Delhi District Court
Cbi vs Mool Chand on 16 November, 2024
IN THE COURT OF SH. HASAN ANZAR,
SPECIAL JUDGE, PC ACT (CBI)-03,
ROUSE AVENUE DISTRICT COURT, NEW DELHI
DLCT110002742021
CNR NO. DLICT11-000274/2021
Registration/CC No. 42/2021
RC No. 23(A)/2021
PS : CBI/ACB/New Delhi
U/s 7 of Prevention of Corruption Act 1988 (As amended
in 2018)
In re:
Central Bureau of Investigation (CBI)
Versus
Mool Chand
S/o Shri Kunwer Lal,
R/o House No. 666, Ward No. 2, Sector-55,
Gaunchi, Teh. Ballabhgarh, District Faridabad,
Haryana, and
Permanent R/o Village Goheta, PS Kosi Kalan,
District Mathura, UP.
Date of Institution : 23.08.2021
Reserved on : 28.10.2024
Date of Judgment : 16.11.2024
CBI Vs. Mool Chand (CC No. 42/2021) Page 1 of 143
Memo of Appearance
1. Ms. Rohini Anand, Ld. PP for the CBI.
2. Shri Sandeep Sharma and Shri Sachin Baisla, Ld. Counsels for
accused Mool Chand.
JUDGMENT
1. The above named accused has been charge sheeted for committing offences under sections 7 of the Prevention of Corruption Act, 1988 (as amended in 2018) {hereinafter to be referred as 'PC Act'}.
2. A case, FIR No. 355/2021 dated 01.06.2021 was registered against Kapil Narula, friend of the complainant Pushpender, at PS Badarpur. The investigation of the case was entrusted to accused Mool Chand, Head Constable, PS Badarpur. It is further alleged that when Kapil Narula visited the Police Station Badarpur, he was detained by the accused Mool Chand and Kapil Narula called the complainant Pushpender, who met the accused Mool Chand who was Investigating Officer of FIR No. 355/2021. It is further alleged that a demand of Rs. 1 Lakh was made for the release of Kapil Narula @ Paji and after negotiation, the same was reduced to Rs.20,000/- and an amount of Rs.11,000/- was handed over to accused Mool Chand on 20.06.2021.
3. It is further alleged that the accused Mool Chand was asking for the remaining bribe amount of Rs.9,000/- and the accused was also threatening to implicate Kapil Narula, if the CBI Vs. Mool Chand (CC No. 42/2021) Page 2 of 143 bribe amount is not paid to him. Since, the complainant did not want to pay the bribe amount and therefore, he gave a handwritten complaint dated 23.06.2021 addressed to SP, CBI, ACB, ND. Consequent to receipt of the complaint from Pushpender, a verification was conducted on 23.06.2021 and 24.06.2021 in the presence of independent witness.
4. It is further the case of prosecution in the charge sheet that on 23.06.2021, a verification team comprising, Shri Ashutosh Tiwari (Inspector), Shri Mukesh Kumar Pandey (SI), Shri Pushpender (complainant), Shri Kapil Narula and Shri Krishan Kumar (independent witness) left CBI office in the official vehicle and reached Police Station-Badarpur at about 19:25 Hrs. At about 19:30 hours, complainant made a call from his mobile no. 9953535373 to the mobile no. 7678662083 of HC Mool Chand in which accused asked about his whereabouts and further told him to come to Room No. 105. It is further stated in the charge sheet that the call was heard in presence of the independent witness by keeping the mobile of the complainant in loudspeaker mode and it was also recorded in the memory card through DVR. The DVR was kept inside pocket of the shirt of the complainant Shri Pushpender by Inspector Ashutosh Tiwari and the complainant was directed to meet accused Mool Chand at PS-Badarpur and independent witness Shri Krishan Kumar was asked to remain in close proximity with the complainant to watch and overhear the conversation between the accused and the complainant. The remaining team members CBI Vs. Mool Chand (CC No. 42/2021) Page 3 of 143 remained present at a safer distance in the official vehicle. It is further stated that after about 20 minutes, the complainant and the independent witness came back to the official vehicle where the DVR was taken back from the complainant by Shri Ashutosh Tiwari and the DVR was turned off and the entire team returned to the CBI office at about 21:00 hrs.
5. It was revealed by the complainant that the guard at the main gate of PS Badarpur did not allow independent witness i.e. Krishan Kumar to go inside the PS Badarpur and due to which the said independent witness remained outside the police station. The complainant further disclosed about the conversation which took place between him and the accused Mool Chand at Room No. 105 at 1st Floor. Complainant told that HC Mool Chand had demanded the remaining bribe amount of Rs.9,000/- and which was reduced to Rs.8,000/- after due negotiation on 24.06.2021. The conversation between the complainant and accused Mool Chand was also recorded in the memory card through DVR and the memory card was marked as Q-1 in CO-28/21. Thereafter, a verification memo vide Ex.PW1/B was prepared at about 11:30 PM and the same was signed by all persons in token of its correctness.
6. It is further the case of the prosecution that prior to visit in the police station Badarpur on 23.06.2021 at about 18:14 hours, the complainant contacted the accused Mool Chand from his mobile No. 9953535373 to the mobile phone of accused Mool CBI Vs. Mool Chand (CC No. 42/2021) Page 4 of 143 Chand i.e. 7678662083 in the presence of independent witness Shri Krishan Kumar. In the said conversation, accused Mool Chand directed the complainant to come with Sare Kagaj (As per prosecution, Sare Kagaj is referred as the remaining bribe amount by the complainant) and the accused had also instructed the complainant Pushpender not to bring Kapil Narula at PS Badarpur.
7. It is further the case of the prosecution that on 24.06.2021, a call was made from mobile no. 9953535373 to the mobile phone of accused Mool Chand i.e. Mobile No. 7678662083 at about 15:56 hours and the call was heard by the team members and other persons as the phone was on Speaker Mode and simultaneously the said conversation was being recorded in the memory card through DVR. It is further alleged that during the conversation, accused Mool Chand assured the complainant that he would not arrest Kapil Narula i.e. friend of the complainant and during the conversation, he enquired about the location of the complainant and further directed the complainant to meet him and the above-mentioned proceedings were concluded at about 16:40 hrs. on 24.06.2021. Memory card was marked as Q-2 in CO-28/21. Thereafter, a verification memo vide Ex.PW1/C was prepared and the same was signed by all the persons in token of its correctness.
8. It is further the case of the prosecution that accused Mool Chand demanded a bribe of Rs.8,000 from the complainant Shri CBI Vs. Mool Chand (CC No. 42/2021) Page 5 of 143 Pushpender, supported by the statements of complainant, independent witnesses and the verifying officer as well as the voice recording of conversation held between the accused Mool Chand and complainant Shri Pushpender in the DVR, established the involvement/role of accused Mool Chand in the crime.
9. The Verifying Officer Shri Ashutosh Tiwari recommended for the registration of the case and thereafter, the present case vide FIR RC-DAI-2021-A-0023 was registered on 24.06.2021 against accused Mool Chand under section 7 of P.C. Act, 1988.
10. After registration of the instant case, investigation was entrusted to Shri Jaswinder Singh, Inspector and a trap team consisting Shri Jaswinder Singh, Inspector/TLO, other CBI officials and two independent witnesses (S/Shri Krishan Kumar and Rinku) was constituted. Pre-trap proceedings were drawn on 24.06.2021 at CBI Office vide Ex.PW1/D. During pre-trap proceedings, independent witness Shri Krishan Kumar produced the CBI seal to the TLO and the verifying officer also produced the DVR alongwith Q-1 in CO-28/21 and Q-2 in CO-28/21 to the TLO, to be used during investigation, and were taken into possession by the TLO. The complainant produced a sum of Rs.8,000/- (Rs.500/- denomination each). The distinctive numbers of GC notes were recorded in the pre-trap memorandum, and the GC notes were treated with phenolphthalein powder. Personal search of the complainant CBI Vs. Mool Chand (CC No. 42/2021) Page 6 of 143 was conducted and it was ensured that nothing incriminating thing was found from him. Proposed bribe amount was smeared with phenolphthalein powder and the witnesses were explained that if phenolphthalein powder comes into contact with sodium carbonate solution then the solution turned PINK. The smeared currency notes were put in the right side front pocket of Track pant of the complainant by the independent witness. It is further stated that the complainant was also instructed not to touch the tainted bribe amount and to hand over/deliver the bribe amount to accused Mool Chand on his specific demand and to give pre- decided signal and the independent witness Shri Rinku was asked to act as a shadow witness and to remain in proximity with the complainant and to overhear the conversation in respect of the tainted bribe amount.
11. The trap team proceeded towards PS Badarpur in official vehicle and it was also carrying the trap kit containing the empty clean glass bottles, glass tumblers, sodium carbonate powder, CBI seal, sealing material and the contents of the bag were also shown to the members of the trap team and the team was also carrying other requisite documents and a pre-trap proceeding memo was drawn at CBI Office vide Ex.PW1/D at about 18:05 Hours.
12. It is further stated that while enroute to PS Badarpur at about 19:11, a call was received at the mobile phone of the complainant i.e. 9953535373 from the mobile phone i.e. CBI Vs. Mool Chand (CC No. 42/2021) Page 7 of 143 7678662083 of the accused Mool Chand but the same could not be attended/answered and thereafter, a call was made at about 19:12 hours on the directions of the TLO by the complainant from his above-said mobile phone and in the said conversation, the accused enquired about the whereabouts of the complainant and the complainant replied to the accused that he would reach within 10 to 15 minutes and the said conversation was recorded in the DVR by keeping the complainant's mobile phone on speaker mode in presence of the witnesses.
13. It is further stated that the CBI team reached near PS Badarpur at about 19:20 Hours and the vehicles were parked at a safe distance and a call was made at about 19:27 Hours to the accused and during the conversation, the accused asked the complainant to meet at the at the tea shop and the said call was also recorded through DVR by keeping the complainant's mobile phone on speaker mode in presence of both the witnesses.
14. The complainant was provided with a DVR in which a memory card was inserted and the same was kept in hold position in the inner side shirt pocket of the complainant and the complainant/PW1 alongwith Shri Rinku/PW9 reached towards the tea shop near PS Badarpur and remaining team members and independent witness Krishan Kumar were also present near the tea shop in a discreet manner.
CBI Vs. Mool Chand (CC No. 42/2021) Page 8 of 14315. The accused came towards the tea shop and sat on the chair available at the tea shop and both, accused and complainant, were engaged in the discussion and thereafter at about 19:35 Hours, the complainant/PW1 gave the pre-decided signal by removing his cap from his head, upon which the TLO alerted all the team members and rushed towards the said tea shop and thereafter, DVR was taken from the complainant by SI Pardeep and switched off and the accused was taken inside the PS Badarpur and TLO further informed the SHO Sh. Vijay Pal Singh Dahiya that accused Mool Chand has been caught red handed while demanding and accepting bribe amount of Rs.8,000/- from the complainant Pushpender. Thereafter, the accused was taken in a separate room on the ground floor which was arranged by the SHO.
16. Hand washes and right pocket wash of the uniform of accused Mool Chand was taken in separate fresh solution of sodium carbonate and the water turned in pink and the respective washes were transferred to respective bottles and the same was seized and sealed with the CBI Brass Seal in the presence of the witnesses and a site plan of the spot was also prepared.
17. The independent witness recovered the GC tainted notes of Rs.8,000/- from the right side front shirt pocket of the uniform worn by accused Mool Chand in the presence of witnesses. The amount was counted and the same tallied with CBI Vs. Mool Chand (CC No. 42/2021) Page 9 of 143 the distinctive numbers mentioned in the pre-trap memo. The currency notes were kept in an envelope and seized and sealed in the presence of the witnesses. The shirt of the accused was also seized and sealed in an envelope.
18. The memory card containing the conversation between the accused Mool Chand and complainant Pushpender was sealed in presence of independent witness and was marked as Q-3 in RC-23(A)/2021-DLI. The certified copy of the case file pertaining to FIR No. 355/2021 dated 01.06.2021 was provided by the SHO Badarpur to the TLO and the mobile phone of Redmi Make of the accused containing two SIM Cards was sealed and seized by the TLO in presence of independent witness. Thereafter, the specimen voice of the accused was also taken in presence of independent witmess Sh. Krishan /Kumar which accused give voluntarily and marked as 'S- 1 in RC-23(A)/2021'.
19. Thereafter, right hand wash, left hand wash and right side uniform shirt pocket wash of accused Mool Chand were sent to CFSL for examination and CFSL vide its Report No. CFS-2021/C-408 dated 11.08.2021 gave positive test for the presence of phenolphthalein. The investigation copy of Q-1, Q-2 and Q-3 was also prepared and the same was played on the official computer and the transcription-cum-voice identification memo was prepared in the presence of the witnesses. It is further stated that the complainant Shri Pushpender identified CBI Vs. Mool Chand (CC No. 42/2021) Page 10 of 143 his voice as well as the voice of accused Mool Chand, recorded during the verification proceedings and trap proceedings and Constable Sirmohar Meena also identified the voice of accused Mool Chand. Specimen voice of Pushpender and accused Mool Chand was also taken in presence of independent witness Shri Krishan Kumar and the specimen voices of complainant and accused were sent to CFSL, New Delhi for examination. Later on, voice examination report was received from the CFSL.
20. Vide order dated 26.08.2021, charge under section 7 of PC Act was directed to be framed against the accused Mool Chand.
21. After compliance under section 207 Cr.P.C., the copies were supplied to accused persons.
22. Charge was framed against the accused Mool Chand for committing offence under Section 7 of PC Act.
PROSECUTION EVIDENCE
23. To substantiate and prove the charges against the accused persons, the prosecution has examined 17 witnesses and their testimonies are broadly summarised for easy reference and understanding :-
(A) MATERIAL WITNESSES RELATING TO VERIFICATION, TRAP PROCEEDINGS AND EVENTS PRIOR THEREOF Sr. Witnesses Brief Description No.
1. PW-1 Shri He is the complainant. He gave CBI Vs. Mool Chand (CC No. 42/2021) Page 11 of 143 Pushpender. complaint to the CBI in respect of the demand and payment of bribe to the accused. He did not support the case of prosecution on material aspect.
2. PW-9 Shri Rinku. He is shadow witness to the trap proceedings and was associated during trap proceedings.
3. PW-10 Shri Krishan He is an independent witness who Kumar. joined the proceedings since the filing of the complaint to the trap proceedings. He is witness to number of memos.
4. PW-15 Shri Kapil He is the friend of the complainant Narula. and accused in FIR No. 355/2021 PS Badarpur. As per prosecution, PW15 was detained in the police station Badarpur and was released after payment of bribe.
(B) POLICE WITNESSES RELATING TO INVESTIGATION, VERIFICATION AND TRAP PROCEEDINGS.
Sr. Witnesses Brief Description
No.
1. PW-4 Shri Israil He has produced the certified copy
Khan. of FIR No. 355/21 PS Badarpur to
CBI on the direction of SHO PS
Badarpur.
2. PW-5 Shri Vijay Pal He is the SHO, PS Badarpur who Singh Dahiya. provided the relevant documents to CBI and also provided a room to the CBI officials for conducting the post-trap proceedings.
3. PW-7 Shri Sirmohar He is a witness to the voice Meena. identification-cum-transcription memo, but did not identify the voice CBI Vs. Mool Chand (CC No. 42/2021) Page 12 of 143 of accused Mool Chand.
4. PW-8 Shri Anuj He has produced the suspension Kumar. order and transfer & posting order of the accused Mool Chand.
5. PW-11 Shri Dheeraj He had handed over certain Bhardwaj. documents to one CBI officer.
6. PW-12 Shri He is the verifying officer of the Ashutosh Tiwari. complaint and also conducted pre-
trap proceedings.
7. PW-16 Shri He is the Trap Laying Officer Jaswinder Singh. (TLO) and FIR was marked to him and he constituted a raiding team comprising himself and other officials from CBI as well as complainant and independent witnesses.
8. PW-17 Inspector He is the Investigating Officer who Yatish Chandra took over the investigation from Sharma. PW-16 IO/Shri Jaswinder Singh.
After completing investigation, he filed the charge-sheet against the accused.
(C) SANCTIONING AUTHORITY Sr. Witnesses Brief Description No.
1. PW-2 Shri Rajendra He is the DCP, District South-East, Prasad Meena. Delhi and granted sanction for prosecution under section 19 of PC Act against accused Mool Chand vide Ex.PW2/A. (D) WITNESSES FROM FORENSIC DEPARTMENT Sr. Witnesses Brief Description No.
1. PW-13 Shri V.B. He is the Principal Scientific Officer CBI Vs. Mool Chand (CC No. 42/2021) Page 13 of 143 Ramteke. who had examined contents of three sealed bottles marked as RHW, LHW and SPW and proved the chemical examination report dated 11.08.2021 vide Ex.PW13/A.
2. PW-14 Shri Surbat He is the forensic expert who Kumar Choudhury. furnished his opinion in respect of the voice recordings vide report Ex.PW14/A. (E) MISCELLANEOUS WITNESSES Sr. Witnesses Brief Description No.
1. PW-3 Shri Pawan He is the Nodal Officer, Vodafone Singh. Idea Ltd. and proved the Call Detail Record of mobile number 9953535373 alongwith attested copies of Voter ID card and PAN card of Ram Dev (Ex.PW3/B -
Colly {Part of D-12}, Call Detail record of the above-mentioned mobile number for the period 15.05.2021 to 30.06.2021 (Ex.PW3/C - Colly {Part of D-12}, Cell ID chart of above-said mobile number (Ex.PW3/D - Colly {Part of D-12) alongwith certificate under section 65B of Indian Evidence Act (Ex.PW3/E) vide letter dated 19.07.2021 Ex.PW3/A (D-12).
2. PW-6 Shri Kamal He is the Nodal Officer, Reliance Kumar. Jio Infocomm Ltd. and proved the forwarding letter dated 29.07.2021 (Ex.PW6/B - D-14); production-
cum-seizure memo dated 29.07.2021 vide Ex.PW6/A (D-13), Cell ID Chart/location chart pertaining to mobile no.
7678662083 of accused Mool CBI Vs. Mool Chand (CC No. 42/2021) Page 14 of 143 Chand vide Ex.PW6/C (D-14), Customer Application Form of Mobile No. 7678662083 Call Detail Record of the above-mentioned mobile number (Ex.PW6/D - D-14), CDR of the mobile number for the period 15.05.2021 to 30.06.2021 vide Ex.PW6/E (Colly) (D-14) and certificate under section 65B of Indian Evidence Act vide Ex.PW6/F (D-14).
24. PW1 Shri Pushpender is the complainant. He deposed that he visited the office of CBI and a hand written complaint, written by some one, was given by him to the CBI and identified his signatures on complaint at Point-A vide Ex.PW1/A. Complainant/PW1 also identified his signatures on verification memo dated 23.06.2021 vide Ex.PW1/B (D-3), further verification memo dated 24.06.2021 vide Ex.PW1/C (D-4), Pre- trap Memorandum dated 24.06.2021 vide Ex.PW1/D (D-5), recovery memo dated 24.06.2021 vide Ex.PW1/E (D-6), rough site plan dated 24.06.2021 vide Ex.PW1/F (D-7), voice identification-cum-transcription memo dated 26.07.2021 alongwith transcription dated 26.07.2021 vide Ex.PW1/G - Colly (D-9) and specimen voice memo dated 26.07.2021 vide Ex.PW1/H (D-17). PW1 also identified his signatures on the bail bond (Jamanatnama) dated 21.06.2021 in FIR No. 355/21 dated 01.06.2021 vide Ex.PW1/I and arrest memo dated 21.06.2021 in the FIR No. 355/21 vide Ex.PW1/J. PW1 also identified his signatures on the envelope vide Ex.PW1/K containing a memory card vide Ex.PW1/L in the wrapper of CBI Vs. Mool Chand (CC No. 42/2021) Page 15 of 143 plastic cover vide Ex.PW1/M. During his evidence, voice recordings were played before him and in which he identified the introductory voice of Shri Krishan Kumar as contained in file no. 210623_1813. PW1 also identified his voice as well as the voice of accused Mool Chand as contained in file nos. 210623_1814 and 210623_1930. PW1 identified his signatures on the envelope vide Ex.PW1/N containing the paper packing of memory card vide Ex.PW1/O, plastic cover vide Ex.PW1/P and on the memory card vide Ex.P1/Q and during his evidence, voice recordings were played before him and in which he identified the introductory voice of Shri Krishan Kumar as contained in file no. 210624_1552. PW1 proved the memory card vide Ex.PW1/R and during his evidence, voice recordings were played before him and in which he identified the introductory voices of Rinku and Krishan Kumar as contained in file nos. 210624_1800 and 210624_1800_01 respectively. PW1 identified his signatures on the transcription vide Ex.PW7/A (Colly) {Part of D-9}. PW1 deposed that he was user of mobile no. 9953535373 which is in the name of his father. PW1 did not support the case of the prosecution and therefore, he was declared hostile and was cross-examined by the Ld. Sr. PP for the CBI.
25. PW2 Shri Rajendra Prasad Meena is the sanctioning authority. He deposed to the effect that he granted prosecution sanction vide Ex.PW2/A after examining the record of the case CBI Vs. Mool Chand (CC No. 42/2021) Page 16 of 143 and the same was forwarded vide letter dated 20.08.2021 Ex.PW2/B.
26. PW3 Shri Pawan Singh is the Nodal Officer and deposed that in complaince of notice dated 17.07.2021 received from the SP, CBI, he had provided certified copy of Customer Application Form of Ram Dev of Mobile No. 9953535373 alongwith attested copies of the Voter ID card and PAN card of Ram Dev (Ex.PW3/B - Colly {Part of D-12}, Call Detail record of the above-mentioned mobile number for the period 15.05.2021 to 30.06.2021 (Ex.PW3/C - Colly {Part of D-12}, Cell ID chart of above-said mobile number (Ex.PW3/D - Colly {Part of D-12) alongwith certificate under section 65B of Indian Evidence Act (Ex.PW3/E) vide letter dated 19.07.2021 Ex.PW3/A (D-12).
27. PW4 HC Shri Israil Khan deposed that FIR No. 355/21 dated 01.06.2021 was registered against Kapil Narula @ Paji in PS Badarpur and on the direction of the SHO PS Badarpur, he/PW4 had produced the certified copy of the above-mentioned FIR (Ex.PW4/B) to the IO of the CBI vide production-cum- seizure memo dated 30.07.2021 vide Ex.PW4/A (D-18).
