Delhi District Court
Cbi vs Megh Singh S/O on 5 December, 2007
1
IN THE COURT OF MS. I.K. KOCHHAR: SPL.JUDGE,
CBI,NEW DELHI
CC No.41/06
RC DAI 2002 A 0025/ACB/New Delhi
CBI Versus Megh Singh S/o
Lt. Sh. Chiddha Singh
R/o D-71, Sector 56,
Noida, U.P.
05.12.2007
JUDGMENT
1. This present case was registered against the accused Megh Singh who was functioning as the then Junior Telecom Officer, MTNL, Telephone Exchange, Kalka Ji, New Delhi on the complaint of Arun Kumar Singh and who had demanded a bottle of Bagpiper whiskey or its purchase cost as consideration for repairing telephone No. 6022161 installed at his residence. Since the complainant was not willing to pay the bribe amount, he lodged 2 a complaint on 6.5.02 with the CBI pursuant to which the present RC was registered. Accordingly charge sheet was filed.
2. In view of these aforestated allegations which were contained in the charge sheet charge was framed against the accused on 21.4.03 under Section 7 of the PC Act on the prima facie findings that he while working as Junior Telecom Officer at MTNL, Telephone Exchange, Rampuri, Kalka Ji had demanded and agreed to accept a bottle of Bagpiper or its purchase cost i.e Rs.200/- from the complainant Arun Kumar Singh as a gratification other than legal remuneration as a motive or reward for repairing his telephone No. 6022161. A second charge was also framed against the accused under Section 13 (2) read with 13 (1)
(d) of the PC Act on the allegation that the accused being a public servant while working as Junior Telecom Officer at MTNL, Telephone Exchange, 3 Rampuri, Kalka Ji by corrupt or illegal means had abused his official position as such and obtained Rs.200/- for himself from the complainant as illegal gratification other than legal remuneration and thereby guilty under the aforesaid provisions of law.
3. Accused pleaded not guilty to the charges framed against him and claimed trial.
4. The prosecution in support of its case cited as many as 16 witnesses of whom 11 witnesses have been examined by the prosecution.
5. The pre trap formalities were completed in the presence of two independent witnesses namely PW5 Dharam Singh and PW2 MC Ramola both working as LDCs in the Archeology Survey of India, New Delhi. The tainted money i.e two GC notes of Rs.100/- each were produced by the complainant PW1 Arun Kumar Singh and they were quoted with phenolphthalein powder and their 4 numbers were noted down in the Handing Over Memo Ex.PW 5/A with directions to the accused to hand over the money to the accused only on his specific demand. A digital tape recorder was also handed over to the complainant for recording the conversation between the complainant and the accused.
6. The trap party members Ins. A.K. Pandey, Ins. Umesh Vashisht, SI AV Bhardwaj were joined with the aforesaid independent witnesses namely PW 2 and PW 5 who along with the complainant PW 1 reached the spot; PW 5 was deputed to act as a shadow witness; the complainant and the shadow witness entered in Rampuri Telephone Exchange whereas the other trap party members took suitable positions; after receiving the signal from the shadow witness the trap party members entered inside the Telephone Exchange where the complainant was found talking with the accused; PW 11 HK Lal 5 had disclosed his identity to the accused and introduced the trap team members to him and challenged the accused that he had accepted Rs.200/- from the complainant as bribe upon which the accused at first kept mum and thereafter accepted the fact that he had taken the bribe money of Rs.200/- from PW 1; PW 2 had recovered the GC notes from the right side upper shirt pocket of the accused and the numbers of the notes tallied with the numbers mentioned in the Handing Over Memo Ex.PW5/A; the right hand wash, left hand wash as also upper side shirt pocket wash of the accused was taken which when dipped into a transparent solution turned pink indicating the presence of sodium carbonate & phenolphthalein powder; the digital tape recorder containing the conversation between the accused and the complainant was also taken into possession along with the money; recovery memo Ex.PW1/5 running into five pages was 6 prepared at the spot duly signed by the accused, the complainant and the independent witnesses.
