Pvt Ltd. However, none of the said aspects were investigated.
124.6 It is also alleged by the prosecution that the cash generated through the said two firms was never deposited with effect from 01.11.2018 in the bank. So, the bank statement should have also been analyzed so as to corroborate their oral version. But no such exercise was Page-166 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 done and the prosecution simplicitor relied upon the versions of the employees of M/s Nath Motors Pvt Ltd and M/s Haana Motors Pvt Ltd, who turned hostile and did not support the case of the prosecution in the Court. Thus, the said fact of generation and source of Rs.10 lacs before being allegedly delivered too A-2 has also remained unproved.
124.7 Thus, in the end it has to be observed that the chain of circumstances is not complete on basis of which the inference of demand of bribe by A-1 can be raised.
(IX) TRAP PROCEEDINGS/ACCEPTANCE OF BRIBE
125. The next set of material allegations concerning the charges levelled against the accused persons are the proceedings of trap dated 05.11.2018. It has already been discussed that the present FIR came to be registered on the source information on 05.11.2018. On the basis of said information, the trap team was constituted by Trap Laying Officer (TLO) PW22 Shistanshu Sharma.
126. Ld. Counsel for accused persons have questioned the veracity of the said proceedings by arguing that two material independent witnesses who were made part of trap team PW2 Jitender Kumar Thakur and PW3 Rakesh Kumar, have discarded the theory of the prosecution on the several Page-167 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 aspects of the said trap. They have also discarded the theory regarding recovery of Rs.6 lacs from the Honda Amaze car of A-1 and Rs.4 lacs from the car of A-2. They neither saw or witnessed the actual occurrence of alleged delivery of Rs.6 lacs by placing of the said white cloth bag from the car of A-2 to the dicky of the car of A-1. Therefore, it is argued that version of TLO PW22 Shistanshu Sharma and one another CBI official PW20 Inspector Manoj Kumar who was also the member of trap team, cannot be believed who both are interested witnesses.
127. The first and foremost aspect to be considered considering the said issues raised/discrepancies in the versions of the independent witnesses of trap PW2 and PW3 is the presence of A-1 and A-2 at the spot as well as their apprehension at about 4:15/4:30p.m on 05.11.2018. On the said two aspects, all the trap team members i.e PW2, PW3, PW20 and PW22 (TLO) deposed consistently with respect to the manner in which the team was constituted at CBI office in the morning till the apprehension of A-1 and A-2 at the spot. So far as the presence of A-1 and A-2 on the spot as well as their apprehension by CBI officials is concerned, there seems to be no worthwhile contradiction or dispute raised on behalf of the accused persons. Rather, the defence which has been put to the said trap team members by A-1 is Page-168 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 that they both, indeed, were present on 05.11.2018 and were exchanging Diwali gifts/wishes when they were unlawfully apprehended by the CBI officials. Similarly, A-2 also never disputed either his presence or meeting A-1 at the spot of apprehension i.e outer Ring Road near building of Indian Institute of Administration and the cars being parked on the Ring Road leading towards Rajghat.
127.1 The first material contradiction concerning trap proceedings as has been argued on behalf of A-1 & A-2 is the proceedings prior to their apprehension. It has been argued that as per the claim of the prosecution, at the around 1:30 p.m, one team chased A-1 when he left for Khan Market area. The said theory of visit and chase to Khan Market area while tracking A-1 is put into dock by independent witnesses PW2 Jitender Kumar Thakur and PW3 Rakesh Kumar.
127.2 The case of the prosecution is that TLO PW22 Shistanshu Sharma was in constant contact with the source right since the inception of the trap team. After reaching the area around the Trade and Tax Department, Viyapar Bhawan, at about 1:30 p.m, TLO saw A-1 leaving in his car. It was informed by the source to him that A-1 was going towards the area of Khan Market. Accordingly, PW22 deputed few members of the team including PW20 Inspector Page-169 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 Manoj Kumar to track him. However, at about 2:30 p.m, the source informed that the transaction of bribe is going to take place near Trade and Tax Department building only and accordingly, the other team which was tracking A-1 at Khan Market was called back. Both PW20 and PW22 stuck to the said theory. Independent witness PW2 on the said aspect never discarded the said complete theory. He only contradicted to the extent that they were tracking the said official and had probably gone towards Delhi Zoo. The vehicle, as per him, stopped on the way after about 5-10 minutes and it was decided that they should reach ITO. So, the aspect of tracking A-1 from ITO to a new location and returning to ITO after a few minutes has also been reiterated by PW2. The only disputed issue is the exact place where they went when they left while chasing the said car of A-1 from ITO.