28. PW5 Shri Vijay Pal Singh Dahiya, SHO PS Badarpur deposed that vide letter Ex.PW5/A (D-15), he had handed over the transfter and posting order of accused Mool Chand vide Ex.PW5/B (D-15) in which the name of accused Mool Chand is mentioned at Sr. No. 35. PW5 identified his signatures and CBI Vs. Mool Chand (CC No. 42/2021) Page 17 of 143 official stamp on the General Diary bearing no. 0052A dated 07.04.2021 in token of certification of the said GD vide Ex.PW5/C. PW5 also identified his signatures as well as official stamp on the duty roster of PS Badarpur dated 24.05.2021 vide Ex.PW5/D (Part of D-15) as well as on the letter dated 14.07.2021 vide Ex.PW5/D-1 (D-15). He has also identified his signatures alongwith official stamp in certification of General Diary vide Ex.PW5/E (Part of D-15) and deposed that as per the General diary, a PCR call was marked to accused Mool Chand. PW5 also identified his signature alongwith official stamp on the computer generated printout of the General diary no. 0031A as per which accused Mool Chand was apprehended by CBI in the present case. PW5 also identified his signature alongwith official stamp on the suspension order dated 25.06.2021 of the accused Mool Chand vide Ex.PW5/G. He has also identified his signature alongwith official stamp on the letter dated 14.07.2021 vide Ex.PW5/H as well as on the certificate under section 65-B of Indian Evidence Act vide Ex.PW5/I. PW5 deposed that vide letter dated 24.06.2021 (Ex.PW5/J), he had forwarded the certified copy of FIR No. 355/21 alongwith documents vide Ex.PW5/K (Colly) to Shri Jaswinder Singh, Inspector, CBI. PW5 deposed that vide letter dated 06.08.2021, he had provided the certified copy of relevant pages of serial wise register vide Ex.PW5/L regarding the arrest of Kapil Narula @ Paji in FIR No. 355/21 registered in PS Badarpur and he identified his signatures on it. PW5 deposed that as per relevant pages of serial wise register vide Ex.PW5/G, CBI Vs. Mool Chand (CC No. 42/2021) Page 18 of 143 Kapil Narula @ Paji was arrested on 21.06.2021 in the FIR No. 355/21 registered with PS Badarpur.
29. PW6 Shri Kamal Kumar is the Nodal Officer, Reliance Jio Infocomm Ltd. and proved the forwarding letter dated 29.07.2021 (Ex.PW6/B - D-14); production-cum-seizure memo dated 29.07.2021 vide Ex.PW6/A (D-13), Cell ID Chart/location chart pertaining to mobile no. 7678662083 of accused Mool Chand vide Ex.PW6/C (D-14), Customer Application Form of Mobile No. 7678662083 Call Detail Record of the above- mentioned mobile number (Ex.PW6/D - D-14), CDR of the mobile number for the period 15.05.2021 to 30.06.2021 vide Ex.PW6/E (Colly) (D-14) and certificate under section 65B of Indian Evidence Act vide Ex.PW6/F (D-14).
30. PW7 Shri Sirmohar Meena, Munshi to SHO PS Badarpur. He deposed to the effect that he went to the office of CBI on 26.07.2021 and heard the recorded conversation and signed on certain documents but he is not aware about the contents of the documents. He identified his signatures on the voice identification-cum-transcription memo dated 26.07.2021 vide Ex.PW1/G (D-9). He also identified his signatures on the transcription prepared through the voice identification and transcription memo vide Ex.PW7/A (Colly). PW7 on the identification of voices contained in the files, stated that he is not certain whether the voice contained in the file is that of accused Mool Chand since he recently joined PS Badarpur i.e. CBI Vs. Mool Chand (CC No. 42/2021) Page 19 of 143 1.5 months from the date of the incident. He was cross- examined by the Ld. PP for the CBI and PW7 denied that he made the statement that he is conversant with the voice of accused Mool Chand. He also deposed that he is unable to understand the contents of documents vide Ex.PW1/G as the same were in English.
31. PW8 ASI Anuj Kumar brought into record the suspension order of accused Mool Chand vide Ex.PW8/B which was seized vide seizure memo Ex.PW8/A. PW8 also brought on record the transfer and posting order of accused Mool Chand vide Ex.PW8/C.
32. PW9 HC Rinku, the shadow witness, deposed that on 24.06.2021, he visited CBI office upon instructions from his seniors after receiving the letter from CBI and he was asked to meet Jaswinder, Inspector, CBI and a trap team was constitutued comprising PW9, Shri Krishan Kumar, other independent witness, complainant Pushpender, Ashutosh Tiwari, S.K. Pandey, Ajay Kumar and other CBI members and the team was headed by the Trap Laying Officer (TLO) Shri Jaswinder. PW9 deposed that he was briefly told about the complaint in the present case made by the complainant Shri Pushpender whose grievance as per the complaint was that there was a demand of money "Paise ka Laen Daen" by accused HC Mool Chand from the complainant Shri Pusphender and PW9 was introducted to the complainant Shri Pushpender and other independent witness CBI Vs. Mool Chand (CC No. 42/2021) Page 20 of 143 and he was told by Shri Jaswinder that a demand of Rs.8,000/- was made by accused Mool Chand from the complainant Shri Pushpender. PW9 deposed that the complainant brought an amount of Rs.8,000/- of denomination of Rs.500/- and the details of the same were noted and confirmed by him. PW9 further deposed that demonstration after applying phenolphthalein powder was given by the independent witness and independent witness dipped his hand in the solution which turned PINK. PW9 deposed that after demo, all the team members washed their hands and bribe money was kept by him in the right side pocket of the gray track pant worn by the complainant. PW9 deposed that thereafter, a DVR was arranged and its blankness was confirmed and chip was inserted in the said DVR.
33. PW9 deposed that introductory voices were recorded and PW9 was directed to act as a shadow witness and to witness the transaction between the accused and the complainant. He further deposed that he was instructed to give pre-appointed signal after completion of the transaction of money by rubbing his hands and the complainant was also instructed to give signal by moving his cap which he was wearing and thereafter, they left for the CBI office in the evening after making necessary arrangements. PW9 identified his signatures on each page of the trap memorandum vide Ex.PW1/D (D-5). PW9 deposed that prior to leaving the CBI office for raid, he had thoroughly checked the complainant to ensure that he is not carrying CBI Vs. Mool Chand (CC No. 42/2021) Page 21 of 143 anything else except his mobile phone and thereafter PW9 put Rs.8,000/- in track pant right pocket of the complainant. PW9 deposed that on the way, complainant got a call but by the time he could pick up the call, the call was disconnected and complainant informed that call was from Mool Chand and on the instruction of the TLO, complainant/Pushpender called back on the same number after putting the call on speaker mode. PW9 deposed that the said conversation was also recorded in a DVR by SI Pradeep. PW9 deposed that when complainant made a call, the person from other side said "Tu kahan par hain", on which the complainant replied that he would reach within 10-15 minutes and the person from other side again said that "you should not come inside, I will come outside."
34. PW9 deposed that they (Trap team and other persons) reached near PS Badarpur at about 07.18 PM and the TLO again instructed the complainant to make a phone call to accused and accordingly, the complainant/Pushpender called and informed that he had reached outside the police station and asked about the place of meeting and the person from the other side said and the person from the other side asked complainant/PW1 to meet him outside the Tea shop. PW9 deposed that conversations were recorded in the DVR by SI Pradeep as the mobile phone was on speaker mode. PW9 deposed that thereafter, the DVR was put in the pocket of the complainant and he was instructed towards the tea shop outside the police station and when the complainant reached the tea shop, a person in police uniform came and who CBI Vs. Mool Chand (CC No. 42/2021) Page 22 of 143 was later identified as accused Mool Chand. PW9 identified the accused Mool Chand in the court. PW9 deposed that independent witness as well as the other team members were near the tea shop in discreet manner. PW9 further deposed that complainant/PW-1 & PW9 and accused sat at the tea shop where accused inquired about PW9 from the complainant and the complainant introduced him/PW9 as his uncle/ "Fufa". PW9 deposed that while sitting on the chair, accused inquired whether the complainant has brought "Dus Laya hain kya", to which the complainant/Pushpender said "Yeh 8 hain, 11 maine pehle de diye hain" and thereafter accused asked the complainant/Pushpender "Kya yeh pure hain" to which complainant replied "Haan ji malik pure hain" and thereupon accused Mool Chand said that "Jamanat ke paise hain" and the amount is only for this case and no action would be taken. PW9 further deposed that thereafter, the amount of Rs.8,000/- was handed over by the complainant to the accused which he/accused received from the left (referring to his hand) and shifted to the right hand and then kept the same in the right side shirt pocket worn by him/accused. PW9 deposed that thereafter, complainant gave the signal by moving his cap, upon which the TLO alongwith all the team members rushed towards the spot i.e. the tea shop and then the two CBI officials caught hold of wrist of accused and the DVR was taken out from the complainant by SI Pradeep and switched off the same.
CBI Vs. Mool Chand (CC No. 42/2021) Page 23 of 14335. PW9 deposed that after apprehension of the accused by the CBI officials, the accused was taken to PS Badarpur where SHO PS Badarpur met and he was apprised that accused Mool Chand was apprehended for taking bribe of Rs.8,000/- from the complainant. PW9 deposed that a separate room was provided by the SHO for further proceedings and thereafter glass tumbler was arranged on the direction of the TLO and some solution was prepared in the said glass tumbler and the accused was asked to dip his right hand finger in the said solution. On dipping his fingers, the colour of water turned PINK and therafter the said solution was transferred in another bottle which was capped and sealed with the seal after it was signed by him, another independent witness and TLO. PW9 further deposed that thereafter similar kind of solution was prepared by arranging another solution and again accused was asked to dip his left hand fingers in the said soluiton and on dipping the fingers by the accused, the colour of water turned PINK and thereafter the said solution was transferred in another bottle which was capped and sealed with the seal after signing by PW9, another independent witness and the TLO. PW9 deposed that another independent witness Krishan Kumar was also called and he was directed to recover the tainted money from the right side shirt pocket of accused and he/Krishan Kumar recovered the same from the right side shirt pocket of the accused. PW9 deposed that the amount was counted and found to be Rs.8,000/- (16 GC notes of Rs.500/- denomination) and the serial numbers of the notes were also tallied with some documents which were CBI Vs. Mool Chand (CC No. 42/2021) Page 24 of 143 prepared prior to leaving the CBI office and the recovered notes were found to be the same, and thereafter the said currency notes were sealed in an envelope after signing by PW9, another independent witness and the TLO.
36. PW9 deposed that the SHO was asked to provide a shirt for accused and after providing the same, accused was asked to change the shirt and again a solution was prepared and the right pocket of the shirt was dipped into the said solution and on doing so, the solution turned PINK and thereafter the said solution was transferred in another bottle which was capped and sealed with the seal after signing by PW9, another independent witness and the TLO. PW9 deposed that the shirt pocket was also signed by him/PW9, independent witness and the TLO and thereafter it was sealed in a yellow envelope. PW9 deposed that thereafter the complainant was asked to narrate the sequence of events and he informed the entire incident. Thereafter the TLO called for a DVR and from the said DVR, one investigation copy was prepared after attaching the same with the laptop. PW9 deposed that the conversations were also noted down on the paper roughly and the said conversations were recorded in memory card. PW9 again said that the copy of the conversations were prepared from memory card. He deposed that thereafter the memory card was kept in a plastic cover which was signed by PW9, independent witness and the TLO and further kept in its packing cover signed by them and the same was sealed in one envelope. PW9 deposed that on the CBI Vs. Mool Chand (CC No. 42/2021) Page 25 of 143 direction of the TLO, PW9 alongwith CBI Inspector Mahender Kumar reached at the residence of accused at Ballabhgarh, Haryana and after search the said house of the accused, they returned the CBI office. PW9 deposed that the search continued till 04.40 AM on 25.06.2021 and thereafter they returned to Badarpur police station where PW9 was informed that accused has been arrested.
37. PW9 deposed that thereafter, the TLO sought the file pertaining to the case against the complainant from the SHO PS Badarpur which was pending investigation with accused Mool Chand and the TLO taken the same in his possession vide seizure memo. PW9 further deposed that thereafter the DVR was seized in an envelope and the other articles were also seized by the CBI officials. PW9 deposed that the specimen impression of the seal which was used by the CBI in sealing the articles was taken on a piece of paper and the said paper was also signed by him/PW9, other independent witness and the TLO, and the seal impression was also embossed on recovery memo and thereafter the said seal was handed over by the TLO to other independent witness Krishan Kumar. PW9 deposed that the proceedings were concluded at about 06.15 AM on 25.06.2021 and the recovery memo was prepared in Room No. 114 of PS Badapur and the contents of the memo was readover and explained to all concerned and signatures were taken in token of correctness of the contents of the memo. PW9 identified his signatures on the recovery memo dated 24.06.2021 CBI Vs. Mool Chand (CC No. 42/2021) Page 26 of 143 vide Ex.PW1/E, on the sealed bottles marked as RHW (Ex.PW9/P1), LHW (Ex.PW9/P2), SPW (Ex.PW9/P3), on the inner side of the uniform shirt (Ex.PW9/P4), on the brown colour cut open envelope (Ex.PW9/P5).
38. PW9 deposed that after accepting the bribe amount, accused Mool Chand assured the complainant that he will not arrest Kapil. PW9 deposed that the word "his fufa" in his earlier deposition means fufa of Kapil. PW9 identified his position as well as the position of the accused Mool Chand in the rough site plan vide Ex.PW1/F. PW9 further deposed that CBI official had seized the mobile, purse and ID of the accused. PW9 deposed that the arrest memo does not bear his signature because all of a sudden, he was directed to accompany CBI team for searching at the house of the accused Mool Chand at Ballabhgarh. PW9 deposed that the pre-trap memorandum vide Ex.PW1/D (D-5) and recovery memo vide Ex.PW1/E (D-6) were signed by all the team members and other signatory in his presence.
39. PW9 deposed that he was called again by the CBI officer/Investigating officer on 26.07.2021 for voice identification and when he reached in the CBI office, one Police constable Sirmohar Meena, complainant Shri Pushpender, the other independent witness Shri Krishan Kumar and CBI officer were also present there and they all were made to hear the voices on the computer and the said voices contained the conversation between accused Mool Chand and complainant CBI Vs. Mool Chand (CC No. 42/2021) Page 27 of 143 Shri Pushpender. PW9 deposed that the complainant Pushpender identified his voice as well as voice of accused Mool Chand during the voice identification proceedings. PW9 deposed that he and Constable Sirmohar Meena had also identified the voices of complainant and accused Mool Chand and during the voice identifications, they were provided with already prepared transcription of the voices which they were made to hear and after hearing the voices, PW9 identified the voice of the speaker therein and thereafter matched such voices with the transcriptions and the transcription was actually the same conversations which they heard in the computer. PW9 deposed that thereafter a a voice identification-cum-transcription memo dated 26.07.2021 vide Ex.PW7/A (D-9) was perpared regarding the above proceedings and PW9, complainant Pushpender, Sirmohar, Krishan Kumar etc. signed the said memo as well as the transcription. PW9 identified his signature on the memo Ex.PW7/A (D-9).
40. The different files as contained in the memory card were played. The witness identified the voice of independent witness Shri Krishan Kumar in the file bearing no. 210623_1813. He has also identified the voice of complainant/Pushpender and accused Mool Chand in the file bearing no. 210623_1814. PW9 also identified the voices of complainant/Pushpender and accused Mool Chand in the file bearing nos. 210623_1930 and 210623_1934. PW9 also identified the voice of the independent witness Shri Krishan Kumar in the file bearing no.
CBI Vs. Mool Chand (CC No. 42/2021) Page 28 of 143210624_1552. He also identified the voices of the complainant/Pushpender and accused Mool Chand in the file bearing no. 210624_1556. PW9 identified his voice in the file bearing no. 210624_1800, voice of independent witness Shri Krishan Kumar in the file bearing no. 210624_1800_1, voices of the complainant/Pushpender and accused Mool Chand in the files bearing nos. 210624_1912, 210624_1927 and 210624_1928. PW9 also identified the voices of Krishan Kumar and Mool Chand in the files bearing no. 210625_0324, 210625_0326 and 210625_0328 contained in the memory card vide Ex.PW9/P9. PW9 also identified the voice of independent witness Shri Krishan Kumar in file bearing no. 210726_1539 and 210726_1542, voice of the complainant in file bearing no. 210726_1540, voices of Krishan Kumar and Pushpender in file bearing nos. 2210726_1539, 210726_1540 and 210726_1542. All these voices are contained in the memory card vide Ex.PW9/P-10.
41. PW10 Shri Krishan Kumar is the independent witness and he deposed that he was directed by his DM (Vigilance) Shri A.K. Singh to report for duty at CBI office on 23.06.2021 at about 09.30 AM and accordingly, he reached CBI office where he met three-four persons namely Pushpender/complainant, Kapil Narula (against whom a case was registered at PS Badarpur), name of rest of the persons he does not remember. PW10 deposed that Pushpender gave an application which was read loudly by CBI officer which was heard by all of them.
CBI Vs. Mool Chand (CC No. 42/2021) Page 29 of 143PW10 deposed that in the complaint/application, one police officer of PS Badarpur namely Mool Chand was demanding Rs. One Lac, but the bribe amount was settled at Rs.20,000/-, out of which Rs.11,000/- had already been paid to accused Mool Chand and Rs.9,000/- was to be paid out of the demanded money. PW10 deposed that CBI officer asked Pushpender whether he could talk to Mool Chand on mobile phone and Pushpender replied in affirmative and thereafter one Sony recording device was arranged alongwith a chip and the recording device was packed and the chip was also new one and it was also packed and on asking of CBI officer, it was opened by him and thereafter chip was inserted into the device and CBI officer asked him to check the chip after handing the instrument to him/PW10 to ensure the blankness of the chip and accordingly, PW10 checked the same and found that there is no prior recording therein. PW10 deposed that he was allowed to record his introductory voice in the recording device.
42. PW10 deposed that at about 06.30 PM, Pushpender called Mool Chand and mobile phone of Pushpender was put on speaker mode/hands free mode and the said call was recorded using the recording the device. PW10 deposed that he heard the conversation and during the conversation Pushpender requested to meet and the person on the other side agreed to meet and also directed "Sare kagaj le aana" and thereafter Pushpender replied that he is coming. PW10 deposed that "Sare Kagaj" may be the code word on being asked from Pushpender what was the CBI Vs. Mool Chand (CC No. 42/2021) Page 30 of 143 meaning of this code to which he disclosed that "Sare Kagaj"
refers bribe amount. PW10 deposed that after this conversation, he alongwith the CBI team and complainant left for PS Badarpur reached PS Badarpur at about 07.15 - 07.30 PM and parked their vehicle at a distance from the PS Badarpur and thereafter Pushpender was directed to call Mool Chand and the said conversation was also recorded by putting the mobile phone of Pushpender on speaker mode with the help of recording device. PW10 deposed that on the said telephonic conversation, Mool Chand directed Pushpender to come to Room No. 105 of PS Badarpur and thereafter the recording device was put inside the pocket of Pushpender in recording mode. PW10 further deposed that he also accompanied Pushpender till the gate of PS Badarpur as he was stopped at the gate of the police station by the guard posted there, but Pushpender went inside the police station and after ten minutes, Pushpender came and both of them reached at the place where CBI officials and vehicle was present. The recording device was immediately switched off by CBI officer and then the recording contained in the chip was played and heard by them. PW10 deposed that the balance bribe amount of Rs.9,000/- was negotiated and settled at Rs.8,000/- which is to be paid next day and thereafter, they reached CBI office at around 08.30 to 09.00 PM and the chip was taken out of the device and was sealed with CBI seal. PW10 deposed that on the envelope wherein the chip was kept, something was written by the CBI officer and their signatures were taken on the said envelope and all the proceedings were recorded on papers CBI Vs. Mool Chand (CC No. 42/2021) Page 31 of 143 and such papers were also signed by PW10 and others. PW10 further deposed that the seal used in the proceedings as well as the recording device without chip was handed over to him for safe custody and he was directed to bring the same on the next day for further proceedings. PW10 identified his signature as well as the seal impression of CBI which was put them on the verification memo dated 23.06.2021 vide Ex.PW/B. PW10 also identified the CBI seal vide Ex.PW10/X.
43. PW10 further deposed that on the next day i.e. 24.06.2021, they again gathered at CBI office and complainant Shri Pushpender was directed to arrange the money and he was also directed to make a call to Mool Chand's mobile phone from his mobile phone and call was made by the complainant to confirm about the meeting in the evening. PW10 deposed that the conversation was also recorded in the same device in the same manner as was done on previous day. PW10 stated that a new chip was arrnaged and put inside the recording device for the purpose of recording the conversation and introductory voice of PW10 was recorded in the chip to ensure its blankness and thereafter the device was switched off. PW10 further deposed that in the CBI office, a plan was made for apprehending the HC Mool Chand while accepting the bribe. PW10 deposed that "planning" means giving of demonstration by applying powder on GC notes of 500 each which were brought by the complainant Pushpender, and the demonstration was done before them. Ld. PP for the CBI sought the permission of the CBI Vs. Mool Chand (CC No. 42/2021) Page 32 of 143 court to cross-examine the witness as he was not supporting his previoius statement on material aspects and after necessary permission, Ld. PP for the CBI cross-examined PW10. In his cross-examination by the Ld. PP for the CBI, PW10 stated that accused Mool Chand was arrested in his presence and arrest- cum-personal search memo in this regard was also prepared vide Ex.PW10/A (D-8). PW10 also stated that the brown envelope vide Ex.PW10/B, bear the writing "Mobile Phone of accused" as well as "Malkhana stamp and number". PW10 also identified the mobile phone of the accused vide Ex.PW10/X-1. PW10 also identified another brown envelope vide Ex.PW10/C and on opening the same, it was found containing a red cover/company packing of the Sand Disk at the back of the packing vide Ex.PW10/D. PW10 identified his signature on the transparent plastic cover. PW10 also identified another brown envelope vide Ex.PW10/E and on opening the same, it was found containing GC notes of denomination of Rs.500/- (16 notes) and after matching the same with the numbers of the notes mentioned in the handing over memo, PW10 stated that these are the same notes which were recovered from the right side pocket of the uniform shirt of Mool Chand. PW10 identified his signature on the cut open brown envelope vide Ex.PW9/P5 and on opening the same, it was found containing one DVR of black colour make Sony vide Ex.PW10/X2.
44. PW11 Constable Dheeraj Bharadwaj deposed that on 03.08.2021, he had handed over certain documents to one CBI CBI Vs. Mool Chand (CC No. 42/2021) Page 33 of 143 officer and PW11 identified the signatures alongwith official seal of Shri Vijay Pal Dahiya on a letter vide Ex.PW5/A (D-15), on certified copy of list of transfer/posting order in respect of the accused vide Ex.PW5/B (D-15), on the certified copy of General Diary dated 07.04.2021 vide Ex.PW5/C (D-15), certified copy of duty roster of PS Badarpur dated 24.05.2021 vide Ex.PW5/D, on the certified copy of General Diary dated 31.05.2021 vide Ex.PW5/E (D-15), on the certified copy of suspension order of accused Mool Chand vide Ex.PW5/G (D-15), on the General Diary dated 25.06.2021 vide Ex.PW5/F (D-15), on the certified copy of document showing the presence of accused on duty on 24.06.2021 vide Ex.PW5/D-1 (D-15), on a letter vide Ex.PW5/H (D-16) and on the certificate under section 65-B of Indian Evidence Act vide Ex.PW5/I (D-16).
