Delhi District Court
Cbi Vs. Surender Kumar vs . on 21 December, 2020
IN THE COURT OF SH. SANJEEV AGGARWAL
SPECIAL JUDGE : (CBI)02 : (PC ACT)
ROUSE AVENUE DISTRICT COURT, NEW DELHI
CC NO. 51/2019 (CNR No. DLCT110002612019)
RC NO. 30(A)/2018/ACB/ND
PS : CBI/ACB/ND
U/S : 7 of PC Act, 1988
Central Bureau of Investigation (CBI)
Vs.
Surender Kumar
S/o. Late Rampal Yadav
Flat No. GH14/580, Paschim Vihar
Delhi110087
(Permanent address : Village Mamdiya Asampur
PO Knori, PS Khole
Distt Rewai (Haryana)
Date of institution : 22.12.2018
Judgment reserved : 03.12.2020
Judgment delivered : 21.12.2020
JUDGMENT
1. Brief facts as set out in the chargesheet are as under: "The instant case RC 30 (A)/2018 was registered on 18.09.2018 u/s 7 of PC Act 1988, against ASI Surender, PS : Maya Puri, Delhi Police, Delhi on the basis of written complaint dated RC No. 30(A)/2018/ACB/ND Page 1 of 83 CBI Vs. Surender Kumar 18.09.2018 of Sh. Rubaljeet Singh Sayal, S/o Sh. S. S. Sayal, R/0 124A, Central Avenue, Sainik Farm, Delhi 110064 and verification report thereof.
It was alleged in the said complaint that on 14.09.2018, complainant along with his two lady employees visited PS : Maya Puri in connection with a complaint of misbehaviour made by the said ladies against their coworker Sh. Vikrant. After waiting for one hour in police station, complainant was called alone by the SHO Sunil Mittal, PS Maya Puri in his chamber. SHO behaved very wrongly and demanded bribe from complainant. SHO also threatened that if complainant does not pay him bribe, he would register a kidnapping case against complainant. SHO asked complainant to coordinate with ASI Surender on his behalf. Thereafter, complainant met ASI Surender outside police station, who informed him that SHO has demanded Rs.10 lakhs. On request of complainant, ASI Surender met SHO Sunil Mittal and later informed complainant that SHO has agreed for Rs.2 lakhs. On further request of complainant, ASI Surender agreed for 1.5 lakhs and one Samsung S9 mobile phone. ASI Surender pressurized complainant to pay Rs.50,000/ immediately and hence, complainant paid Rs.50,000/ to ASI Surender.
RC No. 30(A)/2018/ACB/ND Page 2 of 83 CBI Vs. Surender Kumar It was further alleged that
afterwards ASI Surender started regularly calling the complainant. It was further alleged that ASI Surender Kumar PS : Maya Puri is demanding bribe of Rs.1,00,000/ and one Samsung Mobile Phone on behalf of Sh. Sunil Mittal, SHO, PS : Maya Puri for not registering a case of kidnapping against the complainant. Since the complainant did not wish to pay the bribe, therefore, he lodged the complaint with CBI for taking necessary action in the matter.
Investigation revealed that the allegations made in the complaint were verified by SubInspector Vikrant Tomar in presence of independent witness. The conversation that took place between complainant and accused during verification was recorded in a memory card through DVR. The said conversation confirmed demand of bribe from complainant by accused ASI Surender Kumar. The memory card containing the said conversation was sealed and marked as "Q1 in CO 38/2018". Verification proceedings were incorporated in verification report dated 18.09.2018. Thereafter, the present case RC 30(A)/2018 was registered on 18.09.2018 u/s 7 of PC Act 1988 against ASI Surender, PS : Maya Puri, Delhi Police, Delhi on the basis of written complaint of Sh. Rubaljeet Singh RC No. 30(A)/2018/ACB/ND Page 3 of 83 CBI Vs. Surender Kumar Sayal and verification report thereof.
Investigation revealed that on 18.09.2018, a CBI Trap Team was constituted comprising of Inspector Raman Kumar Shukla, as Trap Laying Officer (TLO), Inspector Shitanshu Sharma, Inspector Anand Sarup, Inspector N. C. Nawal, Inspector Ajay Kumar Singh, SubInspector Nitin Choudhary, SubInspector Vikrant Tomar, other subordinate staff of CBI, complainant Sh. Rubaljeet Singh Sayal and independent witnesses Sh. R. S. Yadav & Sh. Rupinder Kumar and it assembled at the office of Supdt. of Police, CBI, ACB, New Delhi at about 1730 hrs. Thereafter, complaint dated 18.09.2018 of Sh. Rubaljeet Singh Sayal, verification memo and FIR of case no. RC 30(A)/2018/CBI/ACB/Delhi were also read over and explained to all present. The independent witnesses and members of trap team satisfied themselves about the genuineness of the complaint by asking some questions from the complainant. Thereafter, complainant produced a sum of Rs.1,00,000/ (Rs.2000/ denomination) and a sealed pack mobile phone make and model Samsung Galaxy S9 for giving as bribe to ASI Surender. The distinctive numbers of the said G. C. Notes and description of the mobile phone so produced by complaint were RC No. 30(A)/2018/ACB/ND Page 4 of 83 CBI Vs. Surender Kumar mentioned in AnnexureA and AnnexureB respectively of handing over memo.
Investigation further revealed that the aforesaid amount of Rs.1,00,000/ and the sealed packed mobile make and model Samsung Galaxy S9 were treated with phenolphthalein powder. A demonstration was also given to all present to explain the purpose and significance of use of phenolphthalein powder and its chemical reaction with solution of sodium carbonate and water. Independent witness Sh. R. S. Yadav was asked to touch the tainted amount of Rs.1,00,000/ with his right hand fingers and afterwards wash them in the freshly prepared colourless solution of Sodium Carbonate and water in a glass tumbler. On doing so, the colourless solution turned pink in colour and this pink colour solution was thrown away after explaining the significance of reaction. The mobile of make and model Samsung Galaxy S9 was kept in a white colour cloth bag. The cloth bag was also treated with phenolphthalein powder. Thereafter, the tainted bribe amount of Rs.1,00,000/ was put in the right side of jeans pant pocket of complainant by independent witness Sh.R. S. Yadav. Complainant was directed not to touch the said tainted bribe amount and to hand over the same to the accused RC No. 30(A)/2018/ACB/ND Page 5 of 83 CBI Vs. Surender Kumar ASI Surender on his specific demand not otherwise, or on his specific direction to some other person. Independent witness, Sh. Rupinder Kumar was asked to act as a shadow witness and to remain as close to complainant as possible and try to overhear and see the transaction of bribe money, which may take place between complainant and the accused person. The cloth bag containing the Samsung mobile was also given to the complainant with the direction to hand over the same to the accused ASI Surender on his specific demand. Other proceedings were also carried out for laying a trap on accused and the proceedings were incorporated in handing over memorandum dated 18.09.2018.
Investigation revealed that thereafter CBI Trap team left CBI office at about 1825 hrs in two CBI vehicles. On the way the complainant informed that ASI Surender will come in his factory premises to accept the bribe amount and mobile phone. Therefore, at about 1945 hrs, the CBI trap team reached the factory of complainant i.e. M/s. Hardwyn India Inc. situated at B101, Maya Puri Industrial Area, PhaseI, New Delhi. The CBI vehicles were parked inside the factory premises in discreet manner.
Investigation revealed that
RC No. 30(A)/2018/ACB/ND Page 6 of 83
CBI Vs. Surender Kumar
thereafter on the directions of TLO, complainant made a call from his mobile phone to the mobile phone of ASI Surender at about 1950 hrs, to ascertain his whereabouts. This call was picked by ASI Surender in which he informed that he would be reaching the factory premises within 15 minutes. Thereafter, the DVR on 'switched on' mode was put in the front pocket of wearing shirt of complainant and complainant along with shadow witness Sh. Rupender Kumar sat in the office chamber of complainant Sh. Rubaljeet Singh Sayal. The CBI team members and other independent witness Sh. R. S. Yadav took position in two rooms having glass panels through which the office chamber of the complainant was clearly visible.
Investigation revealed that at about 8.30 p.m, ASI Surender reached the factory premises and after entering the office chamber of complainant sat in front of the complainant. Meanwhile, the complainant gave the white cloth bag containing mobile phone to ASI Surender and thereafter the complainant took out the aforesaid bribe amount from his right side jeans pocket and extended the same to the accused ASI Surender which he accepted from his right hand and kept the same in the white cloth bag of mobile phone by keeping the RC No. 30(A)/2018/ACB/ND Page 7 of 83 CBI Vs. Surender Kumar cloth bag in his left hand. After transaction of the bribe, the complainant left his office chamber and informed SubInspector Vikrant Tomar about transaction of bribe to accused ASI Surender. Sub Inspector Vikrant Tomar further informed Inspector Raman Kumar Shukla, TLO.
Investigation revealed that the TLO immediately alerted the team members including the independent witness and approached to accused ASI Surender. The TLO challenged accused ASI Surender for demanding and accepting of bribe amount of Rs.1 lakh and one Samsung Galaxy S9 mobile phone from the complainant Sh. Rubaljeet Singh Sayal. Accused ASI Surender got perplexed and kept mum. Accused ASI Surender was caught hold by his left hand wrist by TLO Raman Kumar Shukla and right hand wrist by SubInspector Vikrant Tomar.
Investigation revealed that thereafter, washes of right hand and left hand of accused ASI Surender were taken in solution of Sodium Carbonate and water. The said solutions turned pink in colour. Both the washes were sealed in bottles and marked as 'RHW in RC30(A)/2018' and 'LHW in RC30(A)/2018' respectively. The bribe amount of Rs.1,00,000/ and mobile phone were RC No. 30(A)/2018/ACB/ND Page 8 of 83 CBI Vs. Surender Kumar recovered by independent witness Sh. Rupender Kumar from the white cloth bag laying in front of ASI Surender on the table top of the complainant. On tallying, the numbers of recovered tainted GC Notes and description of mobile phone were found same as recorded in AnnexureA and AnnexureB of handing over memo.
Investigation revealed that thereafter, on being interrogated by TLO, accused ASI Surender revealed that he demanded and accepted the said bribe amount and Samsung Galaxy S9 mobile on behalf of SHO Sunil Mittal. Hence, TLO asked ASI Surender to make a call to SHO Sunil Mittal and inform him about acceptance of bribe amount and mobile phone. Since SHO was busy, he told ASI Surender to call him later. After sometimes, Sh. Yashpal, Munshi, PS Mayapuri called ASI Surender from his mobile phone. ASI Surender spoke to SHO Sunil Mittal on the said mobile phone and informed SHO that he has accepted SAMAN & MOBILE from the complainant. On this, SHO Sunil Mittal told ASI Surender to leave that matter and report to PS : Maya Puri. At this stage, accused ASI Surender intimated that SHO is very careful and cautious and he will not talk but he will certainly accept the bribe amount and mobile phone in person RC No. 30(A)/2018/ACB/ND Page 9 of 83 CBI Vs. Surender Kumar from him in the police station. Hence, it was decided to allow ASI Surender to visit PS : Maya Puri and deliver the bribe amount and mobile phone to SHO Sunil Mittal.
Investigation revealed that thereafter, a copy of recorded conversation in memory card was made in the official laptop for investigation purpose. The said memory card containing conversation between complainant and ASI Surender was removed from DVR, sealed and marked as Q2 in RC30(A)/2018. Thereafter, a new memory card make Sandisk 8 GB was placed again in the said DVR for use.
