Madhya Pradesh High Court
Smt. Arunendra Chourasia vs Central Bureau Of Invesitgation on 13 March, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
CRIMINAL APPEAL No. 255 of 2015
BETWEEN:-
SMT. ARUNENDRA CHOURASIA W/O SHRI V.K.
CHOURASIA, AGED ABOUT 50 YEARS, OCCUPATION:
PROGRAMME EXECUTIVE ALL INDIA RADIO SHAHDOL
DISTT. SHAHDOL, AT PRE. PROGRAMME EXECUTIVE
ALL INDIA RADIO JABALPUR QUARTER NO.45 MIG
HOUSING BOARD COLONY KATANGA JABALPUR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI NAVTEJ SINGH RUPRAH - ADVOCATE)
AND
CENTRAL BUREAU OF INVESITGATION THR. S.P.
CBI/ACB JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIKRAM SINGH - ADVOCATE)
Reserved on : 07.02.2024
Delivered on : 13.03.2024
This appeal having been heard and reserved for judgement, coming on
for pronouncement this day, the Court pronounced the following:
JUDGEMENT
Appellant has filed this appeal under Section 374(2) of the Criminal Procedure Code, 1973 being aggrieved by the judgment dated 09.01.2015 passed by Special Judge (Prevention of Atrocities) Act, Jabalpur, District- Jabalpur in Special Case No.39/2014 by which appellant has been convicted for offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of 2 Corruption Act, 1988 and sentenced to undergo R.I. for three year, R.I. for three year with fine of Rs.5000/- a n d Rs.5000/- respectively, with default stipulation.
2. As per prosecution story, Complainant- Lalita Kushwaha was Folk Song Singer (Bagheli) and used to give presentation on All India Radio. She was empanelled as B-Grade Artist for Folk Song Program. Appellant- Smt. Arunendra Chourasia was posted as Program Executive on 25.12.2008. Complainant worked under appellant. Director General- Prasar Bharti issued revised free structure (Ex.P/6) according to which leader of Group-B category artist is to be paid fees of Rs.1015/- in place of Rs.750/- and fees of members of the group was increased from Rs.200/- to Rs.300/-. On 20.12.2008, appellant demanded bribe of Rs.800/- for making enhanced payment of Rs.2800/-. Demand was repeated on 22.12.2008 and she was asked bribe of Rs.800/- for getting higher revised fees and unless demand is satisfied, balance and arrears of enhanced fees will not be paid to her. She also sent message to another artist namely Arjun. Complainant filed complaint before the CBI. Complainant was called in SECL Guest House on 25.12.2008. On said date, complainant handed over written complaint (Ex.P/12). Complaint was verified b efo re Ritu Shrivastava (PW-9). Complainant was given micro cassette recorder. She was told to come with bribery amount on 25.12.2008. On 25.12.2008, complainant went to meet the appellant and discussed regarding demand of bribery before the independent witness- Ritu Shrivastava. Communication was recorded and transcript (Ex.P/13) was prepared and same was signed by witnesses namely Hariom Dixit, Lalita Kushwaha, Ritu Shrivastava. Communication was recorded on a fresh cassette from micro recorder and signatures of all witnesses were taken. Panchnama was prepared.
