Delhi District Court
C.S. Krishnamurthy vs . State (2005) 4 Scc 81 And Inder Bhushan on 7 February, 2011
1
IN THE COURT OF SHRI PADAM KANT SAXENA:
SPECIAL JUDGE-04, CBI: DELHI.
Corruption Case No.60/2001 (Old)
Corruption Case No.12/2008 (New)
Unique I.D. No. 02401R0190382001
CBI
Versus
Sh. Syed Azhar Ahmad,
Son of Syed Mazhar Ahmad,
Inspector, RPF, ASC (R) ,
New Delhi
Case arising out of:
FIR No. RC.DA1-1999-A-0023
under Section 7, 13(2) read with
13(1) (d) of P.C. Act, 1988
Date of FIR : 12.05.1999
Date of Institution : 20.12.1999
Date of Final Arguments : 03.02.2011
Date of Judgment : 07.02.2011
CC No.12/2008 1 of 37
2
JUDGMENT:
FACTUAL BACKGROUND:
1. The present case had been instituted in the court on 20.12.1999. Therefore, this is a case which is more than 10 years old.
2. After filing of the charge sheet, cognizance had been taken, of the offences in question by ld. Predecessor Court.
Simultaneously , at that stage, accused was also ordered to be summoned and after his appearance and supply of copies of various documents, charge under Sections 7 and 13 (1) (d) read with 13 (2) of Prevention of Corruption Act, 1988 (for short referred to as "the Act") came to be framed against the accused on 01.12.2000, to which he pleaded not guilty and claimed trial.
3. The said charge against the accused , reads as follows:-
".........................
Firstly, you Syed Azhar Ahmad being a public servant while working as Inspector RPF, ASC(R)Coy, New Delhi on 11.05.1999 at about 8.30 P.M. at Delhi demanded illegal gratification of Rs.10,000/- from the CC No.12/2008 2 of 37 3 complainant Shekhar Kapur as a motive or reward for release of his staff member Madan Jha and also for helping him in the case and you directed him to pay an advance of Rs.5,000/- to you by 12.5.1999 and in furtherance of your aforesaid initial demand you on 12.5.1999 at about 1.25 P.M. in your office at DRM Office Complex, New Delhi Railway Station again demanded and accepted Rs.5000/- as illegal gratification from the complainant for showing official favour to him, thereby committed an offence punishable under Section 7 of PC Act, 1988 within my cognizance.
Secondly, you Syed Azhar Ahmad being a public servant while working as Inspector RPF, ASC(R)Coy, New Delhi on the aforesaid date, time and place by corrupt or illegal means and by otherwise abusing your position as such public servant obtained for yourself a pecuniary advantage to the extent CC No.12/2008 3 of 37 4 of Rs.5000/- from the complainant without any public interest, thereby committed an offence punishable under Section 13(2) r/w 13(1)(d) of P.C. Act, 1988 and within my cognizance.
And I hereby direct that you to be tried by the Court.
......................."
4. In support of its case, prosecution has examined 10 witnesses in all. Thereafter statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein he pleaded false implication.
5. In support of his defence accused has examined 8 witnesses in all whereafter defence evidence stood closed.
6. I have heard Shri Mohd. Shakeel, ld. PP for CBI, Shri Anil Kumar, advocate for accused and have gone through the records carefully.
7. On the basis of the materials on record, let us try to find out as to whether prosecution has been able to prove its case beyond reasonable doubts against the accused or not.
8. It is the case of the prosecution that at the relevant time, accused was posted as Inspector, Railway Protection Force, ASC CC No.12/2008 4 of 37 5 (R) Coy, New Delhi. Therefore, on the face of it , he was a public servant within the meaning of Section 2 (c) of the Act. This fact was admitted even by ld. defence counsel at the time of arguments.
9. Before launching the prosecution of the accused in question relevant sanction order was obtained by CBI and was filled along with Charge Sheet. This has been so mentioned in the Charge Sheet. The said sanction order has been proved on record by Shri V.D. Ram, Chief Security Commissioner, Northern Railway, Baroda House, New Delhi as Ex.PW1/A. This witness inter-alia testified that on 27.10.1999, he was posted as Chief Security Commissioner, RPF Northern Railway, Baroda House, New Delhi & he was competent to take disciplinary action against Shri Syed Azhar Ahmed, who was working as Inspector Railway, Protection Force, ASC (R) Company, Delhi at the relevant time. Also according to him before granting sanction for prosecution of the accused, he perused statements of witnesses, Recovery Memo, Handing Over Memo and some other documents which are on the file and after applying his mind to all the record, he gave sanction for prosecution, which is Ex.PW1/A and bears his signatures at point A.
10. Ld. defence counsel has vehemently argued that grant of sanction is not proper because there was non-application of mind and it was given in a mechanical manner. In this regard my CC No.12/2008 5 of 37 6 attention has been invited to cross-examination of PW 1 wherein he stated that along with letter of CBI that was a draft Sanction Order which according to ld. counsel vitiates Ex.PW1/A. Further according to ld. defence counsel, no opportunity was given to the accused before granting the sanction in question.
11. It is correct that PW 1 Shri V.D. Ram in his cross-examination admitted that a draft proforma sanction was accompanying the letter of request when had been received from CBI for grant of sanction. He further went on to state that he did not remember if he had given a personal hearing to the accused or not before grant of sanction in question.