45. PW12 Sub Inspector Shri Ashutosh Tiwari is the Verification Officer and he deposed that on 23.06.2021 he was called by the then SP who had handed over and marked him one written complaint dated 23.06.2021 vide Ex.PW1/A for verification purposes. PW12 deposed that SI Mukesh Kumar Pandey was also associated with him for his assitance during the verification proceedings. He deposed that he met complainant Shri Pushpender and his friend Kapil Narula in the CBI office and upon enquiry, both of them told him that a case was pending against Kapil Narula and two others at PS Badarpur which was being investigated by accused Mool Chand and in that case Kapil Narula was detained. PW12 deposed that for the purpose CBI Vs. Mool Chand (CC No. 42/2021) Page 34 of 143 of verification of the complaint, a witness namely Krishan Kumar from Accountant General (AG) Office was arranged through Duty Officer and the complainant/Pushpender, Kapil Narula and independent witness Shri Krishan Kumar were introduced with each other and the purpose of assembly was also told to them. PW12 further deposed that for the purpose of verification proceedings a Digital Voice Recorder (DVR) alongwith one memory card were issued through Duty Officer and the blankness of the fresh memory card and DVR was ensured in the presence of the independent witness/Krishan Kumar, Kapil Narula and Pushpender and the introductory voice of the independent witness/Krishan Kumar was recorded in the memory card through DVR and the complainant/Pushpender was directed to make a call to HC Mool Chand to know the whereabouts of accused Mool Chand and the said call was recorded in the memory card through DVR. PW12 deposed that the mobile phone was put on speaker mode to enable that all persons can hear the voice/conversation between the complainant/Pushpender and the accused Mool Chand. PW12 deposed that he alongwith other persons heard the conversation in which accused Mool Chand was asking the complainant/Pushpender to come to police station Badarpur with "Sare Kagaj". PW12 deposed that by "Sare Kagaj" , the accused was implying to bring the remaining bribe amount. PW12 deposed that thereafter he alongwith Kapil Narula, complainant/Pushpender, independent witness/Krishan Kumar and one CBI officer SI Mukesh Kumar Pandey left for PS CBI Vs. Mool Chand (CC No. 42/2021) Page 35 of 143 Badarpur for further verification of the complaint. After reaching PS Badarpur, it was decided that Pushpender shall again make a call to accused Mool Chand and accordingly, the complainant called to accused Mool Chand by putting the mobile phone on speaker mode and the said conversation was also recorded in the memory card through DVR and the said call was heard by PW12 and other team members and independent witness in which accused Mool Chand directed Pushpender to come in the room in PS Badarpur and thereafter, it was decided to give the DVR to the complainant Pushpender by putting it in switched on and hold mode and the said DVR was put in the pocket of the shirt of the complainant. PW12 deposed that the independent witness was directed to remain with the complainant Pushpender at some distance so that he can over hear the conversation between the complainant Pushpender and the accused Mool Chand and accordingly, Pushpender and the independent witness were directed to meet the accused Mool Chand in the police station and PW12 alongwith Kapil Narula and Mukesh Kumar Pandey remained seated in the official vehicle at a safe distance from police station. PW12 deposed that after some time, both Pushpender and independent witness Krishan Kumar returned back and soon after the DVR was taken back from Pushpender and it was switched off and removed from hold mode.
46. PW12 deposed that at the spot, they all heard the conversation by running the DVR and from the conversation, it CBI Vs. Mool Chand (CC No. 42/2021) Page 36 of 143 was transpired that accused Mool Chand was demanding remaining bribe amount and that there was also negotiation for reducing the remaining amount and finally accused Mool Chand agreed to accept Rs.8,000/- as remaining bribe amount. He further deposed that thereafter, they reached CBI office and investigation copy of the conversation was made with the help of write blocker by PW12 and the conversation was also heard from the investigation copy. PW12 deposed that thereafter, the memory card was taken out from the DVR and it was sealed with the seal of CBI and seized in the presence of PW12, complainant Shri Pushpender, Kapil Narula, Krishan Kumar and SI Mukesh Kumar Pandey and the recording of the verification proceeding was reduced into writing on paper and PW12, Kapil Narula, Pushpender, Krishan Kumar and SI Mukesh Kumar Pandy signed the memo and CBI seal was also embossed on the proceedings on each page. He deposed that after using the seal, it was handed over to independent witness PW10 Krishan Kumar with the direction to bring the same as and when required and the independent witness was also directed to remain present on the next day for further proceedings. PW12 identified his signature on the verification memo dated 23.06.2021 vide Ex.PW1/B.
47. PW12 deposed that on the next day i.e. 24.06.2021, complainant Pushpender, Kapil Narula and independent witness Krishan Kumar reached CBI office for the purpose of further verification to know the motive of demand, and on that day, CBI Vs. Mool Chand (CC No. 42/2021) Page 37 of 143 Mukesh Kumar Pandey was also present. A fresh new memory card was arranged through Duty Officer and its blankness was ensured, independent witness produced seal and DVR and his/independent witness's introductory voice was recorded. Pushpender was directed to make a call to accused Mool Chand by keeping his mobile phone on speaker mode. Simultaneously, the conversation between the accused Mool Chand and Pushpender was heard and recorded and it was heard that Pushpender was making a request that Kapil Narula should not be arrested, but Mool Chand was saying that Kapil Narula should be produced before him and he/Mool Chand assured the complainant Pushpender that he will not arrest Kapil Narula. PW12 deposed that the memory card was taken out from the DVR and an investigation copy of the same was prepared by using the write blocker and thereafter the memory card was sealed with the CBI seal in presence of all present there and seized vide verification memo dated 24.06.2021 vide Ex.PW1/C. PW12 further deposed that thereafter, the recording of the verification proceedings were reduced into writing on paper and PW12, Kapil Narula, Pushpender, Krishan Kumar and SI Mukesh Kumar Pandey signed the said memo of proceedings and CBI seal was also embossed on the said proceedings on each page and after using the seal, it was handed over to independent witness PW10/Krishan Kumar with the direction to bring the same as and when required and he/independent witness was orally directed to remain present as and when required for further proceedings.
CBI Vs. Mool Chand (CC No. 42/2021) Page 38 of 14348. PW12 deposed that thereafter, he recommended for registration of FIR against the accused Mool Chand for accepting and demanding of bribe from Pushpender and Kapil Narula in respect of the case pending against Kapil Narula and two others in PS Badarpur in which accused Mool Chand was the investigating officer, as it was verified that accused Mool Chand was demanding the remaining bribe amount and had also accepted the part bribe amount for not arresting Kapil Narula in the said case. PW12 deposed that both the verification reports were put up before the SP, CBI with recommendation for registration of the case and accordingly, on the same day, the present case was registered against the accused Mool Chand. PW12 deposed that consequent to the registration of the FIR, the investigation was entrusted to Inspector Shri Jaswinder Singh who was also made Trap Laying Officer (TLO) for laying the trap. PW12 deposed that thereafter, in addition to the independent witness Krishan Kumar, one more independent witness namely Rinku was arranged through Duty Officer and in the CBI office, a trap team was constituted consisting of PW12, Mukesh Kumar Pandey and other CBI officers and that the complainant Pushpender, Kapil Narula and both the independent witnesses namely Krishan Kumar and Rinku were also part of the trap team and thereafter, the briefing to the all trap team members including independent witnesses, complainant and CBI officers were made by TLO/Inspector Shri Jaswinder Singh and during this briefing, the purpose of gathering and assembly was explained and in this process the complaint, verification memo CBI Vs. Mool Chand (CC No. 42/2021) Page 39 of 143 and FIR were also shown to the persons present there. The independent witness Krishan Kumar brought the seal which was given to him previously and the DVR was also given by PW12 to the TLO. PW12 deposed that thereafter, the complainant produced Rs.8,000/- (all in denomination of Rs. 500/-) before the TLO and the detail of the said GC notes were noted down and thereafter, the use of the phenolphthalein powder and Sodium Carbonate Solution were explained to the all person present and the demonstration of the reaction of phenolphthalein powder with the sodium carbonate solution was given by one of the team members. For this purpose, it was explained that whenever any object comes in contact with phenolphthalein powder and if such object is washed with the colourless sodium carbonate solution then the solution will turn PINK. PW12 further deposed that the phenolphthalein powder was put on the GC notes of Rs.8,000/- brought by the complainant and thereafter, independent witness Krishan Kumar was asked to touch the GC notes and thereafter his hands were washed in the colourless solution of Sodium carbonate which turned PINK and thereafter the said PINK solution was thrown away and hands of the witnesses and others were washed with soap and water. The treated GC notes were handed over to the complainant for the purpose of giving the same to accused Mool Chand or to any other person on the direction of accused Mool Chand. PW12 further deposed that the complainant was also directed to not to touch the GC notes again and again. He further deposed that personal search of the complainant was also taken and he was CBI Vs. Mool Chand (CC No. 42/2021) Page 40 of 143 not allowed to carry anything incriminating with him except his mobile phone and the tainted GC notes. One of the independent witness perhaps Krishan Kumar was made shadow witness for the purpose of remaining with complainant and also to over hear and see the transactions between the complainant and accused Mool Chand. PW12 deposed that the complainant and independent witness were directed to give signal after completion of the bribe transaction between the complainant and accused Mool Chand by making a mobile call or through gesture by putting both his hands on his head and the CBI team members were instructed to take their position in discreet manner near PS Badarpur. PW12 deposed that the kit was also prepared and it remained with the CBI team members. PW12 deposed that the DVR remained with the TLO and all the necessary sealing material/papers/stationary items, etc. were also kept in trap kit bag for trap proceedings. PW12 further deposed that the introductory voices of independent witnesses were also recorded in a fresh new memory card through DVR and all the pre-trap proceedings were reduced into writing on papers and PW12 alongwith TLO, independent witnesses, complainant and other team members signed the said proceedings. PW12 identified his signatures on the pre-trap memorandum dated 24.06.2021 vide Ex. PW1/D.
49. PW12 deposed that the CBI trap team alongwith independent witnesses and complainant left CBI office for reaching near the PS Badarpur and he/PW12 was not sitting in CBI Vs. Mool Chand (CC No. 42/2021) Page 41 of 143 the vehicle where complainant was sitting but he/PW12 was in other vehicle. The CBI team reached near PS Badarpur on 24.06.2021 in the evening and the TLO instructed them to take respective position in a discreet manner near PS Badarpur. PW12 deposed that he saw that complainant and independent witness were moving toward the gate of PS Badarpur and after some time accused Mool Chand arrived at the tea stall near the gate of PS Badarpur and both, complainant and accused Mool Chand, were having some conversation and the complainant gave signal and thereafter, PW12 alongwith all the trap team members including the other independent witness rushed towards the tea stall and accused Mool Chand was caught red handed with the bribe money. PW12 deposed that the witness who accompanied the complainant was also present near the tea stall and the accused Mool Chand was in Police Uniform. PW12 deposed that the Officer from CBI team members caught hold both the wrists of accused Mool Chand separately and the TLO Jaswinder Singh challenged accused Mool Chand for demanding and accepting bribe amount of Rs.8,000/-, on which accused Mool Chand became nervous. PW12 deposed that the bribe amount was recovered which was probably kept by accused Mool Chand in his pocket. PW12 identified the accused Mool Chand in the Court.
50. PW12 deposed that the tainted bribe amount was recovered by the independent witness Krishan Kumar and was counted by both the independent witnesses and matched with the CBI Vs. Mool Chand (CC No. 42/2021) Page 42 of 143 detail of the notes mentioned in the pre-trap memo and it was found that the recovered bribe amount matches with the detail mentioned in the pre-trap memo vide Ex.PW1/D (D-5) and both the independent witnesses had counter signed at the place where the details of the notes were mentioned in the pre-trap memo Ex.PW1/D (D-5). PW12 deposed that the recovered bribe amount was sealed in brown envelope in a room in the Police Station Badarpur which was allocated to them for completing the formalities relating to the trap proceedings. PW12 deposed that both the independent witnesses namely Krishan Kumar and Rinku and TLO signed the brown envelope. PW12 stated that prior to matching and sealing of the recovered tainted amount, the washes of the both hands and Shirt wash of the accused Mool Chand were taken in the same room in PS Badarpur and for this purpose, a colourless solution of Sodium Bi-carbonate was prepared in a tumbler and the left hand wash of the accused Mool Chand was taken by dipping his fingers in the said solution and the said solution turned PINK. The said turned PINK solution was poured in a small glass bottle by some suboridnate staff for the purpose of safe custody and to preserve it as an evidence and the bottle was capped and thereafter, it was wrapped with a cloth and thereafter, sealed with the seal of CBI and a white paper was pasted on the glass bottle on which both the independent witnesses and TLO had signed. PW12 deposed that similar procedure was adopted in respect of taking wash of right hand of accused Mool Chand and the right hand wash of the accused Mool Chand was taken by dipping his fingers in the CBI Vs. Mool Chand (CC No. 42/2021) Page 43 of 143 said solution and the said solution turned PINK and the turned PINK solution was poured in a small glass bottle by some subordinate staff for the purpose of safe custody and to preserve it as an evidence and the bottle was capped and thereafter, it was wrapped with a cloth and thereafter, sealed with the seal of CBI and a white paper was pasted on the glass bottle on which both the independent witnesses and TLO had signed. Similarly, for the purpose of taking wash of the shirt (uniform shirt) of accused Moolchand, a piece of cloth was rubbed in the pocket and thereafter, the piece of cloth was washed in a colourless solution of Sodium Bi-carbonate was prepared in a Tumbler and the solution turned PINK and the turned PINK solution was poured in a small glass bottle by some subordinate staff for the purpose of safe custody and to preserve it as an evidence and the bottle was capped and thereafter, it was wrapped with a cloth and thereafter, sealed with the seal of CBI and a white paper was pasted on the glass bottle on which both the independent witnesses and TLO had signed.
51. PW12 deposed that a fresh memory card was arranged and the same was inserted in the DVR. The memory card was new and it was taken out from the sealed packing. PW12 further deposed that the introductory specimen voices of the independent witnesses were taken. The specimen voice of the accused Mool Chand was also taken which he had voluntarily given and thereafter, after recording of specimen voice of Moolchand, the concluding specimen voices of the witnesses CBI Vs. Mool Chand (CC No. 42/2021) Page 44 of 143 were also taken. PW12 deposed that thereafter, the memory card was taken out from the DVR and the signatures of witnesses were taken on the packing and plastic cover of memory card and thereafter the memory card alongwith the packing were sealed with the seal of CBI in a brown envelope. PW12 deposed that in the meanwhile, a rough site plan vide Ex.PW1/F (D-7) was prepared by him, bearing his signature and signatures of independent witnesses and TLO were taken on the rough site plan. PW12 deposed that the specimen voice of the complainant Pushpender was also taken in the similar manner like that of the accused and the mobile phone of the accused Mool Chand was seized and thereafter the same was sealed with the seal of CBI. PW12 deposed that prior to sealing the memory card, the recorded conversations were transferred in Laptop by using write blocker for the purpose of making investigation copy of the said recorded conversations and thereafter, the conversation in the investigation copy were heard in which the accused Mool Chand was saying to complainant that he would get the matter settled and would not effect the arrest of Kapil Narula. PW12 deposed that a search team was also sent by TLO for the search of the house of accused Mool Chand and the DVR was also sealed in a brown colour envelope and both the independent witnesses and TLO had signed that brown envelope and thereafter the said brown envelope was sealed with the seal of CBI and thereafter, the seal was handed over to the independent witness with the direction to produce the same as and when required by the Court or other Authority. PW12 CBI Vs. Mool Chand (CC No. 42/2021) Page 45 of 143 deposed that the post trap proceedings were concluded in the morning of the following day i.e. 25.06.2021 at about 06:00- 06:15 AM and the proceedings were also reduced into writing in the same room of PS Badarpur. PW12 deposed that the proceedings were typed on the official Laptop of the CBI and the printout of the same was taken out from the official printer of the CBI and signature of all the team members i.e. independent witnesses, TLO and PW12 were taken on each page of the post-trap memorandum vide Ex.PW1/E and the CBI seal was also put on each paper.
52. PW13 Shri V.B. Ramteke is the Principal Scientific Officer and he examined contents of three sealed bottles marked as LHW, RWH and SPW and proved the chemical examination report dated 11.08.2021 vide Ex.PW13/A.
53. PW14 Dr. Subrat Kumar Choudhury, Sr. Scientific Officer in Physics Division and he examined contents of six sealed parcles, specimen seal impressions, certificate of authority and transcriptions i.e. Q-1, Q-2, Q-3, S-1, S-2 and DVR and proved his report vide Ex.PW14/A (D-27 - 15 pages).
54. PW15 Shri Kapil Narula deposed that his friend Pushpender told him that he/PW15 has been named in a case/FIR of fight/quarrel of his friend Shri Narsimha at PS Badarpur and accordingly, he met a lawyer who asked him to file a bail application and later on the said lawyer told him that his application for bail has been rejected and his lawyer asked CBI Vs. Mool Chand (CC No. 42/2021) Page 46 of 143 him to visit the police station to meet the In-charge of the case in which his name has figured and thereafter, he/PW15 alongwith Pushpender went to the police station Badarpur on the same day and met accused Mool Chand. PW15 identified the accused in the court and deposed that he introduced himself to accused Mool Chand who asked him/PW15 to sign some documents/papers i.e. arrest memos Ex.PW5/DX1 dated 01.06.2021 and Ex.PW1/J dated 01.06.2021 and bail bond Ex.PW1/I dated 01.06.2021 (D-24) and PW15 identified his signatures on all the exhibits. PW15 identified his signature on the copy of his Aadhaar card vide Ex.PW15/A. PW15 deposed that after signing the documents in the police station Badarpur, he was asked by accused Mool Chand to leave the police station Badarpur. He deposed that so far as he can recall, the documents peretain to his/PW15 arrest. PW15 deposed that he took Pushpender to police station Badarpur in the eventuality if some identity documents are required to be given by some other person. PW15 deposed that he went to CBI office once and at that time Pushpender was accompanying him and he/PW15 went to the CBI office as he was told by one of his friend Sandeep that he/PW15 has been falsely implicated in a case of quarrel by the police, whereas he/PW15 was not involved in the case and his friend Sandeep suggested that since the police is involved and the only way to save is to approach/meet the CBI officers. PW15 deposed that he went to the office of CBI in June-July 2021 and when he reached alongwith Pushpender, he/PW15 met a CBI officer and he told him/CBI officer that he CBI Vs. Mool Chand (CC No. 42/2021) Page 47 of 143 is involved in some case and a paper had been taken by his friend Pushpender and legal action would be taken against them. PW15 deposed that he had also told him about the conversation which he/PW15 had with accused Mool Chand and thereafter, the CBI officers asked him/PW15, as to what kind of help he/PW15 wanted from them. PW15 deposed that his friend Pushpender was with CBI officers for a long time and he/PW15 waited outside the room and he did not know what discussion had transpired between the CBI officers and Pushpender. PW15 further deposed that on that day, his signatures were taken on English typed papeers and he had read the contents, but he could not understand the same. PW15 did not support the case of the prosecution and therefore, he was declared hostile and was cross-examined by the Ld. PP for the CBI.
55. PW16 Shri Jaswinder Singh is the Trap Laying Officer and he deposed that FIR vide Ex.PW16/A was entrusted to him for further action and after discussion with the SP, he decided to lay the trap of the accused Mool Chand. PW16 deposed that the trap team was constituted comprising of PW16, Inspectors S.K. Pandey, A.K. Singh, Vijay Desai, Raj Saurabh, Mahender Singh, SI Ashutosh Tiwari and other subordinate staff and independent witnesses namely Krishan Kumar and HC Rinku. PW16 deposed that verification memos vide Ex.PW1/B and Ex.PW1/C were also shown to him alongwith the complaint. He deposed that prior to laying of trap, he took DVR make SONY and memory cards i.e. Q1 and Q2 which were used for recordings CBI Vs. Mool Chand (CC No. 42/2021) Page 48 of 143 during the verification proceedings dated 23.06.2021 and 24.06.2021 from the Verifying Officer Ashutosh Tiwari and CBI brass seal used in the verification proceedings was also taken from the independent witness Krishan Kumar for further proceeding. PW16 deposed that during the pre-trap proceedings, the amount of Rs.9,000/- was reduced to Rs.8,000/- and the said amount was produced by the complainant Pushpender in the denomination of Rs.500/- (16 GC notes) and details thereof were noted in the pre-trap memos. PW16 deposed that all the trap team members including the independent witnesses were briefed about the FIR and the complaint and verification done by Verifying Officer and the purpose of trap and thereafter, it was demonstrated that if someone touches phenolphthalein powder with sodium carbonate and water then the solution will turn PINK and if some object having phenolphthalein powder is dipped in water and sodium carbonate then it will also turn PINK because of phenolphthalein powder and the demonstration was given by Shri A.K. Singh, Inspector. PW16 deposed that the currency notes brought by the complainant were treated with phenolphthalein powder by A.K. Singh, Inspector and thereafter he asked the independent witness Krishan Kumar to touch the tainted note with his right hand and thereafter independent witness Krishan Kumar was directed to dip his hand in the solution of water and sodium carbonate and then the solution turned PINK and this was shown to the trap team including independent witnesse and thereafter the solution in the glass tumbler was thrown away and the remaining CBI Vs. Mool Chand (CC No. 42/2021) Page 49 of 143 phenolphthalein powder was also thrown away and thereafter all the team members washed their hands with soap. PW16 deposed that he directed the other independent witness Rinku to conduct the personal search of the complainant and to ensure that except mobile phone, nothing should remain with him. He had also directed other independent witness Krishan Kumar to put the tainted money in the right side pocket of the track pant worn by the complainant Pushpender, and complainant was also directed that he should not touch the tainted money till he is asked to handover on the specific demand made by the accused Mool Chand.
56. PW16 deposed that the entire proceedings were recorded in the pre-trap memo at the office of CBI. On a specific query, PW16 deposed that the complainant was directed to give a signal of removing his cap from his head and the independent witness/shadow witness Rinku was directed to rub both his palms and both of them were also directed to make call to PW16. PW16 deposed that independent witness Rinku was directed to act as a shadow witness. PW16 deposed that the pre- trap memo vide Ex.PW1/D was prepared in his persence alongwith other trap team members including the independent witnesses and PW16 identified his signature on each page. PW16 deposed that at about 06.15 PM, CBI trap team alongwith both independent witnesses and complainant left the CBI office towards PS Badarpur in three separate vehicles. In one vehicle, PW16 alongwith two independent witnesses, SI Pradeep Kumar CBI Vs. Mool Chand (CC No. 42/2021) Page 50 of 143 and complainant Pushpender were sitting and the remaining team members were in other two vehicles. PW16 deposed that on the way to PS Badarpur, complainant received a call from accused Mool Chand, however, the call could not be received by the complainant and then PW16 asked the complainant to make a call to accused Mool Chand on his mobile number and the mobile phone of the complainant was in the speaker mode and the call was also being recorded with the help of DVR having memory card. A conversation took place between the complainant and accused Mool Chand in which accused Mool Chand asked about the whereabouts of the complainant and the complainant told Mool Chand that he would reach PS Badarpur in about 10-15 minutes and thereafter, another call was made by the complainant to the accused Mool Chand shortly before PS Badarpur wherein the complainant asked Mool Chand as to where he has to come and accused Mool Chand told not to come inside the police station and further asked the complainant to call him again upon reaching near PS Badarpur. Complainant called accused Mool Chand upon reaching just outside PS Badarpur i.e. near gate and then accused Mool Chand told the complainant that he is coming out of the police station and all the conversation which were made between the complainant and the accused Mool Chand were being recorded in the DVR with the help of memory card and during the said conversation, the phone was on speaker mode.