3F I R (Ex.-P/25) under Section 7 of the Prevention of Corruption Act was recorded. Trap proceeding was organized. Complainant- Lalita Kushwaha was given amount of Rs.800/- which is to be paid to the appellant. Denomination of currency was one note of Rs.500/- and three currency notes of Rs.100/- in a polythene after applying Phenolphthalein Powder on currency paper. She was told to signal Trap Team after making payment of bribery. Witness- Ritu Shrivastava was to accompany the complainant and if for some reasons, complainant could not give signal then said witness will signal to the Trap Team. Trap Team washed their hands and also gave their search and none of them was having more than Rs.600/-. Complainant and witness-Ritu Shrivastava reached the Office of appellant and on demand, paid Rs.800/- to appellant. Accused counted the currency notes and kept in her drawer. Complainant and witness came out and signalled the trap team. Said team entered into Office of appellant and complainant pointed out towards her. L.N. Mishra (PW-11) asked whereabouts of currency notes. Investigating Officer prepared solution of Sodium Carbonate and when appellant dipped her hands in said solution, it turned pink. Said solution was sealed as Article-J. Left hand of appellant was dipped in the solution and said solution turned pink and was also sealed and marked as Article-K. Drawer of table was searched and currency was found. Memorandum (Ex.P/17) regarding serial number of currency note which was prepared, matched with currency found in drawer. Currency were kept in an envelope and marked as Article-P. Paper in which bribe was kept was also dipped in solution and same turned pink and marked as Article-O. Polythene was also washed and it turned pink and marked as Article-Q. Right hand of appellant was also washed and it also tuned pink. Appellant was arrested. Voice 4 sample of appellant was taken i.e. Ex.-P/16. Appellant refused to read the lines of transcript. Articles-A, B, C, D, E, F were sent to CFSL, CBI, New Delhi for examination. Presence of Phenolphthalein was found to be positive. Cassette (Article-F) was also sent for Spectrography test to CFSL, New Delhi. In test, voice in micro cassette Article-H (sample voice) matched with voice in Article-F. Witnesses had also identified the voice of appellant in said cassette and memorandum was prepared. Appellant was charged under Section 7 and Section 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988.
3. Charge No.1, that appellant was posted as Program Executive in All India Radio, Shahdol, was found to be proved.
Charge No.2 is regarding previous sanction by competent authority for prosecution of Government Servant was also found to be proved.
Charge No.3. regarding illegal demand of Rs.800/- on 22.12.2008 and 25.12.2008 from complainant to enhance fees from Rs.2800/- to Rs.3700/- for program in All India Radio was also found to be proved.
Charge No.4 was also found proved that appellant on 26.12.2006 received Rs.800/- from complainant- Lalita Kushwaha for illegal gratification.
4. Learned counsel appearing for the appellant submitted that prosecution has to establish demand and acceptance of illegal gratification which prosecution failed to prove. Lalita Kushwaha (PW-5) stated that after 22.12.2008, she met appellant only on 26.12.2008, therefore, conversation recorded on 25.12.2008 in which illegal demand was made, is false and could not have been relied upon by the trial Court. It is also submitted that voice recognition ought to have been carried out by the Officer other than Investigating Officer. Investigating Officer was present when voice recognition 5 exercise was done, therefore, same is vitiated. During voice recognition, transcript was also not provided. Precaution for identification for voice was also not taken. There was no seizure of recording device and cassette was produced before the Court was not sealed, therefore, tampering could not be ruled out. No certificate was issued under Section 65-B(4) of the Evidence Act, therefore, recording of conversation in respect of demand could not have been believed by the trial Court. Trial Court has committed an error in believing the conversation in respect of demand. It is submitted that as per judgement passed by Apex Court in case of Nilesh Dinkar Paradkar Vs. State of Maharashtra reported in (2011) 4 SCC 143, voice recognition should be carried out by an Officer other than Investigating Officer. Officer attempting voice recognition should be provided with a transcript bearing annotation of any other Officer and these are the minimum safeguards which has not been complied with. Relying on said judgement, it is further submitted that micro cassette is said to have been recorded with help of micro cassette recorder. Micro cassette recorder was not produced before the Court, therefore, it was held that Rule-1 and 2 have been violated. Seal of cassette was to be opened in front of those very witnesses in front of whom it was sealed. Prosecution says that cassette was sealed in front of Ritu Shrivastava and Lalita Kushwaha and both of them were not present on 19.09.2009. Hence, there is no authentication of cassette and there were great chances of tampering. Placing reliance on case of Nilesh Dinkar (supra), it is submitted that voice ought to have been mixed with other unidentified voice and thereafter, same ought to have been recognized like the exercise which is done in conduct of TIP. Learned counsel appearing for the appellant placed reliance on judgement passed in the case of Anvar P.V Vs. 6 P.K.Basheer & Ors reported in (2014) 10 SCC 473, wherein it was held that when voice recording done using some device and feeding recording into a computer, CDs were prepared then said evidence is to be accompanied by certificate under Section 65-B of the Evidence Act. In absence of said certificate, evidence produced by prosecution was rejected.
