Delhi District Court
Cc No.14/19 State vs Yashpal Etc.. 1 on 31 May, 2019
IN THE COURT OF MS. KIRAN BANSAL, SPECIAL JUDGE
(PC ACT CASES) ACB01, CENTRAL DISTRICT
ROUSE AVENUE COURT COMPLEX, NEW DELHI
CNR No. DLCT110001652019
CC No. 14/19
State (Govt. of NCT of Delhi)
VERSUS
1. Yashpal
S/o Sh. Jagdish Prasad
R/o H. No.4/94, Gali No.1
Azad Nagar, Baurat, U.P. (since expired, proceedings abated
vide order dated 20.08.2015).
2. Rajinder Singh @ Rajinder Singh Madan
S/o Sh. Swaroop Singh
R/o H. No. 1740/30, Anand Nagar
Jhajar Road, Rohtak.
FIR No. : 24/09
U/S : 7/13 PC Act
PS : Anti Corruption Branch
Date of institution : 27.02.2015
Judgment reserved on : 29.04.2019
Judgment delivered on : 31.05.2019
JUDGMENT
1. Brief facts of the case as per the chargesheet are that on 03.09.2009 complainant Jagdish Chand had produced a complaint before the Anticorruption Branch wherein it is stated that he was practicing as Advocate at Old Court, Kashmere Gate and was doing the work CC No.14/19 State Vs Yashpal etc.. 1 of property documentation. It is further stated that 1015 documents related to property were pending in the office of Sub Registrar, Kashmere Gate for registration in relation to which he visited the SubRegistrar Office, Kashmere Gate and met the accused R.S. Madan who clearly demanded Rs.2,000/ and Rs.8,000/ for registration of Will and Sale Deed respectively. It is further alleged that accused R.S. Madan further stated that if the aforesaid amount was not given, the registration of Will and Sale Deed would not be done. Thereafter, on 02.09.2009, the complainant visited the Anticorruption Branch and met with the ACB officials who advised to get recorded the conversation with the accused R.S. Madan and on the same day, the complainant had visited the SubRegistrar Office, Kashmere Gate with hidden recording device where he recorded the conversation with the accused R.S. Madan wherein he had asked to bring the bribe amount on 03.09.2009. After recording the conversation, the recording device was handed over to HC Rajender. Thereafter, on 03.09.2009 Insp. Meghraj had constituted a raiding team consisting of the complainant Jagdish Chand, panch witness Pradeep Kumar and serial numbers of currency notes of bribe amount of Rs.6,000/ were recorded in the preraid report and phenolphthalein powder was applied and demo of raid proceedings was given to the complainant. Thereafter, the aforesaid currency notes were handed over to the complainant which he kept in the left pocket of his shirt. The complainant was also briefed to keep the panch witness CC No.14/19 State Vs Yashpal etc.. 2 alongwith him so that he could hear the conversation between the accused and the complainant. Thereafter, two CDs of make Moser Baer PRO containing the conversation between the accused and the complainant were produced by HC Rajender Prasad which were marked as CD1 and CDII. After perusing the contents of both the CD, CDI was sealed in white clothe pulanda with the seal of MRG and one CD was kept open for the purpose of investigation. Both the CDs were seized and signed by the complainant, panch witness, HC Rajender Prasad and Insp. Meghraj. It is further alleged that at about 03:35 pm, the raiding team left in Van no. DL7CF0185 and at about 04:05 pm, the complainant alongwith panch witness reached at First Floor, office of SubRegistrar and the other raiding members took their positions outside the room of SubRegistrar. Thereafter, the complainant started talking to one person who was coming out of the room upon which the complainant started shouting to apprehend that person and that person was apprehended by Insp. Meghraj. It is further alleged that the accused R.S. Madan had denied to talk to complainant in front of the panch witness and had told by way of indication to hand over the bribe amount to Yashpal (coaccused, since deceased). However, Yashpal also got suspicious and tried to run away and was apprehended by the RO, Insp. Meghraj.
2. After completion of investigation chargesheet was filed in the court on 27.02.2015. Thereafter, charge for the offences punishable under section 7 & 13 (2) read with Section 13 (1)(d) of Prevention CC No.14/19 State Vs Yashpal etc.. 3 of Corruption Act. 1988 was framed on 29.04.2016 against the accused Rajender Singh Madan to which he pleaded not guilty and claimed trial. Here, it is pertinent to mention that order directing framing of charge was passed on 23.04.2016, and it was held that there is prima facie material on record to frame charge for offences punishable under section 7/13 of Prevention of Corruption Act, 1988 read with section 120B IPC. However, at the time of framing of charge, no charge for offence under section 120B IPC or read with section 120B IPC was framed.
3. Thereafter, prosecution in order to prove its case examined 24 witnesses. PW1 HC Satdev is the duty officer who had recorded the FIR Ex.PW1/A, on receiving of the Rukka brought by Ct. Mohanan sent by Insp. Meghraj. The endorsement Ex.PW1/B on the Rukka was made by PW1. He had recorded DD no. 31 Ex.PW1/C to this effect. He deposed that he had also recorded departure entry at serial no. 25 of raiding party in DD register Ex.PW1/D at 03:35 pm. During the crossexamination, he admitted that DD no. 8 was also in his handwriting and the same was recorded at 01:40 pm, though his duty hours were from 02:00 pm to 08:00 pm. He denied the suggestion that DD register was kept opened and filled as per their convenience. He further denied the suggestion that the FIR is antedated and antetime. The entry regarding completion of recording of FIR was made at serial no. 34 and is Ex.PW1/DB and the DD No. 33 regarding arrival of Insp. Mehgraj is Ex.PW1/DA.
CC No.14/19 State Vs Yashpal etc.. 44. PW2 Jagdish Chand is the complainant who deposed that he is an advocate by profession and his job is of drafting and registration of property related documents with SubRegistrar, Kashmere Gate. He further deposed that he used to produce the documents on behalf of his clients. He further deposed that in the month of August 2009, many of the documents submitted by him were kept pending by the SubRegistrar, Kashmere Gate. He further deposed that normally it takes about one week for registration of the documents but the Sub Registrar had kept his documents for about 15 to 20 days and thereafter, he sent his clerk to obtain the same but his clerk told him that SubRegistrar was demanding money for registering the documents. He also deposed that the accused Rajinder Singh Madan was the SubRegistrar at the relevant time at Kashmere Gate. After 23 days again, he sent his clerk to obtain his documents but clerk again told him that SubRegistrar was again demanding money for registering the documents. He further deposed that thereafter, he approached the Anti Corruption Branch to lodge a complaint against the SubRegistrar on 02.09.2009 wherein ACB official had provided him a device for recording the conversation with the SubRegistrar. Even a constable accompanied him to the office of SubRegistrar. He further deposed that he went to the office of the accused where 23 persons were present and he requested the SubRegistrar to provide the documents and the accused told him that it was his last day in the office as he was transferred and therefore, the demand communicated to the CC No.14/19 State Vs Yashpal etc.. 5 complainant by his clerk be first made. He further deposed that he had recorded the conversation and handed over the device to the constable accompanying him. The complainant was asked to bring Rs.6,000/ by the officials of ACB on 03.09.2009 and on 03.09.2009, the complainant went to PS ACB and met panch witness and one inspector and handed over Rs.6,000/ to the officials of ACB who told that the notes were to be treated and returned to the complainant and complainant was asked to keep the currency notes in the pocket of his shirt. The complainant thus, kept the GC notes in the left pocket of his shirt. The complainant further deposed that he was told to hand over the GC notes to the SubRegistrar only on his demand. He further deposed that he alongwith the panch witness reached to the office of Sub Registrar on 03.09.2009 and officials of raiding team stood on the ground floor near the SubRegistrar office where the complainant and the panch witness entered into the office of the SubRegistrar where some public persons were present. He further deposed that he made a gesture to the SubRegistrar indicating that he had brought the money and on seeing the gesture, the accused told him to meet one Yashpal and then the SubRegistrar left his office. The complainant came back to the ground floor towards the office of SubRegistrar. Yashpal also came back to ground floor and after seeing the complainant and panch witness, he became suspicious and in the meanwhile the raiding team arrived and apprehended Yashpal. Thereafter, as per the statement of the CC No.14/19 State Vs Yashpal etc.. 6 complainant, he returned to PS ACB and his statement was recorded. The complaint is Ex.PW2/A and the preraid proceedings are Ex.PW2/B and the postraid proceedings are Ex.PW2/C, seizure memo is Ex.PW2/B, the seizure memo of GC notes is Ex.PW2/E, the seizure memo of the money and the documents recovered from Yashpal (coaccused, deceased) is Ex.PW2/F. The seizure memo of five slips of registration of documents are Ex.PW2/G and the seizure memo of sample voice of the complainant is Ex.PW2/H. The arrest memo of accused Yashpal is Ex.PW2/I and his personal search memo is Ex.PW2/J. 42 currency notes of the value of Rs.16.350/ recovered from accused Yashpal is Ex.P1. The 6 currency notes of Rs.1,000/ denomination which were handed over by the complainant to official of ACB is Ex.P2 to Ex.P7. The audio cassette containing the specimen voice of the complainant is Ex.P8 and cut off pulanda is Ex.P9.