7. PW 1 Arun Kumar Singh in his statement on oath in court has recited the aforesaid version and has categorically stated that his telephone number 6022161 had become out of order on 2.5.02 and he had gone to Rampuri Telephone Exchange on 3.5.02 where he met the accused but since his telephone continued to remain out of order, he talked to the accused on 5.5.02 on telephone to which accused told him that unless he greased his palm the telephone would not be repaired and would remain out of order; he made complaint to the CBI. PW 1 has proved the transcripts as Ex. PW1/2 & Ex. PW1/3 which are the correct reproductions of the recorded conversation i.e at the trap time and at the spot. He has admitted that this telephone number which was to be repaired was in the name of his friend Som Nath 7 Pandey who has been examined as PW PW4 and both of them were living together at the same place. PW 4 Som Nath Pandey has corroborated this version of PW 1 and has stated that he had been living as a tenant for the last 4/5 years along with the complainant Arun Kumar Singh and the telephone No. 6022161 had been installed at their residence since April 2002. PW 5 Dharam Singh is the shadow witness; he has also recited the version as stated by PW 1 but in the course of his examination in chief he has stated that he could not listen to the conversation between the complainant and the accused and had been declared hostile by ld. Spl. PP. PW 2 M.C. Ramola the independent witness has towed the line of the prosecution and has reiterated the version as stated by PW1 and has categorically stated that the recovery of the two GC notes of Rs.100/- each had been made by him from the right side pocket of the safari shirt of the 8 accused. PW 6 Dr. Rajender Singh Senior Scientific Officer, CFSL had examined the specimen voice of the accused and the questioned voice in the alleged conversation between the accused and the complainant and had vide his report Ex. PW6/Y-C opined that the specimen voice and the voices in the questioned cassette matched one another. PW 8 T.R. Nehra Principal Scientific Officer, Asst. Chemical Examiner, Govt. of India. CFSL had examined the questioned writing and the admitted writings of the accused wherein the accused had noted the disputed telephone number on his note pad and had opined in favour of the prosecution vide his report Ex. PW8/E. PW 9 K.S. Chabbra had examined the left hand wash, right hand wash and the upper left side pocket wash of the safari shirt of the accused and vide his report Ex. PW 9/A he had opined the presence of phenolphthalein powder and sodium carbonate in the said washes 9 substantiating the version of the prosecution that the tainted money had touched the hands of the accused as also the upper left shirt pocket of the accused. The trap laying officer Ins. HK Lal has been examined as PW 11; the personal search memo has been proved as Ex. PW1/6; the arrest memo has been proved as Ex. PW2/2. Investigation was thereafter handed over to PW 10 Anil Kumar who had taken the specimen voice of the accused in the presence of the independent witnesses namely PW 2 and PW 5. Sanction for prosecution had been obtained by PW10 from PW3. Sh. P.K. Chanda, Member, Services Telecom Commission, Sanchar Bhavan, New Delhi who vide his sanction order Ex. PW3/A had accorded sanction for prosecution against the accused. PW 7 Anil Kumar Bhalla SDO has certified that the accused was working as Junior Telecom Officer at the Telephone Exchange since March 2001 till May 2002; the notebook issued by 10 the office to the accused was seized in his presence vide memo Ex. PW7/B; the telephone number 6022161 was mentioned in the despatch register copy of which is Ex. PW7/G; the said documents have been handed over to the CBI vide memo Ex.PW7/A. Sh. Vinod Kumar Negi posted as Telephone Mechanic, Office of SDO has also been examined as PW7 but he may be read as PW7/1.
8. This in brief is the case of the prosecution.
9. Statement of the accused was recorded under Section 313 of the Cr.P.C wherein he has stated that he is innocent and has been falsely implicated in the present case and he had not demanded any bribe from the complainant; the prosecution witnesses being interested witnesses have deposed falsely against him. The accused produced one witness in his defence.