Investigation revealed that thereafter, accused ASI Surender was given the key of his car make Santro which he started and before the trap team members could take place in the said car, accused ASI Surender accelerated the said car and fled away. ASI Surender could not be nabbed by CBI team due to traffic on road. Thereafter, the CBI team returned to the office of the complainant to complete the further proceedings. Thereafter, in the meantime, on the directions of TLO, complainant Sh. Rubaljeet Singh Sayal made a whatsapp voice call from his mobile phone to the mobile phone of SHO Sunil Mittal. During conversation the complainant RC No. 30(A)/2018/ACB/ND Page 10 of 83 CBI Vs. Surender Kumar informed SHO Sunil Mittal that he has handed over the monbile phone to ASI Surendeer, upon which SHO Sunil Mittal told "no, no, not required, leave it". Complainant further told SHO Sunil Mittal that he should take the mobile from ASI Surender, upon which SHO Sunil Mittal told several times "No Need". This call was recorded in memory card through DVR. After making copy of said conversation in official laptop, the memory card was removed from DVR, sealed and marked as "Q3 in RC30(A)/2018".
Investigation further revealed that the tainted bribe amount was sealed and marked as "Trap money of Rs.1 Lakh in RC30(A)/2018". The trap article new Samsung Galaxy S9 mobile phone was also sealed and marked as "Trap Article Samsung Galaxy S9 mobile phone in RC30(A)/2018".
Investigation revealed that copy of conversation recorded by complainant in his Samsung Blue Colour mobile phone prior to lodging of his complaint in CBI was made in official laptop. The said mobile phone of complainant was sealed and marked as "Mobile Phone of complainant in RC 30(A)/2018DLI". The DVR used for recording the conversations during the course of verification and trap proceeding was also sealed and marked as "DVR in RC30(A)/2018".
RC No. 30(A)/2018/ACB/ND Page 11 of 83 CBI Vs. Surender Kumar Investigation revealed that a
memorandum captioned "Recovery Memo in RCDAI 2018A0030 dated 1819.09.2018" containing details of trap proceedings was prepared at the office premises of complainant.
Investigation further revealed that accused ASI Surender Kumar voluntarily gave his specimen voice which was obtained in a memory card using DVR. The memory card was sealed and marked as "S1 in RC30(A)/2018". A memorandum containing detaiils of specimen voice proceedings was also prepared and captioned "Specimen Voice Memo in RCDAI2018A0030".
Investigation also revealed that specimen voice of SHO Sunil Mittal was also obtained in memory card make Sandisk 8 GB thorugh DVR which SHO gave voluntarily. The said memory card was sealed and marked as "S2 in RC 30(A)/2018". A memorandum containing details of specimen voice proceedings was also prepared and captioned "Specimen Voice Memorandum in RCDAI 2018A0030".
Investigation revealed that copy of conversation contained in Q1, Q2, Q3 and mobile phone of complainant which were available on official laptop were played in presence of RC No. 30(A)/2018/ACB/ND Page 12 of 83 CBI Vs. Surender Kumar complainant Sh. Rubaljeet Singh Sayal and both the independent witnesses Sh. R. S. Yadav & Sh. Rupender Kumar. Complainant Sh. Rublajeet Singh Sayal identified his voice, voice of ASI Surender Kumar and the voice of SHO Sunil Mittal in the said conversations. A memorandum captioned "Transcription cum voice identification memo" was also prepared. Transcription of the said conversations were also prepared.
Investigation revealed that bottles containing washes marked "RHW in RC30(A)/2018", and "LHW in RC30(A)/2018 were sent to CFSL, New Delhi for chemical analysis and the CFSL Expert has given positive opinion on the washes vide Report no. CFSL2018/C1080 dated 24.10.2018.
Investigation revealed that during investigation the sealed memory cards marked Q1, Q2, Q3, S1, S2, mobile phone of complainant along with DVR & copy of transcription were sent to CFSL for voice analysis and preparation of copies. The opinion of CFSL Expert on the same is still awaited.
Investigation revealed that as per call details records (CDR) and customer application form (CAF) received from mobile phone copanies, the mobile phone numbers 8920899299 and 9868595700 stand in the name of accused ASI Surender Kumar.
RC No. 30(A)/2018/ACB/ND Page 13 of 83CBI Vs. Surender Kumar The mobile phone number 9810084413 which was used by complainant Sh. Rubaljeet Singh Sayal has been issued in the name of Sh. S. S. Sayal who is father of complainant.
Investigation revealed that during investigation no sufficient evidence came on record against Sh. Sunil Mittal, SHO, P.S Maya Puri to pin point his involvement in the said bribe transaction.
The aforesaid acts constitutes offences punishable u/s 7 of PC Act 1988 (as amended in 2018) on the part of ASI Surender Kumar, PS : Maya Puri, Delhi Police.
That sanction order for prosecution against ASI Surender Kumar, PS Maya Puri, Delhi Police has been accorded by the competent authority and the same is enclosed herewith in original.
It is therefore, prayed that the accused ASI Surender Kumar, PS Maya Puri, Delhi Police may kindly be summoned and he may be tried as per provisions of law."
2. Vide order dated 22.12.2018 chargesheet was filed in the Court and vide order of even date i.e. 22.12.2018 cognizance of the offence u/s. 7 of the Prevention of Corruption Act, 1988 (as amended in 2018) was taken. After supply of the copies and documents to the accused u/S. 207 CrPC, charge was framed vide RC No. 30(A)/2018/ACB/ND Page 14 of 83 CBI Vs. Surender Kumar order dated 15.04.2019 u/S 7 of Prevention of Corruption Act, 1988 (as amended in 2018) to which accused pleaded not guilty and claimed trial.
3. Thereafter, prosecution has examined 19 witnesses in support of its case, the description of which is given as under :
a) PW1 is ASI Deedar Singh from PS Maya Puri, who was posted as ASI at PS Maya Puri in September, 2018, who on 14.09.2018 on receipt of a call regarding the harassing of a lady by one boy at B101, Maya Puri, Phase1, had reached the said factory and investigated the said call and later on parties compromised the matter amongst themselves vide settlement Ex. PW1/.B (Colly).
b) PW2 is Sh. Pankaj Sharma, the nodal officer from Reliance JIO Infocomm, who had provided the CAF (customer application form) and CDR, Cell ID chart and certificate u/S. 65 of the Evidence Act with regard to the mobile no. 7011989066 in the name of Yashpal Singh, S/o. Chaman Singh vide documents Ex. PW2/A to Ex. PW2/E.
c) PW3 is Sh. Rubaljeet Singh Siyal, the complainant who has deposed regarding the prosecution story in the court regarding the demand, acceptance and recovery of the bribe money from the accused.
d) PW4 is Ms. Sunita Galya, who had made a call to the police regarding the harassment by the coworker on 14.09.2018 by calling on Women Helpline and thereafter, she went to the PS Maya Puri for lodging the complaint and later on the matter was compromised vide compromise deed Ex. PW1/B. RC No. 30(A)/2018/ACB/ND Page 15 of 83 CBI Vs. Surender Kumar
e) PW5 is Ms. Monika Bharadwaj, who was working as DCP (West), Delhi Police Rajouri Garden who had accorded the sanction u/S. 19 of PC Act 1988 (as amended) for prosecution of the accused vide Ex. PW5/A.
f) PW6 is Sh. R. S. Yadav, the recovery witness who accompanied the CBI Team for trap and was present throughout the time of pretrap conversation between the accused and the complainant and also at the time of demonstration of properties of phenolphthalein powder and producing of the currency notes of Rs. 1 Lakh and one Samsung Mobile phone and was also present at the time of raid / trap at the factory of the complainant on 18.09.2018. He has proved the relevant documents, which are Ex. PW6/A to Ex. PW6/E.
g) PW7 is Sh. Rupinder Kumar, the shadow witness who was also present throughout in the office of CBI at the time of preparation of the trap, constituting of the raiding party and actual trap at the factory of the complainant on 18.09.2018. In fact he was sitting with the complainant at the time of trap transaction. He has deposed regarding all these facts in his deposition and has proved the relevant documents which are Ex. PW7/A to Ex. PW7/B and also identified the conversation recorded in the SD card Ex.P2 and the transcription Ex. PW3/F from portion B to B1, C to C1, D to D1, E to E1, F to F1, G to G1, H to H1, J to J1 and K to K1.
h) PW8 is Sh. Kamal Kumar, the Nodal Officer, Reliance JIO Infocomm Ltd., who has proved the CAF and CDR, Cell ID Chart, pertaining to the mobile number of the accused having no. 8920899299 vide Ex. PW8/A (colly.)
i) PW9 is Sh. Pawan Singh, alternate Nodal Officer, RC No. 30(A)/2018/ACB/ND Page 16 of 83 CBI Vs. Surender Kumar Vodafone Idea Ltd. He has provided the documents pertaining to mobile no. 8750871121 vide memo Ex. PW9/A. He stated the CAF pertaining to the same destroyed in the fire. He has proved the call details and certificate u/S. 65 B Evidence Act vide Ex. PW9/B (colly.)
j) PW10 is Sh. Vikrant Tomer, who on the directions of Superintendent of Police, CBI, ACB verified the complaint of the complainant Rubaljeet Singh Siyal. The said complaint is Ex. PW3/A and he carried out the verification process including the making of pre trap call which was recorded in the Sony DVR by inserting a memory card and also prepared the verification memo Ex. PW3/B, whereafter the FIR was registered and the matter was marked to TLO (trap laying officer Inspector Raman Kumar Shukla, who carried out further proceedings) and he was also present at the time of trap.
k) PW11 is Sh. Akash Chand, public servant in whose presence the voice identification memo dated 06.12.2018 was prepared pertaining to one Yashpal, which is Ex. PW11/A.
l) PW12 is Sh. Saurabh Aggarwal, who was working as alternate nodal officer, Vodafone Idea Ltd., who had handed over the documents pertaining to the present case to the IO vide letter dated 25.10.2018, which is Ex. PW12/A. He had also forwarded the certified copy of CAF pertaining to mobile no. 9868595700 issued in the name of Surender Kumar i.e. the accused and the CDR from 13.09.2018 to 18.09.2018 and certificate u/S. 65 B of the Evidence Act vide Ex. PW12/B (colly).
m) PW13 is Sh. Surender Kumar, who was working as Nodal Officer, Bharti Airtel Ltd., who had handed over the documents pertaining to the present case to the IO vide letter dated 09.11.2018 RC No. 30(A)/2018/ACB/ND Page 17 of 83 CBI Vs. Surender Kumar which is Ex. PW13/A. He had also forwarded the certified copy of CAF pertaining to mobile no. 9810084413 issued in the name of S. S. Syal i.e. the complainant and the CDR from 13.09.2018 to 18.09.2018 and certificate u/S. 65 B of the Evidence Act vide Ex. PW13/B (colly).
n) PW14 is HC Ramved, who was called as a panch witness and in whose presence voice specimen was taken of the accused. The sample voice memo is Ex.PW14/A, bearing his signatures at point A and he also identified his signatures on the envelop containing the micro SD card Ex. PW14/B and the voice containing in the said micro SD card was also played in the court, which he identified as belonging to him and that of the accused.
o) PW15 is Dr. Subrat Kumar Choudhury, Sr. Scientific Officer (Physics) CFSL, CBI, who had compared the parcels received by him containing the questioned voice contained in SD cards Q1 to Q3 and the specimen voice recording of the accused contained in S1 and one mobile phone M and also the specimen voice of S2 of Sunil Mittal. He stated that after detailed scientific examination, specimen voice(s) contained in exhibit S1 and S2 were found tallying with respective questioned voices contained in exhibits Q1, Q2, Q3 and M. Further no form of tampering was detected in the audio recordings contained in exhibits Q1, Q2 and Q3. Test recordings were done in the exhibit DVR for the comparison of audio characteristics and recorder characteristics.
