Delhi District Court
State (Cbi) vs ) Somesh Kumar Mittal on 5 November, 2012
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03,CBI
NEW DELHI,DISTRICT, NEW DELHI
CC No. 65/2011
Case ID No. 02403R0171702006
RC No. 01 (A)/2005/CBI/ACB/ND
In re:
STATE (CBI)
VS
1) SOMESH KUMAR MITTAL
S/O LATE SH. RAM KISHAN
R/O C705, MAHINDRA APARTMENT,
D BLOCK, VIKASPURI, NEW DELHI
2) AMAR DEV
S/O SH. KAMMAN RAM
R/O G43, JAITPUR, NEW DELHI
Date on which charge sheet was filed 31.03.2006
Date on which charges were framed 12.12.2006
Date on which judgment was reserved 08.10.2012
Date on which judgment was
pronounced 26.10.2012
APPEARANCES:
Mr. S. C. Sharma, Ld. PP for the State (CBI).
Mr. S. P. Minocha, Ld. Counsel for the accused Somesh Kumar
Mittal
Mr. Sandeep Sharma, Ld. Counsel for the accused Amar Dev .
26.10.2012
JUDGMENT
1. Accused public servant Somesh Kumar Mittal (A1) employed and deputed as Junior Engineer, MCD, South Zone, Green Park, State (CBI v. Somesh Kumar Mittal Page No.1/39 2 New Delhi has been arraigned for trial by the State (CBI) along with coaccused Amar Dev (A2), Beldar in the same office on the allegation that they entered into a criminal conspiracy whereby during the month of January, 2005 they demanded and accepted illegal gratification of Rs.1,25,000/ as a motive or reward from the complainant Avdesh Mittal (PW3) S/o Sh. BML Mittal in order to allow him to carry on construction on premises C6, Green Park Main, New Delhi and they were caught red handed while accepting such bribe on 04.01.2005 at about 5:30p.m at the above said premises.
FACTS
2. The present case was registered on the basis of written complaint dated 04.01.2005 Ex.PW 3/A by Sh. Avdesh Mittal (PW3) wherein he alleged that accused S. K. Mittal, JE, MCD (A1) and his tout i.e, A2 were demanding Rs.1,25,000/ as illegal gratification for allowing him to continue construction on his property no. C6, Green Park, New Delhi and he stated that he did n't want to pay any bribe. On the basis of the said complaint, the present FIR Ex. PW3/B was recorded and the investigation was handed over to Inspector S. S. Bhullar (PW14).
3. It is the case of the prosecution that Inspector S. S. Bhullar (PW14) organized a trap team consisting of two independent witnesses namely Raj Pal (PW12) Assistant and Chander Singh State (CBI v. Somesh Kumar Mittal Page No.2/39 3 (PW10) UDC, both from Bureau of Indian Standard, New Delhi, who were briefed about the complaint of PW3; that as per instructions of Trap Laying Officer, complainant made a call on the mobile no. 9818193151 of accused A2 from his mobile no. 9811297470 and during the conversation accused A2 told him that he would fix the time of meeting with JE i.e accused A1 after confirming from him; that since there was no response, the complainant again called A2 at 11:30a.m who informed that he had not been able to contact A1. It is the case of the prosecution that said conversation was got recorded by them.
4. It then alleged that since there was no response from A2, the complainant directly called the JE i.e A1 on his mobile no. 9818062800 and conversation indicated that complainant and JE Mittal were familiar with one another and the time of meeting was fixed at 5:00p.m at the construction site at Green Park, New Delhi and the said conversation also was recorded by the CBI(vide Ex. TCR(1) also Ex. PW3/J the transcript of which are Ex. PW3/G. PW3/H and PW3/I).
5. It is the case of the prosecution that it was decided to lay a trap upon the accused persons; that bribe amount of Rs.1,25,000/ was arranged by the complainant in the running serials in the denomination of Rs.1,000/ Ex. P31(COLLY) and the number of the currency notes were noted down in the handing over memo Ex. State (CBI v. Somesh Kumar Mittal Page No.3/39 4 PW3/ D and a demo was conducted during which time the currency notes were treated with phenolphthalein powder and witness Chander Singh (PW10) was instructed to touch the currency notes and his hand wash was taken with the solution of sodium carbonate which turned pink which was then thrown away; that personal search of the complainant and the independent witnesses was taken and the bribe amount was handed over to complainant who put the same in the left side inner pocket of his coat and the TLO instructed him to hand it over to the accused on his specific demand and witness Raj Pal (PW12) was directed to act as a shadow witness thereby remaining close to the complainant and overhear the conversation; that the complainant was further instructed to place a missed call on the mobile no. 20552770 which was being carried by Inspector Bhullar and PW12 was also instructed to give signal by scratching his head with both hands as soon as bribe was accepted by the accused persons.
6. It is the case of the prosecution that in the meanwhile, SI Sri Bhagwan along with one Manish Bhardwaj joined the trap team who were apprised about the entire case and the steps taken till then; that a panasonic mobile instrument cum transmitter with mobile no. 9818096265 was arranged for the purpose of recording spot conversation and its function was explained to Manish Bhardwaj and SI Shri Bhagwan and they were directed to remain in State (CBI v. Somesh Kumar Mittal Page No.4/39 5 the office and to activate the transmitter on getting the message and to over hear the likely conversation that would take place place between the complainant and the accused persons.
7. That the formal voices of the independent witnesses were recorded in the digital recorder and as instructed, the instrument was kept by the complainant in the right side front coat pocket. and independent witness Chander Singh (PW10) was directed to remain with the members of the trap team; that a Sony Handycam Video Recorder along with blank cassette was also arranged; and as by then it was already 4:25p.m, the complainant at the instance of the TLO called accused A1 and rescheduled the meeting at 5:30p.m at the site which conversation was recorded vide TCR (2) Ex.P13.
8. It is then the case of the prosecution that complainant along with shadow witness Raj Pal (PW12) reached the construction site while the members of the CBI team took suitable position around the site; that at about 5:25p.m both the accused persons reached the spot and went inside the building; that after getting pre determined signal from witness Raj Pal (PW12) and also on the CBI mobile from the complainant, Inspector S. S. Bhullar as the Trap Laying Officer along with the members of the CBI team converged on to the spot and apprehended both the accused persons and on questioning it was confirmed by the complainant State (CBI v. Somesh Kumar Mittal Page No.5/39 6 that accused A1 had demanded bribe and Rs.1,25,000/ which had been handed over to him that was accepted by A1; that the hand wash of the accused persons were taken and the contents were transferred into the clean glass bottles; that the bribe amount of Rs. 1,25,000/ was recovered from the right side front jacket pocket of accused A1 by Chander Singh (PW10) who counted GC notes and tailed with handing over memo; that the entire proceedings were video recorded and the entire conversation recorded in the panasonic mobile instrumentcumtransmitter were heard at the spot; that the recorded conversation was transferred into two audio cassettes one of which was marked STR Ex.P18 and the video cassette was properly sealed. All proceedings recorded in the recovery memo Ex.PW 3/F.