CBI Vs. Mool Chand (CC No. 42/2021) Page 51 of 14357. PW16 further deposed that on his direction, the DVR containing memory card was put by SI Pradeep in the inner pocket of shirt worn by the complainant. PW16 deposed that as the accused Mool Chand had asked the complainant to meet at Tea shop/stall which is located near PS Badarpur, he/PW16 directed the complainant and the independent witness Rinku to reach at the place which was directed by the accused Mool Chand and he/ PW16 also asked other members of the trap team to station themselves in different places in discreet manner. PW16 deposed that he saw that a man, in police uniform, came out from the PS Badarpur from the gate and reached at the Tea stall/shop and just near the Tea shop, there was a bench. PW16 deposed that he also saw that complainant and the said man in uniform were engaged in conversation and after some time, complainant gave a pre-decided signal by removing his cap and all members of the trap team including PW16, rushed towards the Tea stall where complainant and the man in uniform were present and PW16 challenged Mool Chand and introduced himself and told him that he/accused demanded and accepted bribe money from the complainant. PW16 deposed that other trap members i.e. Raj Saurav (Inspector) and Ashutosh Tiwari (SI) caught right and left hand of the accused Mool Chand. PW16 deposed that accused Mool Chand became perplexed and during this period, the DVR having memory card was switched off and the DVR containing the memory card was taken from the complainant by SI Pradeep. PW16 deposed that thereafter, they i.e. PW16 and other members of the trap team took accused CBI Vs. Mool Chand (CC No. 42/2021) Page 52 of 143 Mool Chand inside the police station Badarpur and independent witnesses as well as complainant also came inside the PS Badarpur and he/PW16 informed the concerned SHO regarding demand and acceptance of bribe by accused Mool Chand from the complainant. PW16 further deposed that he directed the SHO to provide a separate room for completing the trap proceedings and a room in the ground floor was provided to them and in the said room, further proceedings were conducted. PW16 deposed that he also asked the concerned SHO to arrange a shirt for the accused Mool Chand as accused Mool Chand was in police uniform and kept the bribe money in his right pocket of the uniform shirt.
58. PW16 deposed that the bribe money was recovered from the accused Mool Chand after he was taken inside the PS Badarpur since lot of crowd had gathered at the place where accused was apprehended/caught and therefore, they thought it proper to take accused inside the police station. PW16 further deposed that in the room which was provided to them by the SHO, the bribe money was taken out from the right pocket of shirt of accused Mool Chand by the independent witness Shri Krishan Kumar and the amount which was taken out from the right pocket shirt of the accused was found to be Rs.8,000/- (all in the denomination of Rs.500/-). PW16 deposed that thereafter, he directed the independent witness Krishan Kumar to check and match the bribe money which was taken out from the pocket of accused Mool Chand with the details of CBI Vs. Mool Chand (CC No. 42/2021) Page 53 of 143 denomination/currency number which is mentioned in the pre- trap memo vide Ex.PW1/D and both the witnesses Krishan Kumar and Rinku were asked to check the pre-trap memo in which details of the currency notes are mentioned with that of the bribe amount which was found from the right pocket shirt of the accused Mool Chand. PW16 deposed that after matching the same, Krishan Kumar and Rinku told that the currency notes which were taken out from the right pocket of shirt of accused matches with the details of the currency notes in the pre-trap memo vide Ex.PW1/D. PW16 deposed that in the room, provided by the SHO, a solution of sodium carbonate and water was prepared and on his/PW16 direction, the hand washes of the accused Mool Chand was taken, firstly, the right hand of the accused was dipped in the solution of sodium carbonate and water and upon dipping the same, the solution turned PINK and similarly, the left hand of the accused was dipped in the solution and upon dipping the same, the solution turned PINK and thereafter the respective solutions were transferred in separate glass bottles and tagged and sealed with the CBI seal and were marked as RHW (Right Hand Wash) and LHW (Left Hand Wash) in RC 23(A)/2021-DLI and both the independent witnesses and PW16 signed on the white paper pasted on the said glass bottles containing the respective solution. PW16 deposed that similarly, a fresh solution of sodium carbonate and water was prepared and on his/PW16 direction, right side pocket of shirt of accused Mool Chand was dipped into the said solution and upon dipping the same, the solution turned PINK CBI Vs. Mool Chand (CC No. 42/2021) Page 54 of 143 and the solution were transferred in separate glass bottle and tagged and sealed with the CBI seal and were marked as SPW (Shirt Pocket Wash) in RC 23(A)/2021-DLI and both the independent witnesses and PW16 signed on the right side pocket of shirt of accused Mool Chand and the shirt was sealed in yellow envelope.
59. PW16 identified his signatures on the sealed bottle marked as RHW vide Ex.PW9/P1, on the sealed bottle marked as LHW vide Ex.PW9/P2, on the sealed bottle marked as SPW vide Ex.PW9/P3 and deposed that the respective glass bottles RHW, LHW and SPW were capped and wrapped white colour cloth wrappers and then they were sealed with the CBI brass seal. PW16 identified three cloth wrappers having seal impression of CBI and case particulars as CFSL-2021 and deposed that these are the same cloth wrappers used for sealing the glass bottles in which respective solutions were kept. PW16 identified his signature on the yellow colour envelope vide Ex.PW16/B, produced by MHC(M) and PW16 also identified his signature in the inner side of the uniform shirt vide Ex.PW9/P4. PW16 also identified his signature on the brown colour sealed envelope vide Ex.PW10/E. PW16 identified the accused Mool Chand in the court.
60. PW16 deposed that he asked the case file relating to FIR No. 355/21 of PS Badarpur which was being investigated by accused Mool Chand, from the concerned SHO through written CBI Vs. Mool Chand (CC No. 42/2021) Page 55 of 143 requisition and the SHO provided him certified copy of the said file vide separate letter Ex.PW5/J. PW16 further deposed that on his direction, SI Ashutosh Tiwari prepared a rough site plan vide Ex.PW1/F and PW16 identified his signature in the said rough site plan. PW16 deposed that in the post trap proceedings, he also asked the complainant to narrate the sequence of events as to what had happened when the complainant and the accused met at the tea stall/shop near the gate of PS Badarpur and complainant told him that accused Mool Chand had asked about the bribe money and complainant further told that he/complainant told the accused Mool Chand that earlier he had paid Rs.11,000/- and today he has brought an amount of Rs.8,000/-. The complainant further told that he had inquired from the accused whether name of Narula would be removed from the case and the accused Mool Chand told him that the money which is being paid to him/accused is only for the purposes of bail and accused Mool Chand had told him/complainant that he would not further arrest/apprehend Narula in the said FIR and the complainant further told that on the demand of the accused, he/complainant paid a bribe of Rs,8,000/- to accused Mool Chand. PW16 deposed that he also made inquiries from the shadow witness Rinku who repeated the same discussion i.e. the response which is given by the complainant on him/PW16 on his inquiry.
61. PW16 deposed that he had also issued notice under section 165 Cr.P.C. for conducting the house search of accused CBI Vs. Mool Chand (CC No. 42/2021) Page 56 of 143 Mool Chand for finding any incriminating documents/material and the search was conducted by Shri C.M.S. Negi. PW16 further deposed that an investigation copy of memory card was also prepared with the help of write blocker in the room in PS Badarpur and a rough transcription for covering the relevant portion was also prepared. PW16 deposed that the memory card was put in the original plastic cover/original packing and the packing was signed by the independent witnesses and PW16 and thereafter, the same was put in an envelope and sealed with CBI seal and marked as "Q3" in RC 23(A)/2021 and the said envelope was also signed by both the independent witnesses and PW16. He deposed that a new memory card of 8 GB wa also taken for the purpose of recording the specimen voice of accused Mool Chand and blankness of the said memory card was ensured after insertng it in the DVR in the presence of independent witnesses. PW16 deposed that first the introductory voice of the independent witnesses were recorded in the memory card and thereafter, the voice sample of accused Mool Chand was recorded with the help of DVR in the same memory card and after recording the voice sample of the accused, the concluding specimen voices of both the witnesses were also recorded. PW16 deposed that thereafter, the memory card was taken out from the DVR and put in a brown envelope and sealed with the CBI brass seal and marked as S-1 in RC 23(A)/2021 and the said envelope was signed by both the independent witnesses and PW16. He deposed that the DVR make SONY was also sealed with the CBI brass seal and signed CBI Vs. Mool Chand (CC No. 42/2021) Page 57 of 143 by both the independent witnesses and PW16 and marked as DVR in RC23(A)/2021.
62. PW16 identified his signature as well as Malkhana number with stamp on the cut open brown colour envelope vide Ex.PW10/C, bearing the writing S1 in RC23(A)/2021-DLI. He also identified his signature on the brown envelope vide Ex.PW10/D, bearing the writing CFSL No. CFSL-2021/P-410 Ex.S1. PW16 also identified his signature on the transparent plastic cover, containing memory card vide Ex.PW9/9. PW16 also identified his signatures on another brown colour cut open envelope vide Ex.PW9/P5 and also on the DVR vide Ex.PW14/P-1. PW16 also identified his signature as well as Malkhana number with stamp on a cut open brown colour envelope vide Ex.PW9/P-6. PW16 also identified his signature on the red cover (company packing of SanDisk) and on the transparent plastic voer vide Ex.PW9/P-7 and Ex.PW9/P-8 respectively. PW16 deposed that during the personal search of accused Mool Chand, he also seized mobile phone of accused Mool Chand, make Redmi vide arrest memo Ex.PW10/A and PW16 identified his signature on it. PW16 deposed that the information of the arrest was given to SHO as well as to wife of accused Mool Chand by Shri C.M.S. Negi. PW16 also identified his signature on one brown colour sealed envelope vide Ex.PW10/B, marked as Mobile Phone of Accused in RC 23(A)/2021-DLI. PW16 deposed that the specimen impression of brass seal used in sealing the article were obtained on white CBI Vs. Mool Chand (CC No. 42/2021) Page 58 of 143 sheet in Ink and Wax and the signature of independent witnesses and PW16 were taken and the impression of brass seal in Ink was also embossed on the recovery memo vide Ex.PW1/E at Point-E. PW16 deposed that the brass seal used in the pre-trap and post-trap proceedings was handed over to the independent witness Krishan Kumar with the direction to hand it over to the concerned authority as and when required. PW16 identified his signature on the recovery proceedings vide Ex.PW1/E and deposed that the contents made therein were narrated to the independent witnesses and other members of the trap team. PW16 deposed that he produced the accused Mool Chand before the court on 25.06.2021. PW16 handed over the case file of the present case to Inspector Yatish Chandra Sharma for further investigation and necessary action. PW16 further deposed that his statement was also recorded by Inspector Yatish Chandra Sharma.
63. PW17 Inspector Yatish Chandra Sharma is the investigating officer of the present case and he filed the charge sheet and recorded the statement of the witnesses and also sent material exhibits to CFSL for examination vide forwarding letter dated 29.07.2021 alongwith authorization letters vide Ex.PW17/B and Ex.PW17/C. He deposed that he recorded the statements of the versions given by the witnesses. PW17 deposed that after taking over the charge of the present case on 02.07.2021 by the order of Shri Ragvendra Vats, Head of Branch, CBI, ACB, New Delhi, he seized certified copies of CBI Vs. Mool Chand (CC No. 42/2021) Page 59 of 143 certain documents from Shri Vijay Pal Singh Dahiya, SHO PS Badarpur i.e. Transfer and Posting Orders vide Ex.PW5/B, suspension order of accused Mool Chand vide Ex.PW5/G and GD entries vide Ex.PW5/C, Ex.PW5/E, Ex.PW5/F, Duty Roster vide Ex.PW5/D through forwarding letter vide Ex.PW5/A. PW17 further deposed that he had also seized the cerified copy of the FIR bearing no. 355/2021 vide Ex.PW4/B registered with PS Badarpur from the then Duty Officer PS Badarpur through production-cum-sizure memo dated 30.07.2021 vide Ex.PW4/A. PW17 further deposed that he had also seized the original suspension order vide Ex.PW8/B, original transfer and posting order vide Ex.PW8/C through production-cum-seizure memo dated 03.08.2021 vide Ex.PW8/A. PW17 deposed that the voice-cum-transcription memo was also prepared during the course of the investigation whereby Constable Sirmohar, PS Badarpur identified the voice of the accused Mool Chand from Q-1, Q-2 (verification and further verification) and Q-3 (Trap proceedings) and the said voice of accused Mool Chand was identified by Shri Sirmohar in presence of the independent witnesses Shri Krishan Kumar and Shri Rinku. PW17 deposed that the complainant also identified his voice from the aforesaid Q-1, Q-2 and Q-3 and also identified the voice of the accused Mool Chand simultaneously and the independent witnesses Shri Rinku and Shri Krishan Kumar also identified their introductory and concluding voice from Q-1, Q-2 and Q-3. PW17 deposed that the said voice identification-cum-transcription memo and CBI Vs. Mool Chand (CC No. 42/2021) Page 60 of 143 transcription vide Ex.PW1/G and Ex.PW7/A (Colly) bears his signature on each page.
64. PW17 deposed that the specimen voice of the complainant Pushpender was also obtained in presence of the independent witnesses Shri Krishan Kumar, Shri Pawan Lamba, S.I., CBI, ACB, New Delhi vide Ex.PW1/H and PW17 identified his signature on all the pages. PW17 deposed that the necessary documents/materials as well as SP report were sent to the competent authority for obtaining sanction for prosecution against the accused Mool Chand. PW17 deposed that the prosecution sanction against the accused Mool Chand was granted by the competent authority Shri R.P Meena, DCP, South East. PW17 deposed that he had correctly recorded the statement of Shri Kapil Narula under section 161 Cr.PC dated 06.08.2021 as per the version given by the witness and PW17 identified his signature on the statement vide Ex.PW17/D. STATEMENT OF ACCUSED
65. After conclusion of prosecution evidence, statement of accused was recorded under section 313 Cr.PC. In his statement, while denying all the incriminating evidence put to him, accused Mool Chand claimed innocence and false implication in the present case. Accused stated that on 31.05.2021, FIR No. 355/2021 was registered against Kapil Narula who applied for anticipatory bail since offences in the FIR were bailable. Kapil CBI Vs. Mool Chand (CC No. 42/2021) Page 61 of 143 Narula's anticipatory bail application was held to be not maintainable and thereafter, Kapil Narula appeared before him/accused with PW-1 Pushpender on 21.06.2021 and Kapil Narula was formally arrested and he was released on bail on personal bond and surety bond and PW-1 Pushpender stood surety as surety for Kapil Narula. Accused further stated that on 21.06.2021, after furnishing the bail bond and surety bond by Kapil Narula and Pushpender, he found that the original arrest memo of Kapil Narula was missing from the case file and in order to complete the file, he again called Kapil Narula on the next date and he/accused got another arrest memo prepared. Accused further stated that on that day, Kapil Narula informed him that the original arrest memo dated 21.06.2021 was taken away by Pushpender with him from the file. Accused further stated that as the original arrest memo of Kapil Narula bears by signature which could be misused, he/accused called Pushpender to return the arrest memo requesting him as to why he has stolen the documents from the file. Accused further stated that PW1/Pushpender identified his signature on the complaint Ex.PW1/A but at the same time he had explained that the contents of the complaint was neither correct nor were written by him. Accused further stated that although PW1/Pushpender identified his signature on the documents D-3 to D-7, D-9 & D-17, but all the documents prepared by the CBI are in English language and PW1/Pushpender was not able to understand English language. Accused further stated that PW1/Pushpender executed the documents i.e. bail bond CBI Vs. Mool Chand (CC No. 42/2021) Page 62 of 143 (Jamanatnama) vide Ex.PW1/I and arrest memo dated 21.06.2021 vide Ex.PW1/J in his presence. It is further stated that PW1 identified his signature on some of the documents, but at the same time he had denied the case of the prosecution and the story that the said exhibits were used or sealed in his presence by the CBI. Accused stated that the memory cards are planted in the present case and it contain fabricated contents therein. Accused further stated that PW1/Pushpender signed on the transcription vide Ex.PW7/A (Colly) on the directions of the CBI officials. Accused further stated that no statements of PW1/Pushpender under section 161 Cr.P.C. dated 27.07.2021 and 28.07.2021 Ex.PW1/PX-1 and Ex.PW1/PX-2 were recorded by the IO as both these statements are in English language and the statements are false and moreover, PW1/Pushpender denied the contents of these statements. Accused stated that he was granted the rank of Head Constable by the orders of the Commissioner of Police vide order dated 11.11.2016 bearing no. 23141/P.Br(AC-III)/PHQ and hence PW2 Shri Rajendra Prasad Meena was not competent to remove him from the post of Head Constable, and the sanction granted by PW2 is illegal and without application of mind. Accused further stated that the CDR vide Ex.PW3/C and Cell ID chart vide Ex.PW3/D are an inadmissible piece of documents being not supported by valid certificate under section 65B of Indian Evidence Act and it contains manipulated and incorrect data. Accused further stated that the certificate under section 65B of Indian Evidence Act vide Ex.PW3/E is not a valid certificate as it was not prepared CBI Vs. Mool Chand (CC No. 42/2021) Page 63 of 143 by PW3 Shri Pawan Singh, Nodal Officer, Vodafone Idea Ltd. and he had only filled up details in the draft prepared by the Legal Department of the company. Accused has further stated that the CDR vide Ex.PW6/E (D-14) and Cell ID chart vide Ex.PW6/C (D-14) are inadmissible piece of documents being not supported by valid certificate under section 65B of Indian Evidence Act and it contains manipulated and incorrect data. Accused stated that PW9 Shri Rinku made the false statement under the pressure and at the instance of the CBI.
66. Accused further stated that he is unable to recall the mobile number of the complainant, but he called the complainant and came to know that the complainant had taken away the arrest memo of Kapil Narula from his file and he called him only to get his document from the complainant and not from any other purpose and the CDRs of the mobile numbers are not containing true and correct data. Accused took the plea that he neither demanded nor accepted or kept any amount from the complainant. He further stated that he do not know about the persons who visited his house. Accused stated that the bottles vide Ex.PW9/P-1 to Ex.P9/P-3 were planted in the CBI office and PW9 Shri Rinku being a government employee signed over it without questioning it and also deposed falsely under the pressure and at the instance of the CBI. Accused stated that PW10 Shri Krishan Kumar being a government employee and a tutored witness has also given false evidence at the instance of the CBI. Accused submitted that his CBI Vs. Mool Chand (CC No. 42/2021) Page 64 of 143 phone was taken by the CBI officials but it was not sealed in his presence. He further stated that the GC notes were not recovered from his possession and the same were planted by the CBI and other exhibits were planted on him and false report was given by PW13. Accused stated that his hand or pocket washes were never taken by the CBI and the bottles marked RHW, LHW and SPW are tampered, fabricated and planted by the CBI. He further stated that his specimen voice was not recorded and the specimen voices are created and planted by the CBI. Accused further stated that the present case was falsely got registered against him by the complainant and his accomplices in connivance with the CBI. He stated that on 21.06.2021, when Kapil Narula was formally arrested and released by him on bail in FIR No. 355/2021, Pushpender had taken the original arrest memo of Kapil Narula with him from the official file of case FIR No. 355/2021. Accused stated that Pushpender was misguided by others that he might be implicated in a theft case of documents and PW1 in order to save himself approached the CBI where a fabricated complaint was prepared by the CBI officials. On 24.06.2021 he was called by Pushpender at tea stall to return the arrest memo. Accused stated that the moment Puspender handed him the arrest memo dated 21.06.2021 at the tea stall, he was apprehended by the CBI and the document/original arrest memo was taken by them. Accused stated that he objected and protested. Number of people gathered there and then the CBI officials took him inside the Police Station. Accused stated that he raised his objection CBI Vs. Mool Chand (CC No. 42/2021) Page 65 of 143 before the SHO but CBI made a false case against him. Accused also stated that neither he demanded nor accepted any bribe from Pushpender or anybody else. Accused stated that the arrest memo dated 21.06.2021 was put by the CBI official in the case file of FIR No. 355/2021. Accused stated that he is innocent and PW1/Complainant and his friend PW15 Kapil Narula have not deposed against him. He further stated that PW9 Rinku and PW10 Krishan Kumar have deposed falsely under the pressure of the CBI in order to save themselves from departmental enquiry at the behest of CBI. Accused stated that PW9 and PW10 were tutored by the CBI before the examination in chief. He stated that PW9 admitted that on each date of his examination-in-chief he had gone through his statements recorded under section 161 Cr.P.C. He stated that PW10 was declared hostile and he had admitted the suggestions of the prosecution. He stated that other witnesses are either formal in nature or interested witnesses being CBI officials or CFSL officials have given wrong reports at the instance of the CBI, thus they deposed falsely in the present case.
DEFENCE EVIDENCE
67. D1W1 ASI Sandeep Dabas had produced the certified copy of notification no. 23141 of 2016 dated 11.11.2016 vide Ex.DW1/A and identified signature of ACP Ritambra Prakash.
CBI Vs. Mool Chand (CC No. 42/2021) Page 66 of 143COURT WITNESSES
68. SI Vivek Kaushik, Confidential Branch, Police Head Quarter was examined as CW-1 and he had brought on record certified copy of circular no. 33 of 2016 dated 04.11.2016 vide Ex.CW1/A. SI K.R. Damodaran was examined as CW-2 and he had brought on record copy of the Minutes of the Screening Committee dated 11.11.2016 vide Ex.CW2/A and he identified signatures of Shri Shibesh Singh, DCP, Legal Cell, Shri Sanjay Tyagi, DCP (Establishment) and signature of Shri Praveen Ranjan, Joint CP, P&I. SUBMISSIONS OF THE PROSECUTION
69. Ld. PP for the CBI contended that in the present case prosecution has proved its case beyond reasonable doubt. It is also contended that accused has demanded and accepted the bribe from the complainant Shri Pushpender. It is also contended that the bribe amount was directly recovered from the accused. It is also contended that prosecution has successfully established the factum of demand of bribe and part payment. It is also contended that audio recordings made during verification and trap proceedings would reveal that accused Mool Chand had demanded money. It is also contended that after duly satisfying itself in respect of demand of bribe during verification proceedings, the FIR was registered and subsequently, after preparing handing over memo/pre-trap proceedings, the final CBI Vs. Mool Chand (CC No. 42/2021) Page 67 of 143 trap was laid in which the accused Mool Chand was found demanding and accepting the bribe and thereafter the accused was arrested. It is also contended that as per FSL report, the audio recording contained the voice accused Mool Chand. It is also contended that chemical examination report had also revealed the presence of phenolphthalein powder in the hand washes and the shirt of the accused.