He also stated that on comparison of test recordings with the audio records contained in exhibits Q1, Q2 and Q3, it was revealed that the exhibit DVR could have been used for recording contents of exhibits Q1, Q2 and Q3. He has proved his report RC No. 30(A)/2018/ACB/ND Page 18 of 83 CBI Vs. Surender Kumar Ex.PW15/A.
p) PW16 is HC Yashpal Singh, who was working as Chitha Munshi at PS Maya Puri in the month of September, 2018. In his presence, the voice recording in micro SD card Q2 was played in which he identified his voice and that of the accused Surender and also that of the SHO Sunil Kumar Mittal. The relevant transcript of the said conversation was also put to him which is Ex. PW3/F (colly) from portion D to D1, E to E1, F to F1, G to G1, H to H1 and J to J1. He has also proved the DD entry no. 4B dated 19.09.2018 already Ex. PW1/D (colly.).
q) PW17 is Sh. V.B. Ramteke, Principal Scientific Officer, (chemistry), CFSL CBI, New Delhi. He had examined the hand washes which were sent to him Ex. P7 and P8 containing the right hand wash and left hand wash of the accused. He gave his report Ex. PW17/B after due chemical analysis.
r) PW18 is Inspector Raman Kumar Shukla, TLO (Trap laying officer), who deposed regarding the laying of trap, the demand, acceptance of the bribe and the recovery of the bribe money from possession of the accused along with mobile phone and also the entire process and proceedings of the trap.
s) PW19 is the IO in this case Sh. Sushil Kumar, DSP, CBI, ACB to whom the investigations were handed over in the month of October, 2018. After the trap proceedings, he sent the relevant exhibits to the CFSL for voice examination as well as chemical analysis and collected the CDRs / CAF of the mobile phones and prepared the transcription of the recordings and also got recording the voice memo and also obtained the sanction for prosecution of the accused and filed RC No. 30(A)/2018/ACB/ND Page 19 of 83 CBI Vs. Surender Kumar the charge sheet after investigation in the court. He has deposed regarding the investigations, as were carried out by him during the course of this case.
4. Thereafter, statement of accused u/S. 313 CrPC was recorded in which the entire case of the prosecution was put to the accused, to which the defence of the accused was as under :
"I am innocent. I have been falsely implicated in this case. I have neither demanded nor accepted any bribe money or phone. Various false documents and evidences including voice recording, FSL report, hand wash, verification memo, recovery memo, trap memo etc. have been created ante dated and ante timed against me to make out a false case against me. Even witnesses have been forced to sign documents without reading them or explaining the contents thereof. I was neither arrested nor apprehended by CBI. I was told by CBI to go and wait for them outside PS Mayapuri. Accordingly, CBI gave me the keys of my car and told me to leave the factory of the complainant. I left and waited for CBI outside PS Mayapuri but when no one came despite long wait, as such I left."
However, he did not examined any witness in defence as he categorically stated in his statement u/S. 313 CrPC that he does not wish to lead evidence in his defence.
5. I have heard Sh. Praneet Sharma, Ld. Senior PP for RC No. 30(A)/2018/ACB/ND Page 20 of 83 CBI Vs. Surender Kumar CBI and Sh. Vikas Arora, Ld. Counsel for the accused at length and perused the record and also gone through the written synopsis filed on behalf of the accused.
6. Ld. Sr. PP for CBI has relied upon following judgments in support of his contentions :
1. State of U.P. Vs. Dr. G.K. Ghosh 1984 AIR 1453;
2. Shri N. Sri Rama Reddy etc. Vs. Shri V. V. Giri 1971 AIR 1162;
3. Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors. 1975 AIR 1778.
7. On the other hand, Ld. counsel for accused has relied upon following judgments in support of his contentions :
1. Parminder Kaur vs. State of Punjab, 2020 SCC OnLine SC 605;
2. CBI vs Dr. AS Narayan Rao, 2019 SCC OnLine Del 8956;
3. Dashrath Singh Chauhan vs CBI, 2018 AIR (SC) 4720;
4. Anil Kumar Tito @ Anil Kumar Sharma @ Titto vs State of NCT of Delhi, 2015(5) AD (Delhi) 470;
5. C. Sukumaran vs State of Kerala, (2015) 11 SCC 314;
6. Mussauddin Ahmed vs State of Assam, 2010 AIR;RC No. 30(A)/2018/ACB/ND Page 21 of 83
7. Sunil Kumar Sharma vs State (CBI), 2007 (139) DLT 407;
8. Raja Ram vs. State of Rajasthan, (2005) 5 SCC
272.
8. At the outset, Ld. Counsel for the accused has argued that in the present case the prosecution has failed to prove motive, genesis of the trap, demand, acceptance and recovery which are the basic ingredients which have to be established by the prosecution for making out a case u/S. 7 of the PC Act, 1988 (as amended in 2018). The prosecution has failed to prove any motive on part of the accused for demanding bribe as the accused never promised to do any act for the complainant nor there was any work of the complainant pending with the accused, the complainant has himself had not alleged any motive on part of the accused except that he was allegedly following the matter on behalf of the SHO.
It is further stated that the demand of bribe on part of the accused is not proved, as PW3 complainant has not supported the prosecution case at all and has rather stated that the accused never demanded any bribe from him and he even stated that accused accepted any bribe from him, infact he denied the suggestion of the prosecution in this regard and the complainant even went to the extent that the accused has been falsely implicated in this case by the CBI.
It is further stated that even the recorded conversation of the trap has not been proved as per law even otherwise, it does not show any word whereby any demand of any nature whatsoever has been made by the accused. There is absolutely no demand in the entire RC No. 30(A)/2018/ACB/ND Page 22 of 83 CBI Vs. Surender Kumar conversation which was recorded during the raid. The conversation recorded during the verifications and trap proceedings neither indicate nor remotely suggests that any demand was ever made by the accused for himself or for the SHO.
Further, PW3 complainant stated that the complaint was given by him on the dictation of CBI, as he was directed to incorporate the name of the accused, which he did on their behest. It is further stated that even during the trap proceedings, no demand had been made by the accused Surender in the entire recorded conversation of trap, there is no mention of any demand raised by the accused nor any acceptance has been proved. The recovery has also not been established from the accused. Merely because the hand wash of the accused had turned slightly pink is of no consequence, as it had been confirmed by PW17 Sh. V. B. Ramteke that the phenolphthalein can even be transferred by shaking of hands and PW3 stated that he was not sure whether he shook hands with the accused or not. Therefore, there are chances of transmission of the said powder from the hands of the accused from the complainant.
Further, the recovery is not from the desk belonging to the accused, which can be said to be in the possession of accused. Further it is stated that the voice expert PW15 Dr. Subrat Kumar Choudhury cannot be called as a voice expert, as he had not done any voice analysis course or any degree in this regard and he had given his report regarding the voice matching as probable voice. He was not even sure with regard to the probability of same. He had also not called the accused for listening his voice in his office before analyzing the same. Further there are many other lacunas in his report which RC No. 30(A)/2018/ACB/ND Page 23 of 83 CBI Vs. Surender Kumar make it highly unreliable.
He further orally submitted that PW7 Rupinder Kumar is not a trustworthy witness, as he had made material improvements in his examination in chief with regard to the acceptance part, which was also confronted to him in his crossexamination visavis his earlier statement recorded u/S. 161 CrPC wherein he had not stated certain material facts, which he stated in his examination in chief with regard to the acceptance part. Therefore, he cannot be considered a reliable witness.
It is further stated that the CBI is deliberately concealing the CCTV footage of the cameras installed in the office of PW3, which were neither seized nor were examined, CBI has also not examined any independent witness working in the factory including the staff and the guards, which also goes against the prosecution story.
He has further argued with regard to the absconscion of the accused, PW18 has deposed that he did not make any complaint at 100 number regarding the slipping away of the accused, which shows that the story in this regard is not trustworthy, it is further urged that sanction is not proper as the entire material including the CFSL report regarding voice was not sent to the sanctioning authority, therefore, there is no application of mind for grant of sanction. Therefore, it is stated that as a whole, the prosecution case is highly doubtful. The prosecution has failed to prove its case beyond shadow of doubt and the accused is liable to be acquitted.
9. On the other hand, Ld. Sr. PP for the CBI has refuted the above arguments of the Ld. Defence Counsel and has argued that the RC No. 30(A)/2018/ACB/ND Page 24 of 83 CBI Vs. Surender Kumar prosecution has been able to prove all the ingredients which are necessary to make out a case u/S. 7 of the PC Act 1988 (as amended in 2018) as from the testimonies of PW3 complainant, PW6 independent witness R. L. Yadav, PW7 shadow witness Rupinder Kumar, TLO PW18, PW10 Vikrant Tomar, the prosecution has been able to prove that the accused had pretrap conversation with the complainant which was duly recorded in the presence of the independent witnesses, in which there was a clear cut demand by the accused from the complainant of bribe.
Further the accused came into the factory of the complainant on his own to collect the bribe money and the conversation at the time of the trap has also been recorded in which the accused is again making demand of bribe money, whereafter the accused accepted the bribe money in the presence of independent witness PW7 in the chamber of the complainant PW3 and the bribe money and the bag containing the mobile phone was handed over to him by the complainant PW3 and he also put the bribe money into the said paper cloth bag and that is how his hands were stained with the phenolphthalein powder at the time of accepting the bribe money.
The recovery has been proved as per the testimonies of PW3, PW7, PW6, PW18, as the accused after accepting the bribe money had kept the cloth bag on the table where he was sitting therefore, the said bribe money can be said to be in the power and possession of the accused. Therefore, all the ingredients for making out a case u/S. 7 of the PC Act, 1988 (as amended in 2018) are made out which is further corroborated by the recorded conversation recorded in the DVR which was duly identified by the complainant and the other witnesses, when RC No. 30(A)/2018/ACB/ND Page 25 of 83 CBI Vs. Surender Kumar played in the court in which those witnesses had identified the voice of the accused and that of the complainant and other persons involved.
Therefore, it is stated that this recoded conversation is another corroborative piece of evidence which makes the case of the prosecution stronger. It is also argued that PW15 the voice expert has also given a positive report, with regard to recorded conversations contained in Q1, Q2 and Q3 after comparing with the specimen voice belonging to the accused and the said PW15 was a voice expert as he had examined more than 505 cases and deposed in more than 140 cases in different courts and he had also done fellowship from Bureau of Police Research and undergone training for forensic examination of audio and video and therefore, his report Ex. PW15/A (colly.) further supports the prosecution story and makes it potent.
It is also argued that the hand washes of the accused were also examined by PW17, who after chemical examination stated that both of them tested positive for the phenolphthalein test vide his report Ex. PW17/B and testimony in this regard could not be diluted after his crossexamination. It is further stated that the subsequent conduct of the accused i.e. of running away from the spot after he was trapped is also relevant fact to show his culpability which is a relevant fact u/S. 8 of the Evidence Act.
10. I have gone through the rival contentions.
11. Before proceeding further, it would be pertinent to discuss the changes, if any in old Section 7 of PC Act 1988 as well as new Section 7 of the PC Act, 1988 (as amended in 2018).
RC No. 30(A)/2018/ACB/ND Page 26 of 83CBI Vs. Surender Kumar It would be useful to reproduce both the old and new Section(s) 7 of PC Act :
Before Amendment.
7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than 1[three years] but which may extend to 2[seven years] and shall also be liable to fine.
Explanations.--(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, RC No. 30(A)/2018/ACB/ND Page 27 of 83 CBI Vs. Surender Kumar be may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification." The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration." The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organization, which he serves, to accept.
(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
After amendment: For sections 7, 8, 9 and 10 of the principal Act, the following sections shall be substituted, namely:--''7.
RC No. 30(A)/2018/ACB/ND Page 28 of 83CBI Vs. Surender Kumar Any public servant who,--(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration.-- A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine RC No. 30(A)/2018/ACB/ND Page 29 of 83 CBI Vs. Surender Kumar ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2.--For the purpose of this section,--(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
12. In the absence of any judgments of the Hon'ble Supreme Court and Hon'ble High Courts on recent changes made in Section 7 of the PC Act (as amended in 2018) an humble attempt is being made hereunder to decipher the true import of Section 7 of PC Act 2018, the new Section 7 can be siloed into three different parts as follows :
Any public servant who :
(a) obtains or accepts or attempts to obtain from any person an undue advantage, with the intention to perform or cause performance of any public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or RC No. 30(A)/2018/ACB/ND Page 30 of 83 CBI Vs. Surender Kumar
(b) [ditto], as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself i.e. by another public servant or
(c) Performs or induces another perform to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person.