5. During the crossexamination by Ld. Addl. PP, the complainant admitted that Ex.PW2/A is in his own handwriting. The complainant further admitted that on 03.09.2009 when he reached ACB at about 12:25 pm, Insp. Meghraj had met him and his complaint was assigned to Insp. Meghraj. The complainant could not remember whether he gave his complaint in the presence of panch witness to the ACB or panch witness had read and signed the complaint in his presence. He also did not remember whether Insp. Meghraj attested his signature and the signatures of the panch witness on the complaint. The complainant further admitted that he CC No.14/19 State Vs Yashpal etc.. 7 had handed over Rs.6,000/ to Insp. Meghraj who noted down the serial number of the said currency notes and had treated the currency notes with phenolphthalein powder, in the raid report. However, he could not remember whether the currency notes were touched with the right hand of panch witness or that the right hand wash of the panch witness was taken in solution of sodium carbonate. He also did not remember whether the complete demonstration was shown to him as well as to the panch witness. He also did not remember whether the wash taken during the demonstration was thrown away and the hands were washed with clean water and the phenolphthalein powder bottle was handed over to the DO. The complainant further admitted that Insp. Meghraj had instructed him to keep the panch witness near to him during the raid so that the panch witness could see and hear the conversation and panch witness was also given similar instructions. He also admitted that during demonstration proceedings, HC Rajinder Prasad of ACB had produced two CDs and handed over to Insp. Meghraj which were marked as CDI and CDII. He admitted that both the CDS contained the conversation taken place between the accused and the complainant on 02.09.2009 and the CD was played in his presence and he had confirmed the contents of the video footage appearing the CDs. He admitted that both the CDs were seized vide seizure memo Ex.PW2/D. He further admitted during the crossexamination by Ld. Addl. PP that they had proceeded for the raid at about 03:35 pm and had reached the spot at about 03:55 CC No.14/19 State Vs Yashpal etc.. 8 pm. The complainant further admitted that before proceedings to SubRegistrar office, he and panch witness were again instructed by the RO. He further admitted that when he alongwith the panch witness entered in the office of the accused, the accused was present and had talked to him and had also enquired from him about the panch witness who was accompanying him whereupon the complainant told the accused that the panch witness was his client. The accused had then told the complainant to send the panch witness outside and that he would give his document later on. The complainant further admitted that since he did not send the panch witness outside, the accused was hesitant in talking to him and got up and started walking away. The complainant further admitted that as soon as he looked towards the RO, accused Yashpal became suspicious and tried to run away but on raising the alarm by the complainant, the RO apprehended accused Yashpal. The complainant further stated that he does not remember whether from the search of the accused Yashpal, sum of Rs.16,350/ was recovered or that two slips were also recovered from his personal search and on which some name and amount was also written. The complainant did not remember the contents of the slip. The complainant admitted that the money recovered from Yashpal and the handwritten papers were seized vide seizure memo Ex.PW2/F. He further admitted that Insp. Rajbir reached at the spot and accused Yashpal and case property were handed over to Insp. Rajbir and further investigation was conducted by Insp. Rajbir and CC No.14/19 State Vs Yashpal etc.. 9 Insp. Meghraj had left the spot. The complainant further deposed that Insp. Meghraj sent Rukka for registration of FIR and site plan was prepared by Insp. Rajbir Singh at the instance of the complainant as well as at the instance of panch witness. Accused Yashpal was arrested in the office of ACB. Complainant further admitted that he again joined the investigation on 05.09.2009 and met Insp. Ranbir Singh. He did not remember whether Insp. Ranbir Singh met him and produced five slips of pending documents in the presence of witness Nabendu Kumar. The complainant did not remember whether the search of the Almirah in the office of the accused R.S. Madan was taken in his presence on 05.09.2009 by Insp. Ranbir Singh and the documents relating to the five registration slips were recovered and the photocopies of those documents were seized and original were returned to the complainant vide memo Ex.PW2/G. The photocopy of the five delivery receipts Ex.PW2/O and Ex.PW2/P and the photocopy of the documents in respect of those slips are Ex.PW2/I. The complainant further admitted that he again joined the investigation on 11.04.2012 and had gone to the FSL alongwith panch witness Ramesh Kumar Dhull where his voice sample was recorded in audio cassette. Copy of audio cassette was also prepared and both the cassettes were converted into two separate sealed pullanda and were sealed with the seal of RS vide seizure memo Ex.PW2/H. He had admitted during the crossexamination of Ld. Addl. PP that he was not under any coercion or pressure at the time of giving CC No.14/19 State Vs Yashpal etc.. 10 complaint. He further admitted that in his complaint Ex.PW2/A it is mentioned that he met accused R.S. Madan who specifically demanded Rs.2,000/ for each Will and Rs.8,000/ for each Sale Deed for registration purposes and accused had also told him that if the said amount was not paid, the documents would not be registered. The complainant further admitted that for the verification of the said facts, HC Rajender Prasad was sent with him by ACB on 02.09.2009 with the recording device for recording the conversation of the accused and accused R.S. Madan. The complainant had further admitted that HC Rajender Prasad was outside the office of the accused and the complainant himself recorded the incident of demand of bribe and acceptance in the office of the accused who had started bargaining about the bribe money with the complainant. During the further crossexamination of the complainant by the Ld. Addl. PP, the CD Ex.P10 was played on the laptop and on seeing the conversation, the complainant admitted that the same related to the conversation between him and the accused on 02.09.2009 in the office of the accused. The complainant also identified the voice of the accused as well as his own voice and confirmed that the contents of the conversation were same as per the transcript Ex.PW2/I. The complainant further admitted that he had received the pending document lying in the office of the accused on 05.09.2009 and that he had signed the documents voluntarily.
6. During the crossexamination of the complainant by the Ld. CC No.14/19 State Vs Yashpal etc.. 11 Defence counsel, the complainant deposed that he does not know who had prepared the CDs and where they were prepared. He further admitted that on 03.09.2009, he had not taken any recording device to ACB. He further stated that after apprehending the accused they had left the office of the accused after about 15 minutes and that the documents Ex.PW2/E, Ex.PW2/F and Ex.PW2/A were signed in the ACB. The complainant also did not remember whether he had signed the complaint Ex.PW2/A before proceeding for the raid or after return to the office of ACB. The complainant further admitted that his clerk was never called during the investigation in the ACB. However, he denied the suggestion that he had wrongly identified the voice of the accused at the instance of ACB officials or that no complaint was lodged by him. The complainant further admitted that the date appearing in the CD is 24.01.1980 and the time is 20:34. The complainant denied the suggestion that no recording was done by him on 02.09.2009. He also denied the suggestion that the CD is false and fabricated document to falsely implicate the accused or that he never visited the office of the accused on 02.09.2009 and 03.09.2009.