9. During the investigation, specimens voice of accused Somesh Kumar Mittal (A1) and Amar Dev (A2) were taken in a blank audio cassette on 05.01.2005 and the same along with the recorded conversation at the time of verification and at the time of trap were sent to the Voice Expert of CFSL for an expert opinion.
10. It is the case of the prosecution that during the investigation it was revealed that sanction plan in respect of property No. C6, Green Park Main, New Delhi, was submitted by the complainant and the plan was sanctioned by BLDG, HQ, Town Hall, Delhi for residential use that was received on 11.08.2004; that A1 inspected State (CBI v. Somesh Kumar Mittal Page No.6/39 7 the said building when the architect on behalf of owner applied for the B2 form and A1 reported that he did not find any non compoundable deviations in the building up to plinth level; that a complaint was received later on 08.11.2004 and the site was inspected by Executive Engineer (Building), AE (B) and JE (B) and report dt. 10.11.2004 was submitted with the Commissioner, MCD finding nothing wrong with the construction; that another complaint was received by Assistant Director, (Vigilance) Special Cell vide letter dated 11.11.2004 and JE (B) vide his report dt. 25.11.2004 informed that he inspected the site and there was nothing unauthorized construction.
11. It is the case of the prosecution that during the investigation the mobile call records of complainant and both the accused persons were collected from the service providers. The expert report about the voices in the tape recorded conversation and about the chemical wash conducted at the spot were received from the CFSL and after obtaining sanction for prosecution against A1, the present charge sheet was filed.
CHARGE
12. Needless to state that both the accused persons were charged for committing an offence u/s 120B r/w section 7, 13 (2) , 13 (1) (d) of the PC Act while accused Somesh Kumar Mittal (A1) was separately charged for committing offence u/s 7 or 13 (1) (d) r/w State (CBI v. Somesh Kumar Mittal Page No.7/39 8 section 13 (2) of P. C. Act to which both the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
13. The prosecution in order to prove its case examined as many as 14 witnesses:
The main witnesses for the prosecution were of course complainant Avdesh Mittal (PW3) besides Chander Singh (PW10) and Raj Pal (PW12) who have supported the case of the prosecution and I shall dwell on their testimony in the reasoning part of this judgment.
Three other public witnesses were: PW1 Mohd. Idris, Labour Contractor, at the site who deposed that he was informed that MCD Van had come to the spot and had taken away all the articles / equipments about the construction from the spot sometimes in December 2004.
14. PW2 was Smt. Rina Mittal wife of the complainant Avdesh Mittal who deposed that when her husband was away to Dubai in the last week of December 2004, their employee Mr. Nitin Malhotra (PW11) informed that accused JE S. K. Mittal (A1) was pressing hard to stop construction and demanding bribe to allow further construction. She deposed about the meeting between him and the accused JE and I shall dwell on her deposition later in this judgment and so also upon the evidence of PW11 Mr. Nitin State (CBI v. Somesh Kumar Mittal Page No.8/39 9 Malhotra.
15. In the category of expert witnesses were examined PW4 Mr. C. L. Bansal, Sr. Scientific Officer, Chemistry, CFSL, CBI, New Delhi. He deposed that he examined the contents of the three sealed bottles marked RHW, LHW and RSFJPW and proved his report Ex.PW 4/A to the effect that the contents had traces of phenolphthalein. PW5 was Dr. Rajinder Singh, Principal Scientific Officer and Head of Physics and Forensic Voice Identification Division, CFSL, Delhi. He deposed about examining six sealed parcels containing questioned audio cassette mark TCR1, TCR2, STR, Q1 besides specimen audio cassette S1 and S2 and he deposed about his report dated 28.07.2005 which is Ex.PW 5/A.
16. Suffice to state that in the report it comes out that the questioned voices of A1 mark by him as Ex. STR(A) and Q1 (A) tallied with specimen voice marked by him Ex.S1 (A). Further it brings out that questioned voice of Amar Dev mark TCR 1 (A) tallied with his specimen voice marked by him Ex. S2. The audio cassette along with cloth wrapper inlay card are Ex.P8 to Ex.P28.
17. From the office of MCD the following witnesses were examined: PW6 was Mr. Ved Praksh, LDC from Accounts Department, South Zone, MCD, Green Park, New Delhi. He deposed about handing over the attendance register of JE to the CBI on 05.07.2005 vide memo Ex.PW 6/A and the register is Ex.PW State (CBI v. Somesh Kumar Mittal Page No.9/39 10 6/B and he deposed that on 3rd and 4th January 2005, JE i.e A1 attended the office and marked his attendance.
18. PW7 was Mr. P. K. Jain, Assistant Engineer in South Zone Building Department during the relevant time. He deposed about the file concerning sanction of building plan on premises C6, Green Park, Delhi Ex.PW 7/A. He deposed about the various reports submitted by accused S. K. Mittal about inspection of the building from time to time that are Ex.PW 7/B to Ex.PW 7/F and deposed that the entire file was handed over to CBI on 04.05.2005 vide memo Ex.PW 7/H.
19. PW8 Mr. Ashok Kumar, Commissioner MCD during the relevant time who deposed that he accorded the sanction for prosecution as against the accused persons vide order dt. 25.03.2006 Ex.PW 8/A.
20. PW9 was Mr. R. B. S. Bansal posted as Executive Engineer (Building) South Zone, Green Park, New Delhi. He deposed about the procedure that was mandated for obtaining sanction of building plan, inspection of premises from time to time by JE and AE and he deposed about various steps taken during the relevant time in regard to construction at the site.
21. The following witnesses were examined from the CBI: PW 13 was examined as Inspector Sanjay Dhall who was handed over the investigation on 25.01.2005 from Inspector S. S. Bhullar (PW14). State (CBI v. Somesh Kumar Mittal Page No.10/39 11 He deposed about the various steps taken by him during the investigation and obtaining sanction for prosecution and filing the charge sheet . PW14 was Inspector S. S. Bhullar, TLO. STATEMENT OF THE ACCUSED & DEFENCE EVIDENCE
22. On the close of the prosecution evidence, both the accused persons were separately examined in terms of Section 313 Cr. P.C and all the incriminating facts and circumstances were put to them who denied the case of the prosecution. Accused A1 stated that complainant Avdesh Mittal was an "interested witness" who was deviating from the sanction plan and converted the property from residential to commercial use and A1 stated that complainant was holding grudges against him as he had failed to rectify deviation in the building which might have cost him about Rs.5 lakhs or so.
23. In so far as accused A2 is concerned, his defence was that he had come to the spot along with A1 but hardly after 15 minutes he left and it was about 8:00p.m that he was brought back to spot and falsely implicated in this case.