Further :
2(d) defines "undue advantage" means gratification whatever, other than legal remuneration.
Explanation For the purposes of this clause
(a) The word "gratification" is not limited to pecuniary gratification or to gratification estimable in money;
From the aforesaid Section 7, it appears to punish three kind of bribery transactions between public servants and others involving undue advantage, changing hands / about to change hands. The term gratification is any benefit or reward given to influence one in once behaviour in office and inclines one to act contrary to the rules of honesty and integrity, anything whether a sum of money, an object which appeals to one's senses, a dinner, a plate full of fruit, a medicinal pill is gratification in the meaning of the term though recipient may not be punishable on that account.
13. It has been held in judgment Mubarak Ali Vs. State AIR 1958 MP 157 that mere demand or solicitation of illegal gratification by public servant amounts to commission of an offence u/S. 161 Indian Penal Code (Section 7 of PC Act, 1988).
RC No. 30(A)/2018/ACB/ND Page 31 of 83CBI Vs. Surender Kumar Further, it has been held in judgment C.L. Emden Vs. State of Uttar Pradesh AIR 1960 SC 541 "para 3 Section 161 Indian Penal Code provides the word "gratification" is not restricted to pecuniary gratification or gratification estimable in money, therefore, gratification mentioned in Section 4(1)(Section 20 of PC Act 1988) cannot be confined only to payment of money."
14. The Section 7 can be further broken into / sub divided as under :
7(a) requires that the exchange or transaction be accompanied by the public servant intending to perform / cause performance / for bear performance of a public duty either improperly or dishonestly be it her duty or that of another public servant.
7(b) requires that the exchange or transaction to be as reward for improper or dishonest performance / forbear performance of a public duty in the past by a public servant, as you get reward for anything already done or performed by you.
7(c) requires the improper or dishonest performance / for forbearance of public duty, or inducing such conduct in another public servant in anticipation or in consequence of accepting an undue advantage.
15. Section 7(a), as dissected above intends to punish contemporary or concomitant acts of bribery, whereas Section 7(b) as above attempts to punish the past act of bribery i.e. because one gets reward only for the thing already done or accomplished for the bribe RC No. 30(A)/2018/ACB/ND Page 32 of 83 CBI Vs. Surender Kumar given, whereas Section 7(c) seems to punish the acts done in anticipation of reward or bribery for illustration, a public servant may perform his public duties improperly for a very large corporate entity dealing in defence weapons, where he has heard that the getting defence kick backs is a norm, consequently he forbears to do his official duties improperly or does not perform his official duties properly thinking that if he does so, the corporate person for whom it is so done may be pleased and may lead to receipt of facilitation fee in return.
Further the above transaction(s) can be described as transaction(s) between bribe giver and bribe taker, which is akin to demand side and supply side in any economic transaction, albeit brimmed with culpability, which would be necessary to complete the transaction of bribe, without there being demand side, there cannot be supply side to go through the transaction of bribe.
16. From the reading of new Section 7 (as amended in 2018) as a whole, it is not merely accepting or obtaining or attempt thereof to obtain undue advantage from any person, but same has to have nexus with the improper or dishonest performance or forbearance from performing such a duty.
Mere obtaining of some advantage without any intention to improperly perform public duty or forbearance to do so or by abusing his position as a public servant will not attract provisions of Section 7 of New Act. For this, following illustration may be given :
Suppose a high ranking Minister 'M' purchases a very costly Rolex watch on credit from a high street store. The store RC No. 30(A)/2018/ACB/ND Page 33 of 83 CBI Vs. Surender Kumar owner 'S' generally does not sells such costly watches on credit basis, but thinking of his high influential position i.e. 'M' he sells the highly priced watch on credit to 'M' without 'M' promising any official act or forbearance or abuse of position in return. If 'M' does not later on pays for the watch, then same will not attract penal provisions of Section 7 of PC Act, 2018.
The prosecution must not only establish a financial or other undue advantage has been offered, promised or given, it must then also show that there is sufficient connection / corelation between the undue advantage so obtained and intention to perform any public duty improperly or forbearance / abstinence from performance of said duty or abuse or position as a public servant.
Though explanation I and illustration therewith of the new Section 7 may look incongruous to this afore interpretation, however, on closer look / scrutiny, it is apparent that explanation I to Section 7 and illustration thereto is merely an corollary to explanation II or the main substantive provision of Section 7 of PC Act 2018, as if a public servant 'S' asks a person 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this Section.
In this illustration, demand of illegal gratification or undue advantage by public servant, irrespective of fact, whether performance of public duty was proper or not, i.e. for routine processing of ration card application by demanding sort of facilitation fee can only be said to be obtained by the public servant, by abusing his position as a public servant, otherwise why would 'P' give facilitation money to 'S' which would fall under explanation II to Section 7 of PC Act 2018.RC No. 30(A)/2018/ACB/ND Page 34 of 83
CBI Vs. Surender Kumar In this illustration also obtaining of undue advantage has nexus with the abuse of his position as a public servant by 'S'.
In this context, another illustration can be given. Suppose a trader 'T' gives a substantial sum of money as a loan to very high ranking public servant 'S' on 2 percentage points less than the market lending rate / banking rate thinking that he may utilize the relations so made in view of said transactions in getting his work done in future. However, the public servant 'S' has no such consideration or indulgence in his mind entering at the time of such a transaction, who enters into said transaction professionally in a business like manner nor he has linked the same with performance of his public duty improperly or forbearance from the same or has thoughts of abusing his position as a public servant. Then it cannot be said 'S' obtained any undue advantage from 'T' by abuse of his position as public servant.
17. Further, there was overlapping in the old Section 7 of PC Act, 1988 as well as Section 13(1)(d) of the said Act and it appears that the Legislature has chosen to resolve the issue by deleting half of Section 13(1)(d), this has been done through explanation II to Section 7 which carries large chunks of the old Section 13(1)(d) PC Act. Therefore, there are no substantive changes in Section 7 of PC Act, 2018 visavis older Section 7 of PC Act, 1988 with regard to basic ingredients of demand of bribe, acceptance of bribe or recovery thereof, consequently the following judgments of the Hon'ble Supreme Court and Hon'ble High Courts would be guiding beacons for deciding a case RC No. 30(A)/2018/ACB/ND Page 35 of 83 CBI Vs. Surender Kumar under this Act as well.
18. The law with regard to Section 7 of the PC Act 1988 has been laid down in the relevant para(s) of the following judgments of the Hon'ble Supreme Court :
i) B. Jayaraj vs. State of AP, 2014, Cr. L J 2433
7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P.[1] and C.M. Girish Babu Vs. C.B.I.[2]
8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint.
9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the RC No. 30(A)/2018/ACB/ND Page 36 of 83 CBI Vs. Surender Kumar offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.
ii) SeJappa vs. State, AIR 2016, SC 2045
10. In order to constitute an offence under Section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55, wherein this Court held as under :
'7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P.(2010) 15 SCC 1 and C.M. Girish Babu v. CBI (2009)3.SCC.779.' The same view was reiterated in P.Satyanarayana RC No. 30(A)/2018/ACB/ND Page 37 of 83 CBI Vs. Surender Kumar Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152.
11. It is the case of the prosecution that on 09.12.1997, the appellant demanded a sum of Rs.5,000/ as illegal gratification from PW1 to discharge the official act of forwarding PW1's application for pension and for release of retiral benefits. PW1Ramakrishnappa has deposed that on 09.12.1997, the appellant demanded a sum of Rs.5,000/ as illegal gratification for sending 'No Objection Certificate' to the office of Accountant General at Bangalore for processing the appellant's pension papers. On the contrary, the appellant has taken the plea of alibi. The appellant contended that on 09.12.1997, when he is alleged to have demanded illegal gratification in his office at Chitradurga, he was actually on official tour in Bangalore from 07.12.1997 to 10.12.1997 for attending a seminar and that after attending the seminar, on 10.12.1997, he along with PW7 took delivery of a van alloted to Chitradurga PHE, Sub Division.
iii) Mukhtiar Singh (Since deceased) Through his LR vs. State of Punjab.
14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala4, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is RC No. 30(A)/2018/ACB/ND Page 38 of 83 CBI Vs. Surender Kumar accomplished, the accused should be considered to be innocent.
Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao5 that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
4 (2009) 6 SCC 587 5 (2011) 6 SCC 450
15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P.6 underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the prerequisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence RC No. 30(A)/2018/ACB/ND Page 39 of 83 CBI Vs. Surender Kumar thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these 6 (2014) 13 SCC 55 two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder."
(emphasis supplied).
19. Admittedly the accused is a public servant, therefore, sanction to prosecute him would be required u/s.19 of the PC Act. The relevant sanction has been proved by PW5 Ms. Monika Bharadwaj, who at the relevant time was working as DCP(West), Delhi. The relevant sanction is Ex. PW5/A. Nothing has come out in her cross examination, which could show that the said sanction has been accorded in a mechanical manner without due application of mind. In this regard the relevant law has been laid down in the judgment of the Hon'ble Supreme Court in (2013) 8 SCC 119 State of Maharashtra Vs Mahesh G.Jain, as under:
16. Presently, we shall proceed to deal with the contents of the sanction order. The sanctioning authority has referred to the demand of the gratification for handing over TDS certificate in Form 16A of the IncomeTax Act, the acceptance of illegal gratification by the accused before the panch witnesses and how the accused was caught red handed. That apart, as the order would reveal, he has fully examined the material documents, namely, the FIR, CFSL report and other relevant documents RC No. 30(A)/2018/ACB/ND Page 40 of 83 CBI Vs. Surender Kumar placed in regard to the allegations and the statements of witnesses recorded under Section 161 of the Code and, thereafter, being satisfied he has passed the order of sanction. The learned trial judge, as it seems, apart from other reasons has found that the sanctioning authority has not referred to the elementary facts and there is no objective material to justify a subjective satisfaction. The reasonings, in our considered opinion, are absolutely hypertechnical and, in fact, can always be used by an accused as a magic trick to pave the escape route. The reasons ascribed by the learned trial judge appear as if he is sitting in appeal over the order of sanction. True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused. In the obtaining factual matrix, we must say without any iota of hesitation that the approach of the learned trial judge as well as that of the learned single judge is wholly incorrect and does not deserve acceptance.
The ratio of said judgment is squarely applicable to the facts of the present case.
20. I have gone through the said sanction order. The said sanction order is explicit. The said sanction order has been passed after going through the entire material. With regard to the arguments RC No. 30(A)/2018/ACB/ND Page 41 of 83 CBI Vs. Surender Kumar of the Ld. Defence Counsel that the relevant CFSL reports pertaining to the conversation and hand washes were not forwarded to the sanctioning authority at the time of sanction, therefore, the same will vitiate the sanction. The said argument is also without any substance, as the CFSL reports pertaining to recorded conversations and chemical analysis would only be relevant for proof of the charge against the accused during the trial and the same would not have been necessary for according or not according sanction u/S. 19 of the PC Act.
With regard to the sanction 197 CrPC the same was not necessary, as it was no part of the official duties of the police officer to accept illegal gratification from a public person, as alleged by the prosecution in its case.
21. With regard to the charge in hand, it would be useful to break up the case and discuss the same under the following three sub headings :
a) Facts prior to the event / transaction of bribe;
b) Facts contemporary to or concomitant facts I.e. the facts at the time of transaction of bribe;
c) Facts after or subsequent to the event i.e. after the transaction of bribe.