7. PW3 HC Rajender Prasad deposed that on 02.09.2009 he was posted as Head Constable in ACB and he alongwith the complainant went to SubRegistrar office alongwith audiovideo recorder. He further deposed that on reaching there he switched on both the said equipments and handed over the same to the CC No.14/19 State Vs Yashpal etc.. 12 complainant and the complainant went to SubRegistrar office with the said equipments. After some time, the complainant came back from the office of the SubRegistrar and handed over the equipments to PW3. PW3 then switched off the said equipments and returned to ACB and on 03.09.2009 prepared two CDs with the help of office computer and marked them CDI and CDII and handed over them to Insp. Meghraj who sealed the CDs with the seal of MRG in the presence of a panch witness. PW3 further deposed that on 03.09.2009, the recording content in the audio video recorded on 02.09.2009 was transferred in the office computer and then two CDs were prepared and only one CD was converted into a clothe pulanda and sealed with the seal of MRG and CDII was kept open for the purposes of investigation. He further deposed that both the CDs were containing the same/identical contents/recording and when the CDs were played on the computer, they were identified by the complainant to be the recording of what had taken place between the complainant and the accused R.S. Madan on 02.09.2009 and after playing the CDs on the computer, they were seized by the IO and the IO had obtained the signatures of complainant, panch witness as well as of PW3 on both the CDs. Certificate under section 65B Indian Evidence Act regarding the correctness of the contents in the CD is Ex.PW3/A. The CDI is Ex.P10 and the cut off pulanda is Ex.P11. The CD was also played during the testimony of PW3 who deposed that the audio and video footage appearing in the CD to be the same which CC No.14/19 State Vs Yashpal etc.. 13 he had copied from the original recording device in the office computer.
8. PW3 during his crossexamination on behalf of accused deposed that entries were made in Rojnamcha. He deposed that he does not remember whether any entry in the Rojnamcha was made on 02.09.2009 when PW3 had accompanied the complainant. He further deposed that he did not accompany the complainant inside the room of the accused in the complex of SubRegistrar Office and he cannot tell the exact time for which the complainant was inside the room of the accused. He further deposed that he had handed over the original device in the office of ACB after returning from the office of the accused and the device was not sealed by him. He further deposed that on 03.09.2009 at around 01:30 pm (wrongly written as 01:30 am), the senior officials directed him to make a CD of the recording and the CD was made by him by 02:00 pm. PW3 denied the suggestion that he had signed the document Ex.PW2/D on the asking of the senior officials. PW3 further deposed that the computer in the office of ACB from which the CD was prepared was under the control of staff of ACB. PW3 further deposed that the IO had asked him to provide certificate under section 65B Indian Evidence Act in the year 2015 and that the computer which was used by him was also used by the other staff of ACB.
9. PW4 Veer Singh prove the posting order Ex.PW4/A of accused Rajinder Singh as SubRegistrar, Kashmere Gate against vacant post. This witness was not crossexamined on behalf of accused.
CC No.14/19 State Vs Yashpal etc.. 1410. PW5 SI Anurag Tyagi deposed that on 16.09.2013 he had collected the FSL result from FSL, Rohini duly sealed with the seal of C.P. Singh alongwith two sealed pulandas containing the CDs and had deposited the case property in the Malkhana of PS Civil Lines and had handed over the FSL result to the IO.
11. PW6 Navendu Kumar Jha deposed that on 05.09.2002 (later on clarified by the witness on 23.05.2017 as 05.09.2009), he was posted as panch witness duty at ACB and had joined the investigation of the case alongwith Insp. Ranbir Singh who introduced him to accused Rajinder Singh. Accused was correctly identified by PW6. PW6 further deposed that the recording contents in the CD was played in his presence and was shown to the accused and accused admitted that he was appearing in the CD and also identified his voice. Thereafter, panch witness alongwith IO Insp. Ranbir Singh, accused R.S. Madan, coaccused Yashpal went to the office of SubRegistrar, Kashmere Gate where room of the accused R.S. Madan was searched and during the search some visiting cards were recovered from the Drawer. Complainant also met them in the office of the accused and produced five slips regarding registration of documents and on the basis of slip, the documents were searched and from the Almirah documents produced by the complainant were recovered. IO got the photocopies of the documents prepared and the original documents were returned to the complainant and the photocopies were seized vide seizure memo Ex.PW2/G. The photocopy of the slip are CC No.14/19 State Vs Yashpal etc.. 15 Ex.PW2/O and Ex.PW2/P and the documents which were recovered are Ex.PW2/Q1. The seizure memo of visiting cards is Ex.PW6/B and the seizure memo of the office of the accused is Ex.PW6/C. Panch witness further deposed that they came to the office of ACB wherein SDM joined the proceedings and in his presence, the CD was played and after watching the CD, the SDM identified the voice of the accused in the recording and stated that the accused is the person who was demanding the money and he was the SubRegistrar, Kashmere Gate, voice identification memo was prepared by the IO in this regard. The accused also gave his consent for taking his sample voice vide memo Ex.PW6/D. The visiting cards which were seized vide seizure memo Ex.PW6/B are Ex.PX.
12. During the crossexamination on behalf of accused, PW6 deposed that he had gone 23 times after 05.09.2009 and he had not joined as panch witness any other investigation except this case and a case in the year 2006. PW6 further deposed that he had seen the CD for about two minutes but had not seen the date and time appearing in the CD and one document was prepared after the CD was played. He further deposed that the name plate of the accused was displayed outside his office. He further deposed that the complainant came alone in the office of accused on the day when the search of the office of the accused was conducted and the complainant had given original slips to the officials of ACB. He further deposed that IO had given warning to the accused that CC No.14/19 State Vs Yashpal etc.. 16 specimen voice could be used against him.
13. PW7 deposed that on 21.06.2013, two sealed pulandas were taken by him from the Malkhana of PS Civil Lines and were deposited in FSL Rohini alongwith forwarding letter. Apart from the sealed pulandas and parcels, he also deposited 21 documents in the FSL.
14. PW8 Nityanand deposed that on 05.09.2009, he was working as SDM, Civil Lines and was called in the office of ACB where in the presence of panch witness, a CD was played and after seeing the CD, he had identified the person demanding money as Sub Registrar R.S. Madan who was present in the court on the day and was correctly identified by PW8. He also identified the voice of accused R.S. Madan in the recorded conversation and the observation memo in this respect is Ex.PW6/C. The CD Ex.P10 was also played in the court during the testimony of PW8 and after seeing the CD, PW8 identified the accused and his voice in the recording. During his crossexamination, he admitted that the date and time appearing in the recording is 24.01.1980 and the time is 02:30. He also admitted that he is not a voice expert. He also admitted that the side view of the face of the person talking on the phone is appearing in the CD Ex.P10 and the voice recorded in the CD is partly understandable. He denied the suggestion that no CD was played in his presence or that he had identified the voice of the accused at the instance of officials of ACB.
15. PW9 Ramesh Kumar Dhall deposed that on 11.04.2012 he was on panch witness duty in ACB and had joined investigation alongwith CC No.14/19 State Vs Yashpal etc.. 17 the IO. IO introduced him to the complainant Jagdish Chand and thereafter, they all went to FSL Rohini where voice sample of Jagdish Chand was taken in the audio cassette and one extra copy of the audio cassette was also prepared and the audio cassette was seized vide memo Ex.PW2/H and audio cassette is Ex.P8 and cut off pulanda is Ex.P9. Copy of audio cassette is Ex.P12. During the crossexamination, he deposed that on 11.04.2012 an information was received in his office for deputing him as a panch witness in the ACB and he was telephonically informed about his duty. He further deposed that he did not meet the complainant prior to 11.04.2012 and that he was introduced to Jagdish Chand on 11.04.2012. He further deposed that the voice sample was taken in a laboratory in a cassette and cassette was thereafter seized and he signed the seizure memo of the cassette.