12. There is no dispute that on 11.05.1999 & 12.05.1999 when the offences in question were committed by the accused, PW 1 Shri V.D. Ram, Chief Security Commissioner, RPF was competent to remove him i.e. the accused from service, who was posted as Inspector, Railway Protection Force.
13. Ld. defence counsel also invited my attention to the portion of deposition of PW 1 Shri V.D. Ram wherein he inter-alia stated that he did not remember in which language the complaint, Handing Over Memo and Recovery Memo were written. Further he also did not remember whether the same were typed or hand written. He also did not hear the cassette. For all these reasons, it is claimed by CC No.12/2008 6 of 37 7 the accused that there was non-application of mind.
14. It is true that the prosecuting agency had sent draft sanction to the Sanctioning Authority. However, PW 1 Shri V.D. Ram, the Sanctioning Authority categorically denied that Ex.PW1/A was verbatim reproduction of draft Sanction Order.
15. Sanction Order Ex.PW1/A on the face of it, narrates the facts in detail as also the fact that the Sanctioning Authority had gone through the complaint, Handing Over Memo, statements of witnesses etc. & on the basis of the facts the Sanctioning Authority also concluded that offences under Section 7 & 13 (d) (d) r/w 13 (2) of the Act were made out. So, this shows complete application of mind by PW 1 Shri V.D. Ram. The said witness in his examination-in-chief also categorically deposed that he had applied his mind to all the record and gave Sanction Ex.PW1/A.
16. In view of the aforesaid peculiar facts of the present case, Sanction Order Ex.PW1/A cannot be said to have been invalidated by mere sending of draft Sanction Order by CBI. In this regard I am supported by judgments of the Apex Court reported as C.S. Krishnamurthy Vs. State (2005) 4 SCC 81 and Inder Bhushan Vs. State 1958 Cr.L.J 279 SC.
17. Hon'ble Supreme Court in the case of Superintendent of Police (CBI) v. Deepak Chowdhary, 1996 Cr. LJ CC No.12/2008 7 of 37 8 405 SC had held that the grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction. The grant of sanction, therefore, being administrative act, the need to provide an opportunity of hearing to the accused before according sanction does not arise.
18. In view of the aforesaid legal position, aforesaid arguments of ld. defence counsel regarding Sanction Order in question are rejected. Accordingly, I hold that Sanction Order Ex.PW1/A is valid in the eyes of law.
19. Now let us come to the merits of the case.
20. Before proceeding further it would be useful to remember that it cannot be lost sight of that ultimate object of every system is to arrive at truth, punish the guilty and protect the innocent (Refer Sushil Kumar Sharma Vs. Union of India 2005 RLR SC
346). In the case of State Vs. Gurdeep Singh 1996 (2) SCC 384 inter- alia, it was held that object of trial is do discover truth.
CC No.12/2008 8 of 37 9
21. In the present case, PW 3 Shri Shekhar Kumar is the complainant. He proved his report dated 12.05.1999 as Ex.PW3/A (D-1). It contains pre-trap demand of bribe by the accused.
22. It is the case of the prosecution that Madan Jha son of Shri Lal Jha, who was an employee of the complainant Shri Shekhar Kumar had been arrested on 11.05.1999 by the Staff of Mobile Squad of Railways comprising of Shri Ashok Kumar Saluja (DW1), Shri T.R. Sharma (DW2), Shri N.K. Tomar (DW4) and Constable Ram Phal Singh (DW6). and relevant Kalandra in this regard has been proved as Ex.PW7/A. After his arrest, he was produced at PP, DRM Office, New Delhi Railway Station, which was headed by the accused. Admittedly, PW 7 ASI Mahinder Singh was also posted there, who prepared the said Kalandra Ex.PW7/A and produced Shri Madan Jha, the accused mentioned therein before Shri Alok Aggarwal, ld. ACMM, Delhi on 12.05.1999. Ex. DW4/1 proved by DW4 Shri Virender Kumar is admittedly a part of Ex.PW7/A as agreed to by ld. PP for CBI and ld. defence counsel on 17.03.2001 at the time of recording of his deposition. PW 7 ASI Mahinder Singh inter-alia deposed that on 11.5.1999 while he was posted at RPF post, on that date 4 persons had been caught by Railway officials and on the basis of documents procured by them and produced before him, he prepared Kalandra and produced them before Special Railway CC No.12/2008 9 of 37 10 Magistrate. It also stands admitted there by ld. defence counsel that ASI Mahinder Singh used to work under the supervision of accused, who was posted as Inspector, RPF at DRM Office, New Delhi. This is also clear from the deposition of various defence witnesses including DW5 Shri Darshan Kumar.
23. The first and the foremost question that arises for consideration is whether there was an initial demand of bribe by the accused on 11.05.1999 as reflected in Ex.PW3/A (D-1) or not.
24. According to Ld. PP for CBI, bribe amount of Rs.10,000/- had been demanded by the accused on 11.05.1999 at 8.30 P.M. for release of Madan Jha and for helping him in the case. Further according to CBI at the time of trap on 12.05.1999 accused again demanded and accepted bribe amount of Rs.5000/-. This is the charge in respect of which accused has been facing trial.
25. Ld. defence counsel submits that there is no independent corroborative evidence on record to show that there was an initial demand of bribe of Rs.10,000/-, made by the accused from the complainant on 11.05.1999 at 8.30 P.M. In this regard reliance has been placed on a judgment of Hon'ble Apex Court reported as Darshan Lal Vs. Delhi Administration 1974 Cr.L.J. 307, that of Hon'ble Delhi High Court dated 24.12.2010 in Crl. Appeal No. 579/2005 & of Hon'ble Punjab & Haryana High Court in Harbans CC No.12/2008 10 of 37 11 Singh Vs. State of Punjab 2010(2) C.C. Case 287.