10. DW 1 is Sh. Rajesh Kamra. He has 11 stated that he runs a PCO at DDA Flat Kalka Ji and he knows the accused as also the complainant as they were all friends; they used to come to his PCO; they used to sit together at times at the PCO for enjoyment in the evening; they used to have liquor and food together; sometime he used to organize the same, sometime Arun and sometime Megh Singh; in the beginning of April it was the turn of Arun Kumar to organize this by purchasing whisky; Arun Kumar had no money to buy whisky so Megh Singh gave Rs.200 to him on his request; on the second sitting also Arun had not brought the money and there was some difference on this account; later he came to know that he paid Megh Singh the cost of Rs.200/- for the whisky and got him involved in this case in the month of May 2002.
11. On behalf of the prosecution, it has been argued by Spl. PP Mohd. Azad that the case of the prosecution stands fully proved to the hilt in 12 view of the version of the complainant PW 1 which is corroborated by the version of PW 2 as also by the version of PW5 who is hostile on certain points but his testimony cannot be discarded in toto and that part of the evidence wherein he has supported the version of the prosecution has to be read. Ld. Spl. PP has placed reliance upon a judgment reported in AIR 1991 Supreme Court 1853 to substantiate the stand; it is stated that even in the case of hostile witness his evidence cannot be treated as effaced or washed of the record altogether. It is stated that the corroborative evidence which is in the nature of CFSL report Ex. PW6/Y-C had opined that the voice in the questioned cassette and the specimen voice were of the same person i.e. of the accused; the report of the CFSL Ex. PW9/A regarding the three washes has also corroborated this version and has advanced the case of the prosecution. It is further stated that the 13 IO PW 11 who was also a member of the trap team has also fully corroborated the version of PW1 and PW
2. It is argued that for all the aforesaid reasons, the accused is liable to be convicted.
12. On behalf of the accused arguments have been addressed by counsel Mr. R.N. Mittal. It is argued that the complaint Ex. PW1/1 dated 5.5.02 is totally silent on the amount of the tainted money and there is no mention that a sum of Rs.200/- had been demanded by the accused i.e till 5.5.02 admittedly there was no demand by the accused and that is why this does not find mention in the complaint Ex. PW1/1. It is argued that even in the version on oath in court PW 1 is totally silent as to the amount of money which had been demanded by the accused and there is no mention that the accused had made a demand of Rs.200/-. It is argued that even otherwise the testimony of PW 1 is highly shaky; attention has been drawn to his 14 cross examination wherein he has admitted that upto 6.5.02 accused had not demanded Rs.200 from him or in between them the payment of Rs.200 was not settled. It is stated that PW 1 has admitted in his cross examination that upto 6.5.02 the conversation between him and the accused was only confined to the fact that they should be friends and have a party where liquor may also be served and a bottle of liquor may be required. It is stated that this is the version of PW 1 as also of DW 1 and infact ld. Spl. PP has not cared to cross examine DW 1 on this count as to whether they were all friends or not, thus substantiating the version of the accused that all the aforesaid persons were infact friends and they had joined together wherein Rs.200/- had been paid by the complainant to the accused as the cost of this liquor bottle. It is further argued that PW 1 has admitted in his cross examination that there were no gaps in the 15 conversation recorded between himself and the accused which is contrary to the transcripts Ex. PW1/2 & Ex. PW1/3 which shows that there are major gaps in the alleged conversation which had been recorded at the spot and the CFSL expert PW6 who had examined the specimen voice of the accused and the complainant PW 1, has also admitted in his cross examination that the IO had not queried him regarding the gaps in the recorded conversation and since the IO had not raised any query to find out whether anything was added or erased in this recorded tape, therefore he had not conducted this test and in the erased portion it is not possible to find out what text or conversation has been erased or whose voice it was. It is argued that PW 6 has further admitted that the spectrography test could not be carried out due to presence of lot of interfering noises in the questioned and specimen voice. It is argued that PW 4 is also not a 16 reliable witness as he has categorically admitted that he had got the telephone connection and ration card by using his status as a tenant when he was not a tenant and the oral tenancy of the premises was in the name of PW1; no reliance can be placed upon the version of such a witness who is clearly a liar; even otherwise it is difficult to imagine that the telephone of PW 4 had to be got repaired by PW1 and PW4 was totally unaware of the fact that as a consequential arrangement Rs.200/- had been paid to the accused by PW1. It is argued that for the above-said reasons, the accused is clearly entitled to benefit of doubt and a consequent acquittal.