16. PW10 Pardeep Kumar Tripathi deposed that on 03.09.2009, he was deputed as panch witness in the ACB where Insp. Meghraj introduced him to complainant. The complaint was read over to him and thereafter, preraid proceedings were conducted on six currency notes by applying phenolphthalein powder and PW10 was got touched his right hand and thereafter, his right hand wash was taken in sodium carbonate solution which turned pink and that wash was thrown and currency notes were then handed over to the complainant. He was directed to remain close to the complainant so that he could see and hear the talks. He further deposed that the CD containing recording between the SubRegistrar and the CC No.14/19 State Vs Yashpal etc.. 18 complainant was also played in his presence. Thereafter, the raid team proceeded to the office of SubRegistrar, Kashmere Gate. The raiding team stood at some distance and PW10 and the complainant went to the office of SubRegistrar on first floor. The complainant sat with the accused and PW10 stood near the complainant. SubRegistrar enquired about the PW10 from the complainant and the complainant told the SubRegistrar that PW10 was his man and he was nothing to worry (Koi Parda Nahi Hai). The accused told the complainant to send the witness outside but the complainant told that there is no need to send him outside. As the complainant did not send the PW10 outside, the accused went outside the room. The complainant followed the accused and PW10 also followed them. The complainant told that the accused told to talk to his man Yashpal who was also present at that time. The accused then left the complainant who spoke to Yashpal however, as Yashpal also had some doubt, he did not entertain them and tried to slip away and when Yashpal was slipping away the complainant raised alarm and the raiding team caught hold of Yashpal and took his search and found money and papers in his possession. PW10 also identified his signatures on the preraid proceedings and postraid proceedings as well as the complaint and on the seizure memo of the two CDs. He also identified his signatures on the seizure memo of currency notes and various other documents. PW10 further deposed that the complaint given by the complainant read over to CC No.14/19 State Vs Yashpal etc.. 19 him and after going through the same he had signed the same. He further deposed that accused told the complainant to talk to his man Yashpal. He also told the complainant to give bribe money to Yashpal by pointing towards the Yashpal. He further deposed that that audiovideo CD was played in his presence and the complainant had confirmed that the same was of 02.09.2009 and he had also signed the CD. He further deposed that from the personal search of accused Yashpal, cash of of Rs.16.350/ was recovered alongwith two slips. He further deposed that the RO i.e. Insp. Meghraj prepared rukka and send the same through Ct. Mohanan for registration of case and Insp. Meghraj then called Insp. Ranbir Singh and handed over the entire case property and document to the Insp. Ranbir Singh. Insp. Ranbir Singh prepared the site plan. Panch witness further identified accused R.S. Maddan to the same person who had talked to the complainant and had sealed from his office after indicating towards the coaccused Yashpal. PW10 also identified his signatures on the CD Ex.PW10 and Ex.P12.
17. During the crossexamination on behalf of accused, PW10 deposed that he joined as panch witness in ACB only in the present case. He further deposed that when he met the RO, the complainant and the other police officials were also present there. He denied the suggestion that no preraid proceedings were conducted in the office of ACB. He further deposed that the place where he had gone for the raid was SubRegistrar Office but he did not remember where any name plate was affixed outside the office CC No.14/19 State Vs Yashpal etc.. 20 or not. He further deposed that in the room only the accused and the complainant were present and there might be some public persons in the gallery. He further deposed that the complainant had only orally asked to the accused regarding his document but no document was shown in the presence by the complainant to the accused. He further deposed that after the entire proceedings were over, they left the SubRegistrar office at around 07:00 pm. He further deposed that he had signed the documents in the SubRegistrar office. He denied the suggestion that entire story was concocted in the office of ACB and all the documents were prepared in the ACB after the apprehension of accused Yashpal. He further denied the suggestion that the accused R.S. Madan never instructed the complainant to hand over the money to accused Yashpal.
18. PW11 Ravi Shekhar deposed that on 04.09.2009 he was posted as UDC in the Department of Commissioner of Industry and was deputed as panch witness in ACB and in his presence Insp. Ranbir obtained the specimen handwriting of Yashpal on 19 sheets Ex.PW11/A1 to Ex.PW11/A19.
19. PW12 Insp. Meghraj deposed that on 03.09.2009 at around 12:25 pm, the complainant came in the office of ACB and produced handwritten complaint Ex.PW2/A and he called the panch witness Pardeep Kumar who signed the complaint after reading the same. PW12 thereafter, attested the complaint and the complainant produced six currency notes in the denomination of Rs.1,000/ each CC No.14/19 State Vs Yashpal etc.. 21 and the particulars of the notes were recorded in preraid proceedings. Phenolphthalein powder was applied on the currency notes and thereafter, hand of panch witness was got touched and his handwash was taken which turned pink and thus, demo was given to the panch witness and the complainant. Both the panch witness and the complainant were instructed to remain close so that panch witness could hear the conversation. Thereafter, two CDs were produced by Ct. Rajinder Kumar and the same were played on the computer system of the office and it was found that both the CDs were having the same content. One of the CDs was seized vide memo Ex.PW2/B and other CD was kept open for investigation. Thereafter, the complainant alongwith Insp. Ranbir i.e. PW12 and the complainant and other raiding team proceeded to the Sub Registrar office at about 04:05 pm and reached on the first floor of the SubRegistrar office where the complainant and the panch witness sat in front of a person and started conversation. Thereafter, the sitting person came out of the room and pointed towards one another person Yashpal. The complainant and the panch witness started talking to Yashpal who after some time started running and the complainant shouted and the said person was apprehended by the raiding team. The complainant thereafter stated that the first person to whom they had met was R.S. Madan and he had asked the complainant about the panch witness and had told the complainant to send the panch witness outside but when the complainant did not send the panch witness outside, accused R.S. CC No.14/19 State Vs Yashpal etc.. 22 Madan pointed towards Yashpal and told the complainant to hand over the bribe to Yashpal and also told the complainant that his papers will be delivered later on. When the complainant started conversation with Yashpal, Yashpal got suspicion and stated "ACB ki raid lekar aaye ho" and he started running and he was apprehended and from his personal search an amount of Rs.16,350/ was recovered from the left side pocket of Yashpal alongwith slip on which 02.09.2009 and 03.09.2009 were mentioned. The same were seized vide seizure memo Ex.PW2/F. Thereafter, enquiry was made from the complainant and panch witness and panch witness started conversation with the complainant and the IO Insp. Ranbir Singh was called and seizure memo and the case property was handed over to Insp. Ranbir Singh. The case property Ex.P7 and the CD Ex.P10 were identified by PW12.
20. During the crossexamination of PW12 by Ld. Defence counsel, PW12 deposed that no separate register is maintained regarding the receiving of the complaint and only a Rojnamcha is maintained. He further deposed that he received the complaint at about 12:25 pm and had gone through the complaint and he had not seen any acknowledgement regarding the pending documents of the complainant with the office of SubRegistrar. He does not ask the complainant when the documents were deposited with the office of SubRegistrar. He further deposed that he did not discuss the matter with Rajinder Singh before proceeding further with the CC No.14/19 State Vs Yashpal etc.. 23 complaint. He also deposed that he did not know with whom the recording was lying on 02.09.2009 as the said recording were handed over to him by HC Rajinder and after the demonstration proceedings, preraid proceedings were completed. He admitted that in the complaint Ex.PW2/A there is a reference of recording done on 02.09.2009 by ACH official Rajinder. PW12 deposed that phenolphthalein powder was retained by the Duty Officer in the trap kit. PW12 also admitted that he did not ask for original DVR wherein the alleged conversation was recorded. He further deposed that the office of the accused was not visible from the place where they had parked their vehicles. He admitted that accused R.S. Madan was not apprehended by him on the same day. He denied the suggestion that nothing was recovered in the office of Sub Registrar on that day or that all the documents were prepared in ACB or that the entire story was concocted in the office of ACB to implicate accused R.S. Madan falsely.