24. In their defence, DW1 Inspector Vinod Gandhi from PS EOW Crime Branch, New Delhi to the effect that FIR no. 180/2008 dt. 15.07.2008 u/s 418/420/341/120B/34 IPC had been registered against the Avdesh Mittal on the complaint of one Mr. Rajinder Chabra.
State (CBI v. Somesh Kumar Mittal Page No.11/39 12
25. DW2 was SI Ajeet Kumar who deposed about the complaint dt. 06.04.2011 filed by Mr. N. C. Bansal addressed to DCP, EOW, New Delhi, whereby inquiry for commission of offence u/s 420/406/465/467/468/471/120B/34 IPC had been ordered against the Avdesh Mittal. He deposed about another inquiry pending against Avdesh Mittal on a complaint dt. 28.11.2011 filed by one Deepak Vij.
26. DW3 was Mr. Rakesh Kumar, Proprietor of M/s Property Solution that was publishing magazine containing information as to availability of various properties for rent / sale both in respect of residential or commercial use and he deposed about certain advertisement carried out in respect of property in question in his magazine that are Ex.DW A1 to A3.
27. DW4 was Mr. Chander Bhan Yadav. He was friend of A2 who deposed that on 04.01.2005 he had called A2 and he met him about 5:30pm to 5:40p.m in his office and at about 9:00p.m two persons came and took away A2 on the pretext that he has been called by the JE of Green Park, Delhi. He deposed that on the next day accused Amar Dev had been arrested by the CBI. ARGUMENTS ADVANCED
28. Sh.S. P. Manocha, Ld. Counsel for the accused A1 urged that the complainant Avdesh Mittal (PW3) was a mischievous person on the wrong side of law as although he had obtained sanction for State (CBI v. Somesh Kumar Mittal Page No.12/39 13 construction of a residential building, as per his own admission, he had done the front glazed elevation to give the building a commercial look. In this regard, he referred to the size of the rooms on the ground floor which was about 38 X 25 without a kitchen and PW3 had been carried out advertisements in the magazines DX1 to DX4 whereby the property in question was advertised for sale or on rent for commercial purposes; and he pointed out that the building was later on sealed by the MCD for massive deviation from the sanctioned plan as per the evidence of PW 8 & 9 on 25.01.2004 and the matter went up to the High Court going against his wife as per the certified copy of PW3 / DX1 and DX2 admitted by him. He urged that PW3 was able to manipulate this case due to his proximity with Arum Kumar, DIG in CBI so much so that no verification was done about the contents of the complaint Ex.PW 3/A. He urged that the complaint Ex.PW 3/A did not indicate the name of PW11 Mr. Nitin who was later on introduced by the IO when the statement of the witnesses were recorded belatedly on 13.01.2005. He urged that PW3 was irked by the fact that A1 had been insisting to remove the front glass elevation which was giving the building a commercial look that would have burdened him with costs of Rs. 5 lakhs; that in the recorded conversation Ex.PW 3/J, Ex.PW3/L vis.avis. transcript Ex.PW3/J, Ex.PW3/H, Ex.PW3/I and Ex.PW3/K, there is no dialogue which would suggest that any State (CBI v. Somesh Kumar Mittal Page No.13/39 14 demand was raised by A1 and A2; that A1 was falsely implicated in this case and the tainted money Ex.P31 was thrusted into the pocket of the jacket of accused A1 during the time arrangements were made about the videography. He assailed the credibility of the testimony of PW2, PW10 as well as PW12 and urged that A1 was an honest official who repeatedly told that PW3 (as reflected in the recorded conversation at the spot vide audio cassette Ex.P18 visa vis transcript Ex.PW 3/L) that he would not give any certificate on completion in case the building is turned into a commercial one from the sanctioned use of residential.
29. In his submissions, he relied on decisions in Deepak Kumar @ Bittoo and Ors. v. State, 2012 II AD (Crl.) (DHC.) 1 (DELHI HIGH COURT), Rakesh Bisht v. Central Bureau of Investigation, 2007 [1] JCC 482, Delhi High Court, Banarsi Dass v. State of Haryana, 2010 (2) C.C. Cases (SC) 181, Sunil Kumar Sharma v. State (CBI), 2007 [2] JCC 1315 (Delhi High Court).
30. Briefly stated Mr. Sandeep Sharma, Ld. Counsel for A2 challenged the testimony of PW2 as well as PW1 Mohd. Idrish pointing out certain interse contradiction. He vehemently assailed the authenticity of the tape recorded conversation on the ground that there is no certificate u/s65 of Indian Evidence Act. It was pointed out that recording of conversation at the spot was done simultaneously linked with wireless to the office of CBI which was State (CBI v. Somesh Kumar Mittal Page No.14/39 15 never produced and there are several variations in the recorded conversation when compared with the transcript. Lastly, he vehemently urged that his client left at about 5:45p.m which fact was corroborated by DW4 Chander Bhan and referring to the call data recorded he urged that it was at about 8:45p.m that his client was called back to the spot and falsely implicated in this case. Challenging the testimony of PW 10 and PW 12, he urged that they were stock witnesses and in the alternative he argued that in the recorded conversation Ex.P18 at the spot vide transcript Ex.PW 3/L there is no iota of evidence that any demand for illegal gratification was made by his client from the complainant. In his submission, he relied on decisions in V. D. Jhingan v. State of Uttar Pradesh, AIR 1966 Supreme Court 1762 Rabindra Kumar Dey v. State of Orissa, 1976 SCC (Crl.) 566, State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, 2009 (4) RCR (Criminal) SC 217, Ronal Kiprono Ramkat v. State of Haryana, 2001 (3) RCR (Criminal) 767 Supreme Court, Sunil Kumar Sharma v. CBI, 2007 (3) CRIMES
160.
31. I have heard Ld. PP for the State (CBI) and Ld.Defence Counsel for both the accused persons . I have also perused the relevant record carefully and minutely.
DEMAND AND ACCEPTANCE OF ILLEGAL GRATIFICATION
32. The legal position which emerges regarding appreciation of State (CBI v. Somesh Kumar Mittal Page No.15/39 16 evidence in a trap case can be summarized as under :
(i) To succeed in such a case, the prosecution is obliged to prove the previous demand of bribe, its acceptance and the recovery of tainted money;
(ii) The demand can be proved by the testimony of the complainant as well from the complaint made by him if proved in accordance with law;
(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;
(iv) However, if the explanation given by the accused about the recovery of such money is false, it may be taken as an adverse circumstance against the accused;
(v) 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 reasonable doubt;
and
(vi) However if the explanation given is false it may be used adversely against the accused and may strengthen the presumption under Section 20 of the Act.