26. While dealing with evidence of the complainant, the bribe giver, Hon'ble Delhi High Court in the case of Sunil Kumar Sharma Vs. State 139(2007) DLT 407 while relying on the judgment of the Apex Court in the case of State of U.P. Vs. Zakaullah 1998 SCC Cr. 456 had inter-alia held that complainants' evidence does not require any corroboration and Court can act upon the testimony of the complainant provided the same is trustworthy.
27. Also, according to ld. defence counsel, the said Shri Madan Jha had been initially arrested by Mobile Squad of Railways who handed over to ASI Mahender Singh (PW 7) and ultimately convicted on 12.05.1999 by Shri Alok Aggarwal, ACMM, Delhi. Further according to ld. defence counsel on 11.05.1999, the said Shri Madan Jha was lodged in the lock up of P.S. New Delhi and not in the lock up of PP DRM Office, New Delhi Railway Station. Therefore, according to ld. counsel accused could not have helped Shri Madan Jha, at all.
28. Ld. defence counsel submits that complainant Shekhar Kumar (PW 3) himself had been indulging in black marketing and accused, who had recently joined as RPF Post, DRM Office, New Delhi Railway Station on 19.04.1999 and in 20 days, he had apprehended many persons and got recovered fine of Rs.70,000/-.
CC No.12/2008 11 of 37 12 Hence, they wanted to falsely implicate the accused. In this regard, he has invited my attention to deposition of PW 6 Shri Taquir Zulfikar and PW 7 ASI Mahinder Singh. Ld. defence counsel has also invited my attention to cross-examination of complainant (PW 3) that even after raid in question, his employee Denny Joseph was also arrested and on his discharge complainant was also arrested, who is also facing trial.
29. It is admitted on both counts that on 11.5.1999 Shri Madan Jha, an employee of PW 3 Shri Shekar Kumar was in the custody of Railway Protection Force PP, DRM Office, New Delhi which at that time was was headed by Inspector Syed Azhar Ahmed, the accused. PW 3 Shekhar Kumar during the cross-examination by ld. defence counsel inter-alia deposed that he had received a telephone call from DRM office about arrest of Madan Jha. Further in his cross- examination this witness admitted having met the accused on 11.5.1999 in the evening at about 6.30 P.M. which was not challenged in cross-examination. Ld. defence counsel points out that in the complaint Ex.PW3/A on 11.05.1999, PW 3 Shri Shekhar Kumar claimed to have met the accused at 8.30 P.M. but he did not depose about this fact in the Court and since he contradicted himself therefore,he was confronted with the same. Further according to ld. defence counsel , Shri Madan Jha pleaded guilty before the concerned CC No.12/2008 12 of 37 13 Court and was directed to pay money and therefore, accused in any case could not have helped him. Hence, it is claimed that there is no truthfulness in the stand of PW 3 Shri Shekhar Kumar. It is significant to note that the said witness specifically denied the suggestion of ld. defence counsel about non-demand of initial bribe amount by the accused.
30. Further according to ld. defence counsel, both independent witnesses viz. PW 4 Shri Ravinder Nath Seth and PW 5 Shri Pritam Singh are not independent but are stock witnesses. Hence, it is prayed that their evidence should be rejected. In this regard reliance has been placed on a judgment of Hon'ble Supreme Court reported as State of Gujarat Vs. Kumud Chand Pranjivan Shah 1995 CrlJ 3623.
31. As regards procurement of PW4 Shri Ravinder Nath Seth and PW 5 Shri Pritam Singh. PW 10 Shri S.C. Bhalla , the Trap Laying Officer inter alia claimed that trap team was constituted by him and in the meanwhile requisition was also sent to the office of FCI through Duty Officer for procuring presence of two officers to act as independent witnesses pursuant to which the said witnesses came. So, it is clear that per se these witnesses were not in touch with CBI officers. Rather they were sent by their own officers i.e. officers of the office, where the said witnesses were employed. No suggestion was CC No.12/2008 13 of 37 14 put to PW 10 Inspector S.C. Bhalla that the said witnesses were stock witnesses of CBI. PW 4 Shri Ravinder Nath Seth inter-alia deposed that on the directions of his seniors he along with Shri Pritam Singh visited CBI office. Therefore in his cross-examination he admitted that he appeared as a witness on behalf of CBI against one accused Anil Kumar Gupta in two cases and also in a case against accused J.K. Chopra. Further according to the said witness apart from those cases he had also been joined by CBI in some other cases also. He went on to admit as correct the suggestion put to him by ld. defence counsel that for joining investigation they received orders from Vigilance department. Similarly, PW 5 Shri Pritam Singh in his examination in chief stated that he visited CBI office on the directions of the seniors. In cross-examination also he maintained this very stand. At one place of his cross-examination PW 5 Shri Pritam Singh deposed that he might have been joined as a witness by CBI in 4 to 5 trap cases.