21. PW13 C.P. Singh, Assistant Director, FSL Rohini deposed that he had examined the video file in the CD and on examination it was found that there was no indication of alteration in the identified video shot on the basis of examination using NonLinear Video Editing Storage System and Video Analyst System. He also conducted auditory analysis of recorded speech samples of speakers ExhibitQ1 and ExhibitS1 of accused Rajinder Singh and subsequent acoustic analysis of speech samples by using Computerized Speech Lab revealed that the voice is of the same CC No.14/19 State Vs Yashpal etc.. 24 person i.e. Rajidner Singh. His report in this respect is Ex.PW13/A. He further stated that after examination of the exhibits, the same were sent to laboratory and were sealed with his seal. Thereafter, on 26.06.2013 again two sealed parcels were received in the office of FSL. Parcel1 was having his seal and Parcel2 was having the seal of RS. Parcel1 contained the same CD which was examined by him earlier. He further clarified that in the earlier report date 22.09.2010 Ex.PW13/A, ExhibitQ1 was given to the speaker in the same video file wherein the speaker starts with "batao phir" and on the subsequent occasion when the CD was again examined, ExhibitQ1 was given to the speaker who started the conversation with "dekhlo ji........ hum.....". He further clarified that the same CD was sent to FSL twice and on first occasion the sample voice of Rajinder Singh was tallied and on second occasion the sample voice of Jagdish Chand was tallied. He further submitted that bare analysis of Ex.Q1 of the questioned voice of the sample voice using the Computerized Speech Lab revealed that the voice exhibits of speaker marked Ex.Q1 are similar to the voice exhibits of speaker marked Ex.S1 in respect of their acoustic cues and other linguistic and phonetic features and thus, the questioned voice of the sample voice was of the same person i.e. Jagdish Chand and after examination of the exhibits he had sealed the same with his seal and the report of his examination of the questioned CD on the second occasion. The detailed report dated 16.08.2013 is Ex.PW13/B. He identified the CD Ex.P10 to CC No.14/19 State Vs Yashpal etc.. 25 be the same CD and also his signatures were appearing on the CD at two places. He also identified audio cassette Ex.P8 containing the sample voice of Jagdish Chand. The audio cassette containing the sample voice of Rajinder Singh was identified by him as Ex.P14. The report of Sh. V.L. Narasimhan dated 19.05.2005 Ex.PW13/C was also identified by PW13. During cross examination, PW13 stated that he had not asked the IO to send the original instrument before giving the report Ex.PW13/A and B. He further deposed the video recording was having audio also and there was no separate audio track, however, the audio track was extracted from the video. In relation to the query as to whether the report Ex.PW13/B he had given any report regarding alteration or tampering, he deposed that as regards authenticity check, he has already given report in his previous report Ex.PW13/A alongwith the report of identification of voice of Rajinder Singh. He further deposed that as the same file was rereferred for identification of voice of Jagdish Chand, report pertaining to authentication check for the same file has not been given in the report Ex.PW13/B. PW13 denied that he had given his report on the basis of transcript supplied to him. He further admitted that FSL Rohini is not notified U/s 79A of I.T. Act so far and that FSL Rohini is gazette notified as a forensic science laboratory. He denied the suggestion that he was not competent to give report or that he has given any false report at the instance of ACB.
22. PW14 ASI Jai Prakash is the witness of arrest of accused R.S. CC No.14/19 State Vs Yashpal etc.. 26 Madan vide arrest memo Ex.PW14/A and his personal search memo is Ex.PW14/B.
23. PW15 Manoj Damodaran is the panch witness who deposed that on 07.09.2009, he was a witness when the sample voice of accused Rajinder Singh was obtained at FSL Rohini. PW15 identified the accused correctly as to be the same person whose sample voice was taken at FSL Rohini on 07.09.2009 and the audio cassettes were seized vide memo Ex.PW15/A. He also identified the cassettes Ex.P14 and its copy as Ex.P16. During the crossexamination, he admitted that he was assigned the panch witness duties 34 times. He further admitted that in his presence, FSL officials had not asked the IO as to in which atmosphere the questioned voice was recorded. He further stated that in his presence the IO had not explained to the accused that the sample voice could be used against him. He denied the suggestion that no sample voice was taken in his presence or that no cassettes were sealed in his presence or that his signatures were obtained in the office of ACB by the IO.
24. PW16 Ct. Kuldeep Singh deposed that on 23.04.2010, he has collected the exhibits from MHC(M) and deposited the same with FSL Rohini. During his crossexamination, he denied the suggestion that he did not visit FSL Rohini to deposit the exhibits. He deposed that he does not remember as to which seal was affixed on which pulanda.
25. PW17 Insp. Manoj Aggarwal deposed that on 24.10.2014 the CC No.14/19 State Vs Yashpal etc.. 27 investigation of this case was assigned to him and he had sent request letter to FSL to expedite the examination of the case property of the present case. He further deposed that he had sent Ct. Ashok to collect the FSL result Ex.PW17/A from FSL who brought the same in intact condition and gave the same to PW17. He further deposed that he prepared the chargesheet against both the accused persons and filed the same in the court. He also collected certificate under section 65B of Indian Evidence Act which is Ex.PW3/A and filed the same in the court by way of supplementary chargesheet. During the crossexamination on behalf of accused he deposed that he was assigned the file by the order of Addl. C.P. He admitted that the said order is not in the court file nor he has brought the same. He denied the suggestion that he did not prepare request to FSL to expedite the examination of the handwriting and the result. He denied the suggestion that the prosecution sanction with respect to R.S. Madan was not available on record. He denied the suggestion that he had not collected the certificate under section 65B of Indian Evidence Act from ASI Rajinder.
26. PW18 HC Ashok deposed that on 12.01.2015, he on the instructions of Insp. Manoj Aggarwal reached FSL Rohini and collected the FSL result and handed over the same to the IO. During the crossexamination, he denied the suggestion that the IO had not given him any authority letter to collect the FSL result or that he had collected the same and given to the IO.
CC No.14/19 State Vs Yashpal etc.. 2827. PW19 ACP Ranbir Singh is the IO who deposed that on 03.09.2009, Insp. Meghraj had told him that a raid was to be conducted and he accompanied Insp. Meghraj. He further stated that Insp. Meghraj left him in a vehicle alongwith driver near Ritz Cinema, Kashmere Gate and at around 06:30 pm, Ct. Mohanan told him that Insp. Meghraj had apprehended one Yashpal. Thereafter, ACP Ranbir Singh reached at SubRegistrar office and was apprised about the entire facts. He further stated that he sent Ct. Mohanan for registration of FIR and Insp. Meghraj handed over to him seizure memo, sealed parcels and accused Yashpal and left for the spot. Complainant and panch witness also apprised him all the facts and thereafter, PW19 took accused Yashpal to the ACB alongwith panch witness, complainant and other members of raiding team. Thereafter, Ct. Mohanan gave him a copy of FIR alongwith original rukka. He interrogated accused Yashpal and arrested him vide arrest memo Ex.PW2/I. Case property was deposited in the Malkhana PS Civil Lines. PW19 further deposed that on 04.09.2009, he interrogated accused R.S. Madan and accused was confronted with audiovideo recording and transcript. Thereafter, accused R.S. Madan was arrested vide arrest memo Ex.PW14/A. Specimen handwriting of accused Yashpal was taken in the presence of panch witness. On 05.09.2009, search was conducted in the office of accused R.S. Madan in the presence of panch witness and some documents were recovered from the Almirah in the office of the accused. Original documents were CC No.14/19 State Vs Yashpal etc.. 29 handed over to the complainant and photocopies were seized vide seizure memo Ex.PW2/G. SDM, Civil Lines was called in the ACB Office on 05.09.2009 and he joined the investigation and in his presence audiovideo recording was played, who after seeing the contents of the CD and hearing the voice, identified the accused R.S. Madan. Consent of accused R.S. Madan for obtaining the sample voice was taken vide consent memo Ex.PW6/D. On 07.09.2009, sample voice was taken into in two audio cassettes which were seized vide memo Ex.PW15/A and were deposited in the Malkhana. The biodata of the accused R.S. Madan was also obtained and case property was deposited in the FSL for examination. Sample voice of the complainant was also taken in two cassettes and were seized vide seizure memo Ex.PW2/H. Result was obtained by authorizing Ct. Kuldeep. PW19 further deposed that house search of the accused R.S. Madan was also conducted through Insp. Virender Thakran and after obtaining the FSL result, request was sent to sanctioning authority for according sanction against accused.