33. The prosecution in order to bring home the charge u/s 7 of PC Act has to prove that the accused either accepted , obtained or attempted to attain illegal gratification from the complainant; and in order to establish the guilt of the accused u/s 13(2) r/w section 13 (1) (d) of PC Act , the prosecution has to establish that the accused by corrupt or illegal means or by abusing his official position, obtained advantage or a valuable for himself or any other person. It is settled proposition of law that every acceptance of illegal gratification, whether preceded by a demand or not, would be covered by Section 7 of the Act and on the other hand if State (CBI v. Somesh Kumar Mittal Page No.16/39 17 the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then the case would also fall under Section 13 (1)(d) of the PC Act.
APPRECIATION OF EVIDENCE
34. In order to appreciate the evidence brought on record, let us minutely scan and examine the oral and documentary evidence on record. However, before we do that let us keep at the back of our mind the following observation of their lordships in the case of State of U. P. v. M. K. Anthony , AIR 1985 SC 48 : (1985 Cri LJ 493), regarding appreciation of evidence of witnesses:
"While appreciating oral evidence of a witness, the approach must be whether the evidence of the witness read as whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in evidence as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief."
35. In this regard, it would be expedient to refer to the observations of their lordships in the case of Sardul Singh v. State of Haryana, AIR 2002 SC 3462, that is as under :
"There cannot be a prosecution case with a castiron perfection in all respects and it is obligatory for the Courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully State (CBI v. Somesh Kumar Mittal Page No.17/39 18 to find out whether it has a ring of truth and if found acceptable and seems to inspire confidence, too, in the mind of the Court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt."(emphasis supplied).
PRETRAP PROCEEDINGS
36. It is uncontroverted evidence of PW3 Avdesh Mittal corroborated by his wife PW2 Reena Mittal as well as PW11 Mr. Nitin Malhotra that in the last week of December 2004, PW3 Avdesh Mittal was out of India. PW11 Mr. Nitian Malhotra testified that he was working as Accountant -cum site Supervisor and his employer PW3 had left his mobile no. 9811297470 with him; that he received a telephonic call from A2 seeking to talk to his employer Avdesh Mittal and he apprised that his employer was out of country but A2 insisted to speak to his employer, and therefore he told him to speak to Smt. Reena Mittal. PW11 deposed that A2 demanded money from PW2 for letting the work go on at the site i.e C6, Green Park, New Delhi and he conveyed this fact to PW2 Reena Mittal. PW2 Reena Mittal corroborated such version and deposed that as Nitin was not able to negotiate, she spoke to A1 so much so that she also met A1 at the site at about 3:00p.m in the State (CBI v. Somesh Kumar Mittal Page No.18/39 19 last week of December just after Chrismas. She deposed that A1 demanded Rs.1,25,000/to allow them to continue the construction work and she requested him to accommodate as her husband could only deal with him due to the huge amount.
37. Perusal of the complaint Ex.PW 3/A lodged on 04.01.2005 reflects the entire background stated by PW2 and PW11 except that the name of PW11 is not mentioned therein. I do not see how nonindication of name of PW11 could be fatal to the prosecution case. When a person writes a complaint, we must empathize about his state of mind and there might be few things that are naturally skipped here and there and the court must go into the substance of the material rather seeing the complaint with a suspect eyes. The complaint Ex.PW 3/A reflects the allegations that PW2 met the JE concerned at 3:00p.m on 28.12.2004 at the site.
38. It is pertinent to mention here that it is admitted on the part of A1 that he was having mobile no. 9818002800 and the call records Ex.DW 10/4 would shows that four calls had been exchanged with mobile of A1 to the mobile no. 9891097470 on 28.12.2004 at 13: 29: 56 hours, 13: 37: 28 hours, 15: 14: 36 hours and 17: 13: 56 hours. All these were incoming calls from the mobile of complainant to mobile of A1. Infact, it is admitted that A2 was having mobile no. 9818193151 and on 27.12.2004 there is one call at 12: 38: 59 and second call 16: 34: 44 on the mobile of complainant State (CBI v. Somesh Kumar Mittal Page No.19/39 20 and third call at 12: 51: 55 on the mobile of A1.
39. I may indicate that the call data records in respect of mobile no. 9818062800 D1 to D4; mobile no. 9891097470 (D6 to D28); and mobile record call of mobile no. 9818193151 D10/28 to D10/57 have not been proved by calling the witness concerned i.e Nodal Officer from the mobile service provider and the call data records have only been illustrated to meet the arguments by Ld. Defence counsel that there were no call exchanges between A1 to A2 on the one hand and that of PW2 Reena Mittal on the other hand. Infact the mobile sets with such numbers were recovered from the accused persons at the time of their arrest as against A1 vide Memo Ex.PW10/A item no. 8 and vide item no. 6 in the Memo Ex. PW10/B from A2.
40. Even de hor the call data records, the evidence of PW2 and PW11 read with contents of Ex.PW 3/A bring out that a meeting had taken place between PW2 and A1 on 28.12.2004 at 3:00p.m. at the site and it is categorical statement of PW2 that Rs. 1,25,000/ had been demanded by A1. Much mileage was sought to be taken by the Ld. Defence counsel on the ground that there were contradiction whether or not work was stopped at the site on or about 27th, 28th December 2004 and if so who had dealt with the MCD when the building equipments had been taken away. The evidence of PW1 Mohd. Idrish is only to the effect that work had State (CBI v. Somesh Kumar Mittal Page No.20/39 21 been stopped since he was informed that MCD Van came and took away the articles belonging to his labourers. PW2 corroborated that he was informed by the PW11 about the said action by the MCD and took up the matter with PW2 who spoke to A1 about it at the site and finally some amount was paid and the work was allowed to be carried on.
41. What brings out from the evidence of PW1, PW2 and PW11 is that work was indeed stopped at the spot when the MCD van took away the equipments of the labourers. There is indeed contradiction about how the equipments were released on payment of fine or bribe and who tackled the concerned official of the MCD but we have to discount that since the witnesses were examined after five years of the incident and it could be attributed to memory lapse. There is no merit in the plea of Mr. Sharma ld defence counsel for A2 that no evidence is produced the that PW3 was in Dubai in the last week of December, 2004 in face of categorical testimony of his wife PW2, PW11 and complainant himself. It is no material contradiction that PW2 stated that SIM card of her husband was with him or if PW11 stated that it was with him for sometimes, again due to falling memory owing to lapse of time.
42. Mere fact that statements of PW2 and PW11 were recorded by the IO u/s 161 Cr.P.C on 13.01.2005 cannot be a State (CBI v. Somesh Kumar Mittal Page No.21/39 22 circumstance that could wash away the entire testimony. Indeed, there is some improvement in her evidence about the threat advanced by A1 and assuming for the sake of convenience that she was lying about such fact, as it was not stated in her statement u/s 161 Cr.P.C, the principle of falsus in uno falsus in omnibus has no application to the criminal law in India and testimony of PW2 read as a whole inspires confidence.