127.3 Similarly, the other independent witness PW3 too deposed on the similar lines that TLO PW22 Shistanshu Sharma received a phone call and directed them to move from ITO. They reached in the vicinity of Zoo, when PW22 again asked them to come back to Sales Tax Office. So, his version is also in consonance with PW-2 and the version of prosecution, except the exact place where they tracked A-1 as well as the role of TLO PW22 Shistanshu Sharma.
Page-170 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 127.4 The said minor contradiction in version of trap team members is also inconsequential when seen in the light of the fact that both A-1 and A-2 have admitted about their presence as well as their apprehension by the CBI official on 05.11.2018 at about 4:30 p.m from the area of Ring Road, near Trade and Tax Department.
128. The next issue to be considered is the version of said trap team witnesses qua the actual transaction/exchange of money, which as per the prosecution, took place when both A-1 and A-2 parked their vehicle. It is further their case that A-2 was seen taking out one white bag, later, found to be containing Rs.6 lacs,while being accompanied by A-1 and thereafter putting the said bag in the boot-space of the car of A-1 ( Honda Amaze).
128.1 On the said aspect, both the independent witnesses, have punctured the entire case of the prosecution. As far as PW2 is concerned, he only saw till both the cars of A-1 and A-2 arrived at the spot and were stationed over there. But as far as the latter part of the proceedings is concerned, he claimed that while they were standing there, he started talking to some vendor and while he was talking to him, he heard shouting and thought that the trap had taken place.
Page-171 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 The relevant part of his version on the said aspect is reproduced hereunder:
"While standing there, I started talking to some vendor and when I was talking to him, I heard shouting and thought that the trap has taken place and I also rushed towards the black car. When I reached the car, I saw the CBI team holding a person and I was asked to conduct the personal search of the person."
128.2 So,it is quite apparent from the version of independent witness PW-2 that he never saw the actual delivery and placement of recovered white bag alleged to be containing Rs.6 lacs from the car of A-2 to the boot-space of the car of A-1.
128.3 As far as PW3 Rakesh Kumar, the second independent witness is concerned, he too deposed on similar lines of PW2 Jitender Kumar Thakur. He claimed that as PW2 was standing near the street vendor selling some Chole Kulchey , he also went over there and ordered for the same and in the meanwhile, he heard the voice of CBI team from the side of Rajghat who were saying "Aa Jao, Aa Jao". The CBI team had already apprehended the person who was sitting in the Honda City car as well as A-1. So, as far as PW3 is concerned, he also never witnessed the actual occurrence of the transfer of alleged while bag containing Rs.6 lacs from the car of A-2 to A-1.
Page-172 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 128.4 In the light of the said fact, the issue to be considered is whether the said ignorance of PW2 and PW3 qua the transfer of the bag can be the sole factor for discarding the consistent testimonies of the other two witnesses i.e PW20 and PW22. Merely because PW20 and PW22 are the CBI officials, their version on the said aspect cannot be discarded unless and until, the accused is able to show that they are not trustworthy witnesses on the said aspect. None of the said factor has come on the record. Rather the conduct of PW2 and PW3 also reflects the casualness of their approach, despite being directed by Trap Laying Officer specifically to witness the entire proceedings. They never witnessed the actual occurrence despite being informed by PW22 about the arrival of both the accused persons as well as their cars being parked on the Ring Road. But PW2 and PW3 ignoring the directions and in a casual manner started having talk to some vendor. In the said backdrop, no fault can be attributed to CBI who had diligently joined the independent witnesses to the trap proceedings as well as properly briefed them about the work to be done by them which they failed due to their casual approach. Thus, the argument of accused of rejecting the version of PW22 and PW20 on the issue of transfer of the bag in the car of A-1 being not supported by independent witnesses, is liable to be rejected.