32. Hon'ble Supreme Court in the case of State of Gujarat Vs. Raghunath 1985 Crl. L.J 1357 had observed that for example in rural area investigating officers would ordinarily think of calling in the village officers such as Headman the Patel or Patwari to act as Panch witnesses as they are respectable persons of the society. It does not mean that their evidence would be viewed with suspicion because they are Government Servants or because they are generally CC No.12/2008 14 of 37 15 associated with investigating agencies whenever there is a crime in the village. In State of U.P. Vs. Zakaullah (Supra) it was inter-alia observed by the Apex Court that 'acquaintance of independent witnesses' with police or fact that he helped police action would by itself not discredit evidence of the said independent witnesses.
33. The evidence in the present case would reveal that the PW 4 Shri Ravinder Nath Seth and PW 5 Shri Pritam Singh did not conceal the fact that they had appeared as prosecution witnesses in other cases also. Further, it emerges from the record that they had appeared as prosecution witnesses not of their own but on the directions of the concerned officers of their department. Hence the instant case is clearly distinguishable on its own facts and therefore judgment in the case of State of Gujarat Vs. Kumud Chand Pranjivan Shah (Supra ) relied upon by ld. defence counsel is not applicable to the facts of the present case. As held by the Apex Court in the cases of State of Gujarat Vs. Raghunath and State of U.P. Vs. Zakaullah(Supra) the evidence of PW 4 Shri Ravinder Nath Seth and PW 5 Shri Pritam Singh cannot be looked with suspicion merely because the said two witnesses are Government servants and were associated with CBI officers in other cases also.
34. According to the case of the prosecution, accused had demanded bribe of Rs.10,000/- on 11.5.1999 from PW 3 Shri CC No.12/2008 15 of 37 16 Shekhar Kumar. PW 3 Shekhar Kumar had categorically deposed in his examination-in-chief that for releasing Madan Jha , his employee and for helping him in the case, accused had demanded Rs.10,000/- which was to be paid in two instalments of Rs.5000/- each. This is corroborated by the complaint Ex.PW3/A. As held in the case of State of U.P. Vs. Zakaullah(Supra) complainant's evidence cannot be rejected merely because he was aggrieved against the bribe taker.
35. Ld. defence counsel pointed out that how could accused release Madan Jha and help him when he i.e. Madan Jha had not been arrested by him i.e. the accused.
36. Explanation(d) appended to Section 7 of the Act clearly says that a person who received a gratification as a motive or reward for doing what he does not intend or is not in a position to do etc. comes with in the expression motive or reward. In view of this, the aforesaid argument of ld. defence counsel referred to in the previous paragraph has no force in the eyes of law and is therefore rejected.
37. In his complaint Ex.PW3/A, time of initial demand has been mentioned as 8.30 P.M. Admittedly in respect of the aforesaid Kalandra Ex.PW7/A inter alia Shri Madan Jha had been convicted and also fined to pay Rs.7000/-. In the complaint Ex.PW3/A (D-1), time of demand of initial bribe amount is mentioned as 8.30 P.M. on 11.05.1999. PW 3 Shri Shekhar Kumar in his cross-
CC No.12/2008 16 of 37 17 examination recorded on 12.02.2004 inter-alia deposed that he reached DRM Office at 6.30 P.M. on 11.05.1999 and met the accused. He specifically claimed that he did not tell CBI Officer that in Ex.PW3/A, he had mentioned that initial bribe was demanded on 11.05.1999 at 8.30 P.M. He was also confronted with the said statement. Based on this ld. counsel submits that there is no corroboration about initial demand of bribe. In my view, the said contradiction about the time of demand of initial bribe amount is not material. Such a contradiction may appear on account of lapse of time. During the course of arguments ld. defence counsel also pointed out various contradictions appearing in his examination-in-chief and cross-examination. The said contradictions are of a minor nature and do not go to the roof of the matter. The question is, why would PW 3 Shekhar Kumar falsely implicate the accused. The complainant appears to be a reliable and trustworthy witness and there is no reason as to why he should not be believed.
38. Hence, it stands proved on record that on 11.5.1999 accused had demanded bribe of Rs.10,000/- from PW 3 Shri Shekhar Kumar and the advance bribe amount of Rs.5000/- was to be paid on 12.5.1999.
39. Also according to ld. defence counsel, the said Shri Madan Jha has not been examined and therefore an adverse CC No.12/2008 17 of 37 18 inference should be drawn against the prosecution and accused be acquitted. In this regard reliance has been placed on a judgment of the Apex Court reported as Chander Prakash Vs. State AIR 2006 SC
894.
40. Ld. PP for CBI submits that the said Shri Madan Jha could not be traced and therefore, could not be produced for examination in the Court though he had been examined during investigation of the case. Summons issued by the Court to the said witness Madhan Jha for 09.05.2006 would reveal that his address was incomplete and reportedly the said Shri Madan Jha had also left the employment. This shows that the said witness was not available at the given address. It is not the case of the defence that the said witness was not examined despite availability. It is also significant to note that even defence has not produced the said witness. As such no adverse inference can be drawn against the prosecution for non-examination. Hence, argument of ld. defence counsel in this regard is rejected.
41. Now, let us come to the proceedings that took place on 12.05.1999, the actual date of trap.
42. The proceedings that took place on 12.5.1999 can be divided in three stages viz. pre-trap, actual trap and post trap proceedings.