43. Coming to pretrap proceedings, evidence of PW3 is one coherent story corroborated by PW10 Chander Singh, PW 12 Raj Pal singh that call was made to A2 to seek an appointment with A1 and then PW3 spoke directly to A1 and they decided to meet at the site at 5:00p.m. The proceedings recorded in handing over memo Ex.PW 3/D besides testimony of PW3, PW10 and PW11 and PW14 TLO show that tainted amount of Rs. 1,25,000/ Ex. P31 (Colly), was produced, their distinctive numbers were noted down and a demo was conducted by applying phenolphthalein powder with the currency notes and its reaction with solution of sodium carbonate was shown; that the recording instrument was given to PW3 and PW12 Raj Pal Singh was instructed to remain as a shadow witness and so on.
44. Much was argued that before lodging FIR Ex.PW 3/B, contrary to the CBI Manual no proper verification was done by PW14 Inspector S. S. Bhullar. Evidence of PW3 corroborated by State (CBI v. Somesh Kumar Mittal Page No.22/39 23 PW10, PW11 besides PW 14 TLO would shows that A1 spoke to A2 and then A1 and it is the entire context in which the conversation took place that are brought out in transcripts Ex.PW 3/G, Ex.PW 3/H and Ex.PW 3/K that must have weighed in the mind of the CBI officials to lay a trap. The tape recorded conversation vide TCR (1) Ex.PW 3/J and also Ex.P9 plus in audio cassette Ex.PW 3/L Ex.P13 when read vis a vis. Transcript Ex.PW 3/G and Ex.PW 3/H would show that something fishy was going on involving the JE or the other officials and in the said contextual setting there was sufficient ground to proceed to lay trap. ACTUAL INCIDENT OF TRAP
45. The sequence of events start with PW3 calling A1 from the CBI office which conversation was recorded vide audio cassette Ex.P13 and the conversation in the Transcript Ex.PW 3/I would show that A1 agreed to meet the complainant at about 5:00 p.m at the site. It is then further in evidence of PW3 Avdesh Mittal that as proceedings took sometime in the office of CBI, he again called A2 and the audio conversation in TCR -II Ex.PW 2/L vis. transcript Ex.PW 3/K would show that time was rescheduled to 5:30p.m at the site. It is then in evidence of PW3 corroborated by PW11 PW11 Raj Pal Singh besides TLO PW14; that they reached the spot and PW3 along with PW11 started waiting for accused persons who joined them at about 5:30p.m.
State (CBI v. Somesh Kumar Mittal Page No.23/39 24
46. The evidence brought on record then goes to suggest that PW3 along with PW11 and two accused persons paced from one end to the another back and forth in the compound talking to one another and then they went inside the building. PW3 deposed that accused JE told him that vigilance was causing troubles and he will have to shell out Rs. 5 lakhs that would be share with all officials from the bottom to top including his share; that he requested JE A1 to reduce the amount on which he replied that he would try and then he handed over the tainted money of Rs. 1.25,000/ to accused JE who took the money and kept it in the right side pocket of his jacket Ex. P30; that as soon as money was given, A2 told that he wanted to leave and started to go out of the building and in the meanwhile witness Raj Pal went out of the building to give signal to the trap team. The evidence then reads that PW12 made the agreed signal to the trap team and he stopped A2 from leaving the spot which fact was corroborated by PW10 as well as PW14 Inspector S. S. Bhullar, TLO.
47. Mr. Manocha, Ld. Counsel for accused A1 vehemently urged that PW11 did not see PW3 handing over the money to A1. PW12 Raj Pal testified that after taking 23 rounds inside the building PW3 came near the door and took out the GC notes smeared with phenolphthalein powder and looked towards him and he went towards the door to give predecided signal to the State (CBI v. Somesh Kumar Mittal Page No.24/39 25 raiding team and the CBI team immediately converged on to the spot and apprehended both the accused person. Ld. Defence counsel urged that as per the testimony of PW12 he had gone out and did not see if the money was accepted by A1. Well, that can not be deciphered from the evidence because in his cross examination, PW12 Raj Pal deposed that they took a round of the ground floor and at the time of transaction he stationed himself inside the building just at the stair case where a door was opening towards the compound and the complainant was hardly at a distance of five steps from him when he took out the bribe amount while accused JE was standing about two step from the complainant. PW12 in so many words by his conduct brings out that money was accepted by A1. There is nothing to discern from the perusal of the site plan Ex.PW 10/A that PW12 could not have seen A1 accepting the brine amount. It may be indicated here that the inside of the building there were RCC pillars without any partition of walls and there is nothing to indicate that view of PW12 was obstructed to cloud his vision.
48. The story does not end here. Mr. Manocha, Ld. Counsel for A1 very minutely dissected the evidence on record and urged that the entire video recording was not only "stage managed"
but it was during the time when extra light were arranged that the tainted money was thrusted inside the pocket of A1. It is in State (CBI v. Somesh Kumar Mittal Page No.25/39 26 evidence of PW3 that A1 was apprehended by the CBI officials holding him by his wrist and A2 was also apprehended with the help of PW12 who was joined by PW10. It was the month of early January and one can assume that it was dusk time and therefore sufficient light was required. PW3 categorically deposed that there was already a bulb inside the building and the video recording started soon after apprehending accused persons. Much heavy weather was made about the evidence of PW12 Raj Pal that it took about 1520 minutes to arrange the light but it is in the evidence of PW10 that it started simultaneously. Further, even PW14 Inspector S. S. Bhullar also stated that while he was busy in getting a confirmation from the witnesses about the role of the accused persons, the video recording started immediately after their apprehension by SI Prem Nath.
49. It is pertinent to mention that the entire video footage was observed by this court during the testimony of PW12 which started with the scene of one of the CBI official mixing whitish powder in a glass of water and, thereafter accused S. K. Mittal who was held by his right hand wrist was made to dip his fingers into the glass and wash the same. The scene showed that liquid in the glass changed its colour and then a glass bottle was procured and a CBI official was seen pouring contents of the glass into glass bottle and tightening the cap and, thereafter, same process was repeated for State (CBI v. Somesh Kumar Mittal Page No.26/39 27 the left hand. The video footage then showed that PW10 Chand Singh took out the money from the Jacket pocket of A1 and then PW 10 & PW12 counted the currency notes and tailed the number with typed paper probably with handing over memo. At this juncture, a Court observation was made that screen of one of the mobile that was taken out of the jacket pocket of A1 displayed the time 18:19 while the other mobile was switched off and the mobile of A2 that was taken out was also having a blank screen.