28. During the crossexamination, PW19 deposed that he was told to join the raid at around 02:00 or 02:30 pm and that he had not seized any copy of log register. He further deposed that Registrar Office was not visible where he took his position. He further stated that the recording devices were kept in the custody of S.O. in Personal Branch. He further deposed that he had not examined or made any enquiries from the executant of the documents which was to be CC No.14/19 State Vs Yashpal etc.. 30 registered. PW19 admitted that he had not given in writing the warning that his sample voice can be used against him before obtaining his consent. Though, PW19 further deposed that he had verbally told the accused. He further admitted that original recording device was not seized in the present case as there was only one instrument available in PS ACB. He denied the suggestion that draft proforma was sent with the request letter for grant of sanction.
29. PW20 Sh. Vijay Dev, Chief Electoral Officer deposed that in the year 201112 he was working as Principal Secretary, Revenue Department, Govt. of NCT of Delhi and file for according prosecution sanction against accused Rajinder Singh Madan was received in Revenue Department alongwith relevant record. He further deposed that after perusing the entire file Sh. P.K. Tripathi, the then Chief Secretary accorded prosecution sanction against accused Rajinder Singh Madan vide order dated 14.05.2012 which is Ex.PW19/J. PW20 has identified the signature of Sh. P.K. Tripathi at point A as he had worked with him. He further deposed that Sh. Rajiv Kumar, the then SDM working in Revenue Department has forwarded the aforesaid sanction order Ex.PW19/J to investigating agency through forwarding letter Ex.PW19/I. PW 20 has also identified signature of Sh. Rajiv Kumar as he had worked with him. Request letter of investigating agency is Ex.PW19/H.
30. During crossexamination on behalf of accused, he admitted that CC No.14/19 State Vs Yashpal etc.. 31 the office of Chief Secretary and his office at that time were separate. He denied that his office at that time had prepared any draft proforma of the sanction and had sent the same alongwith the file. He denied the suggestion that a draft proforma was received from ACB official or IO. He admitted that he had not put any date beneath his signatures on the document Ex.PW19/J. He denied the suggestion that he has identified the signatures of Sh. P.K. Tripathi and Sh. Rajiv Kumar at the instance of ACB.
31. PW21 ACP K.P. Singh deposed that on 02.04.2013, file of the present case was assigned to him for further investigation. He further deposed that on 21.06.2013, CD containing voice sample of complainant Jagdish, CD containing sting conversation, transcription, questioned documents, specimen handwriting of Yashpal were got deposited at FSL through Ct. Sanjay Yadav. He further deposed that on 16.09.2013, FSL result pertaining to CD was received and it was opined in the result that it was the possible voice of the complainant Jagdish Chand in the questioned conversation and voice sample. He further deposed that on 31.12.2013 on his transfer, he deposited the file in the office of ACB.
32. During the crossexamination on behalf of accused, he deposed that he does not remember whether any handing over memo with respect to handing over of the case file to him was prepared or not. He denied the suggestion that he did not receive the case file. He further deposed that Ct. Sanjay Yadav had collected the same from CC No.14/19 State Vs Yashpal etc.. 32 Malkhana and deposited the same at FSL on his directions on 21.06.2013.
33. PW22 Vijay Kumar, UDC, SDM office had brought the record/personal file of accused Rajinder Singh as per which he joined the department on 06.03.1992 and he was promoted to the post of GradeI DASS Cadre on 22.03.2001. He further deposed that Rajinder Singh was posted as SubRegistrar, Kashmere Gate on 30.08.2007 and he was suspended on 04.09.2009 and retired from government service on 28.02.2015. PW22 on seeing the biodata Ex.PW19/B, order dated 23.08.2007 Ex.PW19/C from judicial file, deposed that particulars/details mentioned in the documents tallied with the service record brought by him. Posting order of accused Rajinder Singh Madan is Ex.PW22/A.
34. PW23 P.K. Tripathi, Retired Chief Secretary deposed that in the year 2012 while he was deputed as Chief Secretary, Govt. of NCT of Delhi after perusal of entire record put before him, he accorded prosecution sanction against accused Rajinder Singh Madan which is Ex.PW19/J and sent the same to Revenue Department to communicate the same to investigating agency for prosecution of accused. During the crossexamination, he deposed that he did not give any personal hearing to the accused. On seeing the record, he stated that he is not sure whether accused Rajinder Singh Madan was arrested on the spot or not. He denied the suggestion that draft sanction order was received alongwith the request letter of the investigating agency. He denied the suggestion that he accorded CC No.14/19 State Vs Yashpal etc.. 33 the sanction in mechanical manner following verbatim the draft sanction.
35. PW24 Dr. Jiju P.V. deposed that on 21.06.2013 documents were received from the investigating agency in FIR no. 24/09 and on thorough examination of the questioned writings and the specimen writings, he opined that the person who wrote the red enclosed writings stamped and marked S15 to S19 also wrote the red enclosed writings similarly stamped and marked Q1. Detailed report is Ex.PW17/A. PW24 has also identified the 21 sheets from judicial file as being examined by him in the laboratory. Questioned documents are already Ex.PW2/M and Ex.PW2/N. Specimen documents are Ex.PW11/A1 to Ex.PW11/A19. During the crossexamination on behalf of accused, he denied that he has not examined the aforesaid documents properly or that he has prepared the aforesaid report at the instance of the IO.
36. PW Ct. Mohanan A.M. was dropped at the request of Ld. Addl. PP for the State as PW12 Insp. Meghraj has already been examined on the similar facts.
37. After completion of the prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. wherein all the incriminating evidence was put to the accused which he denied the same to be false and incorrect and further stated that he is innocent and this is a false case registered against him.
38. After completion of the prosecution evidence, I have heard Sh. Manoj Kumar Garg, Ld. Addl. PP for the State and Sh. Yogesh CC No.14/19 State Vs Yashpal etc.. 34 Verma, Ld. Counsel for the accused and I have also gone through the entire record.
39. Ld. Addl. PP for the State has argued that in the present case accused R.S. Madan had made specifically demand of bribe from the complainant on 02.09.2009 which was recorded in the spy device and recording of the same was converted into CD and authenticity of the same was established from the FSL. Voice of the accused R.S. Madan and the complainant have also been ascertained from FSL.
40. He has further argued that demand of bribe on each date is separate offence and there is no point in the argument of defence that on the date of trap accused has not made any demand of bribe. On the date of trap also i.e. 03.09.2009, accused R.S. Madan made gestures to the complainant and indicated him to give the bribe money to accused Yashpal.