5. Learned counsel appearing for the appellant further submitted that Micro cassette was sent for Spectrography to CFSL, Delhi. Original cassette was not sent to CFSL, Delhi but copy prepared on 19.08.2009 was sent to Delhi without any certificate under Section 65-B of the Evidence Act. Envelope in which cassette was kept was sealed on 19.08.2009 and same was given to appellant on 14.07.2011. Copy was produced before the Court in absence of certificate under Section 65-B(4). Cassette which was produced before the Court was only a copy and in absence of certificate same was not admissible. Supreme Court has specifically stated in case of Ram Singh and Others Vs. Col. Ram Singh reported in (1985) Supp. SCC 611 that tape recorded statement is admissible in evidence when possibility of tampering has to be totally excluded and recording of cassette must be sealed and must be kept in safe custody. Cassette was produced before the Court in open envelope, therefore, there is no credibility. Cassette prepared by prosecution i.e. Article- Q/1 was not exhibited while recording statements of the witnesses before the Court. Apex Court in case of Panalal Damodar Rathi vs State Of Maharashtra reported in (1979) 4 SCC 526 held that complainant cannot be placed on better footing than that of accomplice and corroboration in material particulars connecting the accused with crime has to be insisted upon. It is submitted that shadow witnesses Ritu Shrivastava turned hostile. Complainant- Lalita Kushwaha has complaint against her performance as Singer and wanted 7 undue favour which was not given by appellant. In view of same, complainant could not have been believed by the trial Court. Learned counsel appearing for the appellant also submitted that since prosecution has failed to prove demand by appellant, therefore, offence under Prevention of Corruption Act, 1988 is not proved against the appellant. He further submitted that Apex Court in case of Mukhtiar Singh Vs. The State of Punjab reported in (2017) 8 SCC 136 held that the proof of demand of illegal gratification is the gravamen of the offence under the Prevention of Corruption Act in absence whereof charge would fail.
6. Learned counsel appearing for the respondent/CBI submitted that previous sanction necessary for prosecution was obtained and detailed reasoned order was passed contained in Annexure-P/11. There was proper application of mind giving sanction for prosecution of appellant. Complainant- Lalita Kushwaha (PW-5) has given written complaint (Ex.P/12) against the appellant. Appellant demanded Rs.800/- as illegal gratification for paying arrears and enhanced fees to complainant for conduct of program at All India Radio. Statement of complainant has been supported by witnesses Ritu Shrivastava and Lakshman Sing. Trap was organized and appellant was caught red handed receiving bribery amount of Rs.800/-. Chemical examination report (Ex.P/26) shows that there was Phenolphthalein power in solution received by them. It is submitted that solution turned pink when hands of appellant were dipped in it. Prosecution has established its case beyond reasonable doubt. It is submitted that demand has been proved by the prosecution. Report of CFSL has found and witnesses have identified the voice of appellant taking bribe. Case of prosecution is established beyond reasonable doubt and no error has been committed by the trial Court in convicting and sentencing appellant under 8 Section 7, 13(1)(d) read with Section 13 (2) of the PC Act. No interference is called for in a well reasoned judgement passed by the trial Court and appeal may be dismissed.
7. Heard the counsel for the parties.
8. Whether trial Court has committed an error holding demand to be proved in face of following circumstances:-
(i) Original cassette in which conversation of demand was recorded is not produced before the trial Court.
(ii) Witness Ritu Shrivastava turned hostile before the trial court.
(iii) Certificate produced before the trial Court was not accompanied by the certificate under Section 65-B of the Evidence Act.
(iv) Cassette produced was not found in seal cover and witnesses who had signed the memorandum regarding opening the seal were different than witnesses before whom cassette was sealed.
(v) Cassette when played in Court did not have any voice and trial Court committed an error in disbelieving the defence witness- Neelam.
(vi) Investigating Officer could not have carried out verification of voice recognition and same vitiates the proceedings.
(vii) Cassette recorder was not produced before the trial Court, therefore, conversation recorded could not have been believed.