50. The only question mark that I find in respect of the video footage is that although as per memo Ex.PW 3/F, video cassette was sealed at the spot, there are contradictory version in the evidence of PW10 and PW12 whether the same was actually done so and the video cassette was not produced in the court in a sealed envelop. All the same, the video footage except for the 'Pause' at 23 occasions, does show continuity of the recording. Mere fact that 'Pause" button was applied while recording video does not show that the footing was tempered with. The proceedings at the spot are amalgamation of different activities which are time consuming process and had to be done with due care and caution. The video footage has much more evidenciary value than the audio recording. Even if we discard the video footage Ex.PX1, the evidence of PW3 complainant that the hand wash of A1 was taken and the solution changed its colour is corroborated by PW10 as State (CBI v. Somesh Kumar Mittal Page No.27/39 28 well as PW12 and there is no challenge to the report of PW4 that hand wash besides the wash of the jacket Ex.P30 was positive having presence of phenolphthalein and sodium carbonate as per report Ex.PW 4/A. DEMAND AND ACCEPTANCE
51. At the cost of repletion, although the pretrap recording of conversation between accused A1 and A2 on the one hand and the complainant on the other hand do not indicate that any specific amount of bribe was demanded, it is the entire context in which the conversation took place between them that demonstrate the culpability of A1 and A2.
52. It would be expedient to refer to the recorded conversation at the time of transaction brought out in audio cassette Ex.P18 between PW3 Avdesh Mittal and A1 besides transcript Ex.PW 3/L (running into 37 pages). The gist of the entire conversation heard/read as a whole would show that PW3 repeatedly showed his displeasure to A1 as to why they were after him and that he was not doing anything wrong if the front glaze elevation was like that of commercial building; and on the other hand, A1 was suggesting that there was too much heat from the top brass particularly Vigilance as there were visible deviation from the sanction plan due to the front glaze elevation of the building. During the conversation, A1 suggested that since there was visible State (CBI v. Somesh Kumar Mittal Page No.28/39 29 motive on the part of PW3 to change user to commercial , he should apply for a "revised sanction plan" and that he was not willing to give a certificate that the building was residential in nature. However, after some persuasion by the complainant, A1 indicated that in order to deal with the top brass, some money was required to be delivered and, therefore, the complainant suggested whether the demand of Rs.5 lakhs was negotiable and on that A1 suggested that he would speak to the official concerned and finally accepted Rs.1,25,000/.
53. The plea by Mr. Sharma that his client had left the spot at about 5.45 pm and brought back to the spot at about 8.45 pm or so is a cry in the wilderness. The testimony of PW12 corroborated by other witnesses and also the video footage demolishes such stand. The mobile call record indicates that no calls were received or made by A2 from his mobile after 17:45;28 till 20:49;18. It is difficult to rely on the testimony of DW4 as manifestly he tried to save the skin of his friend i.e., A2. I hold that A2 was arrested from the spot as per the version of the prosecution.
54. Much was urged by Shri Minocha Ld. Counsel for A1 that the complainant was man of dubious character who had been involved cases of unauthorized construction as well as in several cheating cases. Such character has no relevance in this case except State (CBI v. Somesh Kumar Mittal Page No.29/39 30 that PW3 was certainly no saint. Testimony of PW3 besides the recording conversation vide Ex. P18 as reflected in the transcript Ex. PW3/L, would demonstrate that PW3 kept on discussing the issue of front glazed elevation, proposed deviations and its purported user for commercial purposes and in the process trying to gather the intent of A1 to assist him while A1 initially refusing to do any thing illegal. Both of them were hard bargainers so to say and when easy money was offered A1 not only accepted it but stated that he would speak to others to reduce the demand from five lakhs. We are living in very dangerous times and public servants in key positions have to be vary about whom they are meeting and where or what purpose they are meeting. A1 calling the complainant at the spot after office hours is another circumstance that nails him.
TAPE RECORDED CONVERSATION
55. At this juncture, it would be expedient to dwell upon the manner in which the conversation was recorded and the questioned audio cassettes at the time of verification and at the time of main transaction were obtained. Ld defence counsel has relied on the decision in Ram Singh & Ors. v. Col. Ram Singh, 1985 (Supp) SCC 611, where the conditions necessary for admissibility for tape recorded statements were laid down as under : State (CBI v. Somesh Kumar Mittal Page No.30/39 31
(i) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(ii) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.
(iii) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(iv) The statement must be relevant according to the rules of Evidence Act.
(v)The recorded cassette must be carefully sealed and kept in safe or official custody.
(vi) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
56. Much mileage was sought to be drawn by both ld. Defence counsel from the fact that the instrument that recorded the conversation between the Complainant and A1 was not preserved nor sent to the CFSL and no certificate under section 65B of Indian Evidence Act was filed. Undoubtedly, as per Section 62 of the IE Act, the original DVR or the recording instrument was the primary document being the original electronic or the magnetic record. However, Section 65B of the I.E.Act makes a departure providing that an information or data contained in an electronic record that is printed on a paper, stored or copied on an optical or a magnetic media produced from a computer shall also be deemed to be a State (CBI v. Somesh Kumar Mittal Page No.31/39 32 document if the conditions laid down in sub section 2 to Section 65B of I.E.Act are satisfied. Let me point out at the outset, there is no certificate u/s. 65B (2) of the I.E.Act. However, that does not mean that the audio cassettes TCR(1), TCR(2)and Q1 should be discarded altogether since want of certificate mandates that now further proof is required to be established as per the traditional evidenciary principles discussed hereinafter.
57. First and the foremost question that has to be examined is as to whether the questioned audio cassettes are authentic or authentically procured so as to make the same admissible in evidence? If the said evidence is answered in the affirmative, the second question is whether questioned audio cassettes have any relevancy i.e., throwing any light on the matters in issue? In case such questions are answered in the affirmative, the last exercise would be to appreciate the probative value of such evidence.
58. First thing first, there is no challenge by the defence that the conversation does not contain the voices of the accused persons. The voices were categorically identified by the complainant and there was no suggestion to him to the contrary so much so PW3 was confronted with certain dialogues in the recorded conversation that is marked XY to XY in the transcript Ex. PW3/L. Secondly, the audio quality of the audio cassettes was very good albeit free from any gaps, pauses, distortion thereby making the dialogues very State (CBI v. Somesh Kumar Mittal Page No.32/39 33 clearly audible. Thirdly, there is no dispute raised about the continuity of recording nor that I have found anything to suggest that any editing of the recording was done. Fourthly, the entire tape recorded conversation heard as a whole in the contextual setting of the case, makes it free from any doubt about its genuineness.
59. In so far as the recording of conversation at the time of trap, it is in evidence of PW 4, PW 10 and PW 12 besides TLO that the recorded conversation was heard at the spot and the recording from the digital recorder were transferred into two audio cassette with the help of another cassette recorder and one was marked STR denoting "Spot Trap recording" and such cassette sealed using CBI seal after wrapping it with a cloth which fact was recorded int he recovery memo Ex.PW 3/F.
60. Similar procedure was adopted in regard to conversation when the complainant spoke to A1 and fixed the meeting at the site at 5:00p.m reflected in transcript Ex.PW 3/K and the telephonic conversation recorded in memo Ex.PW 3/E show that recording was transferred into two audio blank cassettes one of them mark TCRII and sealed with the seal of CBI already Ex.P13. It is pertinent to mention here that the voice of A1 and A2 from the recorded conversation were identified by the witness on 09.05.2005 vide memo Ex.PW 10/G. While the challenge is State (CBI v. Somesh Kumar Mittal Page No.33/39 34 sustainable that the specimen voice of A1 and A2 taken on 05.01.2004 vide memo Ex. PW 10/E and Ex.PW 10/F cannot be read in evidence, all the same even ignoring the specimen voice in S1 and S2 and leaving aside the report of the voice expert Ex. PW 5/A, there is positive identification of the voices of A1 and A2 by the witnesses.