13. I have heard ld. Spl. PP Mohd.
Azad for CBI as also ld. Counsel Sh. R.N. Mittal for the accused. I have also carefully gone through the record of the case.
14. PW 1 the complainant is the star 17 witness of the prosecution. He has categorically stated that he had filed the complaint Ex. PW1/1 as his telephone No. 6022161 which had been installed at his residence had become out of order on 2.5.02 and he had gone to Rampuri Telephone Exchange on 3.5.02 where he met the JTO i.e the accused Megh Singh to get his complaint registered and the accused had assured him that his phone will be repaired but his phone continued to remain out of order; on 5.5.02 the accused had told him that unless he greased his palm, his telephone would not be repaired pursuant thereto the present complaint had been filed. PW 1 has further stated that on the directions of the CBI Inspector Mr. Pandey he had made telephone call to the accused and this telephone call in the presence of two independent witnesses was tape recorded i.e the pre trap conversation; PW 1 had produced two GC notes of Rs.100 each which had been quoted with 18 phenolphthalein powder; the transcript of the pre trap conversation has been proved as Ex.PW1/2; the numbers of the GC notes had been recorded in the Handing Over Memo Ex. PW1/3. PW 1 has further stated that the trap party was joined by two independent witnesses; that when the trap party reached the spot he went inside the room of the telephone department to meet the accused and one of the witness accompanied him inside the room and as soon as he handed over the bribe money of Rs.200/- to the accused, the said witness gave signal to the CBI team who rushed inside and this conversation was also tape recorded, transcript of which is Ex. PW1/3; the bribe money of Rs.200/- was recovered from the safari shirt pocket of the accused which was taken out by Ins. Pandey and the numbers of the notes tallied with the numbers mentioned in the Handing Over Memo; the washes of the hands of the accused and the shirt pocket wash was taken; 19 recovery memo Ex. PW1/5 was prepared at the spot as also the personal search memo which is Ex. PW1/6. PW 1 has further stated that the telephone which was to be repaired was installed in the name of Som Nath Pandey who used to live with him at H. No. 1694/3 Govind Puri, New Delhi and he had gone to make this complaint about the telephone as Mr. Som Nath Pandey was working in the office and used to leave the house early in the morning; the accused had noted down the telephone number on some paper.
15. In his cross examination this witness has stated that the tenancy of the premises was in his name but it was an oral tenancy and since he had gone to his home town the ration card as well as telephone connection was obtained by Som Nath Pandey in his name. PW 1 was confronted with the complaint made by him on 6.5.02 wherein there is no mention about his going to the telephone exchange and meeting the accused on 3.5.02 or about the date 20 of 5.5.02. PW 1 has further stated that the demand of Rs.200/- had already been settled although this fact had not been mentioned in his complaint. PW 1 has denied the suggestion that he was friendly with the accused and one Raj Kumar Kamra. He has further denied the suggestion that they used to take liquor together. He has further denied the suggestion that he had taken a liquor bottle from the accused. He has further denied the suggestion that this had led to the dispute. He has further denied the suggestion that he had gone to pay Rs.200/- as price of the said bottle. He has denied the suggestion that he has falsely implicated the accused.
16. This witness PW 1 was recalled for his further examination in chief wherein he has stated that he had talked with the accused and on his request instead of Bagpiper Whiskey the accused had agreed to accept Rs.200/- in lieu of the same. He 21 has further admitted that the money had been recovered from the accused by PW 2 Ramola, contradicting his first stand wherein he had stated that Ins. V.K. Pandey had recovered the GC notes from the accused; objection in this context had been raised by ld. Defence counsel that this witness had not been declared hostile by the prosecution and a leading question had been put to the witness; this objection has force as leading questions are not permitted in the examination in chief and unless ld. Spl. PP had declared the witness to be hostile he could not have put a leading question.