43. Ld. defence counsel also submits that according CC No.12/2008 18 of 37 19 to the case of the prosecution complaint Ex.PW3/A (D1) was taken by PW 3 Shekhar Kumar along with him. This fact was stated by the said witness in his examination in chief. Ld. defence counsel had invited my attention to the cross-examination of PW 3 Shri Shekar Kumar wherein he stated to have written Ex.PW3/A (D1) in the office of CBI. In this regard, PW 3 Shri Shekhar Kumar was also confronted with the previous statement Ex.PW3/DD. Therefore, based on this, the argument is that case of prosecution is false. No doubt such a discrepancy does exist in the evidence of PW 3 Shri Shekhar Kumar, the complainant. However, in my view merely on account of this lapse it cannot be said that case of the prosecution is false. Such a discrepancy may creep in on account of passage of time or lapse of memory or anxiety of witness. There is no doubt that Ex.PW3/A (D1) was submitted by PW 3 Shekhar Kumar before CBI. When this fact stands proved, the aforesaid discrepancy pointed out by ld. defence counsel pales into insignificance. So, argument of ld. defence counsel in this regard is rejected.
44. Ld. defence counsel has also invited my attention to portion of deposition of PW 3 Shri Shekhar Kumar wherein he stated that he gave trap money of Rs.5,000/- to Inspector Mridula Shukla while according to the case of the prosecution Inspector S.C. Bhalla (PW 10) was Trap Laying Officer and the said Trap money was CC No.12/2008 19 of 37 20 given to him.
45. Ld. defence counsel submits that PW-8 Inspector Mridula Shukla was I.O. and therefore, deposition of PW-3 Shri Shekhar Kumar in this regard is wrong. This submission of ld. counsel is correct but this is a minor contradiction and in my view nothing turns on this.
46. Pre-trap proceedings:- In this regard PW 3 Shri Shekhar Kumar, the complainant deposed as follows:-
"...............On 12.5.99 I visited CBI office along with the money and my complaint. Two witnesses were requisitioned by the CBI officials. I produced Rs. 5000/- and gave the same to Inspector Mridula Shukla (PW8) and those notes were treated with powder. The no. of GC notes were recorded on a paper. After that notes were given to me with the direction to hand over the same on specific demand .............".
47. With regard to pre-trap proceedings, deposition of PW 4 R.N. Seth is also relevant. This witness inter-alia deposed :-
"..........Some chemical powder was applied on the GC Notes and after I touching (sic) the GC CC No.12/2008 20 of 37 21 notes dipped my hand in the solution which turned in pink colour which was thrown away. Thereafter, I washed my hands. The powder treated notes were given to the complainant with the direction to give the same on specific demand to the official who demanded the same and I was directed to act as a shadow witness for the purpose of giving signal to the remaining trap team. Handing Over Memo Ex.PW3/B pertaining to pre-trap proceedings was prepared bearing my signatures at point B. The number of GC notes were also recorded in the annexure Ex.PW3/C bearing my signature at point B..........".
48. The other independent witness examined by the prosecution regarding pre-trap proceedings is PW5 Shri Pritam Singh, who inter-alia deposed as follows:-
"..............On 12.05.1999, I was posted as AG-II, FCI, HQ, New Delhi. On that day as per the directions of my senior I along with Ravinder Nath Seth visited CBI office. We were told that a CC No.12/2008 21 of 37 22 complaint was received from complainant present in CBI Office that one Inspector was demanding bribe from him. The complainant was made to write a complaint and he also produced 50 GC notes of Rs.100/- each. One powder was requisitioned from the Malkhana and a demonstration was given by asking me to dip my finger in a glass in which water and powder was mixed after touching the powder treated notes. The powder treated notes were given to the complainant to give the same to Mr. Azhar on his specific demand. The pink solution was thrown and fresh water was fetched, which was kept in the bag. The number of GC notes was recorded on a piece of paper. Handing over Memo Ex.PW3/B and annexure Ex.PW3/C was prepared at the CBI office which bears my signatures at point C.................".
1. It is true that both PW 4 Ravinder Nath Sethi and CC No.12/2008 22 of 37 23 PW 5 Pritam Singh turned hostile to the case of the prosecution and were cross-examined by ld. PP for CBI. In the case of Sat Paul Vs. Delhi Administration AIR 1976 SC 294 Hon'ble Supreme Court inter- alia has held that evidence of such a witness cannot be treated as washed off the record altogether. A perusal of the their depositions go to show that their evidence is still creditworthy with respect to certain portions, which are are supported by other evidence on record and can still be believed.
2. In this regard, deposition of PW 10 Inspector S.C. Bhalla, the Trap Laying Officer is also illuminating. This witness inter-alia deposed as under:-
"............Thereafter, I constituted a trap team consisting of Inspector P. Bala Chandran, Inspector P.K. Gunwant, Inspector Vivek Dhir and S.I. Alok Kumar and myself. In the meantime, requisition was sent to Office of FCI through the Duty Officer for procuring the presence of two officials to join the team to act as independent witnesses. At about 11.30 A.M., two officials of FCI namely Shri Pritam Singh and Shri R.M. Seth reported to me in my room. The purpose of their visit was informed to them.