9. Sections 7, 13(1)(d) and Section 13(2) of the Prevention of Corruption 9 Act, 1988 are quoted as under:-
"Section 7 Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, fro himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
Section 13. Criminal misconduct by a public servant -(1) A public servant is said to commit the offence of criminal misconduct,-
*** *** ***
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage: or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;
10Section 13(2)- Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extent to seven years and shall also be liable to fine."
10. Learned counsel appearing for the respondent has relied upon the paragraphs No.5, 10 of judgement passed by Apex Court in case of Neeraj Datta Vs. State (Government of the NCT, Delhi) reported in 2023 SCC Online SC 280.
11. On strength of said judgement, it is submitted that demand of illegal gratification and subsequent acceptance can be proved by either direct evidence which can be in nature of oral evidence or documentary evidence. Said facts can also be proved by circumstantial evidence in absence of direct, oral or documentary evidence.
12. Complainant- Lalita Kushwaha (PW-5) has stated before the Court that demand of Rs.800/- was made from her to increase her wages from Rs.2800/- to Rs.3700/-. Demand was made on 22.12.2008. Appellant told her to pay the amount on 26.12.2008. She gave written complaint (Ex.P/12) and her signature on complaint was proved by prosecution. Complainant along with witness went to the house of appellant on 25.12.2008 and conversation was recorded. Thereafter, complainant- Lalita Kushwaha, Ritu Shrivastava, Hariom Dixit (Inspector) and L.N. Mishra (Inspector) had singed the memorandum and signature on said memorandum was proved before the Court.
13. Argument raised by counsel for the appellant that complainant- Lalita Kushwaha had not stated in her deposition to meet the appellant on 25.12.2008, is only a minor contradiction and is of little importance. Complainant as well as 11 other witnesses have testified that she met the appellant. Demand was made before the witnesses. Trap was laid and later on, money was also recovered from the appellant. Minor contradiction i.e. slip of date does not make whole incident false or improbable. Witness Ritu Shrivastava has admitted the signature on memorandum of transcript though she has turned hostile. Complainant has also deposed regarding demand by the appellant. Micro cassette in which communication was recorded is Article-F. Article-F was played in Court and witness Hariom Dixit (PW-10) has stated that communication heard in Court is same which was recorded in transcript. Witness Ritu Shrivastava has admitted that she went along with complainant to the house of appellant. She has also stated that complainant has given recorder to the Officials of CBI. In her deposition she has stated that voice of complainant is there in cassette (Article-F) which was played in Court.
14. Witness Ritu Shrivastava is hostile before the Court but she has supported some basic points of the prosecution that she went along with complainant to the house of appellant, cassette was recorded, voice of complainant was in voice recorder, voice recorder was given to CBI Officer and said facts support the version given by the complainant before the Court wherein she has specifically stated about demand and illegal gratification. Said facts are coupled with the fact that recovery of bribe amount was made from the drawer of appellant. Solution turned pink when appellant's hands were dipped in it. CFSL has stated that Phenolphthalein was present in the solution. CFSL has also stated that voice of appellant in cassette (Article-F) is same to sample voice in cassette (Article-H) and CFSL has also given report that voice is same in Ex.P/27. Voice of appellant was also recognised by other Officers of All India Radio namely Mohan Dhanraj, G.S. Paikra and S.K. Tripathi. They 12 had also supported the identification of voice and memorandum prepared (Ex.P/22). Officer namely Mohan Dhanraj (PW-7) remained posted in All India Radio between 2004 to 2009 which was sufficiently long period and could have easily recognised the voice of appellant. Issue is raised by appellant that certificate under Section 65-B of the Evidence Act is not produced, therefore, evidence of tape recording is not reliable.
"Section 65-B. Admissibility of electronic records-
( 1 ) Notwithstanding anything contained in this Act, any records. information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:-
( a ) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained 13 in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
( c ) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and ( d ) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
( 3 ) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub- section (2) was regularly performed by computers, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this 14 section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b ) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b ) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or 15 processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment."