70. It is also contended that the prosecution has successfully established the foundational facts constituting the commission of offence i.e. demand, acceptance and recovery of tainted money. It is also contended by Ld. PP that the case of the prosecution apart from the direct evidence, the prosecution case is also supported with corroborative piece of evidence as well as scientific evidence in the form of audio recordings and chemical examiner report. It is also contended that both the accused persons have failed to rebut the presumption under section 20 of PC Act 1988. It is also contended that material witnesses such as PW9, PW10, PW12 and PW16 have supported the case of the prosecution and the evidence of PW1 and PW15 can be very well taken into consideration to the extent that they have supported the case of the prosecution. It is also contended that there is a direct evidence of demand, acceptance and recovery of bribe money which is duly supported with corroborative evidence of CFSL experts and the prosecution was able to establish the chain of circumstances against the accused Mool Chand. It is also contended that prosecution sanction was CBI Vs. Mool Chand (CC No. 42/2021) Page 68 of 143 validly granted against accused Mool Chand by the competent authority as per Delhi Police Act. It is also contended that prosecution has established the safe custody of the exhibits during the trial. It is also contended that some discrepancies in the statement of the witnesses are liable to be ignored in view of the time gap between the incident and the examination of the witnesses after about 2-3 years.
71. The Ld. PP for the CBI has relied the judgements, M. Narsinga Rao Vs. State of AP, Supreme Court 2001 Crl. LJ 515, Bhogni Bhai Vs. State of Gujarat, AIR 1983 SC 759, Faquira Vs. State of UP, AIR 1976 SC 915, Iqbal Musa Patel Vs. State of Gujarat, 2011 AIR SCW 884, C.M. Sharma Vs. State of AP, (2013) 2 SCC 9 (Crl.) 89, K. Ramajayam Vs. Inspector Police, Chennai, 2016, Crl. LJ 1542, State Tr. PS Lodhi Colony, New Delhi Vs. Sanjeev Nanda, 2012 Crl. LJ 4174 (SC) and Neeraj Dutta Vs. State (Govt. Of NCT of Delhi), 2023 AIR SCR 330.
SUBMISSIONS ON BEHALF OF THE ACCUSED
72. It is contended on behalf of the accused that accused Mool Chand never demanded or accepted any bribe from the complainant. It is contended that the accused was investigating a case FIR No. 355/2021 in which PW15 Kapil Narula was one of the accused and though in the said FIR, bailable sections were invoked but still PW15 Kapil Narula applied for anticipatory bail to which the police filed reply that the application is not maintainable because the case is of bailable offences and CBI Vs. Mool Chand (CC No. 42/2021) Page 69 of 143 accordingly, the said anticipatory bail application was withdrawn. It is contended that on 21.06.2021 when Kapil Narula joined the investigation, he was formally arrested and released on bail in FIR No. 355/2021 by the accused Mool Chand. It is further contended that PW1/Pushpender stood surety for Kapil Narula and he furnished surety bond for Kapil Narula on 21.06.2021, however, while leaving the room of the accused, PW/Pushpender had taken the original arrest memo of Kapil Narula with him from the official file of case FIR No. 355/2021 and when Mool Chand discovered the fact that the original arrest memo is missing from his file, he called Kapil Narula on 22.06.2021 in his office in order to prepare another arrest memo and prepared arrest memo again to complete his office file. It is contended that on that day, Kapil Narula told accused that the arrest memo prepared on 21.06.2021 is in the possession of Pushpender and since the arrest memo bears signatures of the accused over it, accused Mool Chand called Pushpender and reprimanded him as to why he had taken away important piece of document/arrest memo from the official file and directed him to immediately return the document/arrest memo. It is contended that PW1/Pushpender deposed that he was misguided by some other persons that he may be implicated in a theft case of documents by police and that he can save himself through CBI.
73. It is further contended that in CBI office, false complaint was fabricated by the CBI officials on 24.06.2021 and CBI Vs. Mool Chand (CC No. 42/2021) Page 70 of 143 PW1/Pushpender called the accused Mool Chand at tea stall to return the arrest memo and the moment Pushpender handed him (accused) the arrest memo dated 21.06.2021 at the tea stall, he/accused was apprehended by the CBI and the document/original arrest memo was taken by them, to which accused objected and protested. It is contended that number of people had gathered and CBI officials took the accused inside the police station where accused also raised objection before the SHO, but no one listen to the accused and thereafter, a false case was made against the accused by the CBI.
74. It is contended by the Ld. Counsel for accused that prosecution sanction vide Ex.PW2/A granted by PW2 Shri Rajendra Prasad Meena is without due application of mind. It is also contended that PW2 was not competent to grant prosecution sanction against the accused. It is contended that accused was granted the rank of Head Constable by the orders of the Commissioner of Police vide order dated 11.11.2016 bearing no. 23141/P.Br(AC-III)/PHQ and hence PW2 Shri Rajendra Prasad Meena was not competent to remove him from the post of Head Constable, and the sanction granted by PW2 is illegal and without application of mind.
75. It is also contended that there is no evidence or material available on record to indicate that there was any demand of money on the part of the accused Mool Chand. It is further contended that the story of alleged acceptance of bribe at Tea CBI Vs. Mool Chand (CC No. 42/2021) Page 71 of 143 stall is highly doubtful. It is further contended that the prosecution has has not proved on record as to who had written the complaint Ex.PW1/A and even the complainant/PW1 Pushpender has categorically stated that the complaint Ex.PW1/A was not written by him and the same is not in his handwriting. It is further contended that even no suggestion was given by the Ld. PP for the CBI to PW1 that the contents of Ex.PW1/A were written by him. It is contended that PW1 Shri Pushpender in his examination-in-chief dated 09.06.2022 stated that he had not written the content of the complaint. He had further stated that the complaint is written by someone who accompanied him. It is further contended that PW1 also did not identify the handwriting on the complaint. It is contended that the verification officer/PW12 Inspector Ashutosh Tiwari also did not state as to who had written the complaint Ex.PW1/A and during cross-examination, he was unable to disclose the name of writer of the complaint. It is further contended that PW16 Inspector Jaswinder Singh had also not stated as to who had written the complaint Ex.PW1/A and even in his cross- examination, he stated that as the complaint was not written in his presence, he cannot say in whose handwriting the complaint was written. It is further contended that PW16 also did not disclose about the writer/hand written of the complaint vide Ex.PW1/A.
76. It is further contended that the alleged recovery of bribe amount is doubtful and not proved because the prosecution has CBI Vs. Mool Chand (CC No. 42/2021) Page 72 of 143 proved two different and contradictory stories of the alleged recovery of bribe. It is contended that the case of the prosecution is that accused was apprehended at the tea stall and thereafter he was taken inside the police station in the room of the SHO from where he was taken inside another room where the alleged post raid proceedings including hand washes etc. and recovery of the bribe from the possession of the accused was carried out, however, PW12 Inspector Ashutosh Tiwari deposed that after the apprehension of the accused at the tea stall, the bribe money was recovered from the pocket of the accused at the tea stall and thereafter he was taken inside the police station.
77. It is further contended that the site plan Ex.PW1/F does not indicate the place of transaction of bribe. It is further contended that the memory cards exhibited as Q1, Q2, Q3 and Ex.S1 and S2 or the contents thereof cannot be looked into as they have not been proved in accordance with law. It is contended that PW14 Dr. Subrat Kumar, Sr. Scientific Officer has neither mentioned in his report Ex.PW14/A that the memory cards contains original recordings or the recordings done directly in the memory cards through DVR. It is contended that PW14 stated that he had not mentioned in his report Ex.PW14/A about the source i.e. the recording device through which exhibits Q1, Q2, Q3 and Ex.S1 and S2 were made. It is contended that PW14 further stated that "DVR was functional but, I specifically did not check that whether any audio recording could be made on it or not." It is contended that PW1 Shri Pushpender has not CBI Vs. Mool Chand (CC No. 42/2021) Page 73 of 143 stated about any memory card being used or taken by him on any day at any point of time and thus, thus fact itself makes the entire case of the prosecution doubtful and shows that the memory cards are planted.
78. Ld. Counsel for the accused has relied upon the judgments, Manikandan Vs. State by the Inspector of Police, Crl. Appeal No. 1609/2011, State Vs. Ravi @ Munna & Ors., 2000(1) JCC Delhi 115, Dola @ Dolagobinda Pradahan Anr. Vs. State of Odissa, Crl. Appeal No. 1095 of 2018, S.K. Singhal Vs. CBI, Crl. Appeal No. 577/2002 DHC, Inspector of Police T.N. Vs. Palanisamy @ Selvan, Crl. Appeal No. 177 of 2003 (Delhi High Court), Suraj Mal Vs. The State (Delhi), AIR 1979 SC 1408, Ashok Narang Vs. State, 2009/932, L.K. Jain Vs. State through CBI, 124 (2005) DLT 371 DHC, N. Vijay Kumar Vs. State of Tamil Nandu, Crl. Appeal Nos. 100-101 of 2021, State of Kerala & Anr. Vs. C.P. Rao, 2006 SCC 450, M.K. Harshan Vs. State of Kerala, 1996(1) CCR 218 (SC), Vijay Singh Vs. State, 2005 Crl. L.J. 299 MP (DB), Shingara Singh Vs. State, 2004 Crl. L.J. 828, Anvar Vs. P.K. Basheer & Ors., Civil Appeal 4226/2012, Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors., Civil Appeal Nos. 20825-20826 of 2017, Ram Singh & Ors. Vs. Col. Ram Singh, AIR 1986 SC 3, S.K. Sain & Anr. Vs. CBI, passed in Crl. Appeal No. 159/2005, Jahan Singh Vs. CBI, judgment dated 04.05.2020 Crl. Appeal 106/2013, Nilesh Dinkar Paradkar Vs. State of Maharashtra, Crl. Appeal 537/2009, Jatinder Pal Singh Vs. Krishan Kishore Bajaj, CRM-
CBI Vs. Mool Chand (CC No. 42/2021) Page 74 of 143M-37435 of 2018, National Insurance Company Ltd. Vs. Pranay Sethi & Ors., 2017(4) RCR (Civil) 1009, State Vs. Daulat Ram, 1980 SCC (Cr.) 683, State Vs. Hansraj, 2018 (4) RCR (Cr.) 813 SC or Crl. A. 997/2009, Surinder Singh Vs. State, Crl. A 684 of 2008 Delhi High Court, Ajay Gupta Vs. CBI, Crl. A. 469/2003, Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke & Ors., Crl. Appeal No. 97 of 2015, Varkey Joseph Vs. State of Kerala, 1993 Cr. L.J. 2010 (SC), Ram Pratap Vs. The State of Haryana, Crl. Appeal No. 804/2011, Roshan Lal Saini Vs. CBI, 2011 (1) JCC 102, The State of Bihar & Ors. Vs. Shiva Bhikshuk Mishra, 1970(2) Supreme Court Cases 871 and State of Assam & Ors Vs. Shri Kanak Chandra Dutta, 1966 SCC OnLine SC 9.
79. I have heard the submissions advanced by both the sides and perused the record of the case and the written submissions filed on behalf of the accused.
ANALYSIS AND FINDINGS.
WHETHER PROSECUTION SANCTION UNDER SECTION 19 OF THE PC ACT WAS VALIDLY GRANTED AGAINST THE ACCUSED MOOL CHAND.
80. PW2 Shri Rajendra Prasad Meena had granted prosecution sanction under section 19 of PC Act against accused Mool Chand vide Ex.PW2/A.
81. The grant of prosecution sanction against the accused Mool Chand was challenged on the ground that PW2 was not CBI Vs. Mool Chand (CC No. 42/2021) Page 75 of 143 competent to grant the prosecution sanction because accused Mool Chand was promoted to the post of Head Constable by Commissioner of Police, whereas the prosecution sanction was granted by the Dy. Commissioner of Police and Dy. Commissioner of Police is inferior in rank in comparison to the Commissioner of Police.
82. During the course of the trial, accused in his defence had summoned the record/witness(s) to establish that he was appointed by Commissioner of Police. Summoned record contains the copy of notification vide Ex.DW1/A by which the accused was granted the rank of Head Constable. The summoned record/file also contains a circular bearing no. 33/2016 dated 04.11.2016 issued by Joint Commissioner of Police (Head Quarter), New Delhi. Consequently, two court witnesses were summoned who proved Ex.CW1/A dated 04.11.2016 i.e. grant of special grade designation to Constables and Head Constables, and the copy of original minutes vide Ex.CW2/A dated 11.11.2016. A perusal of the documents Ex.CW1/A and Ex.CW2/A would indicate that special grade designation of Head Constable was provided to the Constable(s) as an interim measure. It is also indicated vide Ex.CW1/A i.e. Circular No. 33/2016 that a special grade designation was the personal rank given to the person so designated and such a person would occupy the lien of a post of police constable till he gets his regular promotion as Head Constable (vide Clause (iv) of Circular No. 33/2016 of Ex.CW1/A). Ex.CW1/A further CBI Vs. Mool Chand (CC No. 42/2021) Page 76 of 143 clarifies that such a person shall not be eligible for any higher pay and allowances by virtue of grant of the rank of Head Constable. Ex.CW1/A further provides that seniority shall not be changed in the cadre of the police constable on the grant of the rank of Head Constable (Special Grade Designation). It is apparent from the reading of Ex.CW1/A and Ex.CW2/A that accused Mool Chand was only granted special grade designation as Head Constable purely on an interim basis and, therefore, contention on behalf of the accused that he was promoted/appointed as Head Constable by the Commissioner of Police is rejected. The Delhi Police (Appointment & Recruitment) Rules 1980 provide that the appointing authority in relation to the subordinate police officers below the rank of Inspector is DCP/Addl. DCP/Principal/PTS or any other officer or equal rank. The appointing authorities are mentioned in Rule 4 and for Constable/Head Constable the appointing authority is Dy. Commissioner of Police. It is, therefore, apparent that both appointing and sanctioning authority in respect of accused Mool Chand are one and same. The judgment titled as " The State of Bihar & Ors. Vs. Shiva Bhikshuk Mishra" (supra) is clearly not applicable since CW1/A clearly indicates that only a special designation was provided to the accused, whereas in the cited case, an employee was holding a particular post and was promoted temporarily to a substantive post and when he was holding the substantive post, he was reverted to his previous post and was dismissed from the service. "State of Assam & Ors Vs. Shri Kanak Chandra Dutta" (supra) is also not CBI Vs. Mool Chand (CC No. 42/2021) Page 77 of 143 applicable as the facts stated therein are clearly distinguishable in relation to the facts of the present case.
83. The grant of prosecution sanction was also challenged on the ground that competent authority did not apply its independent mind while granting the prosecution sanction against the accused Mool Chand. It is contended that sanctioning authority has merely reproduced the facts as well as the draft sanction order in a mechanical manner. It is also contended that incomplete documents were sent to the Sanctioning Authority, and the copy of recordings Q-1, Q-2, Q-3, S-1 and S-2, statement of witnesses and draft charge sheet were not sent and the sanctioning authority and prosecution sanction was granted on the basis of SP report without any due application of mind. Ld. Counsel contended that since prosecution sanction is granted without due application of mind and, therefore, the trial is vitiated. Ld. PP for the CBI has vehemently opposed the submission by submitting that sanctioning authority has considered the required material on the basis of which the prosecution sanction could be granted. It is also submitted that sanctioning authority is only required to consider whether prima-facie case disclosing the commission of offence or not is made out against the accused. It is also contended that actual production of tapes etc. is a matter of trial and not necessarily to be considered at the time of grant of prosecution sanction.
CBI Vs. Mool Chand (CC No. 42/2021) Page 78 of 14384. It would be appropriate to refer and rely upon "Vinod Kumar Garg Vs. State", (NCT of Delhi), (2020) 2 SCC 88 in which it was observed by the Hon'ble Supreme Court as under :-
"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 on the following principles of law governing the validity of sanction:
"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.
28. This Court in Ashok Tshering Bhutia Vs. State of Sikkim, (2011) 4 SCC 402 referring to the earlier precedents has observed that a defect or irregularity in investigation however CBI Vs. Mool Chand (CC No. 42/2021) Page 79 of 143 serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial.
85. Hon'ble Supreme Court of India in "C. S. Krishnamurthy v. State of Karnataka", 2005 CRI. L.J. 2145, while dealing with the issue regarding validity of sanction, observed as under :
".......It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant from harassment. But, the sanction should not be taken as a shield to protect corrupt and dishonest public servant." "The sanction itself shows that there is something to be accounted by the accused. When the sanction itself is very expressive, then in that case, the argument that particular material was not properly placed before the sanctioning authority for according sanction and sanctioning authority has not applied its mind becomes unsustainable. When sanction order itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction was accorded by a competent person with due application of mind."
86. Prosecution sanction vide Ex.PW-2/A was granted by PW-2 Shri Rajendra Prasad Meena. PW-2 deposed that he had granted the prosecution sanction after going through the relevant documents including statements of the witnesses etc. PW-2 categorically deposed that he had considered material on record CBI Vs. Mool Chand (CC No. 42/2021) Page 80 of 143 and after due scrutiny and satisfaction, the prosecution sanction was granted by him. In his cross-examination, PW2 had stated that all the documents were received alongwith the request grant for prosecution sanction. Perusal of statement of PW2 would indicate that all material facts constituting the offence is sufficiently disclosed and the sanction order clearly specifies and mentions the same in Ex.PW2/A and, therefore, the prosecution sanction was validly granted after due application of mind. Moreover, the contention of the Ld. Counsel for the accused to the effect that sanctioning authority had not gone through the complete material and record as audio recordings was not sent to him. In this regard, PW2 deposed that he had received all the documents alongwith the request for grant of sanction. PW2 had stated that the identification in respect of the voice was also mentioned in the document itself.
87. It is evident from the sanction order Ex.PW2/A as well as the testimony of PW2 that he had applied his mind. Accordingly, it is held that prosecution sanction was validly granted after due consideration of material available on record against the accused Mool Chand. The Sanctioning Authority is not expected to conduct mini trial while granting the prosecution sanction.
88. In view of the above-mentioned discussion, it is held that a valid prosecution sanction was granted by PW2 against accused Mool Chand.
CBI Vs. Mool Chand (CC No. 42/2021) Page 81 of 143PROVISION & CASE LAWS.
89. In order to properly appreciate the respective contention of the parties, it would be appropriate to refer to the provision invoked against the accused.
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. Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.Illustration. - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2. - For the purpose of this section,- i) the expressions "obtains" or "accepts" or "attempts to obtain"
shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether CBI Vs. Mool Chand (CC No. 42/2021) Page 82 of 143 such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
90. Section 20 of the PC Act reads as under :-
"20. Presumption where public servant accepts any undue advantage - Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11."
91. Charge under section 7 of PC Act framed against the accused Mool Chand is to the effect that on 20.06.2021, he took Kapil Narula into the police custody and on the same day complainant Pushpender visited PS Badarpur where he demanded Rs.1,00,000/- from the complainant for release of Kapil Narula @ Paaji from police custody and on negotiation, the accused Mool Chand reduced the bribe amount to Rs.20,000/- and out of which he had already accepted Rs.11,000/- as a part of bribe amount and on 24.06.2021, the accused demanded the remaining amount of Rs.9,000/- which was reduced to Rs.8,000/- and was accepted by the accused Mool Chand at Tea shop near PS Badarpur.
CBI Vs. Mool Chand (CC No. 42/2021) Page 83 of 14392. Section 2(d) of PC Act defines undue advantage as any gratification whatever, other than legal remuneration. The explanation to Section 2(d) provides that gratification is not limited to pecuniary gratifications or to gratifications estimable in money and word "legal remuneration" includes all remunerations which is received by the public servant after he is permitted by the government or organization.
93. The Prevention of Corruption Act (Amendment Act 2018) came into effect on 26.07.2018 and perusal of the amended Act would reflect that by way of amendment, number of provisions were amended by the Parliament. The present case relates to the offences committed post 26.07.2018 and therefore, the amended PC Act is applicable to the present case. An offence under section 7 of PC Act is said to be committed when a public servant obtains or accepts or attempts to obtain from any person any undue advantage with the intention to perform the public duty improperly or dishonestly or to forebear or cause forbearance of the performance of such a public duty. After amendment to Section 7 of the PC Act, Section 7(a) and 7(b) r/w Explanation-I are almost similar to Section 13(1)(d)(i) and (ii) of the unamended PC Act.
94. Section 20 of PC Act was also amended vide Amended Act 16 of 2018, the notable feature of the amended Section 20 of PC Act, if during the trial, it is proved that a public servant CBI Vs. Mool Chand (CC No. 42/2021) Page 84 of 143 accused of an offence has accepted or obtained an undue advantage, it shall be presumed that he had accepted or obtained or attempted to obtain such an undue advantage as a motive or reward under section 7 of PC Act for performing or to cause performance of a public duty improperly or dishonestly either by himself or by any other public servant. Prior to amendment in Section 20 of PC Act, the same is only invoked when during the trial offence under Section 7 or 11 of PC Act are proved. After amendment in section 7 & 13 of PC Act, Clause (i)&(ii) of 13(1)
(d) of unamended Act has become part and parcel of the amended Section 7 of the PC Act, meaning thereby that if the prosecution is able to establish that undue advantage or a pecuniary advantage has been obtained by a public servant then presumption under section 20 of PC Act can be invoked in a given case.
95. Before deliberating to analyze the oral and documentary evidence as led by the prosecution, it would be appropriate to reminisce the principle of the criminal jurisprudence that an accused is presumed to be an innocent unless proven guilty and the suspicion howsoever strong cannot take the place of proof. It is the bounden duty of the prosecution to establish its case beyond reasonable doubt and in offences involving PC Act, the prosecution is duty bound to establish the foundational facts prior to invoking the presumption under section 20 of PC Act. The Hon'ble Supreme Court in "P. Sathyanarayana Murthy v.
CBI Vs. Mool Chand (CC No. 42/2021) Page 85 of 143District Inspector of Police, State AP and Anr. (2015) 10 SCC 152" after relying upon the judgment Sujit Biswas Vs. State of Assam, (2013) 12 SCC 406 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 of 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. The prosecution is required to establish its case beyond reasonable doubt, but this doctrine cannot be stretched to such an extent that prosecution is required to prove the impossible in respect of the facts and issues before the court and, therefore, in accepting the version given by the prosecution witnesses, the question is whether the witnesses are able to pass the test of the credibility vis-a-vis to the case of the prosecution.
96. In analyzing the evidence led during the trial, specially oral testimonies of the witness(s) has a substantial bearing in the case and more so, in trial of offences under PC Act where the allegations are that bribe was attempted to be obtained or obtained or accepted by a public servant in cases which in usual parlance are called as the "Trap Case", the complainant/the bribe giver is perhaps one of the most material witness apart from other witnesses. In evaluating the testimony of the complainant or any other witness, the credibility and the manner CBI Vs. Mool Chand (CC No. 42/2021) Page 86 of 143 in which he or she narrates the facts during the trial is critical in adjudicating the case of the prosecution. When the court is considering the inter se testimonies of the witnesses, the minor contradictions and slight exaggerations in the testimonies of the witnesses are liable to be ignored and what is to be considered whether the version given by the witness(s) is consistent and the testimonies of the witnesses leads to the conclusion that offence has been committed by the accused.