17. In his further cross examination PW 1 has admitted that he had filed his complaint Ex. PW1/1 on 6.5.02 and in that complaint it has not been mentioned that on 5.5.02 he had a talk with accused Megh Singh on a telephone upon which accused told him that unless he greased his palm, 22 his telephone would not be repaired and would remain out of order. PW 1 has further admitted that upto 6.5.02 accused had not demanded Rs.200 from him or in between them the payment of Rs.200 was not settled. PW 1 has further admitted in his cross examination that upto 6.5.02 the conversation between him and the accused was only confined to the fact that they should be friends and have a party where liquor may also be served and a bottle of liquor may be required. In this context PW 1 has further admitted that he had given Rs.200/- to the accused as the cost of liquor bottle to be purchased by him for "our" evening party for friends. In cross examination PW 1 has further admitted that he had continuous talks with the accused at the time of the raid and there was no gaps in between their talks; he has admitted that the tapes which were played in the court had at various places gaps in the talks between him and 23 the accused and he cannot say if these gaps have been created by erasing some part of their conversation; he has also admitted that at places there are gaps in the tapes for more than two minutes.
18. PW 5 Dharam Singh is the shadow witness. He has deposed that he had joined the trap party at the request of the CBI; he along with the other team members reached the telephone exchange but this witness has categorically stated that he could not listen to what transpired between the complainant and the said person i.e accused; he had given signal to the trap party and they had gone inside the room and made recovery of Rs.200/- from the shirt pocket of the accused and Mr. Ramola had made the recovery of Rs.200/- from the accused. In his cross examination this witness has stated that his signatures were taken on certain papers. This witness was also recalled for 24 his further examination in chief wherein he has stated that on the signal of the complainant, he gave the signal to the trap party and he could not hear the conversation between the complainant and the accused. He had been declared hostile by ld. Spl. PP as he was not eliciting the entire facts correctly whereupon he has admitted that the transcript which was prepared of the conversation i.e the pre trap conversation and the trap proceedings Ex. PW1/2 and Ex. PW1/3 had not been signed by him. In his cross examination he has stated that the transcript was not prepared in his presence and he does not know what is contained in those cassettes.
19. PW 2 M.C. Ramola was the recovery witness. He has corroborated the version as set up by PW 1 on the recovery; admittedly he was not present at the time when the demand was allegedly made by the accused or when the money was paid by 25 the complainant to the accused. He has stated that he had recovered Rs.200/- from the right side pocket of the safari shirt. In his cross examination this witness has stated that the talks recorded between the accused and the complainant were tape recorded and there was a continuous narration without any stoppage; he has stated that he was not a witness to this conversation but he was only a witness to the recovery made from the accused.
20. PW4 Som Nath Pandey is also a relevant witness. He has stated that the telephone which had been installed at their residence since April 2002 and he was living as a tenant in the said premises for the last 4/5 years along with the complainant and he had deputed PW 1 to get the telephone repaired which had then been repaired on 6th or 7th May. In his cross examination, this witness has stated that the tenancy was in the name of A.K. 26 Singh and since he was involved in numerous professional activities, he had thought it fit to get his ration card and telephone connection in his name. PW 4 has admitted that he had showed his status as a tenant while applying for ration card and telephone connection, thus admitting that he made a false statement in this context. Thus version of PW4 that telephone was repaired on the 6th or 7th May is contrary to the version of PW 7 Anil Kumar Bhalla who has stated that the disputed number was repaired by 16th or 17th May.