Page-173 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019
129. The next issue is the alleged recovery of Rs.6 lacs from the Honda Amaze car of A-1 which as per the prosecution was transferred from the car of A-2 in a white cloth bag. The said Rs.6 lacs is claimed to be the bribe amount accepted by A-1.
129.1 The issue to be seen herein is the amount recovered from the Honda Amaze car of A-1 and secondly, the said amount being the bribe amount and being accepted with consenting mind and knowledge and it being an illegal gratification/ bribe. The said issue has been discussed by Hon'ble Supreme Court in N. Vijaykumar v. State of Tamil Nadu, AIR 2021 SC 766, the relevant para-12 of the same is reproduced hereunder for the sake of convenience :
"12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe......................"
129.2 The material witnesses cited by the prosecution concerning the said fact of recovery of white bag from the boot-space of Honda Amaze car of A-1 are independent Page-174 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 witnesses PW2 Jitender Kumar Thakur and PW3 Rakesh Kumar. It is the case of the prosecution that the entire proceedings after the apprehension of A-1 and A-2, were carried out by the said two witnesses on the of directions issued by TLO PW22 Shistanshu Sharma. It is also the case of the prosecution that PW2 Jitender Kumar Thakur opened the dicky of Honda City Car bearing No.DL-4C-AW7349 by using the key and thereafter on the directions of TLO, PW-3 Rakesh Kumar Singh searched the dicky for cloth bag. The said cloth bag was found and PW3 Rakesh Kumar Singh was asked to take out the contents of the cloth bag which were found to be having 12 packets of currency notes of Rs.500 each bound with rubber bands. As far as the remaining proceedings qua noting down of the distinctive numbers and preparing Annexure-A Ex.PW3/1, the proceedings were carried at the CBI office after the return of the team alongwith the accused persons.
129.3 It is thus clear as the main role has been performed by PW-2 and PW3. However, on the said crucial aspects, the versions given by PW2 and PW3 are contradiction to each other as well as in contradiction to the entire case of the prosecution.
129.4 As far as PW2 Jitender Kumar Thakur is concerned, he claimed that as he did not know how to open the dicky, Page-175 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 PW3 Rakesh Kumar opened the same and he searched the dicky of the car. He found light colour printed cloth bag having some currency notes. He also found two-three gold/silver coins as well as gift cards and marriage cards. He further identified the said 12 packets of currency notes of Rs.500 Ex.P-4 (colly) and further claimed that the same were counted and distinctive numbers were noted down at CBI office. Thus, the version given by him as to the said sequence of events starting with effect from opening of the dicky/boot-space car of Honda Amaze car of A-1 and till recovery, altogether a different version has been given by PW2. It is in contradiction to the contents of recovery memo Ex.PW2/2(D-3).The role performed by him is in contradiction to the entire case of the prosecution. The role performed by the other independent witness PW3 Rakesh Kumar has also been contradicted by PW2.
129.5 Despite the said inherent contradiction in the version of PW2, he was never cross-examined nor any clarification was sought by the prosecution from him in this regard. Therefore, the said inherent contradictory version of PW2 on the above-said crucial aspects has gone unrebutted and unchallenged against the prosecution.
129.6 Further, in the cross-examination conducted by A-1, he explained the subsequent proceedings concerning Page-176 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 counting and noting down the distinctive number of alleged recovered amount. He claimed that Rs.6/7 lacs were counted by him in the CBI office which were brought by one of the CBI officials after 10-15 minutes of their arrival at CBI office while they were having tea. The said version of PW- 2 also puts a dent in the case of the prosecution qua custody of the said alleged recovered amount kept in the white bag. It also contradicts the contents of recovery memo Ex.PW2/2 as per which during the said interim period after recovery at the spot till counting and noting down of the distinctive numbers at CBI office, the custody of the said bag remained with PW3 Rakesh Kumar. No explanation is offered by the prosecution with the respect to the said material contradiction in the version of independent of PW2.