97. Indisputably, in order to make out an offence under Section 7 of the PC Act, 1988, the demand of illegal gratification is a sine qua non and for arriving at the conclusion as to whether all the ingredients of the offence viz. demand, acceptance and recovery of amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. 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 establish that money or thing was taken by the public servant voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Further, while invoking the presumption under Section 20 of the Act, the court is required to consider the explanation offered by the accused only on the touchstone of preponderance of probability and not on the touchstone of CBI Vs. Mool Chand (CC No. 42/2021) Page 87 of 143 proof beyond all reasonable doubt. However, before the accused is to call upon to explain as to how the amount in question was found in his possession and presumption in respect of demand and acceptance or obtainment of illegal gratification could only be made if the prosecution has established the foundational facts by way of evidence and it is the discretion of the court to raise such a presumption of facts which is subject to the rebuttal by the defence and rebuttal can be made either by pointing out inconsistencies in the case of the prosecution or bringing to fore either material or facts during cross-examination. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case, the court may look for independent corroboration before convicting the accused persons. Reliance in this regard is placed on Mukut Bihari & O rs. Vs State of Rajasthan, (2012)11 SCC 642.
98. In P. Sathyanarayana Murthy (supra), it is observed that:
"23. the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)
(i)&(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 Sections 7 or 13 of the Act would not entail his conviction thereunder."CBI Vs. Mool Chand (CC No. 42/2021) Page 88 of 143
99. In Neeraj Dutta Vs. State (Govt. of NCT of Delhi), (2024) INSC 503: (2023) 4 SCC 731, it was held by the Apex Court that proof of demand and acceptance of illegal gratification is sine- qua-non for establishing the guilt under section 7 of Prevention of Corruption Act 1988. The Constitution Bench after surveying number of judgments was pleased to hold as follows :-
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 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, CBI Vs. Mool Chand (CC No. 42/2021) Page 89 of 143 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 course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
Of 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 CBI Vs. Mool Chand (CC No. 42/2021) Page 90 of 143 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)
(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."
TESTIMONY OF THE COMPLAINANT/PW1
100. PW1 complainant/Shri Pushpender deposed that he went to the office of the CBI alongwith PW15 Kapil Narula and gave a hand written complaint whose contents were written by somebody else on which he merely appended his signature at Point-A vide Ex.PW1/A. PW1 further deposed that an FIR (referring to FIR No. 355/2021) was lodged at PS Badarpur against his friend Kapil Narula @ Paaji which was being investigated by the present accused. He also deposed that an application for anticipatory bail was filed on behalf of his friend i.e. PW15 and in the court, it was communicated that offence was bailable in nature and he should report to the police station and thereafter, he presented Kapil to accused Mool Chand who released PW15 on bail. However, PW1 was again called by the accused Mool Chand in the police station on the pretext that the documents pertaining to the bail bond were misplaced. PW1 further deposed that accused Mool Chand told him that PW1 would be apprehended for stealing the documents etc. and therefore PW-1 went to the police station alongwith documents and the accused told PW1 that he would not be permitted to go.
CBI Vs. Mool Chand (CC No. 42/2021) Page 91 of 143PW1 further deposed that he called and informed one of his friend i.e. Sandeep who took him to the ACB Office and inquiries were made from him whether there was any demand of money by the accused was made or not and thereupon he was taken to the room of SP where his signatures were taken and was asked to come on the next day alongwith his friend and was also asked to bring the bail bond. The bail bond documents were taken by the CBI officials who called him the next day and thereafter he was taken to PS Badarpur and he came back to the CBI office and on the next day, he went to the CBI office and the documents pertaining to the bail bond were handed over to him and he was asked to hand over the same to accused Mool Chand who was sitting in a tea shop. PW1 further stated that when he handed over the papers to accused, the accused was apprehended and was taken inside the police station where SHO provided another room. PW1 further deposed that some proceedings were carried out but he is unable to recall the nature of proceedings. PW1 further deposed that Mool Chand was taken to CBI office and all documents were returned to him and, after a period of about one week, he went to the CBI office and signed on the documents.
101. Complainant/PW1 identified his signatures on verification memo dated 23.06.2021 vide Ex.PW1/B (D-3), further verification memo dated 24.06.2021 vide Ex.PW1/C (D-4), Pre- trap Memorandum dated 24.06.2021 vide Ex.PW1/D (D-5), recovery memo dated 24.06.2021 vide Ex.PW1/E (D-6), rough CBI Vs. Mool Chand (CC No. 42/2021) Page 92 of 143 site plan dated 24.06.2021 vide Ex.PW1/F (D-7), voice identification-cum-transcription memo dated 26.07.2021 alongwith transcription dated 26.07.2021 vide Ex.PW1/G - Colly (D-9) and specimen voice memo dated 26.07.2021 vide Ex.PW1/H (D-17). PW1 also identified his signatures on the bail bond (Jamanatnama) dated 21.06.2021 in FIR No. 355/21 dated 01.06.2021 vide Ex.PW1/I and arrest memo dated 21.06.2021 in the FIR No. 355/21 vide Ex.PW1/J. PW1 also identified his signatures on the envelope vide Ex.PW1/K containing a memory card vide Ex.PW1/L in the wrapper of plastic cover vide Ex.PW1/M. During his evidence, voice recordings were played before him and in which he identified the introductory voice of Shri Krishan Kumar as contained in file no. 210623_1813. PW1 also identified his voice as well as the voice of accused Mool Chand as contained in file nos. 210623_1814 and 210623_1930. PW1 identified his signatures on the envelope vide Ex.PW1/N containing the paper packing of memory card vide Ex.PW1/O, plastic cover vide Ex.PW1/P and on the memory card vide Ex.P1/Q and during his evidence, voice recordings were played before him and in which he identified the introductory voice of Shri Krishan Kumar as contained in file no. 210624_1552. Voice recording as contained in memory card vide Ex PW-1/R was played in which PW-1 identified the introductory voices of Rinku and Krishan Kumar as contained in file nos. 210624_1800 and 210624_1800_01 respectively. PW1 identified his signatures on the transcription vide Ex.PW7/A (Colly) {Part of D-9}. PW1 CBI Vs. Mool Chand (CC No. 42/2021) Page 93 of 143 deposed that he was using mobile no. 9953535373 which is in the name of his father. However PW1 did not support the case of the prosecution on material facts and therefore, he was cross- examined by the Ld. Sr. PP for the CBI.
102. PW1 deposed that he signed transcription at the instance of CBI. PW1 was subjected to lengthy cross-examination by Ld. PP for the CBI. PW1 had denied on the material aspect of the prosecution case including his statement recorded under section 161 Cr.P.C. by the Investigating Agency.
103. It is seen from the testimony of PW1 that he categorically stated that no demand was made by the accused Mool Chand at any point of time i.e. prior to laying the trap or on the day of the trap or any bribe was paid by him to the accused. PW1 also denied the suggestion that any bribe was accepted by accused Mool Chand and PW1 further deposed that he visited the office of the CBI as he was feeling scared as accused Mool Chand was threatening him to implicate in a case of theft of documents which were taken by him from the file of accused Mool Chand. In his cross-examination, PW1 had narrated that the documents pertaining to arrest and bail bond were prepared. PW1 in his cross-examination had also stated that he had inadvertently identified his voice during the examination-in-chief. PW1 also deposed that on the day of the trap, CBI officials and the witnesses were present at some distance and were not visible to him as there was a mother dairy in between.
CBI Vs. Mool Chand (CC No. 42/2021) Page 94 of 143104. The case of the prosecution is that complainant/PW1 alongwith his friend Kapil Narula came to the office of CBI inter-alia alleging that bribe of Rs.20,000/- was being demanded by accused Mool Chand and he gave a bribe of Rs.11,000/- on the same day and demand of remaining bribe amount of Rs.9,000/- was being made. The friend of the complainant/PW1 was being threatened for false implication in other cases, if the bribe amount is not paid and in this respect, a complaint vide Ex.PW1/A was given by PW1 Pushpender.
105. PW1 Pushpender and PW15 Kapil Narula are friends. PW15 deposed that he alongwith PW1 went to the police station Badarpur since his name had figured in an FIR, although he was not involved in the said case/FIR (referring to FIR No. 355/2021). PW15 further deposed that an application for bail was filed and the lawyer advised him to visit the police station Badarpur as his application for bail was rejected and further advised him to meet the In-charge of the case and therefore, he alongwith Pushpender met accused Mool Chand who was In- charge of the said case. He further deposed that he went to the office of CBI since accused Mool Chand had told that one of the document which was signed had been missing and the paper had been taken and therefore, legal action would be taken against him. He further deposed that the said document in which the accused Mool Chand had taken his signature was taken by Pushpender from PS Badarpur. PW15 further deposed that he went to the office of CBI alongwith Pushpender and met one CBI Vs. Mool Chand (CC No. 42/2021) Page 95 of 143 CBI officer and told him that he was involved in some case and a paper was taken by his friend Pushpender and a legal action would be taken against him and his friend Pushpender and he apprised about the entire conversation which he had with the accused Mool Chand. PW15 further stated that CBI officials enquired from him about the kind of help which he wanted from them. He further deposed that his friend Pushpender went inside the room and thereafter his signatures were taken on English typed paper which he was unable to understand the same. PW15 was extensively cross-examined by Ld. PP for the CBI and he categorically denied that any complainant was given by Pushpender to CBI and further denied that the complaint Ex.PW1/A bears signature of Pushpender and he was unable to identify the signature of Pushpender. PW15 disowned his statement under section 161 Cr.P.C. PW15 identified his signatures on verification memos dated 23.06.2021 and 24.06.2021 by identifying his signature and stated that he had merely signed on verification memos dated 23.06.2021 and 24.06.2021 vide Ex.PW1/B (D-3) and Ex.PW1/C (D-4) respectively. PW15 categorically denied the voice recordings either of accused Mool Chand or of his friend Pushpender when recording was played in the court. In cross-examination, PW15 deposed that when he visited the police station for the second time, another arrest memo was prepared as accused had told him that the previous arrest memo had been misplaced. He also deposed that when second arrest memo was prepared, Pushpender was not present and he told the accused Mool CBI Vs. Mool Chand (CC No. 42/2021) Page 96 of 143 Chand that the arrest memo was with Pushpender. PW15 also stated that the original arrest memo was taken by Pushpender when he visited the office of CBI.
106. A bare perusal of both the depositions of PW1 Shri Pushpender and PW15 Shri Kapil Narula would indicate that in so far as case of the prosecution that accused Mool Chand had demanded Rs.1,00,000/- and the same was reduced to Rs.20,000/- and that the payment (bribe) of Rs.11,000/- was made by Pushpender to accused Mool Chand. Neither PW15 Kapil Narula nor PW1 Pushpender deposed that PW15 was detained by the accused Mool Chand and even the factum of any payment of Rs.11,000/- was made to the accused was clearly denied by PW1. PW15 did not speak even a single word about the demand of Rs.1,00,000/- or its reduction to Rs.20,000/- and payment of bribe amount of Rs.11,000/- paid to accused Mool Chand at the time of detention. PW15 was only confronted with his prior statement under section 161 Cr.P.C. in respect of the demand and payment of bribe which was clearly denied by PW15 and suggestion in this regard was repelled by PW15. Neither PW15 nor PW1 deposed that PW-15 was released after the payment of bribe.
107. Although, in the complaint vide Ex.PW-1/A, it was alleged that accused Mool Chand had attempted to obtain Rs. One Lakh and the same was scaled down to Rs.20,000/- and accused Mool Chand obtained a part bribe amount of CBI Vs. Mool Chand (CC No. 42/2021) Page 97 of 143 Rs.11,000/-, mere allegation in a complaint would not give a seal of imprimatur, the allegations are required to be established during trial either through direct evidence or through circumstantial evidence in respect of such a demand/acceptance is made by the public servant. The demand for the bribe or its acceptance by a public servant is a fact in issue which is within the special knowledge of accused or the witnesses before whom such transaction or the exchange of bribe had occurred.
108. It is palpable from the testimonies of PW1 Shri Pushpender and PW15 Shri Kapil Narula that there is no direct evidence in respect of the allegations made in the complaint vide Ex.PW1/A dated 23.06.2021 in respect of the demand and acceptance of part bribe amount by accused Mool Chand.
EVENTS/HAPPENINGS DATED 23.06.2021 & 24.6.2021 COVERING INITIAL DEMAND
109. It is further the case of the prosecution that on 23.06.2021, after receipt of the complaint vide Ex.PW1/A, the verification of the complaint was made vide Ex.PW1/B in which PW1/complainant and independent witness i.e. PW10 Shri Krishan Kumar went to the police station Badarpur with complainant/PW1. PW1 Pushpender was carrying a voice recorder in clandestine manner for recording the conversation between him and the accused Mool Chand. The complainant/PW1 met accused Mool Chand in the police station Badarpur and thereafter complainant/PW1 informed that CBI Vs. Mool Chand (CC No. 42/2021) Page 98 of 143 accused Mool Chand was demanding the remaining amount of Rs.9,000/- and after negotiation, he had agreed to take Rs.8,000/-. PW1 Pushpender deposed that on 23.6.2021, he went to P S Badarpur from the CBI and after seeing the area around P S Badarpur, he was brought back to the office of CBI and was instructed to come on the following day i.e. 24.6.2021. PW1 Shri Pushpender did not depose that any demand of bribe was made or he was asked to bring any bribe by the accused Mool Chand. PW1 did not state whether PW-10 also accompanied to the police station Badarpur. PW10 Shri Krishan Kumar stated that on 23.06.2021, he reached the office of CBI and a complaint vide Ex.PW1/A was read over to the persons who were present in the office of the CBI. He further deposed that on 23.06.2021, he went to the police station Badarpur and accompanied PW1/Pushpender till the gate of PS Badarpur but he was unable to go inside the police station since he was stopped by a guard posted at the police station. Meaning thereby that PW10 Shri Krishan Kumar was unable to overhear any conversation between the accused Mool Chand and PW1/complainant Shri Pushpender. It has also come in the testimonies of other prosecution witnesses that none of them had seen accused Mool Chand and PW1/complainant Shri Pushpender meeting/interacting with each other on 23.06.2021 in Police Station Badarpur.
110. Without going into the admissibility of the recorded CBI Vs. Mool Chand (CC No. 42/2021) Page 99 of 143 conversation (Q-1) and the transcript Ex.PW7/A (Colly) in respect of visit dated 23.06.2021, the same would indicate that in the recorded conversation, there was no direct demand of bribe by accused Mool Chand from the complainant/PW1 Pushpender. It appears from the transcript and the recorded conversation dated 23.06.2021 in which accused Mool Chand was reprimanding the complainant/PW1 Pushpender as to why the papers which he took from Pradeep had not reached to accused. Accused was also enquiring about Kapil/PW15 and complainant/PW1 was telling the accused that he would visit him. The transcript and conversation were purported to be recorded after the filing of complaint vide Ex.PW1/A, during the verification proceedings.
111. In the second conversation which prosecution alleges had occurred when complainant/PW1 Pushpender visited PS Badarpur to meet the accused Mool Chand on 23.06.2021 at about 07:34 PM and demand for bribe was made by the accused Mool Chand when PW1/complainant went to the police station and accused Mool Chand demanded the bribe from PW-1. A perusal of the transcript and recording would reveal that both, accused and complainant/PW1 were purported to be discussing in respect of some transaction. The transcript would indicate that there was a reference to some Pradeep in which the complainant/PW1 was telling that motorcycle belongs to Pradeep. Accused had also made inquiry whether any money CBI Vs. Mool Chand (CC No. 42/2021) Page 100 of 143 was given by Pradeep. The conversation between the accused and the complainant/PW1 proceeded further in which the which complainant/Pushpender was clearly telling that the money was kept by maternal uncle/mama of Pradeep and accused had also made inquiry whether he brought anything and to which the complainant/PW1 stated that he did not bring any amount. The accused also asked the complainant/PW1 to speak to Pradeep. It also appears from the transcription that accused was talking to one Pradeep and some commitment was promised by the accused. A perusal of the complete transcription dated 23.6.2021 would show that the complainant was telling that he would bring Rs.20,000/- from his family members (However, it is not clearly understood the reference was made to whom ). A further perusal of the conversation would indicate that there was a telephonic conversation with some other person by the accused. A careful perusal of the transcription would reveal that although some monetary transaction was being discussed but it is very unclear for what reason and purpose of such conversation. Except the fact that the complainant told that he would come on the following day or that complainant would bring 8. It is also reflected from the conversation and transcript that it contains voice of some person. The transcript does not indicate with sufficient clarity in respect of the demand of money by the accused and for what purpose. The transcript and the voice recording are not conclusive in respect of the purported demand of the bribe as alleged by the prosecution and no clarification was given by the prosecution with respect to CBI Vs. Mool Chand (CC No. 42/2021) Page 101 of 143 other voices appearing in the recording and on the basis of the above, it can be safely concluded that there is no specific or clear demand of illegal gratification as no definite conclusion can be reached.
112. Admittedly, the case of prosecution is that Memo vide Ex.PW-1/B dated 23.06.2021 was kept pending, although there was a demand of Rs.8,000/- as the motive of reward is not clear and yet later part of page no. 4 of the verification memo vide Ex.PW1/B, made recommendation for the registration of FIR. PW12 Ashutosh Tiwari was asked as to why he did not make the recommendation for registration of FIR on 23.06.2021, if after hearing the conversation, there was a demand or negotiation for bribe. PW12 stated that since the motive was not clear, therefore, he did not make recommendation for registration of FIR. Attention of PW12 was invited to Ex.PW1/B where PW12 had made an endorsement on the last page of Ex.PW1/B that conversation discloses the commission of offence under section 7 of PC Act. PW12 explained that his senior officer asked him to make further verification for ascertaining the motive of demand and in his further cross-examination, PW12 admitted that the said fact was not recorded in his statement under section 161 Cr.P.C. It appears that PW12 is trying to justify the noting made in Ex.PW1/B, as per his convenience.
113. Further verification was made on 24.06.2021 in CBI Vs. Mool Chand (CC No. 42/2021) Page 102 of 143 continuation of the previous verification memo vide Ex.PW-1/B and as per prosecution, PW-1, independent witnesses namely PW10/Krishan Kumar and PW9/Rinku, Kapil Narula and other persons assembled at the office of CBI at about 1.00 PM on 24.06.2021 and thereafter, a call was made from 9953535373 (Mobile phone of the Complainant) to 7678662083 (Mobile number of the accused Mool Chand). This purported conversation containing the demand was made when complainant/PW-1 and accused Mool Chand spoke to each other.
114. Without going into the question of admissibility, the recorded conversation and the relevant transcript in respect of conversation dated 24.6.2021 at 15:56 hours (page 50) vide Ex.PW-7/A would indicate that in the conversation Pushpender told the accused that he would bring Rs 8000 and also told that Kapil was enquiring whether he (Kapil) would be troubled or not after taking the money. The accused was only enquiring about the complainant. Notably PW-1/ Complaint had denied the aforesaid audio recording. In cases of trap, when a complainant approaches the Investigating Agency, it is possible that in order to make a trap successful, a complainant might offer a bribe or temptation to an accused/public servant and in order to bring the act of the accused within the fold of offence as defined under section 7 of PC Act, the conversation must indicate in a clear and precise manner that accused had demanded a bribe i.e. the conscious effort to obtain an illegal gratification. Perceiving a CBI Vs. Mool Chand (CC No. 42/2021) Page 103 of 143 recorded conversation to infer whether a public servant had attempted to obtain bribe cannot be based on the surmises and conjecture if it contains the reference of some money unless it is established that the reference was for bribe/illegal gratification and particularly in a scenario when the complainant is offering the temptation to the accused, and from the recorded conversation, no clear demand could be assessed.
115. Merely picking up certain words and sentences from the conversation divorced from the entire conversation is neither justified nor tenable. Any recorded conversation is required to be appreciated in wholesome manner and the same cannot be dealt in piecemeal manner. The transcription and the audio recording mention the name of one Pradeep Kumar, but prosecution did not try to obtain the necessary clarification about Pradeep who is referred in the conversation and even the lady who is being referred in the conversation/transcript. The entire conversation and the audio transcript did not provide the complete factual and legal background in respect of the allegation of demand of money.
116. In order to bring home the charge/guilt under section 7 of PC Act, the demand has to be made in a conscious manner and making of demand by the public servant is to be established beyond reasonable doubt. The loose words or something spoken by some other person to which an accused is either not responding or stating in a clear manner would not come within CBI Vs. Mool Chand (CC No. 42/2021) Page 104 of 143 the fold of demand. Moreover, testimony of PW1 further reflects that there are no clear allegations in respect of the demand of bribe by accused Mool Chand on 23.06.2021 and the same assumes importance in view of the fact that PW1 clearly denied that recorded conversation contains his voice or any demand of money was made. The various references in respect of the monetary transaction could only be clarified by PW1 and PW1 while deposing in the court had clearly denied the same and PW-15 did not make any reference in respect of the discussion made in the recorded conversation. At the cost of the reiteration at the time of alleged initial demand, the independent witness/PW10 Shri Krishan Kumar also did not go inside the police station who could have brought the necessary clarity in respect of the conversation between the accused Mool Chand and the complainant/PW1 Pushpender.
117. In view of the above-mentioned discussion, it can be safely said that prosecution has failed to establish the initial demand on 23.06.2021 and 24.06.2021.
EVENTS/HAPPENING POST REGISTRATION OF FIR COVERING THE ASPECT OF FINAL DEMAND, ACCEPTANCE AND RECOVERY
118. A careful reading of transcript vide Ex.PW7/A (Colly) of 24.06.2021 at 15:56 hours would indicate that so far as this conversation is concerned, apparently, no demand was being CBI Vs. Mool Chand (CC No. 42/2021) Page 105 of 143 made by the accused Mool Chand from the complainant/PW1 Pushpender. Post Conversation between accused and complainant, FIR was registered on the basis of the complaint vide Ex.PW-1/A, verification memo Ex.PW-1/B dated 23.06.2021 & Ex.PW-1/C and thereafter pre-trap memorandum was prepared vide Ex.PW-1/D and raiding team was constituted and PW16 Shri Jaswinder Singh was appointed as Trap Laying Officer.
119. The pre-trap proceedings were carried out i.e. the proposed bribe amount was smeared with phenolphthalein powder, DVR and memory card etc. were arranged. The search of the members of the raiding party was conducted so as to ensure that nothing incriminating is kept or retained by any person. The pre-trap proceedings detailing as to what had happened at the CBI office was prepared vide Ex.PW1/D and thereafter the team left for PS Badarpur and prior to reaching PS Badarpur, a call was made to accused Mool Chand by PW1 Pushpender and thereafter the accused asked the complainant/PW1 Pushpender to come to Tea stall where transaction of bribe took place and the accused was apprehended while demanding and accepting the bribe.
120. With respect to the final demand, acceptance and recovery of Rs.8,000/-, the testimonies of the different witnesses are being analyzed.