41. Placing reliance upon section 7 of POC Act, Ld. Addl. PP further argued that acceptance of the bribe by the accused and recovery of bribe from the accused, is not mandatory and submitted that offence under section 7 of POC Act gets completed when accused demanded bribe from complainant or agreed to accept the same on 02.09.2009.
42. Ld. Addl. PP further argued that the complainant HC Jagdish Chander has been examined as PW3 and he has supported the case of the prosecution on the material aspects. Sanctioning authority Sh. P.K. Tripathi has been examined as PW23 and had proved the CC No.14/19 State Vs Yashpal etc.. 35 prosecution sanction against accused.
43. On the point of certificate under section 65B of Indian Evidence Act, Ld. Addl. PP has argued that requirement of certificate under section 65B Indian Evidence Act is only a procedural aspect and if any condition of section 65B of Indian Evidence Act is not complied with, the same can be relaxed as and when facts of the case warrants so in the interest of justice and placed reliance upon Sakshi Vs Union of India, (2004) 5 SCC 518 wherein it has been held that rules of procedure are handmaiden of justice and are meant to advance and not to obstruct the cause of justice. It is therefore permissible for the courts to expand or enlarge the meaning of such provisions in order to elicit the truth and do justice with parties. He also placed reliance upon Shafi Mohammad Vs State of Himachal Pradesh, SLP (Crl) No. 9431/2011 and SLP (Crl) No.(S). 96319634/2012 decided by Hon'ble Supreme Court on 30.01.2018.
44. Ld. Addl. PP for the State also placed reliance upon following judgments :
(i) Rajendra Shinde Vs State of Maharashtra, Crl. App. No. 1077 of 2017, decided on 13.03.2018 by Hon'ble Bombay High Court.
(ii) C.K. Damodaran Nair Vs Govt. of India, decided on 08.01.1997 by Hon'ble Supreme Court of India.
45. Ld. Addl. PP for the State after referring to the entire facts of the case and evidence and placing reliance upon the judgments, prayed for conviction of the accused R.S. Madan.
CC No.14/19 State Vs Yashpal etc.. 3646. Ld. Counsel for the accused R.S. Madan has relied upon following citations :
(i) Suraj Mal Vs State, AIR 1979 SC 1408.
(ii) Ram Chander Vs State, 2009(4) RCR (Cri.) 880 DHC.
(iii) Subhash Parbat Sonvane Vs State of Gujarat, 2002 Cri.L.J. 2787.
(iv) Banarasi Dass Vs State of Haryana, AIR 2010 SC 1589.
(v) Gireesan A. Vs State of Gujarat, 2012 X AD 8 DEL.
(vi) State of Punjab Vs Madan Mohan Lal Verma, VII 2013 SLT
180.
(vii) B. Jayaraj Vs State of A.P., IV 2014 SLT 128.
(viii) C. Sukumaran Vs State of Kerala, I 2015 SLT 694 SC.
(ix) Ashish Kumar Dubey Vs State, 2014 (142) DRJ 396.
(x) T. Subramaniam Vs State of Tamilnadu, AIR 2006 SC 836.
(xi) Dilip & Anr. Vs State of M.P., II 2007 SLT 60.
(xii) Sambhaji Hindu Rao Deshmukh & Ors. Vs State of Maharashtra, JT 2008 (1) SC 569.
(xiii) Santa Singh Vs State of Punjab, Crl. Appeal No. 123/195 SC.
(xiv) Ramkishan Mithanlal Sharma Vs State of Bombay, 1955 AIR 104 SC.
(xv) Dashrath Singh Chauhan Vs CBI, 2018 (4) LRC 518 (SC). (xvi) M.K. Harshan Vs State of Kerala, AIR 1955 SC 2178. (xvii) Anvar P.V. Vs P.K. Basheer & Ors., AIR 2015 SC 180. Sanction U/s 19 of P.C. Act for Prosecution of Accused :
CC No.14/19 State Vs Yashpal etc.. 3747. Ld. Defence counsel has vehemently argued that sanction in the present case was granted mechanically by the sanctioning authority.
48. As regards application of mind by sanctioning authority in 2013 (8) SCC 119 State of Maharashtra through CBI Vs Mahesh Jain, following principles were culled out : "14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prime facie reach the satisfaction that relevant facts would constitute the offence.
14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6 If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
It was further held that :
"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 CC No.14/19 State Vs Yashpal etc.. 38 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."
49. Thus, grant of sanction is an administrative function and only prima facie satisfaction of the sanctioning authority is needed. The adequacy or inadequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. Also, flimsy technicalities cannot be allowed to become tools in the hands of accused.
50. The object behind the requirement of grant of sanction to prosecute a public servant under the POC Act are designed as a check on frivolous and unscrupulous attempts to prosecute honest public servant for acts arising out of due discharge of their duties. Section 19(1) of the POC Act are mandatory and forbid courts from taking cognizance of any offence punishable U/S 7,10,11,13 & 15 of the POC Act against public servants except with the previous sanction of the competent authority.
51. However, this court is of the view that accused failed to show that failure of justice had occasioned by any error, omission or irregularity in the sanction. Also, as per the testimony of PW22, accused had retired on 28.02.2015 and cognizance in the present case was taken on 04.03.2015 (though chargesheet was filed on 27.02.2015). Thus, on the date when the cognizance was taken, the accused was no more a public servant and thus, there was no CC No.14/19 State Vs Yashpal etc.. 39 requirement of any sanction qua the accused for proceeding further with the case.
AudioVideo Recording Admissibility :
52. It is further argued by Ld. Counsel for the accused that PW3 HC Jagdish Chand has deposed that he had accompanied the complainant to the office of SubRegistrar with audiovideo recorder and he switched on the equipments on reaching there and after recording, the complainant returned the equipments to him. It is argued that it is a mystery as to why the two recording equipments were not disclosed in the chargesheet.
53.It is argued that PW3 deposed that he had kept the original device and the alleged recordings with him on 02.09.2009 and not deposited the same with the Malkhana on return, therefore, the possibility of tampering with the alleged recording cannot be ruled out. It is further argued that there is discrepancy qua the dates/time appearing in the alleged recording. It is further argued that PW13 Dr. C.P. Singh deposed during the crossexamination on behalf of accused that recording device was not examined by him before giving report Ex.PW13/A and Ex.PW13/B and he also admitted that the report qua authentication check for the files examined by him was not made part of his report Ex.PW13/B. It is further argued that PW13 has admitted that FSL Rohini is not notified under section 79A of I.T. Act.
54. It is further argued that there is unexplained contradiction as to CC No.14/19 State Vs Yashpal etc.. 40 when the recordings were made since the date visible on screen are of year 1980. The alleged recordings are not admissible in evidence as the same are not original.
55. Admittedly in the present case, the original recording device was not sent to FSL for examination. The date of creation of audio video file has also not been established on record and no explanation has come on record as to why the date appearing on screen is 24.01.1980 and time is 20:34. The name of the file is "19800124 203219.avi" which also reveals that the date of creation of audiovideo recording is probably 24.01.1980. No opinion has been sought from the FSL expert regarding the actual date of creation of audiovideo recording. In the absence of any explanation coming from the prosecution regarding the fact as to why the date appearing on the screen is 24.01.1980 and why the time is 20:34, the actual date of creation of audiovideo recording has not been established on record. The discrepancy in the date and time appearing in the audiovideo recording is thus, fatal to the case of the prosecution. Moreover, FSL Rohini was not notified under section 79 of I.T. Act at the relevant time.
56. Section79A of Information Technology Act, 2000 :
"79A. Central Government to notify Examiner of Electronic Evidence - The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any CC No.14/19 State Vs Yashpal etc.. 41 Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence."
Explanation - For the purposes of this section "electronic form evidence" means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines."
57. "Section45A of Indian Evidence Act, 1872 :
"45A. Opinion of Examiner of Electronic Evidence - When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.
Explanation - For the purposes of this section, an Examiner of Electronic Evidence shall be an expert."