130. Now, coming to the version of PW3 who performed the material role qua the said event of search of the boot space/dicky of the Honda Amaze Car of A-1 or the alleged recovery of white cloth bag having currency notes and lastly the counting of the same and noting down of the distinctive numbers at the CBI office. On all the said three aspects, altogether a different version has been brought forth on record by PW3 Rakesh Kumar. He claimed that the CBI team had already recovered one white cloth bag from the Honda City Car ( belonging to A-2) which was shown to him Page-177 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 and the said bag was having loose currency notes in the denominations of Rs.100 and Rs.500 amounting to Rs.23000/24000 approximately. Then, he was asked to search the Honda Amaze car of A-1 wherein he found few wine bottles, one gold chain and few sliver/ gold coins. The white bag containing about Rs.23000/24000 was also handed over to CBI. Apart from the said things, nothing else was recovered from Honda Amaze Car. Though it is not clear from the said version whether the said amount Rs.23000/24000 was recovered from the said Honda Amaze Car, but from the holistic reading of his version, it can be safely assumed that the said amount in white bag was recovered from the Honda City Car of A-2, which is in clear contradiction to the case of prosecution.
130.1 Thereafter, he claimed that they left for CBI office alongwith the said two accused persons as well as their cars. At CBI office, PW22 Inspector Shitanshu Sharma received a phone call and he was asked to search Honda City Car ( belonging to A-2) again. They came downstairs and found CBI officials were standing near the said car and having a white colour cloth bag in their hands. He was asked to open the said bag and found approximately Rs.50,000/- in the denomination of Rs.500 which was also seized. They returned to the office and while sitting in the room, some Page-178 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 officials brought one bag while he alongwith PW2 Jitender Kumar Thakur were sitting. In the said bag, Rs.3/4 lacs in the denomination of Rs.500/- were there. He counted those currency notes and distinctive numbers were noted down. Thus, the version given by him is in complete contradiction to the version given by other independent witness PW2 as well as completely demolishes the entire case of the prosecution regarding sequence of events and the amount recovered at the spot from the search of Honda Amaze Car (of A-1).
130.2 He denied the suggestion given by the Ld. PP for CBI that the bribe amount of Rs.6 lacs was recovered by him from Honda Amaze Car at the spot. Thus, as per him, the amount recovered from the white bag in Honda Amaze Car at the spot was only Rs.23000/24000. The other version is given by him that while they were sitting in the CBI office after search of Honda City car ( belonging to A-2), one bag was brought forth by CBI official which was found to be having Rs.3/4 lacs in the denomination of Rs.500 which were counted and distinctive numbers were noted down. The said part of his version concerning the alleged amount of bribe recovered from the search of the car of the A-1 is not challenged by the CBI. Even a bald suggestion denying the said version of PW3 was not given. It is also quite apparent Page-179 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 from version of PW3 that no white bag purportedly having currency notes from the Honda Amaze Car remained in his custody during the interim period after its recovery at the spot and till the said amount being counted and distinctive numbers being noted down in CBI office. Rather, as per him, regardless of the amount recovered from the said bag, it remained with CBI officials. In the said backdrop, when the versions given by PW2 and PW3 concerning recovery of Rs.6 lacs from the white colour bag from the boot-space of the Honda Amaze Car of A-1, is full of gaps, embellishments and doubts, the case of prosecution on recovery from car of A-1 is liable to be rejected.
130.3 Though the other two witnesses to the said issue of recovery i.e PW20 Inspector Manoj Kumar and PW22 Inspector Shitanshu Sharma stuck to the theory of prosecution and explained the sequence of events concerning recovery of alleged amount recovered from the boot-space of Honda Amaze Car. However, it is the case of prosecution itself that the crucial duties be it search or opening of the boot-space or the custody of alleged recovered amount during the interim period till its sealing were performed by independent witnesses PW2 and PW3 who have contradicted the entire case of the prosecution. Thus, not much reliance can be placed on the version of PW-22 and PW-23.
Page-180 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 It is also not the case of the prosecution that the said witnesses discarded their case being won over by the accused as no such suggestions have been given to this effect to PW2. In the said backdrop, the case of the prosecution on the aspect of alleged recovery of bribe amount is liable to discarded.
130.4 Even otherwise for the sake of arguments if it is believed that indeed the recovery of Rs.6 lacs was effected from the car of A-1 being kept in a white colour bag, the said fact alone cannot be the deciding factor for holding A-1 guilty for the offence charged under Section 7 read with Section 120 B of IPC or A-2 and A-3 for the offences charged, unless and until the factum of said recovery being connected to the demand of bribe is proved by the prosecution. In this regard, the judgment Hon'ble Supreme Court in State of Punjab V. Madan Mohan Lal Verma, (2013) 14 SCC 153 is relevant and the relevant para of the same is reproduced hereunder for the sake of convenience:
"11. 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 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 a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to Page-181 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 demand and acceptance of the amount as illegal gratification."