CC No.12/2008 23 of 37 24 They were introduced to the complainant Shri Shekhar Kumar. The complaint was shown to both the witnesses who after going through the same clarified certain questions from the complainant for their satisfaction. Thereafter a trap kit was requisitioned from the Malkhana. Phenolphthalein powder was also requisitioned separately. In the presence of the witnesses, the complainant produced an amount of Rs.5000/- consisting of 50 notes of Rs.100/- each. The numbers of the same were noted down in Annexure A of the Handing Over Memo which is Ex. PW3/C and bears my signatures at point D. Shri P.K. Gunwant was directed to treat the above GC Notes with Phenolphthalein powder and gave practical demonstration of the reaction of Phenolphthalein powder in solution of Sodium Carbonate. Accordingly, Inspector P.K. Gunwant treated the G.C. notes with phenolphthalein powder. Solution of Sodium Carbonate was prepared in a neat and clean glass. Shri Pritam Singh independent witness CC No.12/2008 24 of 37 25 was directed to touch the notes with his right hand fingers and washed the same in the said solution. On his doing so, the solution turned pink in colour. Thereafter, the said solution was thrown away. Shri Pritam Singh was asked to wash his hands with soap and water and he did the accordingly. The tainted money was given to the complainant with the direction to hand over the same to accused on his specific demand and not otherwise or to pass on the same to other person if any on his direction. The complainant was directed not to keep anything else in his person except the tainted bribe amount. All the trap team members mutually searched each other and all were directed not to keep anything with them except the identity cards. All the members washed their hands with soap and water................".
3. So from the above portion of evidence, of PW 3 Shri Shekhar Kumar which is corroborated by the said portions of depositions of PW 4 Shri Ravinder Nath Sethi and PW 5 Shri Pritam Singh, it stands proved that G.C. Notes comprising the bribe amount of CC No.12/2008 25 of 37 26 Rs.5000/- given by him i.e. PW-3 Shri Shekhar Kumar were treated with Phenolphthalein powder and details thereof were mentioned in Pre-trap Proceeding Memo Ex.PW3/B and its annexure is Ex.PW3/C. Accused in his statement under Section 313 Cr.P.C. , 1973 in this regard claimed that he was not aware about it.
4. Ld. defence counsel submits that PW-3 Shri Shekhar Kumar and PW-4 Shri Ravinder Nath Seth do not state anything about any demonstration having been given. In fact, PW-4 Shri Ravinder Nath Seth says that he had touched powder treated notes and dipped his finger in the solution which turned pink in colour. As against this PW-5 Shri Pritam Singh deposed that demonstration was given by him. So these appear to be contradictory. On the other hand, PW-10 Shri S.C. Bhalla, Trap Laying Officer inter-alia deposed that Shri Pritam Singh (PW-5) independent witness was directed to touch the said notes (powder smeared notes) with his right hand and then he washed the same in solution when colour of solution turned pink. The said fact also finds a mention in Ex.PW3/B (D3), the Handing Over Memo. In view of this documentary evidence Ex.PW3/B (D3), the aforesaid inconsistency pales into insignification.
5. The said G.C. Notes which were treated with phenolphthalein powder and given by PW 3 Shri Shekhar Kumar to the accused, have been proved by him as Ex.P1/1 to 1/50.
CC No.12/2008 26 of 37 27
6. Genuineness & authenticity of Ex.PW3/B and Ex.PW3/C has not been specifically challenged by the accused in cross-examination and therefore the same have to be believed to be true. Further Ex.PW3/B and Ex.PW3/C specifically mention that the same were prepared before arrest of accused but PW 3 Shri Shekhar Kumar in his cross-examination at one point stated that the same were prepared after arrest of accused. Significantly at that time attention of the witness was not brought to the contents of Ex.PW3/B where it was mentioned that the same had been prepared before arrest of the accused. In the absence of this foundation, no argument based on this contradiction is permissible.
7. It is the case of the prosecution that before leaving CBI office for actual trap, a Micro Tape Recorder was given to PW 3 Shri Shekhar Kumar for recording the proposed conversation between him and the accused, which he did. This has come in the deposition of PW 3 Shekhar Kumar. It is admitted by ld. PP for CBI that this fact is not mentioned in Handing Over Memo Ex.PW3/B. The said Micro Cassette has been proved as Ex.P.2. Relevant Transcription dated 04.10.1999 recorded therein, has been proved as Ex.PW3/E. Evidence on record reveals that the relevant micro cassette produced from Maalkhana of CBI was played in the Court.
8. Ld. defence counsel submits that the said CC No.12/2008 27 of 37 28 transcription is not admissible because opinion of voice expert is not there. Also according to him, factum of handing over of Micro cassette, is not mentioned in Ex.PW3/B and Ex.PW3/C. Further according to him permission of the Court was not taken before opening the cassette. Ld. defence counsel further submits that admittedly Ex.PW3/E does not contain the full conversation. In support of the said arguments, reliance has been placed on the judgments reported as R.M. Malkhani Vs. State of Maharashtra AIR 1973 SC 157, Chandrakant Ratilal Mehta & others Vs. State of Maharashtra 1993 Crl. L.J. 2863 Bombay High Court and Subhash Chand Chauhan & others Vs. CBI 2005 I A.D. (Cr.) DHC 560 .
9. Ld. defence counsel submits that when on 4.10.1999 Micro cassette was desealed for preparation of Ex.PW3/E no permission of the Court was taken and this is in violation of C.R. Mehta (Supra). In the case of C.R. Mehta (Supra) evidence of tape recordings had been withheld. As noticed hereinbefore, the tape recordings in question was played in the Court in the present case. Hence, judgment in the case of C.R. Mehta (Supra) does not advance case of the accused.
10. Significantly, as far as Ex.PW3/E is concerned, the accused does not dispute his voice being there. PW 3 Shekhar Kumar has identified his voice there. Accused does not dispute the CC No.12/2008 28 of 37 29 said conversation contained in Ex.PW3/E but only disputes the text thereof. So, this judgment in the case of Subhash Chand (Supra) clearly distinguishable on its own facts and does not help the accused.