121. PW1 Pushpender/Complainant deposed that he visited PS CBI Vs. Mool Chand (CC No. 42/2021) Page 106 of 143 Badarpur to provide the arrest memo of Kapil Narula which was taken by him mistakenly to accused Mool Chand. PW-1 had identified Jamanatnama vide Ex PW-1/I and the arrest memo vide Ex.PW-1/J. PW1 also denied that he took trap money of Rs.8,000/- and further denied that he provided trap money to the CBI. PW1 had denied that there was demand and acceptance of Rs 8000/- by the accused on 24.6.2021. PW-1 only stated that he gave arrest memo of Kapil Narula and the accused was apprehended from the spot and was taken inside the Police station Badarpur. PW1 did not utter a single word with respect to demand and acceptance of bribe by the accused Mool Chand. PW1 has out rightly rejected that he had handed over the currency notes of Rs.500/- (in 16 numbers) to the accused Mool Chand.
122. PW-9 Rinku (shadow witness), deposed that he went to the office of CBI on 24.06.2021 on the instruction of his Senior Officers. He also deposed about the pre-trap proceedings vide Ex.PW1/D and further deposed that when Trap Team was proceeding towards P.S. Badarpur, a call was received by the complainant/PW-1 and the caller on the other end (Accused Mool Chand) instructed PW-1 to meet him outside P.S. Badarpur and PW-9 was introduced by PW1 as Fufa of PW-15 to accused Mool Chand. Accused made inquiries from PW-1 whether he brought "Dus" and PW-1 told that he had already given 11 and this is 8 and accused asked for full an final payment. PW-1 handed over the bribe amount and accused told that same is for CBI Vs. Mool Chand (CC No. 42/2021) Page 107 of 143 Jamanat (Bail) and further said no action would be taken against PW-1 and accused took the money on his left hand and thereafter shift to his right hand and then into the right pocket of the shirt and PW-1/Complainant gave the pre-decided signal by moving his cap upon which the TLO alongwith all the team members rushed towards the spot i.e. the tea shop. The statement of PW-9 is contrary to the statement of PW-1. Moreover, the reference is the testimony of the witness that "Dus laya hai kya" and other part of the statement of the witness cannot be called as demand in clear terms as it is not clear from the conversation why "Dus" is being referred, specially when the prosecution alleges that Rs.8,000/- was to be paid to the accused and the same is not established from the testimony of PW1/complainant. The testimony of PW9 does not give the complete picture as regards the demand made at the time of trap and the statement of PW9 does not give the necessary assurance in respect of the demand. The prosecution is required to establish that demand was for illegal gratification and not mere demand.
123. In "Jai Narayan Vs. State", Crl. Appeal No. 259/2007 dated 06.09.2023, it was held by Hon'ble Delhi High Court that an offence under section 7 of PC Act could only be held to be proved when the prosecution establishes that there was demand for illegal gratification. It was further held that the demand has to be of gratification and not merely a simple demand of money. The presumption under section 20 of PC Act can be invoked CBI Vs. Mool Chand (CC No. 42/2021) Page 108 of 143 only, if the factum of demand is proved and an offence under section 7 of PC Act can be proved in the absence of testimony of the complainant, but the same is to be established by way of reliable cogent and trustworthy evidence on record.
124. Ld. Defence Counsel submitted that PW-9 is a stock and tutored witness since PW-9 is a witness in another CBI case and he had also accepted that prior to his examination-in-chief, he used to go through his statement recorded under section 161 Cr.P.C. Ld. Counsel has relied upon "Maniknandan Vs. State"
(supra) in which Hon'ble Supreme Court of India had discarded the evidence after finding that the witnesses were tutored. In the cited case, the witnesses were taken to the police station prior to the recording of their deposition and were taught to depose in a particular manner. Ld. PP for the CBI contended that witness was not tutored by the prosecution and the relied upon judgment is not applicable to the facts of the case and she further submitted that reliance can be very placed on the testimony of PW-9 even if PW-1 did not support the case of prosecution on some aspects.
125. In the recovery memo Ex.PW-1/D, it was mentioned that Complainant/PW-1 narrated the facts in respect of the transaction of demand and acceptance of bribe amount of Rs.8,000/- which was corroborated by PW-9. However, in the present case, the witness had admitted that he read his statement under section 161 Cr.P.C. on each and every date prior to CBI Vs. Mool Chand (CC No. 42/2021) Page 109 of 143 examination-in-chief. In this regard, it is observed that no conclusion could be made or drawn to the effect that witness was tutored by merely making a reference to his previous statement recorded under section 161 Cr.P.C. The similar question had arisen in "Ali Vs. State of Kerala", MANU/KE/0162/1995; 1995 CRLJ 2974 (Crl. Appeal No. 462 of 1992 dated 13.01.1995) in which the witness was made to read his statement under section 161 Cr.P.C. Hon'ble Kerala High Court held that "An evidence of a witness who was read out his previous statement would not become inadmissible. The reading of the statement to the witnesses does not therefore amount to use of such an statement contrary to the provisions contained in Section 162(1) of the Code. It was further observed that reading over the statement may affect the probative value of the evidence of the witness which the court has to judge in the circumstances of each case."
126. In appreciating the testimony of PW9, the required care and precaution has to be taken since it appears that PW9 has been cited as a witness in a CBI case and moreover, for the reasons best known to the witness, the witness did not make the complete disclosure with regard to the said case. Be that as it may, it is quite possible that a witness is either unable to recall the complete facts or he is trying to conceal the information that he had acted as a witness. The post trap proceedings were conducted on 24/25.06.2021. The statement under section 161 Cr.P.C. of PW9 was recorded after about a period of more than CBI Vs. Mool Chand (CC No. 42/2021) Page 110 of 143 one month and therefore, the testimony of PW9 cannot be accepted at its face value and the same is required to be duly corroborated from other witness(s) and is required to be dealt in a very cautious manner since PW9 is per prosecution is the witness for the demand and acceptance of bribery specially in the scenario when PW-1 had denied story of prosecution on the factum of demand and acceptance.
127. PW-1 did not state that at the time of apprehension any recovery was effected from the accused at the spot. PW9 and PW10 and other witnesses deposed that accused was taken inside the police station after his apprehension and recovery was made from the accused in one of the room, provided by the SHO (PS Badarpur) to the CBI team. PW12 Sub Inspector Shri Ashutosh Tiwari deposed that soon after the apprehension, the recovery was made from the spot and thereafter the accused was taken inside the police station. PW10 Shri Krishan Kumar, another independent witness, neither heard the conversation nor deposed anything about the actual transaction except that pre- decided signal was given by PW-1 and even other members of the trap team neither overheard the conversation between the accused and the complainant nor they witnessed the transaction and they rushed towards complainant and accused. It is vivid that different versions have emerged in the testimonies of the witnesses in respect of the recovery of bribe money from the accused. Notably, none of the witnesses such as PW10 and other members of the trap team had seen that any bribe was CBI Vs. Mool Chand (CC No. 42/2021) Page 111 of 143 given by PW1 to the accused Mool Chand. It is also relevant to mention that the case of the prosecution was to the effect that the tainted bribe money was kept in the pocket of the complainant, but PW9 in a very generalized manner stated that bribe amount was given to the accused Mool Chand without specifying as to how it was given. The acceptance of bribe amount and apprehension of the accused took place in close proximity to a Tea Stall, however, the prosecution did not examine any of the witness from the Tea Stall including its owner etc. on the premise that independent witnesses were taken along by the CBI to cover the trap proceedings. The site plan vide Ex.PW1/F also did not denote the exact place where the bribe transaction had taken place and the contention of the prosecution that rough site plan was prepared with an objective to understand or specify the location of the persons who were present at the time of transaction is not convincing, especially in a situation when some of the prosecution witnesses had deposed that transaction took place near the Tea Stall and site plan vide Ex.PW1/F should have disclosed about the exact place where the transaction took place and moreover, the site plan Ex.PW-1/F also mentions about another Tea Shop. The accused was apprehended and immobilized near Tea Shop, outside Police Station Badarpur, and there is nothing on record to indicate that there was any disturbance created by public persons, the bribe amount could have been very well recovered from the spot itself instead of taking the accused inside the police station. It sounds quite bizarre that Trap Team/Trap Laying Officer who is the most CBI Vs. Mool Chand (CC No. 42/2021) Page 112 of 143 interested to recover the Trap Money would not recover the money at the spot and instead would take the bribe taker inside police station to get a different room to effectuate the recovery of bribe money. The bribe amount is to be recovered in the shortest possible time after its acceptance after due communication to the members of the raiding party since any time lag creates a reasonable doubt on the actual event which took place at the time of trap. Prompt recovery of the bribe amount is one of the most important circumstance to establish the factum of acceptance in the trap case.
128. PW12 Shri Ashutosh Tiwari deposed that one of the witness perhaps PW10/Krishan Kumar was asked to overhear the conversation between the accused and the complainant. He further stated that after some conversation, trap team members and independent witness rushed towards the Tea Stall and accused Mool Chand was apprehended, whereas the case of the prosecution was that PW9 Rinku accompanied the complainant and overheard the conversation in respect of demand and acceptance. It is to be noted that PW10 Krishan Kumar was associated with the proceedings since the inception and till the conclusion of the trap proceedings. The aforesaid statement of PW12 was not challenged by the prosecution.
129. PW10 Shri Krishan Kumar was associated in the trap proceedings since the receipt of the complaint Ex.PW1/A and the conclusion of the trap proceedings. PW10 was cross-
CBI Vs. Mool Chand (CC No. 42/2021) Page 113 of 143examined by Ld. PP for the CBI on the ground that witness is not supporting his previous statement on material aspect. A perusal of his evidence would indicate that he had merely accepted the suggestions given by the Ld. PP for the CBI that he heard the voice which was recorded in the office of CBI on 23.06.2021. PW10 had answered with respect to the verification proceedings and pre-trap proceedings in his cross-examination. PW10 Krishan Kumar was unable to identify the voice of accused Mool Chand which was transcribed at Point-BY-1 to BY-2 at page nos. 8 and 9. PW10 in his evidence also stated that if Mool Chand was speaking then it must have been the voice of accused Mool Chand. A reading of deposition of PW10 would indicate that in cross-examination by the Ld. PP for the CBI, he had merely responded to the suggestion of Ld. PP for the CBI. The question is how much of his statement could be read in evidence was answered by Hon'ble Delhi High Court in "Satish Kumar Vs. State", (1996) CR.LJ 265 wherein it is observed :-
"(21) In her cross-examination by the prosecution, she had affirmed the fact, an suggested to her, that she had told the police that her son Suresh had returned at 12 midnight and had gone behind the hut for urination and she had also stated to the policy that the appellant, Satish Kumar, had followed Suresh. She hid also stated to the police that she heard the noise of her son saying "HAI Ma Muj he Bachaao, Suresh Ne Mujhe Chaku Mar Diya HAI". These statements made by the witness in cross-
examination appear to be wholly inadmissible in evidence because it need not be emphasised that any statement to the police made by any witness is not admissible in evidence and such a statement could be used only for the purpose of contradicting the witness in CBI Vs. Mool Chand (CC No. 42/2021) Page 114 of 143 view of provisions of Section 162 of Criminal Procedure Code read with Section 145 of Indian Evidence Act. (22) We are surprised that the Additional Sessions Judge, who recorded" the evidence, had lost sight of such elementary legal principles of taking evidence in a case. The prosecutor who put the questions in this form to elicit the answers was also perhaps completely ignorant of the legal procedure for cross-examining the witness produced by the prosecution itself. The questions which ought to have been put to the witness while cross- examination by the prosecutor, should have elicited facts and not statements made to the police. So, this part of the testimony of the witness has to be completely ignored from consideration as to what she had stated to the police."
130. In view of the above, the testimony of PW10 is not of much help to the prosecution since this witness has not witnessed the final demand and acceptance on the day of trap i.e. 24.06.2021 and he was unable to go inside the police station on 23.06.2021.
131. It is contended by the ld. PP for CBI that formation of trap team was also stated by the PW-1, despite the fact that he has not supported the case on some aspect and the evidence of other members of trap team can certainly be taken into consideration while considering the fact that there was demand, acceptance and recovery of the bribe amount, the evidence of members of trap team could become relevant if any of them had witnessed the transaction of the bribe, it has come in the evidence of PW-16, PW-12 and PW-10, that none of them had witnessed any transaction of the bribe and none of the official had seen or over heard the transaction of the bribe and hence, the testimonies of CBI Vs. Mool Chand (CC No. 42/2021) Page 115 of 143 the witnesses is not of much help to the prosecution.
132. Notably, the friend of the complainant i.e. PW15 Kapil Narula Narula did not corroborate and supported the case of prosecution that there was an attempt to obtain the bribe from him or any bribe was paid on his behalf.
133. Ex.PW5/J is the file in respect of FIR No. 355/2021 which contains Jamanatnama/Bail Bond in respect of Kapil Narula and the complainant Pushpender being his surety. Bail bond was attested by the present accused on 21.06.2021. The relevant file would also indicate that a contemporaneous DD entry in respect of arrest of PW15 Kapil Narula and he being released on bail is prominently mentioned in DD No. 34A recorded at about 12.53 Hours on 21.06.2021. The offences are bailable and therefore, it becomes highly doubtful that any complainant would pay a bribe in a case in which the friend of the complainant was already granted bail by the accused and such friend of the complainant i.e. PW15 did not raise even a whisper of allegation that any bribe was demanded either from him or from his relative and nothing has been brought on record that there was any complaint either against Kapil Narula or Pushpender and, therefore, the allegation that bribe was demanded prior to the lodgment of complaint Ex.PW1/A is difficult to be accepted. Pertinently, in the complaint Ex.PW1/A, it was attributed that PW15 was being threatened for implication in a false case, however, during the course of the CBI Vs. Mool Chand (CC No. 42/2021) Page 116 of 143 trial, it was portrayed that bribe is towards the bail.
134. Complaint vide Ex.PW1/A alleges that PW15 was detained on 20.06.2021 and thereafter he was released on bail and PW15 was further threatened for implication in a false case. It is also not clear from the material available on record whether PW15/Kapil Narula whose name is mentioned in the complaint was ever detained in the police station Badarpur in relation to case FIR No. 355/2021. Only the certified copy of the file relating to FIR No. 355/2021 vide Ex.PW1/I was filed and the same does not show that Kapil Narula was brought in the police station as alleged in the complaint on 20.06.2021, and rather, the file relating to FIR No. 355/2021 would indicate that PW1 Pushpender and PW15 Kapil Narula came to the police station on 21.06.2021. Bail bond and arrest memo were prepared on 21.06.2021. Neither PW1 nor PW15 had deposed that they visited police station Badarpur on 20.06.2021 and even no attempt was made to obtain any record from the concerned police station in respect of the visit of PW1 Pushpender and PW15 Kapil Narula on 20.06.2021.
135. The case of prosecution in the charge sheet is to the effect that two arrest memos were prepared and one arrest memo gives the date as 21.06.2021 at 11.00 AM, whereas the other arrest memo gives the date as 21.06.2021 at 03.00 PM and PW5 Shri Vijay Pal Dahiya, SHO, PS Badarpur stated that an overwriting was made on the arrest memo dated 20.06.2021 which was later CBI Vs. Mool Chand (CC No. 42/2021) Page 117 of 143 on changed to 21.06.2021. It is also stated that the serial wise register indicates the arrest of Kapil Narula on 21.06.2021 and two identical copies are prepared, one is placed inside the case diary and the other is provided to the concerned officer of the police station for making entry in the serial wise register.
136. Notably, PW5 Shri Vijay Pal Dahiya was examined by the prosecution and he never deposed in respect of any overwriting or cutting being made on 20.06.2021 and the date of 20.06.2021 was changed to 21.06.2021 and although this witness had admitted in cross-examination that there was an overwriting in the arrest memo Ex.PW5/DX. Pertinently, the original copy of the arrest memo vide Ex.PW5/DX was not seized by the investigating agency and even it was not sent to CFSL for analysis and in the absence of original arrest memo vide Ex.PW5/DX, the case of the prosecution that date was changed from 20.06.2021 to 21.06.2021 is not established and such an allegation/charge could only be sustained if there is a direct or circumstantial evidence to sustain such a charge and it becomes material when prosecution alleges that there was forgery/tampering in the document and the least which could have been done was to produce the original document. From the above-referred discussion, it is evident that prosecution had failed to bring into record any document which could indicate the detention of PW15 Kapil Narula by the accused Mool Chand on 20.6.2021 since the very edifice of the case of the CBI Vs. Mool Chand (CC No. 42/2021) Page 118 of 143 prosecution was based on the fact that accused was detained and released after the payment of bribe.
137. The prosecution has relied upon the transcript dated 24.06.2021 vide Ex.PW7/A (Colly) and more specifically, the transcription dated 24.06.2021 at 19.28 hours. This transcript would reveal that the complainant informed the accused that he would be coming to him and thereafter both, accused and complainant, met near Tea stall. The transcript would further reveal that at one point in the transcript, the accused said "Dus laya", upon which the complainant asked whether the name of his friend Kapil Narula would be removed or not to which accused responded that the amount is for Jamanat which he is giving from his side. Thereafter, further discussion had also transpired between the complainant and the accused in respect of the dismissal/cancellation of bail of some other person. At one point of time in the transcript, the complainant telling the accused Mool Chand that Kapil told that he had given 20, to which accused responded to whom. The complainant said that earlier 11 and thereafter 9 and further discussion, the accused was responding "Huin huin". The complainant could heard "Lo pehle lo bheed nahi hai yeh mudra rakh lo pehle". The aforesaid transcription would disclose that number of discussions were happening between the accused and the complainant, but it is clearly specified from the last part of the discussion no demand has emanated from the accused. The audio recording and transcript also do not categorically establish the factum of CBI Vs. Mool Chand (CC No. 42/2021) Page 119 of 143 acceptance of bribe amount by the accused Mool Chand.
138. As discussed earlier, not much can be made from the conversation dated 23.06.2021 which was being held between the complainant and the accused. The complainant had denied the said conversation and the accused too. The various discussions which had occurred between the accused and the complainant could only be deposed by the complainant whether the conversation was in respect of the demand. The conversation on the day of the trap i.e. 24.06.2021, even if it is read in context on the previous conversation, it is very difficult for the court to assume or to come to the conclusion that it was in respect of the demand of bribe by the accused Mool Chand. The bare reading of the transcript would further indicate that in most of the conversation, it was the complainant who was saying lot of thing on himself and the transcript vide Ex.PW7/A (Colly) does not lead to any definite conclusion. Although, the transcript vide Ex.PW7/A (Colly) might create some suspicion or doubt. If any criminal court is to return a finding of fact then such a finding cannot be based on pre-supposition or conjecture and thus, Ex.PW7/A (Colly) is not of much help to categorically establish the factum of demand.
139. It is a well settled law that in offences involving Section 7 of Prevention of Corruption Act 1988 (As amended) and if the prosecution alleges that there was a demand and acceptance of bribe by the public servant, the acceptance of bribe by a public CBI Vs. Mool Chand (CC No. 42/2021) Page 120 of 143 servant has to be established beyond doubt. In trap cases, the acceptance of the bribe amount is required to be proved by the prosecution beyond reasonable doubt and as such the prosecution is duty bound to prove the acceptance of the bribe amount and the consequent recovery of the bribe from accused Mool Chand.
140. The legality and admissibility of CFSL report vide Ex.PW14/A is challenged on the ground that CFSL is not notified under section 79-A of Information & Technology Act (hereinafter referred to as 'IT Act') by Central Government of India although request to act as an expert of electronic evidence was moved by CFSL, but it has still not been granted. It is also contended that a reading of Section 79-A IT Act and Section 45A of Indian Evidence Act would indicate that a gazette notification is required for examination of electronic evidence and since CFSL has not been notified as examiner of the record and therefore it cannot examine electronic evidence i.e. memory card containing audio recordings and DVR. It is also contended that Special Act shall prevail over the general enactment and therefore, the report Ex.PW14/A is inadmissible.
141. In order to consider the submission of the Ld. Counsel for the accused, it would be apposite to refer to Section 79-A of IT Act:-
[79A. Central Government to notify Examiner of Electronic Evidence.--The Central Government may, for CBI Vs. Mool Chand (CC No. 42/2021) Page 121 of 143 the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence. Explanation. For the purposes of this section, "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.]
142. Section 79-A of IT Act uses the word "may", if the Central Government for the purposes of providing opinion on electronic evidence, specify a person as an Examiner of electronic evidence. Meaning thereby that a discretion is vested with the Central Government to designate any lab/expert as expert of electronic evidence. However, the same does not mean that if an expert has examined the electronic record and furnished his opinion, the report filed by such an expert is liable to be rejected. Acceptance of such an argument would lead to chaos and would make the expert evidence obtained for electronic document redundant. It is also observed that when a statute is to be interpreted, the meaning thereof should be given in expansive manner and the word used i.e. 'may' indicates it non-mandatory character. There is nothing in Section 79-A of IT Act which bars the admission of a report given by an expert who had examined the electronic record. The provision does not say that in the absence of notification an opinion given by a person cannot be admitted in evidence. It would be profitable to refer and rely upon K. Ramajayam @ Appu Vs. Inspector of CBI Vs. Mool Chand (CC No. 42/2021) Page 122 of 143 Police, Chennai, 2016 CRLJ 1542 in which it was observed as follows :
"It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW-23) and Pushparani (PW-24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."
143. Section 45 of the Indian Evidence Act itself permits the acceptance of an opinion of an expert in the court proceedings. It is altogether is a different matter that while appreciating the electronic evidence, certain precautions and certain checks are followed. In the present case, objection has no force as PW14 was examined as a witness in the present case and, therefore, report filed by him can be taken into consideration subject to other objection and, therefore, objection on the ground that CFSL was not notified under Section 79A of IT Act and PW14 has not been notified as examiner under section 293(4) Cr.P.C. is rejected.
144. Prosecution has examined three witnesses i.e. PW7 HC Sirmohar Meena, PW9 Rinku and PW10 Krishan Kumar for voice identification of the accused Mool Chand.
145. The prosecution has relied upon audio recordings Q-1, CBI Vs. Mool Chand (CC No. 42/2021) Page 123 of 143 Q-2 and Q-3 in support of its case. Prior to considering the identification of a voice in the audio recording, it would be apt to refer to the observation of Hon'ble Supreme Court in "Ram Singh Vs. Col. Ram Singh, 1985 Supp SCC 611" a tape- recorded statement is admissible in evidence, subject to the following conditions:-
(1) The voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence: direct or circumstantial.
(4) Possibility of tampering with, or erasure of any part of, the tape-
recorded statement must be totally excluded. The tape-recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe or official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbance.
146. In cross-examination by the Ld. Defence counsel, PW7 stated that when he was called for the voice identification then he had conveyed that voice might or might not of the accused. It is apparent from the deposition of PW7 that he was not able to identify the voice of accused Mool Chand and, therefore, attempt of the prosecution to get identify the voice from PW7 fails. PW7 Shri Sirmohar Meena, Munshi to SHO PS Badarpur was unable to identify the voice CBI Vs. Mool Chand (CC No. 42/2021) Page 124 of 143 recording which was played in the court and stated that he had recently joined PS Badarpur about 1.5 months from the date of the incident and in his cross-examination by the Ld. PP for the CBI, PW7 stuck to his gun that he was not sure whether the voice in audio recording was that of accused Mool Chand and also denied his statement recorded under section 161 Cr.P.C. to the effect that he was conversant with the voice of accused Mool Chand, although he identified his signature on Ex.PW1/G i.e. voice identification-cum- transcription memo dated 26.07.2021 and states that he was unable to understand as the same was in English. Therefore, attempt of the prosecution to get identify the voice of accused Mool Chand from PW7 Shri Sirmohar Meena fails.