21. Complaint Ex. PW1/1 has been perused. This is dated 6.5.02 written by complainant Arun Kumar Singh wherein this telephone number 6022161 installed at the residence of the complainant PW 1 was out of order and he had made a complaint to accused Megh Singh JTO of the Telephone Department whereupon accused had asked for one bottle of Bagpiper and in case the bottle cannot be arranged 27 money should be paid in substitute of that. This complaint is a half page complaint in the handwriting of the complainant and admittedly there is no mention in this complaint that the complainant had on 3.5.02 gone to the telephone exchange whereupon he had met the accused Megh Singh who had noted down the telephone number which was to be repaired on a piece of paper and assured him that this telephone would be repaired but the telephone continued to remain out of order and on 5.5.02 the complainant had spoken to the accused on telephone whereupon accused had told him that unless he had greased his palm, the telephone would not be repaired. The submission of ld. Defence counsel in this context is that this is a substantial improvement by PW 1 on oath in court and there is no explanation as to why he had not mentioned in his complaint Ex. PW1/1 that he had gone to the office of the accused on 3.5.02 or that 28 when the telephone was not repaired he had a talk with the accused on telephone on 5.5.02. It is argued that even otherwise this version in the complaint Ex. PW1/1 is contrary to the version as set up in the version of PW 1 on oath in court. This submission of ld. Counsel has force. In his cross examination PW 1 has further admitted that he had given Rs.200/- to the accused as the cost of liquor bottle to be purchased by him for their evening party for friends. PW 1 has categorically admitted this wherein he has twice in his cross examination admitted that he had given Rs.200/- to the accused as the cost of liquor bottle to be purchased by him for their evening party for friends and was not a bribe.
22. In his cross examination he had specifically been confronted on this score. Ld. Defence counsel has argued that the defence of the accused right from the inception is that the 29 accused Megh Singh, complainant Arun Kumar Singh and DW 1 Raj Kumar Kamra were friends and they used to often sit together and enjoy liquor and on the fateful day it was the turn of the complainant to bring the liquor when the dispute had arisen.
23. The conversation between the accused and the complainant was recorded on the tape recorder i.e first time in the pre trap formalities and for the second time at the spot and these two conversations had been recorded in Ex. PW6/A; In the court proceedings the conversation i.e part of Ex. PW6/A could not be played as there was lot of noises in between and PW1 had infact stated that he is unable to identify the voices of the persons who were conversing and as such no reliance has been placed upon the spot conversation by the prosecution which had allegedly taken place between the complainant and the accused.
24. The pre trap conversation which had 30 been recorded between the complainant and the accused and the transcript of which is Ex. PW1/2 has been perused. The submission of ld. Spl. PP is that this conversation which is a corroborative piece of evidence and fully corroborates the version of PW1 and in this conversation there is a clear demand by the accused of Rs.200/-, in my view, has little force as this conversation has to be read in its entirety and in the said conversation, the transcript of which is contained in two and a half pages the complainant is telling him that he will be bringing the bottle of liquor or in case he does not want the liquor bottle he can give him the money for the same to which the accused is evading and he states therein that he drinks liquor and he will have that and since he is a medium sized man, he wants a medium variety of liquor to which the complainant again insisted upon him to take money instead of bottle of whiskey upon 31 which the accused is again evasive. The gist of the conversation nowhere in my view speaks of any specific demand, either explicit or implicit of a bagpiper bottle or Rs.200/-. The vehement submission of ld. Defence counsel is that the settled agreement between the complainant and the accused is that he would accept a sum of Rs.200/- in lieu of the bagpiper bottle but this does not find mention from the documentary evidence or from the pre trap conversation, in my view has force as PW 1 in his complaint has nowhere mentioned that a sum of Rs.200/- had been agreed to be accepted by the accused which is also not his version on oath in court and thus there is no corroboration on this score.
25. Apart from the fact that in Ex. PW1/1 there is no mention that the complainant had gone to meet the accused on 3.5.02 and again spoken to him on telephone on 5.5.02 whereupon the accused 32 had asked him to grease his palm, PW 1 in his cross examination has categorically stated that he had given Rs.200/- to the accused as the cost of liquor bottle to be purchased by him for their evening party for friends, and was not bribe money thereby suggestive of the defence set up by the accused that the complainant, the accused and DW1 were friends and they often used to sit together for a liquor party in the evening and this was one such occasion where the dispute had arisen over the purchase of liquor bottle. The further submission of ld. Defence counsel that this is the defence of the accused right from the inception and PW 1 was cross examined on this score on 21.7.03 i.e even before he was recalled for his further examination in chief is borne out from the record; as such this is not an after thought which is set up as a defence now by the accused.