11. As regards demand of bribe by accused from PW-3 Shri Shekhar Kumar, the complainant, on the date of the trap i.e. on 12.05.1999 he i.e. the accused had asked him i.e. the complainant if he had brought the money to which he replied in the affirmative. On this he i.e. PW-3 Shri Shekhar Kumar gave the money to the accused. As already stated, in his examination-in-chief PW-4 Shri Ravinder Nath Seth did not support the case of the prosecution fully and was cross-examined by ld. PP for CBI wherein he categorically deposed about acceptance of bribe money by accused from PW-3 Shri Shekhar Kumar, the complainant. So portion of deposition of PW3 Shri Shekhar Kumar, the complainant about acceptance of bribe money from him i.e. by accused gets corroborated by portion of deposition of PW4 Shri Ravinder Nath Seth as contained in his cross-examination. Hence , in view of the law laid down in the case of Sat Paul (Supra) this portion of deposition of PW 4 Ravinder Nath Seth corroborates the deposition of PW 3 Shekhar Kumar and therefore can be taken into consideration.
12. It is significant to note that Recovery Memo Ex.PW3/C on page No. 4 thereof, clearly mentions that Micro Tape CC No.12/2008 29 of 37 30 Recorder, which was earlier entrusted to the complainant, was taken back and it was rewound and replayed. In view of this, non mention of handing over of cassette recorder in Ex.PW3/B to the complainant, loses significance. On the other hand, oral deposition of PW-3 Shri Shekhar Kumar in this regard gets corroborated by Ex.PW3/C, the recovery memo.
13. As per evidence of PW-8 Inspector Mridula Shukla, the I.O., accused had not given his specimen voice and as such the questioned cassette could not be sent for comparison. This has not been challenged in the cross-examination. Therefore, if that be so, then accused has no right to say that questioned cassette should have been sent for comparison to Voice Expert or for spectography. In fact, on account of absence of specimen voice, comparison by an expert could not be carried out and therefore argument in this regard is worthless. For this reason, judgment in the case of Subhash Chand Chauhan & others Vs. CBI (Supra) is not applicable to the facts of the present case.
14. Admittedly, Transcription Ex.PW3/E was prepared on 4.10.199 i.e. after about five months of trap. It would have been in accordance with law, if permission of the Court would have been taken before desealing the prior sealed cassette,
15. PW-5 Shri Pritam Singh in his deposition says CC No.12/2008 30 of 37 31 that Ex.PW3/E was prepared after playing the cassette and it was signed by him on each page. In his cross-examination, genuineness and authenticity of the said portion of deposition of PW-5 Shri Pritam Singh had not been challenged. Therefore, the same is deemed to have been accepted as true. Portion of deposition of PW4 Shri Ravinder Nath Seth corroborates the said portion of evidence since Ex.PW3/E is also signed by this witness at point B. Even PW-8 Mrs. Mridula Shukla, I.O. proved Ex.PW3/E to be in her own handwriting which bears her signatures at point D. In the cross-examination of PW-8 Mrdiular Shukla, I.O., it was not specified as to which portion of Ex.PW3/E was not correct.
16. In the recorded conversation PW 3 Shri Shekhar Kumar identified his voice and that of the accused. Admittedly, the said Transcription Ex.PW3/E is not signed by PW-3 Shri Shekhar Kumar. Portion A to A of Ex.PW3/E explains the reason for late coming of PW 3 Shri Shekhar Kumar he inter-alia refers to collection of cash. This transcription Ex.PW3/E between points BI to BI mentions the words "Laaye Ho" uttered by the accused. In the cross- examination of PW 3 Shri Shekhar Kumar this portion was specifically put by ld. defence counsel who admitted that there was no mention of word "Paise" . So, this conversation between accused and PW 3 Shri Shekhar Kumar completely falsifies defence of the CC No.12/2008 31 of 37 32 accused that he was not there in his office, when in the context of the initial demand made on 11.05.1999 by the accused from PW 3 Shekhar Kumar and the preceding communication between them reflected in Ex.PW3/E, the words "Laaye Ho" mentioned in Ex.PW3/E are read, the same clearly refer to the demanded bribe amount of Rs.5,000/-. It is true that there is some variance between oral evidence and Ex.PW3/E but this would ipso facto not result in acquittal of the accused.
17. So, this evidence shows that even at the time of trap proceedings on 12.05.1999, accused had demanded bribe from the accused.
18. Now, let us come to the question of acceptance of the bribe amount.
19. As already stated, PW 3 Shri Shekhar Kumar in his sworn deposition has inter-alia has deposed that on the asking of the accused on 12.05.1999 he had handed over the tainted money to him i.e. the accused who kept the same in the almirah. Acceptance of bribe money by accused is also corroborated by PW-4 Shri Ravinder Nath Seth, the independent shadow witness. So, this shows that accused had accepted and handled the tainted money Ex.PW3/D (D-
5), recovery Memo also corroborates this fact.
20. According to the case of the prosecution after its CC No.12/2008 32 of 37 33 acceptance, the tainted money had been counted by the accused and kept by him i.e. the accused in his almirah on a polythene bag. This is mentioned in Ex.PW3/D.