147. PW1 i.e. the complainant/Pushpender was examined on behalf of the prosecution in respect of the identification of the voice of accused Mool Chand. PW1 identified the voice of accused Mool Chand in respect of file no. 210623_1814 and 210623_1930. With respect to voice in other recording, more particularly of 24.06.2021, PW1 did not identify the goice of accused Mool Chand and in his further cross-examination, the witness had stated that by mistake, he had identified his voice in file no. 210623_1814 as his name was taken. PW1 Pushpender also did not identify the voice of accused Mool Chand and he also denied that audio recording contained his voice.
CBI Vs. Mool Chand (CC No. 42/2021) Page 125 of 143148. PW15 Kapil Narula neither identified voice of PW1/complainant nor of accused Mool Chand.
149. PW10 Krishan Kumar identified the voice of accused and complainant in the recording which was played in the court and also identified his signatures on voice identification-cum- transcript memo Ex.PW1/G. PW10 had joined the proceedings from the stage of verification of the complaint and till trap proceedings were concluded. PW10 had met accused Mool Chand on 24.06.2021/25.06.2021 at the time of final trap. PW10 was unable to go inside the police station Badarpur on 23.06.2021 at the time of verification of complaint vide Ex.PW1/A. Admittedly, when verification of the complaint vide Ex.PW1/A was being made by sending the complainant to PS Badarpur, PW10 was unable to go inside the police station on 23.06.2021 and, therefore, PW10 did not overhear any conversation between accused Mool Chand and complainant Pushpender and going by the case of prosecution, he had only heard the voice of accused Mool Chand when the phone of the complainant was put on the speaker mode during the verification proceedings and trap proceedings. When a person/witness had no occasion to interact or to converse with a person then it becomes difficult to believe as to how he or she can identify the voice of a person which was heard on a speaker mode. A person would be able to identify the voice of a person to whom he is acquainted, either he had spoken to such a person physically or CBI Vs. Mool Chand (CC No. 42/2021) Page 126 of 143 had a long course of interaction with such person over the phone, but witness had identified the voice of accused purely on the basis of believe that the caller on the other end is accused Mool Chand. Moreover, PW10 was unable to identify the voice of accused Mool Chand as transcribed at Point-BY-1 and Point- BY-2 at page no. 8 and 9 of transcription vide Ex.PW7/A (Colly). Considering the fact that PW10 got a very limited time to get acquainted with the voice of accused Mool Chand and therefore, his evidence qua the identification of Mool Chand is liable to be rejected.
150. PW9 Shri Rinku had never interacted with accused Mool Chand prior to the trap proceedings dated 24.06.2021 and might have heard the voice of accused Mool Chand at the time of final trap, which lasted for about 2-3 minutes and mere ipse dixit statement of PW9 Rinku that he can identify the voice of accused Mool Chand is difficult to be accepted. As observed earlier, a person would be able to identify the voice of such person to whom he is acquainted or had a physical interaction. A short duration meeting is hardly an assurance of the fact that a witness would be able to identify the voice of such person.
151. The trap proceedings were concluded in the intervening night of 24.06.2021 & 25.06.2021. The case properties i.e. hand washes and pocket shirt wash and memory card alongwith DVR were sent to CFSL for analyses on 30.07.2021 vide CBI Vs. Mool Chand (CC No. 42/2021) Page 127 of 143 Ex.PW17/X-1 against forwarding letter vide Ex.PW4/B dated 29.07.2021. It is not explained where the case properties remained from 25.06.2021 to 30.07.2021. It is contended by the Ld. PP that case properties remained in safe custody in Malkhana of CBI and the brass seal used during the sealing process remained with the independent witness and as such the case properties remained in safe custody and there is no possibility of tampering the case properties. The recovery memo vide Ex.PW1/E bears the stamp of Malkhana without indicating the date of deposit in Malkhana. The entire facts and circumstances surrounding the deposit of the case property is in doubt. It is contended by the Ld. PP for the CBI that exhibits contained the signatures of number of persons including independent witnesses. There is no doubt that it bears the signatures of various witnesses, however, the same only tells about the preparation of a document on a particular day, but that is no answer in respect of the safe custody of the exhibits. The prosecution is duty bound to establish the safe custody of the exhibits from the date of its seizure till it is deposited in the CFSL and the case properties remained intact and continued to be safe custody ruling out any possibility of tampering. The perusal of the testimony of PW16 Shri Jaswinder Singh would reveal that necessary cross-examination was undertaken on behalf of the accused by seeking explanation of the trap laying officer about the exhibits, however, except for the bald statement that exhibits were deposited on the same day, no material was brought by the prosecution to substantiate the factum of deposit CBI Vs. Mool Chand (CC No. 42/2021) Page 128 of 143 of exhibits. PW17 Investigating Officer Yatish Chandra Sharma also admitted in his cross-examination that he had not procured any copy of Malkhana register showing the deposit of exhibits Ex.PW9/P-1 to Ex.PW9/P-3 and memory cards vide Ex.Q1 to Q3 and S-1 from the Malkhana. The relevant suggestions were given to PW16 and PW17 to the effect that exhibits were tampered or they were never deposited or the case properties were taken by HC R.S. Rawat from Malkhana. Neither statement of HC R.S. Rawat was recorded nor any authorization letter was placed on record by the prosecution that the case property was taken out from Malkhana pursuant to authorization and the prosecution has miserably failed to explain about the safe custody of the exhibits for a period of about 35 days. It is also observed that in the trap team which was purported to be constituted by the CBI also includes the subordinate staff. Ex.PW1/F i.e. Site Plan, mentions the name of Ct. Finny Sam as one of the witness whose position was shown at Point-K in the site plan. Interestingly, Ct. Finny Sam used to bring the case properties from Malkhana to the court and the witness from Malkhana was made as part of the trap team. The prosecution has cited PW9 as the shadow witness. However, a perusal of Ex.PW1/F would indicate that no signature of PW9 was obtained on the site plan Ex.PW1/F, although signatures of independent witnesses and the complainant was taken on the site plan Ex.PW1/F. The aforementioned circumstances might not be the sole reason for disbelieving the case of the prosecution and if the same is taken into consideration with other attendant CBI Vs. Mool Chand (CC No. 42/2021) Page 129 of 143 circumstances of the case then same has material bearing to the entire case as projected by the prosecution.
152. Prosecution has relied upon the FSL report Ex.PW14/A by contending that audio recording contains the voice of the accused Mool Chand and complainant and other witnesses in the manner as stated by the prosecution in its case. Memory cards Q-1, Q-2 and Q-3 alongwith DVR were sent to FSL for voice analyses. PW14 Dr. Subrat Kumar Choudhury deposed that there was no tampering, editing or cutting in the audio file in the memory cards. In his cross-examination dated 20.01.2024, when it was quizzed from PW14 whether any software was installed in DVR which could have been used for editing, cutting and pasting or organizing digital audio files, PW14 answered in negative. When PW14 was further quizzed PW14 after going through his official file, deposed that there was "One Sound Organizer V 2002" and which was not mentioned in report Ex.PW14/. It is the well settled law through chain of judgments that electronic documents and record are susceptible to editing, cutting and tampering in such a manner that is also not possible for an expert to make an opinion in respect of the tampering. The presence sound organizing software in Digital Voice Recorder which is capable of editing, cutting, pasting and organizing the digital audio file in the original source and non-disclosure in the report vide Ex PW-14/A casts a serious doubt on the credibility/reliance on such a report. The CBI Vs. Mool Chand (CC No. 42/2021) Page 130 of 143 lame excuse/answer given by PW14 that since there was no query so he did not make any disclosure about the presence of such sound organizing software. It was the duty of the expert to explain about all such material observations which were noted by him in his internal file in the report to enable the appropriate authority/court to take a proper view of such a report. In Ram Singh's case and "R. M. Malkani vs. State of Maharashtra, 1972 (2) SCR 417" which relate to the recorded conversations. It was held that tape recorded conversation is admissible in evidence to corroborate the evidence of the witnesses who had stated that such conversations had taken place. However, the time and place and accuracy of the recording must be proved by competent witness and the voices must be properly identified. Previous statement made by a person and recorded on tape can be used not only to corroborate the substantive evidence. In "Nilesh Dnkar Paradkar Vs. State of Maharashtra, (2011) 4 SCC 143", Hon'ble Supreme Court had referred to the judgment of R. Vs. Robson, (1972) 2 All ER 699 in which it is observed that "... The determination of the question is rendered the more difficult because tape recordings may be altered by the transpostion, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts."
153. The upshot of the above-mentioned discussion is that prosecution has failed to establish the voice in audio recordings CBI Vs. Mool Chand (CC No. 42/2021) Page 131 of 143 as that of accused Mool Chand and the complainant Pushpender beyond reasonable doubt and also failed to establish that safe custody of the exhibits were maintained and that there was no tampering with the exhibits containing the audio recordings. It is also contended by the Ld. Counsel for accused that prosecution has also failed to explain that original recording was made from the DVR by linking it with memory card and no opinion was given whether recording was made from the DVR which was sent to FSL for analysis.
154. FIR was registered on 24.06.2021 and the trap proceedings were concluded in the intervening night of 24/25.06.2021, whereas statement of all the witnesses were recorded on 14.07.2021, 26.07.2021 27.07.2021, 28.07.2021, 29.07.2021, 30.07.2021, 02.08.2021, 03.08.2021 and 06.08.2021 and the material witnesses such as complainant on 27.07.2021 and Krishan Kumar (PW10) & Rinku (PW9) on 26.07.2021 were examined after about one month from the date of the trap. No explanation was furnished by the prosecution as to why there was such an inordinate delay in recording the statements of the material witnesses i.e. complainant and the independent witnesses. The timely recording of the statement of the witnesses is one of the way by which a court could have an assurance with regard to the truthfulness of the case of prosecution and to appreciate/analyze the statement of the witnesses who were deposing with respect to the event which was seen by the witnesses and more so, in trap cases when CBI Vs. Mool Chand (CC No. 42/2021) Page 132 of 143 multiple witnesses of the same facts are examined by the prosecution and any delay in recording the statement of such witnesses would merit strict scrutinization of the version given by such witnesses.
155. In trap case, the testimony of a complainant/bribe giver is of utmost importance. In assessing the testimony of such a witness, the version offered by the witness after separating inconsistencies and exaggeration should be consistent, truthful and reliable. If complainant/PW1 had turned hostile then evidence of such a hostile witness cannot be discarded as a whole and the relevant part thereof which are admissible in law can be used both by prosecution and defence. It is a well settled law that if there are some omissions/contradictions, the entire evidence cannot be disregarded (Vide C. Muniappan & Ors. Vs. State of Tamil Nadu, (2010) 9 SCC 567). In the present case, PW1 Pushpender not only discarded the case of the prosecution but PW15 Kapil Narula for whom the basis of demand of illegal gratification was made had also not supported the prosecution on material aspect qua the aspect of demand and acceptance. The testimony of PW1 and PW15 is very critical in determining the case of prosecution with respect to past, present and future demand of bribe.
156. In view of the contradictory versions offered by PW1/Pushpender & PW15/Kapil Narula and other independent CBI Vs. Mool Chand (CC No. 42/2021) Page 133 of 143 witnesses namely PW9/Rinku and PW10/Krishan Kumar as well as PW12/Ashutosh Tiwari, a substantial doubt has arisen with respect to the actual demand of bribe/illegal gratification of the money and the acceptance and moreover, the recovery of money from the accused Mool Chand is also shrouded with doubt. PW1 Pushpender deposed that he had handed over the paper in respect of arrest of PW15 Kapil Narula and the file of FIR No. 355/2021 contains the arrest memo vide Ex.PW1/J and absence of any testimony other than PW10 Krishan Kumar with respect to the crucial aspect of demand and acceptance of bribe, the probability of apprehension of accused Mool Chand cannot be ruled out. It is noteworthy to mention that except the testimony of PW9 that accused had demanded and accepted the bribe at the time of final trap, there is no other reliable evidence in the present case. It was observed in "M.K. Harshan Vs. State of Kerala," (1996) 11 SCC 720 :
"In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important."
157. In "K.P. Kolanthai Vs. State by Inspector of Police", Crl. A. No. 693 of 2008 dated 09.08.2019, it is observed by Kerala High Court after analyzing number of judgments in relation to a trap case ;
12. ......
CBI Vs. Mool Chand (CC No. 42/2021) Page 134 of 143(i) To succeed in such a case, the Prosecution is obliged to prove the demand of bribe before and at the time of trap, its acceptance and the recovery of tainted money.
(ii)The demand can be proved by testimony of the complainant as well as from the complaint made by him and other witnesses if proved in accordance with law and if it is corroborated in material particulars.
(iii) A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption, of course, is rebuttable under Section 20 of the Prevention of Corruption Act, 1988.
(iv)If the accused gives some defence, that can be scrutinized by the test of preponderance of probability, while the Prosecution must prove its case beyond all reasonable doubt."
13.The genesis of a trap lies in the previous demand of bribe made by the accused from the complainant, which becomes the basis of laying a trap by the investigating agency. Then, it is for the Prosecution to, again, prove the demand at the time when the trap was laid and thereafter, the question of acceptance and recovery of bribe money also is required to be proved beyond all reasonable doubts.
158. It is contended by Ld. Counsel for accused that perusal of file relating to FIR No. 355/2021 PS Badarpur would reveal that accused had already released Kapil Narula/PW15 on bail and, therefore, he was not in a position to favour or disfavour the complainant/PW1 or his friend/PW15 and, therefore, there is no occasion of cause for accused Mool Chand to demand bribe. Ld. PP for the CBI has vehemently opposed the submission by contending that in the present case, the bribe was demanded and accepted by the accused Mool Chand on the garb of post which CBI Vs. Mool Chand (CC No. 42/2021) Page 135 of 143 he was holding and the accused was threatening the complainant/PW1 and his friend/PW15. It is further submitted that mere fact that accused was not in a position to favour or disfavour the complainant/PW1 or his friend/PW15 to determine the culpability of a public servant. Ld. PP has relied upon "M. Narsinga Rao Vs. State of A.P.", Supreme Court 2001 CR. LJ 515 and contended that the requirement of the law is not whether such a public servant was capable of doing or intending to do any favour or dis-favour, but whether he has used official position to extract illegal gratification or undue favour or not.
159. With respect to the respective contentions advanced by the parties, the issue is whether accused had demanded any bribe in relation to the public duty enshrined upon him. The question could only be answered by looking into the peculiar facts and circumstances of the case. In essence, Section 7 of the Prevention of Corruption Act 1988 (as amended) provides that when a public servant obtains or agrees to accept or accept any undue advantage in the performance of his public duty then such an act would be a punishable offence. In this regard, if one peruse the complaint vide Ex.PW1/A and the charge sheet filed by the prosecution, it would reflect that in complaint Ex.PW1/A, PW1/complainant had alleged that his friend i.e. PW15 Kapil Narula was detained on 20.06.2021 and after payment of the bribe, he was released and was threatened that if remaining payment is not made then he/PW15 would be implicated in some case. In this regard, it is observed that PW15 was released CBI Vs. Mool Chand (CC No. 42/2021) Page 136 of 143 on bail on 21.06.2021 and, therefore, no favour could have been given either to the complainant/PW1 or his friend/PW15. No doubt, if a public servant obtains or attempts to obtain gratification or undue advantage under the colour of his post then same would be an offence under section 7 of PC Act and to invoke Section 7 of PC Act, in such cases, the prosecution is duty bound to explain the facts with necessary clarity.
160. Ld. PP for the CBI has relied upon "Bhogni Bhai Vs. State of Gujarat", AIR 1983 SC 759 by contending that not much importance should be given to the minor discrepancies which are bound to occur in a case. There is no dispute to the contention advanced by the Ld. PP for the CBI, a court while appreciating the deposition of witness or in terse deposition of the witnesses, ignores the discrepancies which are of trifle nature). However, when the testimony of the witness(s) or interse testimonies of the witnesses are such that discrepancies are so over powering which cannot be ignored then the referred judgment would become inapplicable. The reliance on the judgment of "Faquira Vs. State of UP", AIR 1976 SC 915 is concerned, it is quite natural that when a witness comes and deposes before the court, some minor variations are bound to occur and in some cases, it was already held that a parrot like statement of the witnesses in a given case would go on to show that he or she had been tutored.
161. Ld. PP for the CBI had relied upon M. Narsinga Rao Vs. CBI Vs. Mool Chand (CC No. 42/2021) Page 137 of 143 State of AP (Supra) by contending that it has to be presumed that accused accepted the gratification as motive or reward for doing an official act and if it is proved during the trial that accused has accepted or agreed to accept any gratification then same could also be established from the direct evidence or from other evidence. It is also contended that since bribe amount was found in the person of accused, therefore, a legal presumption is raised which accused has to rebut.
162. Since the essential grounds of proof of demand, acceptance and recovery is not established through sufficient and reliable evidence, therefore, presumption under section 20 of PC Act cannot be invoked. It is a well settled law that presumption under section 20 of the PC Act is a rebuttable presumption which can be rebutted by bringing into fore the facts and circumstances by way of cross-examination of the relevant witnesses and by leading defence evidence. In "B. Jayaraj Vs. State of Andhra Pradesh (2014) 13 SCC 55" , it is held:
"9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)
(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act.
Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the CBI Vs. Mool Chand (CC No. 42/2021) Page 138 of 143 legal presumption under Section 20 can be drawn are wholly absent."
163. The prosecution has also relied upon Call Detail Report of both, accused and complainant/PW1 (Mobile No. 9953535373 of complainant to the mobile no. 7678662083 of the accused). Needless to say, mere fact that two persons were speaking or talking to each other would not be a ground to infer any criminality.
164. The voice examination report could only have a bearing with the substantive evidence is available on record and, therefore, simply on the basis of the voice recorded conversation, the guilt of the accused cannot be determined as other evidence in the form of PW1, PW15 and other substantive evidence in the form of other witnesses and CBI officials who did not witness the transaction of bribe and there is a doubt with regard to the incident dated 23.06.2021 and 24.06.2021. Mere report of the experts cannot replace the substantive evidence and no conviction can be recorded only on the basis of the experts' report.
165. Accused Mool Chand took a plea in his statement under section 313 Cr.P.C. that he has been falsely implicated in the present case when he came out of the police station Badarpur to collect arrest memo vide Ex.PW1/J and from where he was apprehended by the CBI. PW1 Pushpender in respect of his CBI Vs. Mool Chand (CC No. 42/2021) Page 139 of 143 visit dated 24.06.2021 deposed that he came to handover the arrest memo which was taken by him inadvertently. Ld. PP for the CBI has vehemently contended that defence raised by the accused is false and concocted and if the complainant had taken the arrest memo as contended by the Ld. Defence counsel, then there could have been no reason for accused not to get record the said fact in the form of DD Entry or the complaint. It is submitted that there was no occasion for accused to call PW1 Pushpender outside police station Bardarpur, if he was acting in fair and proper manner. Prior to considering the submission of both the sides in this regard, it is observed that a defence is only required to probablized his case either by leading defence evidence or by cross-examining the witnesses. The foundation of the defence lies in the admission of PW1 that he came to the spot to handover the arrest memo to the accused Mool Chand which was taken by him inadvertently. Moreover, PW5 SHO Vijay Dahiya had deposed that when the accused Mool Chand was apprehended and brought in the police station Badarpur, the accused was telling that he had only came to collect the document. It is also relevant to mention that two arrest memos were found in the file relating to FIR No. 355/2021 and as per prosecution, one of the arrest memo contains the overwriting, but the arrest memo was not sent to CFSL for analyses and as per arrest memo Ex.PW1/J, the accused had already released the friend of the complainant on bail and as such the case of prosecution that bribe was paid for the bail becomes doubtful.
CBI Vs. Mool Chand (CC No. 42/2021) Page 140 of 143166. It is a well settled law that in an offence triable under section 7 of PC Act, the accused is only required to probablise his defence either by cross-examining the witness or examining such witnesses to disprove the case of the prosecution.
167. Mere hand wash and uniform wash cannot be taken into consideration as prosecution has failed to establish that there was a demand and voluntariness in accepting the bribe. Even otherwise, mere recovery of money divorced from the circumstances in the absence of the demand cannot be relied against the accused. Hon'ble Supreme court in case P. Parasurami Reddy vs. State of Andhra Pradesh (2011) 12 SCC
294. It was held by the Hon'ble Supreme court that sole evidence of the fingers being soiled in sodium carbonate turned pink itself is not sufficient to convict the accused. In "Om Prakash Vs. State of NCT of Delhi", Crl. Appeal No. 765/2001 dated 06.11.2013 it was held that neither demand nor the acceptance alone is sufficient to establish the offence and mere recovery of tainted money divorced from the circumstances is not sufficient to convict the accused persons.
168. In "Sharad Birdhichand vs State of Maharashtra", AIR 1984 SC 1622, it was observed that the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. The court while laying emphasis on the above legal principle relied on a judgment of CBI Vs. Mool Chand (CC No. 42/2021) Page 141 of 143 the Supreme Court in " Shiva Sahabrao Bobade and another v. State of Maharashtra", (1973) 2 SCC 793 where it was observed that "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
169. The substantive evidence in the form of deposition of complainant/PW1, independent witnesses and other witnesses are inconsistent and contradictory so much so that essential ingredients of offence under section 7 of PC Act are not made out against the accused and even the corroborative evidence in the form of audio recording is suspect and it cannot be made as basis for conviction. In "Mahabir Prasad Verma Vs. Dr. Surender Kumar", (1982) 2 SCC 258, it was held by Hon'ble Supreme Court of India that a tape recorded evidence can only be used as a corroborative piece of evidence. The prosecution has failed to establish about events which occurred on 23.06.2021 and 24.06.2021 beyond reasonable doubt in respect of the demand and voluntary acceptance of the bribe.
170. In view of the above-mentioned discussion and taking into consideration the oral and documentary evidence, the benefit of doubt is given to the accused Mool Chand as prosecution has failed to prove the charge framed against him and accordingly, accused Mool Chand is acquitted of the offence under section CBI Vs. Mool Chand (CC No. 42/2021) Page 142 of 143 Section 7 of PC Act.
171. The bail bond and surety stand discharged. Accused Mool Chand is directed to furnish personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand) with one surety of the like amount under section 481 of Bharatiya Nagarik Suraksha Sanhita 2023. (Corresponding section 437A Cr. PC).
172. Case property, if any, be destroyed as per rules. File be consigned to Record Room.
Digitally signed(Announced in the open court HASAN by HASAN
today i.e. on 16.11.2024) ANZAR
ANZAR Date: 2024.11.16
16:37:12 +0530
(Hasan Anzar)
Special Judge (PC Act) CBI-03,
District Court, RADC,
New Delhi/16.11.2024
CBI Vs. Mool Chand (CC No. 42/2021) Page 143 of 143