22. With regard to the first sub heading a) i.e. facts prior to the event / transaction of bribe, it has been proved by the testimony of PW1 ASI Deedar Singh that on 14.09.2018 he was posted at PS Maya Puri and he received a call from Duty Officer informing him RC No. 30(A)/2018/ACB/ND Page 42 of 83 CBI Vs. Surender Kumar that one boy was harassing a lady at B101 Maya Puri, Phase I, thereafter, he reached the said place along with one constable where he met one lady and called her along with the owner of the factory along with the persons so harassing. Thereafter, he took the said person to the PS in PCR van and the others including the owner followed them.
This fact has also been proved by the testimony of the caller PW4 Ms. Sunita Galya. She has also deposed that she had been harassed by one official in the factory belonging to the complainant and on 14.09.2018, she made a call at Woman Help Line, police came to their office and thereafter, she went to the PS for lodging of the complaint. PW3 owner also accompanied them. The matter was later on compromised vide compromise deed Ex. PW3/B. The said fact has also been proved from the testimony of PW3 complainant who has also deposed so in his examinationin chief. In the same he also deposed regarding the demand of Rs. 10 Lakhs by the then SHO concerned of PS Maya Puri on that day, who also threatened, otherwise, he would be implicated in a kidnapping case. Therefore, he has deposed regarding the initial demand of bribe by the SHO concerned of PS Maya Puri, which was the genesis or precursor to the lodging of the complaint, pertaining to present case.
Thereafter, PW3 has deposed regarding going to the CBI office after being disturbed on demand of said huge amount of Rs. 10 Lakhs by the SHO concerned, where he gave a complaint in writing Ex. PW3/A and thereafter, the CBI officers decided to conduct a raid. He also deposed regarding the verification proceedings, which took place in the CBI office as well as a phone call made by him from his RC No. 30(A)/2018/ACB/ND Page 43 of 83 CBI Vs. Surender Kumar mobile phone to the mobile phone of the accused Surender which was also recorded i.e. with regard to the pretrap conversation, which was done during the verification procedure at the CBI office.
Thereafter, he has also deposed that the raiding party was constituted and he was asked to arrange bribe money of Rs. 1 Lakh in the denomination of Rs. 2,000/ each (50 GC notes of Rs. 2,000/ each and one mobile Samsung S7, all of them were applied with phenolphthalein powder). He has also proved the verification report Ex. PW3/B and thereafter the handing over memo Ex. PW3/C. He has also proved the pretrap conversation recorded in micro SD card Q1, which is Ex. P1 and the relevant transcript there of from portion A to A1 on the Ex. PW3/F (colly.) (D12).
This fact has also been deposed by PW6 R. S. Yadav, who has corroborated his testimony in material particulars as well as by PW7 Rupinder Kumar and also by TLO PW18 Ins. Raman Kumar Shukla and also by PW10 Vikrant Tomar, who had verified the initial compliant given by the complainant in CBI office and PW10 has also deposed regarding the lodging of the complaint Ex. PW10/A and constitution of the raiding party for laying trap consisting of Inspector Raman Kumar Shukla himself Inspector N. C. Nawal, Inspector A. K. Singh, SI Nitin and independent witnesses R. S. Yadav and Rupinder Kumar and other subordinate staff including the complainant.
23. With regard to the second subheading b) i.e. contemporary / concomitant facts at the time of transaction of bribe, in this regard, the prosecution in order to make out a case u/S. 7 of PC Act (as amended in 2018) has to prove the following RC No. 30(A)/2018/ACB/ND Page 44 of 83 CBI Vs. Surender Kumar ingredients :
i). Demand;
ii). Acceptance; and
iii). Recovery.
In this regard relevant testimonial deposition of the complainant PW3 Rubaljeet Singh Siyal in his examinationinchief is reproduced as under :
"I am doing business of manufacturing of hardware materials and I am having factory at Mayapuri. On 14.09.2018, there was some dispute between my employees and on complaint police came at my premises and police had taken away two women employees to police station Mayapuri. Thereafter, I went to police station and met firstly with ASI Deedar Singh, the police personnel who took away my employees to the police station. I was asked to sit and wait for 15 minutes and thereafter the SHO Mr. Mittal came there. I was asked to go inside the cabin and talked with SHO Mr. Mittal and SHO without listening my grievances, asked me to pay Rs.10 Lakhs or otherwise he would implicate me in a kidnapping case. I questioned SHO on this conduct but he again threatened me to put me behind bars if I do not concede to his illegal directions and I was asked to sit outside where I made to sit about 34 hours.RC No. 30(A)/2018/ACB/ND Page 45 of 83
CBI Vs. Surender Kumar I knew accused ASI Surender, (present in the court) and he met me at Police station and I narrated to him about the demand and threats raised by SHO. ASI Surender then went inside the cabin of SHO and came out after sometime and said that SHO is insisting for Rs.10 Lakhs but he would accept Rs.23 Lakhs. Then I assured ASI Surender that I would make the payment next morning. Next morning, when I talked to Mr. Surender on telephone he said that I should not pay any amount to SHO.
I was disturbed on this conduct of SHO and therefore I approached CBI office and narrated about the demand and threats raised by SHO. At CBI office I personally met DIG Mr. Garg and then he introduced me to other CBI officers. I was asked to give complaint in writing and accordingly I had written a complaint at CBI office and submitted the same which is Ex.PW3/A and the same is in my handwriting bearing my signatures at point A. Then, CBI officers decided to conduct a raid on SHO Mr. Mittal.
Two witnesses also came there and some documentary material was prepared which I also signed. I was asked to make a phone call to ASI Surender which conversation was being recorded in the recorder. The recording was done on keeping the mobile phone on speaker mode. I made a phone call RC No. 30(A)/2018/ACB/ND Page 46 of 83 CBI Vs. Surender Kumar from my mobile phone having no. 9810084413 to the mobile phone of Mr. Surender and during this conversation Surender confirmed that SHO was insisting for payment and the entire conversation was recorded.
On verification about the demand, CBI officer prepared for conducting the raid by arranging two independent witnesses, by constituting trap team. It was decided that I would make the payment to ASI Surender and through him the payment would be made to SHO as it was clear that SHO would not directly accept the payment from me. Then I was asked to arrange amount of Rs. 1.5 Lakhs and one mobile hand set about which demand was also raised by SHO and accordingly I handed over an amount of Rs. 1.5 Lakhs and mobile Samsung S7 then phenolphthalein powder was applied upon cash amount as well as on mobile phone. All GC notes were in denomination of Rs.2000/ each (75 in number). Some paperwork were also done at CBI office which I also signed. I can identify those papers if shown to me.
At this stage, verification report (D2) is shown to the witness which has been identified by the witness and also his signatures at point A on each page and verification report is Ex.PW3/B. Witness has also seen handing over memorandum which bears his signature RC No. 30(A)/2018/ACB/ND Page 47 of 83 CBI Vs. Surender Kumar at point A on each page. Along with the handing over memo, annexure A is attached which contains the details of currency notes of total Rs.1 lakh and also annexure B which contains the detail of Samsung Galaxy mobile phone. The annexure A and B bear my signatures at point A and B. The handing over memo along with annexure is Ex.PW3/C (colly).
Now I remember that the tainted money must have been Rs.1 Lakh (50 GC notes of Rs.2000/ each).
Thereafter, I along with CBI team left CBI office at about 5.30 p.m and we came at my factory at Mayapuri. It was 8.30 p.m. Then I made a phone call to ASI Surender from my office cabin while CBI team was waiting outside. The recorder was in my pocket and it was switched on. When I made a phone call to ASI Surender same might have been recorded in the recorder (which was later on taken away by CBI officers from me).
In this phone call, I told ASI Surender that I had come to my office and I asked him to come my office as I wanted to talk to him and ASI Surender agreed to come to my office.
After about 45 minutes, ASI Surender came to my office cabin and one witness from CBI was also sitting in my office. I was talking to ASI Surender and he said that the demand raised by SHO was nothing less than RC No. 30(A)/2018/ACB/ND Page 48 of 83 CBI Vs. Surender Kumar extortion and during this conversation 2025 persons from CBI came to my office cabin and they started interrogating ASI Surender and during which they were even harsh to ASI Surender. CBI officers directed to ASI Surender to cooperate and that their real target was SHO Mr. Mittal. ASI Surender was then directed to make a phone call to SHO from his mobile and phone call was made and there was conversation between ASI Surender and SHO but I do not remember whether the same was recorded or not. During the phone conversation SHO asked ASI Surender to come to police station. After sometime when I was outside my office cabin I found that all the CBI officers along with ASI Surender came down and ASI Surender went in his car and CBI officers went in their vehicle. I remained in my office only.
At this stage, recovery memo is shown to the witness and the signatures have been identified on each page at point A and according to the witness the recovery memo was prepared at his office cabin. Same is Ex. PW3/D. I was called by CBI official after about 10 days. On that day, the transcription of recordings were prepared and I signed the same. I have seen transcription cum voice identification memo which bears my signature at point A. Same is Ex. PW3/E (D
11). Transcription of conversation contained in RC No. 30(A)/2018/ACB/ND Page 49 of 83 CBI Vs. Surender Kumar memory card Q1 (D12), transcription of conversation contained in memory card Q2 (D13), transcription of conversation contained in memory card mark Q3 (D
14), transcription of conversation recorded in my mobile phone (D15) which bears my signatures at point A on each page and same are Ex.PW3/F (colly)."
The said witness was also extensively crossexamined by the Ld. Defence Counsel. In his crossexamination he had stated that "it is correct that the accused Surender did not raise demand of phone and cash from me. It is also correct that accused Surender did not ask for phone and cash stating that he has to give the same to SHO."
He further stated as under :
It is correct that when I first visited CBI office I was not carrying any written complaint. It is correct that at CBI office I filed a complaint wherein name of ASI Surender was not mentioned. It is correct that complaint Ex.PW3/A was given by me after discussion and on the dictation of CBI officers. It is correct that CBI officer told me that if name of ASI Surender is included he would stand as a witness against SHO to strengthen the case. I cannot say with surety that Whatsapp calls were also made between me and ASI Surender which were not recorded.RC No. 30(A)/2018/ACB/ND Page 50 of 83
CBI Vs. Surender Kumar ASI Surender was sitting with me in my room for about 56 minutes before CBI team entered the room. It is correct that cash in mobile phone were not handed over by me to ASI Surender but was kept on the table. It is correct that I stated to ASI Surender that we had to leave for police station to give this to SHO. It is correct that ASI Surender did not touch the phone or the cash nor took the same under his control."
In his further crossexamination, he also stated that: "I do not remember whether accused Surender shook hands with me, when he came to my office on 18.09.2018 evening. CBI team had not given any instructions to me not to shake hands or not to touch the items (cash and mobile). CBI team had not given me any demonstration about application or reaction of any chemical or powder. The substance was applied on cash about which I do not remember the name. I also do not remember whether any such substance was applied on the mobile phone box. It is correct that I was briefed by CBI team to the effect that I should convince accused Surender to accompany me to the SHO for delivery of demanded things as otherwise SHO would not accept the same directly from me.RC No. 30(A)/2018/ACB/ND Page 51 of 83
CBI Vs. Surender Kumar At this stage documents Ex.PW3/B, C & D shown to the witness and it is admitted that these documents were signed by the witness. I did not read the contents of the documents which I signed. It is correct that transcripts Ex.PW3/E and F were already prepared and I signed the same without reading the contents.
It would be correct to suggest that accused Surender had no role to demanding or facilitating for delivering the same to SHO Sunil Mittal. It is correct that accused Surender had been falsely implicated by CBI in this case."
24. The next relevant testimony with regard to the transaction of bribe is that of PW7 Rupinder Kumar, as he was the person who was shadowing the complainant at the time of transaction of bribe and he was rather sitting along with him at the time of the said transaction and he was even introduced to the accused as the GST officer, who in his examination in chief has deposed as under :
In September 2018, I was posted as Inspector, GST, North Commissionerate, Badli Division, Delhi.