CRIMINAL CONSPIRACY
61. The proposition of law on criminal conspiracy was elaborated in the case of State v. Nalini [1999 (5) SCC 253], where after a detailed analysis of case law, the following observations were made:
"In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.
The theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design State (CBI v. Somesh Kumar Mittal Page No.34/39 35 even if such offences were ultimately committed by some of them, without the participation of others. Those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the nonparticipant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are governed by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.
(Para 12) A distinction was maintained between the conspiracy and the offences committed pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and the parties to the conspiracy, a rule of evidence is enacted in S. 10 of Evidence Act based on the principle of agency. S. 10 of the Evidence Act provides that anything said, done or written by one of the conspirators in reference to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condition prescribed in the opening part of the section. Thus, the evidence which is in the nature of hearsay is made admissible on the principle that there is mutual agency amongst the conspirators. Whether or not the conspirators will be liable for substantive offences other than the conspiracy and, if so, to what extent and what punishment has to be given for the conspiracy and the other offences committed pursuant thereto, depend on the specific scheme and provisions of the penal law.
In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy". The pertinent observation of Judge Hand in U.S. v. Falcone (109 F. 2d,579) was referred to: "This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders." At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows :State (CBI v. Somesh Kumar Mittal Page No.35/39 36
"One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
62. It was further observed in the cited case that:
One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. ..
CONCLUSION
63. In conclusion, the evidence brought on the record appreciated in the light of the proposition of law discussed above brings out that both the accused persons were acting in criminal conspiracy to demand and accept illegal gratification from the complainant. At first look, the role of A2 looks to be innocuous but there is more to it than to meet the eyes. Having regard to the evidence of PW2 and PW11 a strong inference is raised that he was aware about the intention of A1 and in pursuance of criminal conspiracy he raised demand of illegal gratification from PW11 as well as PW2. Although he did not specify the amount. A2 was acting as a conduit between complainant and A1 and the evidence State (CBI v. Somesh Kumar Mittal Page No.36/39 37 established on the record regarding the incident at the site on 04.01.2005 demonstrate that he reached the spot along with A1 and participated albeit tacitly in the discussion that took place at the site and it is finally when the amount of bribe was delivered to A1 that he started to leave would show that he was there to support A1; that he was conscious that illegal gratification was being sought and during this time he stood by A1 the inference is that he also had the culpable intention consequent to meeting of mind between him and A1. It does not make much of the difference that no specific amount was uttered by A2 as circumstances suggest that he was actively supporting in the process of hard bargaining by A1 with the complainant. In the instant case, although, PW3 was an interested witness, his version is corroborated by PW12 Raj Pal besides tape recorded conversation that A1 in criminal conspiracy demanded and accepted illegal gratification and the general tenor of evidence given by the witnesses appears to be believable. The facts and circumstances proved on the record are symptomatic of the deep malaise in certain public offices where the corruption has become institutionalized involving the entire hierarchy of the officials from top to bottom.
64. Before parting with this judgment, I do not see as to how the case law relied upon by the defence could help them in any State (CBI v. Somesh Kumar Mittal Page No.37/39 38 manner. The proposition of law decided in the cited cases cannot be read divorced from the facts and circumstances which were applicable in the given cases As regards the case of Rakesh Bisht v. Central Bureau of Investigation, (Supra) , at the cost of repetition, even de hor the specimen voice and the report Ex.PW 5/A, there is a positive identification by the complainant about the voices of both the accused persons in the tape recorded conversation. The cited case of Banarsi Dass v. State of Haryana, (Supra) is one where two independent witnesses turned hostile and the prosecution was not able to establish that accused had voluntarily accepted the bribe. In the case of Sunil Kumar Sharma v. State (CBI) (Supra) is also distinguishable as the testimony of the main witnesses was not found to be trustworthy.
FINAL ORDER
65. There is no challenge to the evidence by the prosecution that sanction for prosecution was validly granted by PW8 against both the accused persons vide order dated 25.03.2006 Ex.PW 8/A. In the said view of the discussion, I find that prosecution has been able to prove its case beyond reasonable doubt against both the accused persons. Both the accused persons in pursuance of criminal conspiracy demanded and accepted illegal gratification from the complainant. The recovery of tainted money from the possession of A1 also raises presumption u/s 20 of the P. C. Act that such money State (CBI v. Somesh Kumar Mittal Page No.38/39 39 was accepted or obtained as a motive or reward to allow the complainant to carry out deviations from the sanctioned plan and thereby giving some latitude to the complainant to use the property when constructed for commercial purposes.
66. I, therefore, convict accused Somesh Kumar Mittal (A1) u/s 120B of IPC r/w section 7, 13 (2) r/w 13 (1) (d) of the PC Act as well as substantive offences.
67. I further convict accused Amar Dev (A2) u/s 120 B of IPC read with section 7 and section 13 (2) r/w 13 (1) (d) of the PC Act.
68. Let both the accused persons Somesh Kumar Mittal (A1) and Amar Dev (A2) be heard on the point of sentence on 01.11.2012.
ANNOUNCED IN OPEN COURT TODAY i.e ON 26.10.2012 (DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
x State (CBI v. Somesh Kumar Mittal Page No.39/39 40 CC No. 65/2011 26.10.2012 State (CBI) v. Somesh Kumar Mittal & Ors.
Present : Mr. S. C. Sharma, Ld. PP for the State (CBI).
Mr. S. P. Minocha, Ld. Counsel for the accused Somesh Kumar Mittal Mr. Sandeep Sharma, Ld. Counsel for the accused Amar Dev . Vide separate judgment of even date, both the accused persons have been convicted. Accused Somesh Kumar Mittal (A1) is convicted u/s 120B of IPC r/w section 7, 13 (2) r/w 13 (1) (d) of the PC Act as well as substantive offences.
Further, accused Amar Dev (A2) is convicted u/s 120 B of IPC read with section 7 and section 13 (2) r/w 13 (1) (d) of the PC Act.