21. PW 3 Shri Shekhar Kumar had categorically deposed that washes of both hands of accused were taken, which turned pink. According to him, the said washes were sealed. This deposition stands corroborated by deposition of PW 5 Shri Pritam Singh who also proved the said washes as Ex.P3 to Ex.P5 which were signed by him at points B. In support of his, there are also depositions of PW-4 Shri Ravinder Nath Seth & PW-10 Shri S.C. Bhalla, Trap Laying Officer.
22. Ld. defence counsel submits that after sealing the bottles Ex.P.3 to Ex.P.5 the seal remained with CBI officer. PW 3 Shekhar Kumar also admits his fact. Hence, it is claimed that there was every possibility of the tampering of the said bottles. Therefore, there is a prayer for acquittal of the accused. In this regard reliance has been placed on a judgment of the Apex Court reported as Rajesh Awasthi Vs. State 2004(3) CC Cases (SC) 397.
23. With regard to this aspect of the matter PW 4 Shri R.N. Seth also admitted suggestion of ld. PP for CBI that accused had accepted bribe amount from the complainant (PW 3) and kept the same in the almirah on polythene bag or polythene cover Ex.P-10.
CC No.12/2008 33 of 37 34 Even in his cross-examination by ld. defence counsel PW 4 Shri R.N. Seth deposed that transaction of giving and taking of money took place inter-alia in his presence.
24. PW-2 Shri K.S. Chabra, Sr. Scientific Officer of CFSL inter-alia testified that on 17.05.1999, three bottles were received, which were marked as LHW, RHW & PCW. Further according to him, these exhibits gave positive test for phenolphthalein powder and Sodium Carbonate. He proved his report as Ex.PW2/A. Genuineness and authenticity of Ex.PW2/A has not been challenged in cross-examination and therefore, the same is deemed to have been accepted as correct.
25. Significantly, in this case it is not the the case of the prosecution or the defence of the accused that the seals on the said bottles Ex.P3 to Ex.P5 were different from those found on them by PW 2 K.S. Chabra. In the absence of this, no argument based on this ground is permissible. The judgment in the case of Rajesh Jagdamba Awasthi(Supra) relied upon by ld. defence counsel is not applicable to the facts of the present case.
26. This shows that accused had accepted and handled the aforesaid bribe money Ex.P-1/1 to Ex.P-1/50, which was recovered from Almirah which was there in the office room of the accused.
CC No.12/2008 34 of 37 35
27. Admittedly, the said bribe money Ex.P-1/1 to Ex.P-1/50 was not the legal remuneration of the accused.
28. Accused claims that because of his stringent behaviour in the performance of his duties he had been falsely implicated in this case.
29. Ld. defence counsel has taken the defence that PW-3 Shri Shekhar Kumar, the complainant had shaken hand with the accused and that is when phenolphthalein powder touched his hand also i.e. palm of the accused. If that was so then why such a defence was not raised at the earliest stage. Ex.PW3/D (D-5) Recovery Memo clearly mentions that when Shri S.C. Bhalla (PW-10) questioned accused about the demand and acceptance, he had admitted the same. Even in his bail application dated 13.05.1999 placed on record at page No. 87 of Part -C no such facts were disclosed. However, accused in his statement under Section 313 Cr.P.C., 1973 took such a defence in response to question no.18. Significantly, DW-3 ASI Phool Singh did not say that accused had shaken hands with PW-3 Shri Shekhar Kumar. DW-6 Constable Ram Phal Singh inter alia deposed that Shri Shekhar Kumar (PW-3) the complainant had shaken his hand with that of accused. He also relies upon Mark X and Mark Y to show that on 12.5.1999, accused had left office at 11.10 A.M. and when he came back he was apprehended by CBI. Photocopies Marks X & Y have CC No.12/2008 35 of 37 36 remained unproved and therefore are discarded from the zone of consideration. Significantly, this witness does not state that accused had shaken both his hands with the complainant. The question is how did traces of phenolphthalein powder come on both hands of the accused. So, this fasifies defence of the accused as also deposition of DW-6 Constable Ram Pal Singh. Reliance on Ex.DW8/1 is also misplaced since it is dated 24.05.1999 and received in the office of CBI on 26.05.1999. So, there is a delay of almost 12 days. Further according to accused, he had shaken hands with PW-3 Shri Shekhar Kumar in the presence of DW-6 Constable Ram Phal Singh but Ex.DW8/1 does not mention his presence in the office room of the accused.
30. Further as per DW-6 Constable Ram Phal Singh only one person was sitting in the office room of accused while as per Ex.DW8/1 two persons kept sitting in the office room of the accused
31. The aforesaid discussion would show that introduction of DW 6 Constable Ram Phal is an afterthought and the proposed defence in this regard is even prima facie false and has remained unproved.
32. It is no doubt true that various inconsistencies and contradictions appear in the depositions of various witnesses but in my view the same are minor and insignificant . Hence not much can be CC No.12/2008 36 of 37 37 said about the same. However, regarding the major points i.e. demand and acceptance of bribe by the accused the entire evidence is consistent and gets duly corroborated.
33. Upshot of the aforesaid discussion persuades me to hold that prosecution has been able to prove its case beyond reasonable doubts against the accused. Resultantly, accused is held guilty for commission of offence under Section 7 & 13 (1) (d) r/w 13 (2) of the Act.
Announced in the (PADAM KANT SAXENA) open court SPECIAL JUDGE-IV, CBI (PC Act)
today i.e. on 07.02.2011. TIS HAZARI, DELHI CC No.12/2008 37 of 37