26. Testimony of DW 1 is also relevant in 33 this regard; he has stated that he knows the accused as also the complainant as they were all friends; they used to sit together at times at the PCO for enjoyment in the evening; they used to have liquor and food together; sometime he used to organize the same, sometime Arun and sometime Megh Singh; in the beginning of April it was the turn of Arun Kumar to organize this by purchasing whisky; Arun Kumar had no money to buy whisky so Megh Singh gave Rs.200 to him on his request; on the second sitting also Arun had not brought the money and there was some difference on this account; later he came to know that he paid Megh Singh the cost of Rs.200/- for the whisky and got him involved in this case in the month of May 2002. It is further relevant to state that there is no suggestion which has been given to DW 1 that the accused, the complainant and he himself were not friends and they were not known to one another.
34
27. Ld. Defence counsel has argued that the credibility of PW 1 is tarnished and he is not a credit worthy witness and there is no corroborative evidence either from PW5 the shadow witness or from the tape recorded conversation allegedly recorded at the spot. In this context PW5 who was set up as a shadow witness has stated that he had not seen if Megh Singh had demanded money; he did not hear the conversation between the accused and the complainant and it was on the signal of the complainant that he gave signal to the trap party. He has further stated that he could not hear the conversation between the accused and the complainant. All these admissions of PW5 certify that the shadow witness had not either seen the demand allegedly made by the accused of Rs.200/- and nor he had heard the conversation between the two of them. PW 5 is of little use to the prosecution in his capacity as a shadow 35 witness.
28. As already discussed Supra the conversation which had recorded between the complainant and the accused at the spot i.e the post trap conversation which is a part of Ex. PW6/A could not be played in the court as there were gaps and this has come in the statement of PW1; as such the prosecution is not relying upon the same. The pre trap conversation transcript of which is Ex. PW1/2 as already discussed Supra, in my view, does not establish any demand by the accused who was all along evasive in his replies; in this context version of PW6 Dr. Rajender Singh Sr. Scientific Officer is also relevant. He has stated that he had examined the recordings which had been sent to him; the voice spectrography comparison of questioned and specimen voice could not be carried out due to presence of lot of interfering noises in questioned and specimen voice recordings. In his 36 cross examination he has admitted that spectrography test reveal the identity of a person whose voice it is but this test could not be carried out due to presence of lot of interfering noises in the questioned and specimen voice and in the present case it could not be fixed who the person was whose voice it was; he has admitted that the voice can be similar of two brothers in terms of their linguistic and phonetic features and auditory analysis (which was carried out in this case) is not a sure test to fix the person whose voice it could be. PW 6 has further admitted that the IO had not queried him regarding the gaps in the recorded conversation and since the IO had not queried him to find out whether anything was added or erased in this recorded tape, therefore he had not conduct this test and in the erased portion it is not possible to find out what text or conversation has been erased or whose voice it was. 37
29. These admissions of PW 6 clearly show that since the spectrography analysis of the specimen and question cassettes could not be carried out the identity of the voice in the said cassettes could not be established and there can be similar voices of two brothers in terms of their linguistic and phonetic features. He has further stated that in the absence of this sure test the auditory analysis is not by itself sufficient to fix the identity of the voice. PW 1 in his cross examination has admitted that there was a continuous conversation between him and the complainant and there were no gaps in the conversation but this is contrary to the version of PW 6 who had examined these cassettes and had stated that part of the conversation which was played in the court had gaps; PW 6 has further admitted that he had not been asked by the IO to find out whether anything was added or erased in 38 this recorded tape which further fortifies the submission of ld. Defence counsel that little reliance can be placed on this corroborative piece of evidence which has been set up by the prosecution.