They be heard on the point of sentence on 01.11.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
State (CBI v. Somesh Kumar Mittal Page No.40/39 41 IN THE COURT OF SH. DHARMESH SHARMA SPECIAL JUDGE03,CBI NEW DELHI,DISTRICT, NEW DELHI CC No. 65/2011 Case ID No. 02403R0171702006 RC No. 01 (A)/2005/CBI/ACB/ND In re:
STATE (CBI) VS
1) SOMESH KUMAR MITTAL S/O LATE SH. RAM KISHAN R/O C705, MAHINDRA APARTMENT, D BLOCK, VIKASPURI, NEW DELHI
2) AMAR DEV S/O SH. KAMMAN RAM R/O G43, JAITPUR, NEW DELHI Date on which charge sheet was filed 31.03.2006 Date on which charges were framed 12.12.2006 Date on which judgment was reserved 08.10.2012 Date on which judgment was pronounced 26.10.2012 APPEARANCES: Mr. S. C. Sharma, Ld. PP for the State (CBI).
Mr. S. P. Minocha, Ld. Counsel for the accused Somesh Kumar Mittal Mr. Sandeep Sharma, Ld. Counsel for the accused Amar Dev . 05.11.2012 ORDER ON THE POINT OF SENTENCE.
1. Heard on the point of sentence and perused the record.
2. Mr. S. P. Minocha, Ld. Counsel for the convict Somesh Kumar State (CBI v. Somesh Kumar Mittal Page No.41/39 42 Mittal (A1) submits that convict is about 48 years of age and the sole bread earner of his family; that he has two children who are studying including a young daughter aged about 16 years who need constant care and guidance. It is also submitted that convict has to look after his widow mother who is about 70 years of age, suffering from heart ailment and also requires personal attention and care of the convict.
3. It is also pointed out by Ld. Defence counsel that convict was arrested on 04.01.2005 and he remained in JC till 19.02.2005 for a total period of about 46 days. It is further pointed out that convict was suspended by his department on 04.01.2005 and reinstated later in service only on 26.05.2006. It is further submitted that convict has suffered agony of trial for the last seven years.
4. As regards convict Amar Dev (A2), Mr. Sandeep Sharma, Ld. Counsel submits that convict is about 35 years of age and also the sole bread earner of his family having a wife and three children besides taking care of his parents suffering from various old age ailments. It is further stated that convict remained in Judicial Custody from 04.01.2005 to 19.02.2005 for a period of 46 days.
5. Ld. Counsel for both the convicts have urged to take a lenient view in favour of both the convicts.
6. Per contra, Mr. S. C. Sharma, Ld. PP for the State (CBI) has urged that no mitigating circumstances exists in this case so as to State (CBI v. Somesh Kumar Mittal Page No.42/39 43 take a lenient view in favour of the convicts and it is urged that maximum punishment be awarded under the law.
7. It bears repetition that the convict Somesh Kumar Mittal (A1) employed and deputed as Junior Engineer, MCD, South Zone, Green Park, New Delhi along with convict Amar Dev (A2), Beldar entered into a criminal conspiracy to demand and obtain illegal gratification of Rs.1,25,000/ out of total agreed amount of rupees five lakhs as a motive or reward from the complainant Avdesh Mittal (PW3) S/o Sh. BML Mittal in order to allow him to carry out deviations in the construction of premises C6, Green Park Main, New Delhi for commercial purpose contrary to the sanctioned plan which was meant for residential purposes and they were caught red handed while accepting such bribe on 04.01.2005 at about 5:30p.m at the above said premises. The details facts and circumstances bringing out criminal conspiracy between the convicts and the entire criminal misconduct committed by them have already been detailed in judgment dated 26.10.2012 and not repeated herein for the sake of brevity.
8. This case is a stark example of rampant and endemic corruption in the ranks and files of the Municipal Corporation of Delhi which inter alia has made mockery of the building bye laws and Zonal Plans in the city. The instant case is one in which although the construction at the site was allowed for residential State (CBI v. Somesh Kumar Mittal Page No.43/39 44 purposes, the accused persons were shamelessly willing to turn a blind eye to allow deviations and convert the property to commercial use on getting illegal gratification. These kinds of brazen latitudes by the unscrupulous officials of MCD due to opacity of the rules has caused irreparable damage to the civic architecture, severely impacting civic order, public health and hygiene in Delhi.
9. I, therefore, do not see how a lenient view could be taken against the convicts except that so far as convict Amar Dev is concerned, he was a lower ranked beldar and obviously acting as per unlawful dictates of his superior. Nevertheless, he knew that what he was doing, was a wrong and I don't see how he could escape punishment.
10. In the totality of the facts and circumstances of the case, I sentence the convict Somesh Kumar Mittal to undergo rigorous imprisonment for a period of four years u/s 120B r/w section 7 and Section 13(1) (d) r/w Section 13 (2) of the PC Act and also pay fine of Rs. 50,000/ in default to further undergo RI for a period of six months.
11. I further sentence the convict Somesh Kumar Mittal to undergo rigorous imprisonment for a period of four years u/s 7 of the PC Act and also pay fine of Rs.50,000/ in default to further undergo RI for a period of six months.
State (CBI v. Somesh Kumar Mittal Page No.44/39 45
12. I further sentence the convict Somesh Kumar Mittal to undergo rigorous imprisonment for a period of four years u/s 13 (2) r/w 13 (1) (d) of PC Act and also pay fine of Rs.50,000/ in default to further undergo RI for a period of six months.
13. So far as convict Amar Dev is concerned, I sentence the convict to undergo rigorous imprisonment for a period of two years u/s 120 r/w section 7 of PC Act and Section 13(1) (d) r/w Section 13 (2) of the PC Act and also pay fine of Rs.10,000/ in default to further undergo RI for a period of three months.
14. I further sentence the convict Amar Dev to undergo rigorous imprisonment for a period of two years u/s 7 of the PC Act and also pay fine of Rs.10,000/ in default to further undergo RI for a period of three months.
15. I further sentence the convict Amar Dev to undergo rigorous imprisonment for a period of two years u/s 13 (2) r/w 13 (1) (d) of PC Act and also pay fine of Rs.10,000/ in default to further undergo RI for a period of three months.
16. All the sentences shall run concurrently. Benefit u/s 428 Cr.PC. shall be given to both the convicts.
17. Copy of the judgment dated 26.10.2012 and order on sentence dated 05.11.2012 be given free of costs to both the convicts.
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18. At this stage, an application is moved u/s 389 of Cr.P.C seeking suspension of sentence and grant of bail on behalf of convict Amar Dev. Copy given to Ld. Special PP for the CBI who has opposed the same.
19. Heard. The convict Amar Dev has been regularly appearing in the trial. The convict appears to be full of remorse and regret this unsavory incident in his life. Convict Amar Dev has deposited fine of Rs. 30,000/ and has been issued receipt no. 0461426 dt. 05.11.2012. Convict Amar Dev is admitted to bail on furnishing PB&SB in the sum of Rs.50,000/ with one surety in the like amount. Bail bonds submitted by the convict Amar Dev is accepted and the bail is granted to the convict Amar Dev in terms of Section 389 Cr.P.C till 15.01.2013.
20. Convict Somesh Kumar Mittal has also deposited fine of Rs. 1,50,000/ and has been issued receipt no. 0461425 dt. 05.11.2012.
21. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT TODAY: ON 05.11.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
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