15. Certificate under Section 65-B of the Evidence Act is required when secondary evidence is produced before the Court and not primary evidence. Certificate must accompany secondary evidence like CD, paper, tapes or any other device which is prepared with add of original device. In this case Article-F was primary evidence and original cassette in which voice was recorded. Secondary evidence was not adduced before the Court, therefore, trial Court has not committed any error in holding that certificate under Section 65-B of the Evidence Act is not required as original is produced before the Court.
16. Witness Rajeev Kumar Sinha (PW-12) has stated that DVR was not sealed before him and he was not able to explain before the Court that cassette was under whose possession between 26.12.2008 to 18.02.2009. Opening of seal before witnesses other than the witnesses who were present at the time of sealing it may be a minor violation of the order of Court but that does not discredit the evidence available on record. Witnesses Ritu Shrivastava and Lalita Kushwaha have stated that cassette was sealed before them and if seal is opened before the other witnesses then same will not make much difference. Witnesses have also stated that there was no tampering in Article-F and Article- H and no suggestion was given to witness Rajeev Kumar Sinha regarding 16 tampering. Reason has also been given by prosecution why witness Ritu Shrivastava and complainant was not present when sealed envelope was opened. Witness Ritu Shrivastava was pregnant and complainant was not available in town. It was also argued that when cassette was played in Court, there was no voice in it and envelope (Article-E) was not sealed. In order sheet dated 13.07.2011, it has not been mentioned by the Judge that there was no voice when cassette was played in Court, therefore, said argument also does not carry any weight. Trial Court has also recorded in order sheet dated 16.04.2014 and 30.06.2011 that no objection was raised that there was no voice when cassette was played.
17. Defence witness- Neelam Datt could not be believed as no objection wa s raised nor said fact was mentioned in order sheet dated 30.06.2011. Prosecution was successful in proving beyond reasonable doubt that demand was made and illegal gratification was also accepted by the appellant. There is consistency in the prosecution story regarding demand and its acceptance and various witnesses have supported the same and voice recorded in recorder has duly been identified.
18. Complainant- Lalita Kushwaha has specifically stated that she met the appellant-Smt. Arunendra Chourasia along with Ritu Shrivastava in her house. She had also stated regarding demand of Rs.800/- to be paid to her in Office on 26.12.2008. She has also stated that Cassette (Article-F) in which demand was recorded was kept in sealed envelope (Article-E). Micro cassette (Article-F) was played in Court and she had heard the voice and has also identified the voice of appellant. She has stated in her cross-examination that she met with the appellant on 26.12.2008 along with Ritu Shrivastava. Mere slip of date does not 17 show that there was no meeting of complainant with appellant. Independent witness has also stated that she went along with the complainant to meet the appellant. She has also testified that she was carrying a recorder and same was switched on when complainant went to meet the appellant. Evidence of complainant as well as other supporting witnesses points out that demand of Rs.800/- was made by the appellant for release of arrears and enhance the fees. Voice of the appellant has also been recognized by the witnesses and by the complainant as well as other witnesses of the Department who were working along with the appellant in All India Radio namely Mohan Dhanraj, S.K. Tripathi, G.S. Paikra. CFSL has also given its report in Ex.P/27. According to examination report, voice contained in cassette (Ex.Q/1-A) and specimen voice contained in Ex.S/1-A are same. Said report was given on basis of format frequencies distribution, intonation pattern, number of formats and other general visual features in voice-grams.
19. Primary evidence is cassette in which conversation has been recorded. CFSL report regarding cassette is also available on record. Defence could not show that cassette was tampered. Non production of recorder will not be fatal to the prosecution, since, defence is unable to show tampering of the cassette.
20. From perusal of aforesaid evidence and its analysis shows that prosecution was successful in proving demand by both direct and indirect evidence in Court. Appellant has not challenged any other findings which were given by appellate Court like sanction for prosecution, seizure of currency notes and solution which were seized by the CBI while conducting raid. Appellant has solely challenged the findings of the trial Court that demand was not proved and has failed to establish the same before the appellate Court.
1821. In view of same appeal filed by appellant, is dismissed.
(VISHAL DHAGAT) JUDGE $A Digitally signed by SHABANA ANSARI Date: 2024.03.15 16:16:16 +05'30'