58.The report of forensic expert is only admissible as per section 45A of the Indian Evidence Act. As per section 79A of the Information Technology Act, the FSL Rohini is not so notified, therefore, the report Ex.PW13/A and Ex.PW13/C of forensic expert PW13 are not relevant. It is thus, concluded that the audiovideo recording contained in the CD Ex.P10 is not admissible in evidence due to technical and procedural reasons and the report of the FSL expert is not relevant in view of Section79A of the Information Technology Act read with Section45A of Indian Evidence Act. Also, the CC No.14/19 State Vs Yashpal etc.. 42 admission by the accused that he was appearing in the presence of PW6 is also not admissible evidence being hit by Section 27 of the Indian Evidence Act.
Demand & Acceptance :
59. It is argued by Ld. Defence counsel that the complainant has deposed that he had sent his clerk to obtain some documents which were submitted to SubRegistrar for registration and his clerk told PW2 that the SubRegistrar was demanding money, therefore, initial demand has not been proved by the prosecution as the said clerk has not been examined and evidence of PW2 in respect of initial demand is of hearsay nature.
60. It is also argued that PW2 has deposed that he went to Sub Registrar office on 02.09.2009 and the accused told him that the demand made by him through the clerk of the complainant be first made and that this version qua initial demand of bribe by the accused is not proved as the said clerk of PW2 has not been examined. Moreover, PW2 did not remember that the recording played in the ACB was audio or video. PW2 has also not deposed about any phenolphthalein powder being applied on currency notes in his presence and demonstration on currency notes did not happen in the presence of PW2. Also as per the version of PW2, no demand or acceptance took place on 03.09.2009 in as much as PW 2 has deposed that he indicated through gestures to the Sub Registrar that he had brought the money and on seeing the gestures, SubRegistrar told him to meet Yashpal. It is further argued that CC No.14/19 State Vs Yashpal etc.. 43 PW2 further deposed that he saw Yashpal coming from outside and this version is contrary to the prosecution's case wherein it is stated that both accused R.S. Madan and Yashpal were present in the office of the SubRegistrar. It is further argued that PW2 did not remember whether he had given the complaint in ACB in presence of panch witness or not. He also did not remember whether accused Yashpal was present in the office of accused R.S. Madan or that accused R.S. Madan gave signal to PW2 to talk to him. He also did not remember whether Rs.16,350/ and some slips were recovered from the personal search of Yashpal and therefore, in view of the law laid down in Surajmal Vs State, (Delhi Administration) AIR 1979 SC 1408, the testimony of this witness cannot be relied upon.
61. The facts of Suraj Mal's case are distinguishable from the facts of the present case, in as much as in Suraj Mal's case there were three accused persons and the evidence against all of the three accused persons was more or less same and the Ld. Trial Court though had convicted two accused persons on the same evidence but had acquitted one of them. Ld. Trial Court in that case observed that the evidence is extremely shaky and inconsistent. The observation in Suraj Mal's case are just not applicable to the facts of the present case.
62. Moreover, in T. Shankar Prasad Vs State of Andhra Pradesh, Appeal (Crl.) 909/1997, the Hon'ble Supreme Court observed that :
CC No.14/19 State Vs Yashpal etc.. 44"..........So far as Suraj Mal's case (supra) is concerned, and the observations in Sita Ram's case (Supra), were to be confined to the facts of that case and no legal principle for future application could be discerned therefrom........."
63. Thus, the observations in the Suraj Mal's case are to be confined to that case alone and no universal principle for future application were laid in that case.
64. However, let us examine whether the demand by the accused in the present case, has been proved by any of the prosecution witnesses. As far as the initial demand is concerned, though the complainant in his complaint stated that he had gone to Kashmere Gate and had met the accused and the accused clearly demanded Rs.2,000/ per Will and Rs.8,000/ per Sale Deed for registration. However, during his examination in the court, the complainant has changed the version and stated that the demand by the SubRegistrar was made to his clerk and his clerk had told him that SubRegistrar was demanding money. This deposition by the complainant that the accused had demanded the bribe amount from his clerk and his clerk had told him this fact, is clearly not admissible evidence being hearsay and cannot be relied upon to arrive at any conclusion against the accused. The prosecution has miserably failed to prove the initial demand.
65. As far as the demand on 03.09.2009 is concerned, the complainant has stated that he made gestures to the SubRegistrar indicating that CC No.14/19 State Vs Yashpal etc.. 45 he had brought the money and therefore, he has not deposed about any demand being made by the accused on 03.09.2009. Also, despite the fact that complainant was instructed to hand over the bribe amount to accused only on demand, it is the complainant who made gestures to the accused that he had brought the money. The panch witness PW10 has stated that when he alongwith the complainant went to the office of SubRegistrar, the complainant sat with the accused in his office and SubRegistrar enquired about the panch witness from the complainant and the complainant told the accused that the panch witness was his man. He further stated that as the complainant insisted that panch witness would not be sent outside, the accused went out of his room. PW10 panch wintess has not deposed about any demand being made by the Sub Registrar in his presence. Rather he had stated that when accused left the room, the complainant followed and asked the accused to do his work. The statements of the complainant and panch witness PW10 regarding the sequence of events which occurred in the SubRegistrar office on 03.09.2009 are clearly contradictory to each other. Even as per the case of the prosecution, accused has not accepted any amount from the complainant on 03.09.2009 and had left the office and there was no acceptance of any amount by the accused on 03.09.2009. The version of the complainant qua the demand by the accused on 03.09.2009 is doubtful. It has also not been proved on record that on 03.09.2009 i.e. the date of trap that the accused had made any demand from the complainant. Even CC No.14/19 State Vs Yashpal etc.. 46 from the statement of PW10 panch witness, no inference can be drawn that the accused had made any demand from the complainant on 03.09.2009 and thus, no conclusion regarding the guilt of accused can be arrived at on the basis of depositions made by the witnesses.
66. The only evidence that is left on record which is to be appreciated is about the incidents/demand made by the accused on 02.09.2009. As already held above, the audiovideo CD Ex.P10 containing the audiovideo recording is inadmissible and therefore, the said audio video recording cannot be taken into account to arrive at any conclusion regarding the demand of bribe made by the accused. As far as the oral testimony of the complainant is concerned, the complainant in his examination in chief has not deposed about any words being spoken by the accused on 02.09.2009 and he has only stated that accused told him that demand communicated by the accused to the clerk of the complainant be first made promptly. The said clerk of the complainant is not a witness in the present case and therefore, what was demanded by the accused through the clerk of the complainant is not known and the statement of the complainant that the accused told him that the demand communicated by him through the clerk be first made is vague and unreliable.
Conclusion :
67. The prosecution has thus, failed to establish its case against the accused CC No.14/19 State Vs Yashpal etc.. 47 beyond reasonable due to following reasons :
(i) Initial demand not proved as the complainant has deposed that initial demand was made to the clerk of the complainant who has not been examined;
(ii) CD Ex.P10 containing the audiovideo recording being inadmissible;
(iii) Oral testimony of the complainant regarding demand by accused on 02.09.2009 being doubtful and unreliable.
(iv) No acceptance by the accused on 03.09.2009;
(v) Nothing to indicate that accused has made demand on 03.09.2009.
68. Therefore, accused Rajinder Singh @ Rajinder Singh Madan is given benefit of doubt and acquitted of the offences under section 7 & 13 (1)
(d) of Prevention of Corruption Act 1988. His bail bond is cancelled and surety discharged. Digitally signed by KIRAN
69. File be consigned to record room KIRAN BANSAL Date:
Announced in the open court BANSAL 2019.06.06 10:38:18 +0530 on this 31st May, 2019.
(Kiran Bansal) Special Judge (PC Act Cases) ACB01 Rouse Avenue Court Complex, Central District, Delhi CC No.14/19 State Vs Yashpal etc.. 48