On 18.09.2018, I was assigned the duty to attend the CBI office. Accordingly, I attended CBI office. I met with Sh.Raman Shukla. There was a complaint lodged by one Sh.Rubaljeet Singh. I was RC No. 30(A)/2018/ACB/ND Page 52 of 83 CBI Vs. Surender Kumar not shown the complaint, but I was informed that complaint was regarding bribe. There was another independent witness namely Mr. Yadav present there. Complainant Rubaljeet Singh was also present there and he produced currency amounting to Rs.1 lakh (50 G.C. notes of Rs.2000/ each) and the demonstration by applying phenolphthalein powder was given to us. Complainant also produced one new Samsung Mobile Phone S9 (sealed packet). The currency notes were given to complainant, who kept the same in his left pocket.
My voice as well as voice of another witness Mr.Yadav was recorded through DVR in memory card. DVR was handed over to the complainant, who kept the same in his front pocket of the shirt. A leather bag containing kit was also carried by one CBI official who was accompanying us along with Raman Shukla. I had signed on the documents prepared at that time.
I have seen handing over memorandum already Ex.PW3/C (Colly), which bears my signatures at point C on each page. There is also annexures attached with it in which the numbers of notes and description of mobile phone were noted down and same also bear my signatures at points C. Thereafter, we went to the factory RC No. 30(A)/2018/ACB/ND Page 53 of 83 CBI Vs. Surender Kumar premises of the complainant at Maya Puri. One vehicle of the CBI was parked inside the factory and another was parked outside the factory premises. Thereafter, we went to the office of complainant which was situated at first floor of the building. Thereafter, CBI instructed to complainant to make phone call to accused Surender. Accordingly, complainant made calls to accused Surender and after attempt of two/three times accused Surender picked up the phone and told to the complainant that he would be reaching within 15/20 minutes. The said call was recorded in the phone of complainant. I was instructed to sit with complainant Rubaljeet Singh in his office cabin and other CBI team members sat in different cabins outside the cabin of complainant. After some time accused Surender, who is present before the court (witness correctly identify the accused), came there in Delhi Police uniform. Accused Surender asked the complainant about my identity, on which he replied that I was his friend from service tax department. Accused Surender was offered a seat and a cold drink was served by the employee of complainant. Complainant starting conversing with the accused stating that demand raised by SHO was nothing but extortion and SHO was being unjust and said conversations were being RC No. 30(A)/2018/ACB/ND Page 54 of 83 CBI Vs. Surender Kumar recorded in the DVR. After the conversations, complainant picked up mobile phone packet kept in a hanging bag and gave the same to the accused. Thereafter, complainant took out currency notes of Rs.1 lakh from his pocket and while handing over asked the accused to count the same, to which accused responded "bhai ne count kiye hue hain"........ so there was no need for him to count. Accused received the currency notes and put the same into the carry bag of mobile phone. All the conversations happening during this time were being recorded. Then complainant went out of his office room and within a minute CBI team entered the office room and apprehended and confronted the accused. The hand wash of accused was taken in the solution, which very slightly turned pink. The solution of both hand washes were sealed in separate bottles and our signatures were obtained on the labels pasted thereon. The currency notes were counted and tallied by me.
On being confronted accused Surender said that mobile phone and currency notes were meant for SHO. The CBI team then instructed the accused to call SHO from his mobile phone. Accused several times dialed SHO, but he did not pick up the phone. Again accused was asked to call SHO and this RC No. 30(A)/2018/ACB/ND Page 55 of 83 CBI Vs. Surender Kumar time phone was picked up by SHO. The conversations happened between accused and SHO was also recorded. The accused informed his SHO about the things delivered by Rubaljeet Singh at which SHO told accused to come to Police Station first. After some time, another phone call came to the phone of accused and it was from police station and the person asked the accused as to what he wanted to say to SHO. This conversation was also recorded.
The CBI team then instructed the accused to go to police station and hand over the mobile phone and currency notes to SHO as accused had informed that SHO would accept the same as he only made the demand. Accused was allowed to go to police station in his own vehicle and the CBI team and accused came down and while the CBI team was deliberating as to who should be accompanying the accused, accused started his car and fled away by speeding his car. The CBI team then left for chasing the accused. After sometime CBI team came back and informed that ASI Surender could not be caught.
Thereafter, we all came into the cabin of complainant and on being enquired, it came out that the mobile phone and currency notes were with witness Mr. Yadav. Then, CBI team instructed the complainant to call the SHO at which complainant RC No. 30(A)/2018/ACB/ND Page 56 of 83 CBI Vs. Surender Kumar gave a whatsapp call to SHO and this conversation was also recorded, wherein complainant informed SHO about delivery of things demanded by him at which SHO said "no need no need". Thereafter, some officials of the team went to the police station Maya Puri along with me. The mobile phone and currency notes were sealed in separate envelops under our signatures. The micro SD Cards, DVR and also mobile phone of the complainant were sealed in separate envelops."
In his crossexamination he has deposed as under :
"I also visited CBI office on 08.11.2018 and my statement was recorded and contents were readover to me. I did not read the said statement before coming to the court.
I had stated in my statement to the CBI that "accused Surender asked the complainant about my identity, on which he replied that I was his friend from service tax department. Accused Surender was offered a seat and a cold drink was served by the employee of complainant. Complainant starting conversing with the accused stating that demand raised by SHO was nothing but extortion and SHO was being unjust and said conversations were being RC No. 30(A)/2018/ACB/ND Page 57 of 83 CBI Vs. Surender Kumar recorded in the DVR. After the conversations, complainant picked up mobile phone packet kept in a hanging bag and gave the same to the accused. Thereafter, complainant took out currency notes of Rs.1 lakh from his pocket and while handing over asked the accused to count the same, to which accused responded "bhai ne count kiye hue hain"........ so there was no need for him to count. Accused received the currency notes and put the same into the carry bag of mobile phone". Confronted with statement u/s 161 CrPC, Ex.PW7/DA, where it is not so recorded."
25. Though no doubt that there are some improvements made by PW7 in his examinationinchief with regard to his previous statement recorded u/S. 161 CrPC dated 08.11.2018 which was duly confronted, as above in his crossexamination, however, it has been specifically mentioned by the said witness in his previous statement u/S. 161 CrPC with regard to the demand and acceptance by accused as under :
"On being asked I further state that thereafter, at about 08:30 pm, a person in Delhi Police Uniform entered office chamber of complainant, sat infront of the complainant and started conversation with complainant who was later identified as ASI Surender. I was sitting beside complainant. Thereafter on demand of ASI Surender, complainant RC No. 30(A)/2018/ACB/ND Page 58 of 83 CBI Vs. Surender Kumar first handed over Samsung mobile phone in the bag and thereafter, on demand of accused, complainant handed over Rs. 1,00,000/, which ASI Surender accepted the same from his right hand and kept the tainted bribe amount in the same bag along with the mobile phone using his left hand."
Though no doubt in his examinationinchief, he did not make any specific deposition regarding raise of demand or bribe by the accused, as he stated that the complainant started conversing with the accused stating that the demand raised by the SHO was nothing but extortion and the SHO was being unjust. However, after the conversations the complainant picked up the mobile phone packet kept in a hanging bag and gave the same to the accused. Thereafter, the complainant took out currency notes of Rs. 1 Lakh from his pocket and while handing over passed the same to accused to count the same to which the accused responded "bhai ne count kiye huye hain....", so there was no need to count.
26. As discussed above in his previous statement u/S. 161 CrPC, this witness has specifically stated regarding the demand and acceptance on behalf of the accused, which he has not stated in his examination in chief. Therefore, there is a material omission in his testimonial deposition with regard to this fact, therefore, the Ld. Defence Counsel was justified in confronting the said fact stated so by him in his previous statement u/S. 161 CrPC. However, with regard to the acceptance part, though the witness may not have stated exactly in the manner of his previous statement u/S. 161 CrPC, but had stated RC No. 30(A)/2018/ACB/ND Page 59 of 83 CBI Vs. Surender Kumar differently in his examinationinchief clearly with regard to the acceptance of bribe money and the mobile phone by the accused. Therefore, he has substantially stated with regard to acceptance part in his examinationinchief. In any case, any previous statement u/S. 161 CrPC of any witness recorded in any criminal trial are not substantive evidence per se, but the same can only be used for limited purpose of confronting or contradicting a witness.
27. The substantive evidence is the testimony recorded in the court on oath and if the witness deviates materially from the same, he can always be confronted with his such previous statement by drawing his attention to that part of his previous statement, where he may have stated differently so as to enable him to give explanation with regard to the same, as this may occur due to assorted reasons, including due to lapse of memory, as there are three phases which are in action during the testimony of any witness first is perception, how the witness has initially perceived the incident, secondly the recollection at the time of deposition and third is narration and there can be overlapping of the facts in all these three phases, as some facts may be lost due to the time factor and other reasons that is how witness is given an opportunity to explain the contradictions which may have occurred in his testimonial deposition with regard to his previous statement recorded u/S. 161 CrPC.
28. From the testimonies of PW3 Rubaljeet Singh Siyal, complainant and PW7 Rupinder Kumar, shadow witness, the prosecution has failed to prove the demand of bribe by the accused at RC No. 30(A)/2018/ACB/ND Page 60 of 83 CBI Vs. Surender Kumar the time of the trap, though, the prosecution has been able to prove from the testimony of PW7 Rupinder Kumar regarding the acceptance on the part of the accused of the bribe money and that of mobile phone.
29. With regard to the corroborative evidence i.e. the transcripts of the pretrap and the recordings made at the time of trap, which are contained in Ex. PW3/F from portion A to A1 to Q to Q1. The said transcripts and recordings were examined by PW15 Dr. Subrat Kumar Choudhury, who in his examinationinchief has deposed as under :
I am working as Sr. Scientific Officer, GradeII (Physics) in CFSL, CBI, New Delhi since 04.10.2010. I have examined more than 505 cases and deposed in more than 140 cases in different courts. I was averred in national level fellowship in the year 2002 from Bureau of Police Research and Development, MHA, Govt. of India for carrying out research in the area of physical forensic science. I have undergone training in the field of forensic examination of audio and video.
This case was received on 09.11.2018 from SP, CBI, New Delhi through letter no. RCDAI2018A0030/12976 dated 09.11.2018. Along with the letter, seven sealed parcels, certificate of authority, specimen seal impressions and photocopy of transcription were received. The RC No. 30(A)/2018/ACB/ND Page 61 of 83 CBI Vs. Surender Kumar parcels received were marked as Q1, Q2, Q3, "mobile phone of complainant in RC30(A)/2018 DLI", S1, S2 and DVR by the forwarding authority. The parcel marked as "mobile phone of complainant in RC30(A)/2018DLI" was remarked as exhibit M in the Laboratory. Seals on the parcel were intact and found tallying with the specimen seal enclosed.
On opening parcel Q1, it contained one micro SD card. The micro SD card was marked as exhibit Q1 in the laboratory. It contained questioned audio recordings.
On opening parcel Q2, it contained one micro SD card. The micro SD card was marked as exhibit Q2 in the laboratory. It contained questioned audio recordings.
On opening parcel Q3, it contained one micro SD card. The micro SD card was marked as exhibit Q3 in the laboratory. It contained questioned audio recordings.
On opening parcel M, it contained one mobile phone. The mobile phone was marked as exhibit M in the laboratory. It contained questioned audio recordings.
On opening parcel S1, it contained one micro SD card. The micro SD card was marked as exhibit S1 in the laboratory. It contained RC No. 30(A)/2018/ACB/ND Page 62 of 83 CBI Vs. Surender Kumar specimen voice recording of Sh. Surender Kumar.
On opening parcel S2, it contained one micro SD card. The micro SD card was marked as exhibit S2 in the laboratory. It contained specimen voice recording of Sh. Sunil Mittal.