130.5 The Court in the end cannot lose sight of the golden principle which runs through the entire criminal justice system of burden upon the prosecution of proving their case on the standard of beyond any reasonable doubt against accused persons. The prosecution in its endeavor is required to complete the journey of their case through the proved material which points towards the guilt of accused and not merely that he 'may have' committed the offence.
130.6 The Hon'ble Supreme Court while dealing with the case under Prevention of Corruption Act in P.Satyanarayana Murthy vs Dist.Insp. Of Police, AIR 2015 SC 3549 held that the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it to the domain of "must be" true to steer clear of any possible surmise or conjecture. It was further held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
131. In the present case in hand, the incriminating circumstances proved against A-1 and A-2 or for that matter A-3 who was being represented before A-1 in the proceedings by A-2, are firstly that of exchange the telephone calls during the period after 14th September 2018 Page-182 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 till date of their arrest on 5th November 2018. Secondly, A-1 having a pre-scheduled meeting with a party (A-2) to proceedings that too outside the official space. The said fact has to be seen in light of the context of proceedings conducted by A-1 being the Authorised Officer under DVAT Act and Rules vide order dated 28.06.2018 of Commissioner, VAT (Part of Ex.PW26/1, D-10). In pursuance to the said authorisation for search/inspection, the proceedings were carried out firstly by raiding the premises of A-4/M/s Nath Motors Pvt Ltd. connected to A-3 and represented by A-2 being the C.A. Thereafter, Quasi-Judicial proceedings conducted by A-1 from 02.07.2018 till 14.09.2018 vide daily proceedings sheet {Mark PW10/X-2 ( collectively) (Part of D-10) }.
132. In light of the said fact when A-1 was conducting Quasi-Judicial proceedings, he had no justification of meeting with A-2 and that too a pre-scheduled meeting beyond the precincts of the office though raises a finger of suspicion over his conduct. However, the said circumstantial evidence got collapsed due to non-proving the complete chain of circumstances showing the motive of the said meeting. The said incriminating circumstantial evidence only renders the case of the prosecution in realm of 'may be true' and failing to cross the hurdle of upgrading it in the Page-183 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 domain of 'must be true'. In this regard, the judgment of Hon'ble Supreme Court in P. Sathyanarayana Murthy V. District Inspector of Police, State of A.P and Anr (supra) guides this Court and the relevant para is reproduced herein:
"26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
133. The remaining charges against the other accused persons too collapsed in view of the non-proving of the substantive charge of criminal conspiracy as well the charge u/s 7 of Prevention of Corruption Act against A-1.
(X) CONCLUSION
134. In view of the above discussed findings, it has to be concluded in the end that the prosecution has failed to prove beyond reasonable doubt the 'foundational facts' of demand and acceptance of bribe, before the mandatory presumption under Section 20 of PC Act can be raised against the accused Page-184 CBI V. Jitender Kumar @ Jitender Joon & Ors. CC No. 122/2019 persons. Accordingly, it is concluded that the prosecution has failed to prove their case on the standard of beyond reasonable doubts. The benefit of the said doubts has to be given to the accused persons. The charge u/s 120B r/w Section 7,7A,8,9,10 & 12 of PC Act and substantive offences against A-2, & A-3 & A-4 too also do not survive being dependent on the outcome of main substantive offences.
Accordingly, the accused persons namely Jitender Kumar @ Jitender Joon, Dinesh Khurana, Girish Bhatia and A-4/M/s Nath Motors Pvt Ltd. are acquitted of the offences charged with. Their bail bonds are cancelled, sureties stand discharged.
Accused persons are directed to furnish bail bond under Section 481 BNSS 2023. Digitally signed by GAGANDEEP GAGANDEEP SINGH SINGH Announced in the Open Court Date:
2026.01.22 on 22nd January 2026 17:40:11 +0530 (GAGANDEEP SINGH) Special Judge, PC Act, CBI-04 Rouse Avenue District Courts, New Delhi Page-185