30. Testimony of PW4 Som Nath Pandey in my view is also relevant. Admittedly the telephone which is the subject matter of the dispute is installed in the name of PW4 and as per PW4 he was living alongwith PW 1 as a tenant; he had shown himself to be a tenant and it was in those circumstances that he had subscribed for the telephone. As per his own version this telephone was installed in his name on the basis of false documents wherein PW 4 had shown himself as a tenant in premises No. 1694/3 Govind Puri Ext. New Delhi whereas the tenancy as per PW4 was in the name of PW1; thus PW 4 admitting the fact that he himself is a liar; even otherwise it is difficult 39 to imagine that when PW 4 had deputed PW 1 to get his telephone repaired but he himself was not aware of the fact that a bribe had been demanded by the accused for the repair of his phone and he had no knowledge about the same and infact Rs.200/- had been paid by PW1 for getting this telephone of PW4 repaired; PW 4 is totally silent on these aspects. The submission of ld. Defence counsel in this context is that it was actually PW4 who was the tenant in the aforesaid premises and it was his telephone which is the subject matter of the dispute and PW 1 has merely made a bald statement in the court that there was an oral tenancy in his name of the said premises to establish his locus standi to vent out his grievances against the accused by falsely implicating him in the present case. This argument also cannot be over looked straightaway.
31. Admittedly the telephone connection 40 and the ration card are in the name of PW 4 wherein his residence has been shown as 1694/3 Govind Puri, Kalka Ji which is false. No doubt the recovery of Rs.200/- had been made from the accused and this has been testified by PW 2 MC Ramola the recovery witness and his version is corroborative of the version of PW 1 the complainant as also PW 11 Ins. HK Lal who has also stated that Rs.200/- had been recovered from the upper left side shirt pocket of the accused and the numbers of the GC notes tallied with the numbers mentioned in the Handing Over Memo; however this recovery alone in my view is not sufficient to nail the accused for the offence for which he has been charged with i.e under Section 7 and Section 13 (2) read with 13 (1) (d) of the PC Act.
32. Under Section 7 of the PC Act mere demand or solicitation by a public servant amounts to the commission of offence; no line of 41 distinction need be made as between the acts in exercise of a particular office and acts in exercise of his position as a public servant. If the act is done in his official capacity as distinguished from his purely private capacity, it amounts to official act.
33. There is no doubt that the presumption available under Section 20 of the PC Act can be applied for trial for an offence punishable under Section 7 of the said Act and if the contrary is proved by the accused the court shall draw the presumption that the accused accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing as the case may be as a motive or reward without consideration or for a consideration which he knows to be inadequate and it is not necessary to prove the element of motive or reward. However this situation would arise only once it is established that the 42 public servant had accepted, obtained or agreed to accept or attempted to obtain from any person for himself or for any other person any gratification; in the absence of which premise having been established the presumption under Section 20 of the PC Act cannot be attracted.
34. Under Section 13 (1) (d) of the PC Act as distinguished from Section 7 of the PC Act in order to be a criminal misconduct under Section 13 (1) (d) of the Act, the action of a public servant deriving pecuniary advantage need not necessarily be connected with the performance of his official duty.
35. For the offence under Section 7 of the PC Act, there necessarily has to be established by the prosecution that the gratification was not a legal renumeration due to him & that this amount was not his legal due which in my view the prosecution has not been able to establish. The 43 corrupt or illegal means by abuse of the official position by a public servant has further to be established and is a pre condition to establish the ingredients under Section 13 (2) read with 13 (1)
(d) of the PC Act which also in the instant case is missing as the defence set up by the accused that Rs.200/- was the price of the bottle of liquor which the accused had agreed to accept for the evening party of their friends & was not a bribe money appears to carry more weight than the shaky and untrusty version of PW 1 who has even otherwise categorically admitted that he had given Rs.200/- to the accused as the cost of liquor bottle to be purchased by him for their evening party of friends and was not bribe money. DW 1 has not been cross examined on this score by ld. Spl. PP that PW1, the accused and DW 1 were not friends; the pre trap tape recorded conversation also does not establish any demand either express or implied. 44
36. The version set up by the prosecution is clearly shaky and benefit of doubt must accrue to the accused.
37. In view of the above discussion, in my view, the prosecution has not been able to establish its case against the accused beyond reasonable doubt. Benefit of doubt is given to the accused. Accused is acquitted of the charges levelled against him. He is on bail. His bail bonds are cancelled and the surety is discharged. File be consigned to the record room.
Announced in the open court.
05.12.07 (INDERMEET K. KOCHHAR) SPL.JUDGE, CBI, NEW DELHI 45 46 47