On opening parcel DVR, it contained one digital voice recorder of make Sony. The digital voice recorder was marked as exhibit DVR in the laboratory. It did not contain any audio recording.
Auditory, spectrographic and waveform examination of the above said questioned and specimen voice recordings was carried out by me. Details of the examination procedure, reasoning and results are mentioned in my report no. CFSL2018/P1192 dated 23.04.2019. This report comprises of 17 pages back to back. Page no. 1 to 16 bears my initials and page no. 17 bears my full signatures with official seal.
On examination, specimen voice(s) contained in exhibit S1 and S2 were found tallying with respective questioned voices contained in exhibits Q1, Q2, Q3 and M. Further, no form of tampering was detected in the audio recordings contained in exhibits Q1, Q2 and Q3. Test recordings were done in the exhibit DVR for the comparison of audio characteristics and recorder RC No. 30(A)/2018/ACB/ND Page 63 of 83 CBI Vs. Surender Kumar characteristics.
On comparison of test recordings with the audio records contained in exhibits Q1, Q2 and Q3, it was revealed that the exhibit DVR could have been used for recording contents of exhibits Q1, Q 2 and Q3.
As per the request of CBI, copies of exhibits were also prepared and forwarded to CBI. After examination all the exhibits were kept in separate envelop with their packing and sealed with my wax seal. During examination, I have put my initials on all the envelops and exhibits.
Subsequently, the SP, CBI, New Delhi was intimated by letter for collection of voice examination report and sealed exhibits from the laboratory. His authorized representative had collected the same from the laboratory on 13.05.2019.
I have seen my report dated 23.04.2019, which bears my signatures at point A on page 17 and initials at point B at page 1 to 16. The report is Ex. PW15/A (running into 17 pages).
Today I have seen yellow envelop having my initials and handwriting sealed with the seal of Court and also bearing my seal. The said yellow envelop is Ex. P11 , the same is opened in RC No. 30(A)/2018/ACB/ND Page 64 of 83 CBI Vs. Surender Kumar the presence of the accused and the Ld. Defence Counsels(s) and the Ld. PP for CBI, which contained one more small envelop of brown colour already Ex. PW3/G and micro SD card in open condition in original packing already Ex. P1(Q1).
Today I have also seen another yellow envelop having my initials and handwriting sealed with the seal of Court and also bearing my seal. The said yellow envelop is Ex. P12, the same is opened in the presence of the accused and the Ld. Defence Counsels(s) and the Ld. PP for CBI, which contained one more small envelop of brown colour already Ex. PW6/C and micro SD card in open condition in original packing already Ex. P2(Q2).
Today I have also seen another yellow envelop having my initials and handwriting sealed with the seal of Court and also bearing my seal. The said yellow envelop is Ex. P13, the same is opened in the presence of the accused and the Ld. Defence Counsels(s) and the Ld. PP for CBI, which contained one more small envelop of brown colour already Ex. PW3/H and micro SD card in open condition in original packing already Ex. P3(Q3).
Today I have also seen another yellow envelop having my initials and handwriting sealed with the seal of Court and also bearing my seal.
RC No. 30(A)/2018/ACB/ND Page 65 of 83CBI Vs. Surender Kumar The said yellow envelop is Ex. P14, the same is opened in the presence of the accused and the Ld. Defence Counsels(s) and the Ld. PP for CBI, which contained one more small envelop of brown colour already Ex. PW6/D and mobile phone in open condition already Ex. P4(M),(The phone belonging to the complainant).
Today I have also seen another yellow envelop having my initials and handwriting, which was opened in the testimony of PW14 HC Ramved today and also bearing my seal. The said yellow envelop is Ex. P15, which contains one more small envelop of brown colour already Ex. PW14/B and micro SD card in the open condition in original packing already Ex. P10 and the micro SD card is now Ex. P16 (S1).
Today I have also seen another yellow envelop having my initials and handwriting sealed with the seal of Court and also bearing my seal. The said yellow envelop is Ex. P17, the same is opened in the presence of the accused and the Ld. Defence Counsels(s) and the Ld. PP for CBI, which contains one more small envelop of brown colour already Ex. PW7/B and micro SD card in the open condition in original packing and the micro SD card is already exhibited as Ex. P10, now it is exhibited RC No. 30(A)/2018/ACB/ND Page 66 of 83 CBI Vs. Surender Kumar P10A (S2).
Today I have also seen another yellow envelop having my initials and handwriting sealed with the seal of Court and also bearing my seal. The said yellow envelop is Ex. P18, the same is opened in the presence of the accused and the Ld. Defence Counsels(s) and the Ld. PP for CBI, which contained one more small envelop of brown colour already Ex. PW6/E and one DVR, in open condition which is already Ex. P9(DVR).
All these articles were examined by me before giving the report. My report is correct."
In his crossexamination, he has deposed as under :
"I have used the term probable voice in my report Ex. PW15/A, but I have not given any probability number as to what extent the same is probable, but I say that the characteristics of the questioned voice and specimen were matching more than 90%, but it is correct that I have not written that the said characteristics matched more than 90% in my report where I have used the term probable.
I had not called the accused for listening to his voice in my office before analyzing the material on the basis of which I had given my report. For testing of the DVR recorder RC No. 30(A)/2018/ACB/ND Page 67 of 83 CBI Vs. Surender Kumar characteristics, I had used my office test material i.e. I had made test recordings in the DVR, but those recordings were not forwarded to CBI or court. I have not done any course of voice analysis, but I have done training at CFSL, Chandigarh and various other eminent institutes of India, the training lasted in some cases for almost 3 weeks. I am not possessing any degree to show that I am voice expert.
It is correct that abroad there are courses / diplomas in voice analysis science. In less than 5% cases referred to me by CBI, I would have given negative report."
30. The law regarding the voice identification has been settled by Catena of judgments of the Hon'ble Supreme Court, latest being III (2011) SLT 35 titled as Nilesh Dinkar Paradkar Vs. State of Maharashtra in which it was held as under:
In the case of Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors.,(1976) 2 SCC 17 this court made following observations:
"We think that the High Court was quite right in holding that the taperecords of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:RC No. 30(A)/2018/ACB/ND Page 68 of 83
CBI Vs. Surender Kumar "(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject matter recorded had to be shown to be relevant according to the rules of relevancy found in the Evidence Act."
In the case of Ram Singh & Ors. Vs. Col.
Ram Singh, 1985(Supp) SCC 611, again this Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows:
" (1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise 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.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence -direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement must be ruled out otherwise it may render the said statement out of context and, RC No. 30(A)/2018/ACB/ND Page 69 of 83 CBI Vs. Surender Kumar therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
In Ram Singh's case(Supra), this Court also notices with approval the observations made by the Court of Appeal in England in the case of R. Vs. Maqsud Ali,(1965) 2 AER
464. In the aforesaid case, Marshall; J.
observed thus:
"We can see no difference in principle between a taperecording and a photographs. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged."
To the same effect is the judgment in the case of R. v Robson,(1972) 2 AER 699 which has also been approved by this Court in Ram Singh's case(Supra). In RC No. 30(A)/2018/ACB/ND Page 70 of 83 CBI Vs. Surender Kumar this judgment, Shaw J. delivering the judgment of the Central Criminal Court observed as follows:
"The determination of the question is rendered more difficult because taperecordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical expert."
31. Chapter 14 of Archbold Criminal Pleading, Evidence and Practice 2010 edition at pg; 159091 discuss of Identification. Section 1 of this Chapter deals with Visual Identification and Section II relates to Voice Identification. Here again, it is emphasised that voice identification is more difficult than visual identification. Therefore, the precautions to be observed should be even more stringent than the precautions which ought to be taken in relation to visual identification. Speaking of lay listeners(including police officers), it enumerates the factors which would be relevant to judge ability of such lay listener to correctly identify the voices. These factors include:
"(a) the quality of the recording of the disputed voice,
(b) the gap in time between the listener hearing the known voice and his attempt to recognize the disputed voice,
(c) the ability of the individual to identify voices in general(research showing that this varies from person to person),
(d) the nature and duration of the speech which is sought to be identified, and
(e) the familiarity of the listener RC No. 30(A)/2018/ACB/ND Page 71 of 83 CBI Vs. Surender Kumar with the known voice; and even "a confident recognition of a familiar voice by a way listener may nevertheless be wrong."
The Court of Appeal in England in R V. Chenia[2003] 2 Cr. App. R. 6CA and R. V. Flynn and St. John, [2008] 2 Cr. APP. R 20, CA has reiterated the minimum safeguards which are required to be observed before a Court can place any reliance on the voice identification evidence, as follows:
"(a) the voice recognition exercise should be carried out by someone other than the officer investigating the offence;
(b) proper records should be kept of the amount of time spent in contact with the suspect by any officer giving voice recognition evidence, of the date and time spent by any such officer in compiling any transcript of a covert recording, and of any annotations on a transcript made by a listening officer as to his views as to the identify of a speaker; and
(c) any officer attempting a voice recognition exercise should not be provided with a transcript bearing the annotations of any other officer."
In America, similar safeguards have been evolved through a series of judgments of different Courts. The principles evolved have been summed up in American Jurisprudence 2d(Vol. 29) in regard to the admissibility of tape recorded statements, which are stated as under:
"The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed strict RC No. 30(A)/2018/ACB/ND Page 72 of 83 CBI Vs. Surender Kumar adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows:
a showing that the recording device was capable of taking testimony.
A showing that the operator of the device was competent;
establishment of the authenticity and correctness of the recording; a showing that changes, additions, or deletions have not been made;
a showing of the manner of the preservation of recording;
identification of the speakers; and a showing that the testimony elicited was voluntarily made without any kind of inducement.
...However, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said."
32. This apart, in the case of Mahabir Prasad Verma Vs. Dr. Surinder Kaur, (1982) 2 SCC 258. this Court has laid down that the tape recorded evidence can only be used as corroboration evidence in paragraph 22, it is observed as follows:
"Taperecorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the taperecorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady and in the absence of any RC No. 30(A)/2018/ACB/ND Page 73 of 83 CBI Vs. Surender Kumar such conversation, the taperecorded conversation could be no proper evidence."
31. In view of the law laid down in the said judgment, it has to be seen, whether the said corroborative piece of evidence relied upon by the prosecution is trustworthy / reliable or not. I am of the considered opinion that the report of the Expert is also not reliable for the various reasons. Firstly, the expert has only opined that the voices contained in Ex. Q1(2)(K), Q2(3)(K) to Q2(10)(K), M(1)(K) & M(5)(K) to M(9)(K) are the probable voices of the person (Sh. Surender Kumar) whose specimen voice is marked exhibit S1 (4)(K).
32. As he has not given any definite opinion that the same was the voice of accused, the very fact that he has given a report that it was the probable voice of accused means that it may or may not be the voice of accused. Even the probability score of his opinion i.e the score of probability on percentage basis based on the score, which he has deposed in his examinationinchief is not indicated therein. Does 'probable' means absolutely sure or there is one more degree to traverse i.e most probable beyond that or even beyond that point of certainty etc. indicating the scale of probability, and on what basis said word 'probable' has been used or to say there is any objective basis for saying so. Though, in his cross examination he has stated that the characteristics of the questioned voice and voice of specimen were matching more than 90%.
33. Further, admittedly the Voice Expert did not spend any RC No. 30(A)/2018/ACB/ND Page 74 of 83 CBI Vs. Surender Kumar time with the suspect or the accused or the complainant to be familiar as to how they speak, their speech mannerisms and slang etc. as this fact has also been admitted by PW15 in his crossexamination.
Since the voice analysis is not an exact science like science of fingerprint analysis, wherein it can be conclusively said that the fingerprints of two persons on this planet cannot be the same. Therefore, the credibility of such evidence is diminished to a great extent due to above reasons. Further, PW15 in his cross examination stated that it was correct that in spectrographic test, the spectrogram of individual person is generated, but he did not forward the spectrogram of this accused along with his report Ex.PW15/A.
34. Further, it is not clear whether the transcription of the recordings Ex. PW3/F(colly) were also sent alongwith the relevant exhibits to the voice expert or not. The qualification of the said expert to be called or qualified to be a voice analysis expert is also seriously in doubt, as he stated in his cross examination that he had not done any course of voice analysis but had done training at CFSL, Chandigarh and other eminent institutes of India, the training lasted in some cases for almost three weeks. He was not possessing any degree to show that he was an voice expert i.e. this witness has claimed himself to be a voice expert, but has not been possessing any degree in voice forensics or auditory forensics.
As voice identification can be very tricky thing, as it is common knowledge that people tend to remember faces much better than they remember voices. This might be because we pay more attention to what is being said, rather than the sound of someone's RC No. 30(A)/2018/ACB/ND Page 75 of 83 CBI Vs. Surender Kumar voice and the fact we are used to being able to rely on someone's face for information about his or her identity.
Another issue is "expectancy bias" which occurs when an expert listens to the same recording multiple times and develops an expectation as to the person's identity leading to a biased result.
Further was there anything about the voice which would have impressed itself upon the witness? In other words, was there anything distinctive about the voice, which was similar or different to that of accused. Therefore, testimony of a ear witness has to be carefully scrutinized in view of above factors in the present case.
Therefore, in these circumstances, it would be very hard for the prosecution to project him as a voice expert. Therefore, objectivity of this witness has been greatly dented, thereby impinging upon his credibility / reliability to a very large extent. Therefore, it would be highly hazardous to rely upon his report.
35. Now what is the remedy for the prosecution, if the voice expert's testimony is not credible or cannot be relied upon, as not being reliable. In the present case, the voice of the accused has been rightly identified by PW3 complainant and PW16 HC Yashpal, Chitha Munshi, as PW3 had spent sufficient time with the accused and had met the accused, as claimed by him in the PS on 14.09.2018 and also had made various telephonic calls to him including those recorded in Q1 and Q2 and PW16 is Chitha Munshi, who was his colleague, therefore, he would have seen the accused talking day in and day out physically and on telephone. Therefore, they were in a position to identify the voice of accused contained in Q1, Q2, Q3 and the transcription thereof RC No. 30(A)/2018/ACB/ND Page 76 of 83 CBI Vs. Surender Kumar Ex. PW3/F from portion A to A1 to Q to Q1.
36. The perusal of the transcription and the relevant recordings which were played in the court show that there was no specific demand of bribe made by the accused from the complainant in those recorded conversations / transcript, though, in the said conversation, he and the complainant had been berating SHO, Maya Puri regarding the demand of bribe, however, there is corroborative evidence towards or in support of in the form of acceptance in the transcript portion C to C1, the relevant transcript as translated in English is reproduced as under :
(C = Complainant A = Accused SW = Shadow Witness) C ye le ye pi, ye ho gaya, kya mai to kar nahi paunga kya karu?
A Bata du, dont worry bata dunga o bhai sahab not clear C ye mobile samajh rahe ho baat ye mobile painsath hazar ki mobile hai, painsath hazar ka mobile hai, sahi, matlab dil pe hath rakh kar bata us din kya hua not clear matlab kuch bhi ho.
A Aap matlab aap not clear C Matlab touch wood matlab yaar kis tarah koi mudda hi nahi, mai ghar ja raha hu, do lakh rupye ki chot laga di yaar, tere samne lag gayi na yaar.
A Iski recovery ho jayegi not clear C Recovery is baat nahi phir bhi ye lo gin le isko gin lena.
RC No. 30(A)/2018/ACB/ND Page 77 of 83
CBI Vs. Surender Kumar
A Ginna kis liye bhai ne gin liya na.
C Nahi nahi lath maar liya kar better hai, samjha kar hath
maar liya kar, gin le yaar gin le.
SW Gin lena better rehta hai.
A Yaha nahi lagegi, ye kehte hai, ded hai to ded hai, teen
hai to teen hai isse bada to nahi hai mai de chuka hu.
C kya ded peti, ded lakh de chuka hai usko.
A Ha
C Pachas to maine diya tha ek apni taraf se diya tha, ded
lakh SHO ne liya.
A Are mai aap baithe mai batau aapko jyada kuch not
clear
C SHO ko das lakh rupye mangne ki taka chahiye yaar,
mangi thi ya nahi mangi thi, sahi bata ya tune mangi thi apni taraf se.
37. From the analysis of above conversation and in context of said conversation, it is apparent that the accused had accepted the said bribe money, which has also been corroborated by the direct testimony of shadow witness PW7 Rupinder Kumar, though, at the same time PW3 has categorically denied any demand or acceptance on behalf of the accused in his examination in chief and in his cross examination. Therefore, overall evidence of acceptance is ambivalent and not of very high quality, as the complainant is categorically denying it, however, PW7 says so and from the above conversation, it appears to be so, though not conclusively, but there is evidence in this regard RC No. 30(A)/2018/ACB/ND Page 78 of 83 CBI Vs. Surender Kumar i.e. with regard to the acceptance, which also becomes stronger when compared with the fact that the prosecution has also been able to prove that the accused went to the factory of the complainant voluntarily, as even the complainant who evidently appears to be saving the accused says so, as also the remaining prosecution witnesses.
The accused has failed to give any plausible explanation, as to why he had gone to the factory of complainant, as he had no business to do so to be there, as it was no part of his official duty to be there at that time.
38. With regard to the recovery part, the prosecution has relied upon the testimonies of PW6 R. S. Yadav, PW7 Rupinder Kumar and TLO Inspector Raman Kumar Shukla.
PW6 R. S. Yadav has claimed that the mobile and currency notes were lying on the table when the accused was apprehended by the CBI. PW7 Rupinder Kumar had not stated anything specifically with regard to the recovery part, however, he had stated that the CBI team entered into the office room and apprehended the accused and his hand wash were taken in a solution which turned pink. Both of them have also stated in their examinationinchief on being confronted that the accused stated the money was meant for SHO.
PW18 Inspector Raman Kumar Shukla TLO had stated with regard to the recovery part that the bribe money and mobile phone was recovered from the table of the complainant, opposite which the accused was sitting. The money was in the same cloth bag, which RC No. 30(A)/2018/ACB/ND Page 79 of 83 CBI Vs. Surender Kumar contained the new mobile phone.
39. Though Ld. Defence Counsel has argued that PW3 in his crossexamination has admitted that he may have shook hands with the accused at the time when he came to his chamber / office on 18.09.2018 therefore, he submits that is how the phenolphthalein powder may have got transferred into the hands of accused, which resulted in giving a positive finding in the solution of sodium bicarbonate and in this regard he has also relied upon the testimony of PW17 V. B. Ramteke, forensic chemical analyst, who has stated in his crossexamination "the phenolphthalein powder can be transmitted from one person to another even by shaking of hands. It is correct that the phenolphthalein powder is lying on a wooden, glass or metal surface the same can be transmitted into the hands of the person so touching."
No doubt there is a possibility or probability of this fact happening, as argued above. However, at the same time, the transcription / recording Ex. PW3/F contained in Q1 and Q2 reveal something different. The same is also corroborated by the transcription, as the accused later on made a call to Chitha Munshi and SHO with regard to this fact as contained in transcription F to F1. Therefore, the recovery and acceptance to substantial extent is established and corroborated by this conversation, as well.
40. With regard to the subheading c) i.e. facts after / subsequent to the event of transaction of bribe, as per the crystal clear testimonies of, PW6 R. S. Yadav, PW7 Rupinder Kumar and TLO RC No. 30(A)/2018/ACB/ND Page 80 of 83 CBI Vs. Surender Kumar PW18 Ins. Raman Kumar Shukla, which could not be impinged during the crossexamination, the prosecution has been able to prove that the accused had absconded from the place of bribery transaction i.e. the factory of the complainant. This fact has even been stated by PW3, though, he stated differently that ASI Surender went in his car and did not say that he absconded.
41. That the very fact that the accused did run away after the bribe transaction, as the TLO was planning to execute another trap through the accused of the SHO, Maya Puri and that is how the keys of the car were handed over to him to go to the police station and hand over the bribe money and the mobile phone to the SHO. This fact does show some sort of culpability of the accused, as to why he did run away, if he was not blameful. It may be due to the fact that he was culpable as projected by the prosecution, or it may be that he was fearing false implication, there is equal probability of both the events, being true.
42. TO SUM UP In view of the law laid down in the judgment(s) B. Jayaraj vs. State of AP, 2014, Cr. L J 2433, SeJappa vs. State, AIR 2016, SC 2045 and Mukhtiar Singh (Since deceased) Through his LR vs. State of Punjab (supra), the ingredient of demand of bribe is sine qua non of Section 7 of the PC Act which has not been proved vide the above discussion and taking into account the overall evidence with regard to evidentiary facts, as discussed under the subheadings
(a), (b) & (c), consequently the prosecution has failed to make out a RC No. 30(A)/2018/ACB/ND Page 81 of 83 CBI Vs. Surender Kumar case u/S. 7 of the PC Act.
Further, there is no evidence on record that SHO, PS Maya Puri abetted the present accused or vice versa for the transaction of bribe, as firstly the said SHO is not accused herein, secondly, in recordings or call(s) made by accused and complainant to SHO, he never demanded or accepted or agreed to accept bribe money. The evidence of complainant as discussed above on this aspect is of vacillating nature, further in this regard PW1 says in his crossexamination dated 14.09.2018, that accused was not in police station and complainant did not meet the accused on that day. Further more, PW16 in his crossexamination also says that accused was not present in the police station when complainant was there on 14.09.2018.
PW3 is the complainant, who only says that SHO Maya Puri demanded Rs. 10 Lakhs, when he went inside his room on 14.09.2018, lest he will be implicated in some case and that he knew accused, who thereafter went inside the cabin of the SHO and negotiated the said amount to Rs. 23 Lakhs, as already discussed above, the complainant is most ambivalent or vacillating witness, as he is a kind of a choosy witness i.e. in some small parts, he supports prosecution and at the same time in large or substantial parts, he does not support them at all, therefore, there is no evidence regarding any abetment by the said SHO qua present accused, as the prosecution has failed to make out substantive offence or ingredients of Section 7 PC Act, in view of the above detailed discussion as also the attempt thereof, since the prosecution has failed to make out the ingredients which were necessary to make out a case u/s. 7 of the PC Act, RC No. 30(A)/2018/ACB/ND Page 82 of 83 CBI Vs. Surender Kumar therefore, the abetment thereof on said failure, would also be not made out.
43. Since the yardstick which is to be achieved by the prosecution in criminal trial is probalistic in nature i.e. the prosecution should prove its case against a accused beyond reasonable doubt i.e. the probabilities of the prosecution case or probative force of its case as a whole, or weigh thereof as a whole should be beyond any sort of reasonable doubt in favour of accused, which the prosecution has failed to achieve in the present case.
As a resultant, the accused Surender Kumar stands acquitted of the charge(s) u/S. 7 of the Prevention of Corruption Act, 1988 (as amended in 2018). Previous bail bond(s) of accused Surender Kumar stands cancelled. Previous surety stand discharged. Documents, if any be returned after cancelling the endorsement(s), if any, if the same are not resubmitted while furnishing bail bonds u/S. 437A CrPC.
The said accused is stated to have already furnished his bail bond(s) in compliance of Section 437A CrPC, which will remain valid for a period of six months from today, as per the provisions of Section 437A CrPC.
File be consigned to record room.
Announced in the Open Court (Sanjeev Aggarwal) on this 21st day of Dec., 2020. Special Judge (PC Act) (CBI)02 Rouse Avenue District Courts New Delhi/ 21.12.2020 RC No. 30(A)/2018/ACB/ND Page 83 of 83 CBI Vs. Surender Kumar