Delhi District Court
Reliance On Mahavir Singh vs . State [2014(2)Ad(Delhi)594 Page on 30 August, 2014
IN THE COURT OF SH. M.R. SETHI:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 85/2008 (New No.)
CC No. 115/99/89 (Old No.)
ID No. 02401R0010191999
Central Bureau of Investigation (CBI)
Versus
Ashok Kumar ........ accused
S/o. Shri Hansraj
R/o. 48, Gautam Apartment, (presently residing at C-II/2263,
New Delhi Vasant Kunj, New Delhi)
Case arising out of: FIR No. RC 27(A)/88/CBI/ACB/ND
Date of FIR : 01.06.1988
Date of Institution : 07.06.1989
Date of conclusion of
Final Arguments : 25.08.2014
Date of Judgment : 30.08.2014
(Case is more than 26 years old)
JUDGMENT:
1 Charge Sheet in the present case was filed on 07.06.1989. It mentioned the name of present accused Ashok Kumar and also of two public servants viz. Anil Kumar Gupta and S.P. CC No.85/2008 Page1 of 32 Sangwan, both posted as Inspectors in the Custom Department. The public servants were placed in Column No. 2 of the Charge Sheet. After taking cognizance, my Ld. Predecessor vide order dated 30.04.1993 was of considered opinion that there were sufficient material on record for summoning of the two public servants as accuseds in this case. Thereafter, Prosecuting Agency sought sanction for prosecution of the two public servants and after it was filed in Court, cognizance was taken and the two public servants were summoned as accuseds vide order dated 07.04.1994. The summoning order was challenged by the two public servants before Hon'ble High Court of Delhi and vide order dated 09.08.1996 passed by Hon'ble High Court of Delhi, the summoning order was quashed. Thereafter, vide order dated 18/22 August, 2003 my Ld. Predecessor was pleased to order framing of charge against accused Ashok Kumar for having committed an offence punishable U/s. 162 of IPC. In pursuance thereto, statement of PW-1 Shri K.S. Chabbra came to be recorded on 06.10.2003 and of PW-2 Shri S.M. Mittal on 19.12.2003.
2 Order dated 22.08.2003 was challenged by the accused before Hon'ble High Court of Delhi by way of Criminal Revision Petition No. 982/2003 and vide order dated 11.08.2005 passed by Hon'ble Mr. Justice R.S. Sodhi, order dated 22.08.2003 was set aside and the Special Judge was directed to re-examine the material available and to take into consideration order dated 29.07.2004 passed by Hon'ble High Court. On further considering the matter, my Ld. Predecessor Shri Vinod Goel, Special Judge vide order dated 29.09.2007 was pleased to order framing of Charge against the accused U/s. 162 IPC and the said charge was framed on 29.09.2007. It was after framing of the said Charge that PW-1 & 2 CC No.85/2008 Page2 of 32 were re-summoned for being examined afresh in respect of the fresh Charge framed.
3 Succinctly stated, allegation against the accused was to the effect that he being a Custom Clearing Agent had sought illegal gratification in the name of two public servants i.e. Custom Inspectors from the complainant and his sister for getting custom duty reduced from Rs.45,000/- to Rs.12,000/- and after negotiation had reduced the demand to Rs.8,000/-. It was further alleged that in furtherance thereto, accused had accepted part payment of Rs.2,000/- from the complainant and his sister on 31.5.1988. After the complainant had lodged the complaint with CBI, a trap had been laid on 01.06.1988 and accused was allegedly apprehended red handed while accepting the money by the trap team.
4 In order to prove its case against the accused, prosecution examined as many as eight witnesses. Thereafter statement of accused was recorded U/s 313 Cr. P.C. Arguments were advanced by both the sides resulting in the present judgment. 5 PW-1 Shri K.S. Chabra claimed that three sealed bottles alongwith forwarding letter requesting chemical analysis of contents of the bottles had been received in CFSL on 7.7.1988. The bottles reportedly contained pink liquid and were marked R,L & P. He claimed that after conducting the analysis he prepared his report Ex. PW-1/A and that contents of all the three bottles contained phenolphthalein.
6 PW-2 Shri S.M. Mittal claimed that in June, 1988 he was posted as Superintendent (Vigilance), NDMC and that on receipt of an information to the effect that he had to reach CBI office in the morning of 1.6.1988 he went there alone and met his colleague Suneheri Singh there. Witness claimed that they were made to sit in a room in CC No.85/2008 Page3 of 32 CBI office and were told that they had to accompany them to Customs Office. Many CBI officers were claimed to be present there. He further claimed that one of the officers took out 50 currency notes of Rs.100/- each from his table drawer and serial number thereof were noted down. He claimed having checked those numbers from the currency notes and then had signed the document. He claimed that nothing else happened in the CBI office and they left for the Custom House. The currency notes were claimed to have been handed over to Shri Nathan after reaching the Custom House. Witness claimed that probably he was the complainant.
After seeking permission from the Court, witness was cross examined by Ld. PP, and during course of his such cross examination, witness claimed that he had never been interrogated by CBI officer after 1.6.1988. He claimed that his statement had been recorded by CBI officer and after seeing statement Mark P-2/A claimed having made such like statement. He claimed that he had reached CBI office in the morning but could not say if he reached there at 11.30 AM. He admitted that the complainant Nathan and his sister Ms. Ramaswamy met him in CBI office and the complaint was shown to him and Suneheri Singh. Witness claimed that as he did not remember, he could not say if the currency notes had been produced before the CBI officer by Nathan or his sister. While admitting that some powder had been applied on the currency notes, witness claimed that no demonstration was given regarding solution turning pink in colour when a hand which had touched the currency notes was dipped in the solution. He claimed that rather, some powder was put in the solution which turned pink in colour. He further claimed that he could not say if the said pink solution was destroyed. He claimed that it might be possible that the currency notes were handed over to CC No.85/2008 Page4 of 32 Nathan before leaving the CBI office and not after reaching the Custom House. He admitted that the powder treated currency notes had been handed over to Nathan with direction to hand over the same on specific demand being made. Witness claimed that Nathan had not been directed to scratch his head with his hands but was told to waive his hand in air to give the signal. He admitted that he himself had been directed to remain close to Nathan and to pose as his relative. Witness identified his signature on the Handing Over Memo Ex.PW-2/1 on page No.2 & 3. He claimed that page No.1 did not bear his signature. He further claimed that he would not be in a position to identify signature of Sunheri Singh. He further admitted the Trap Team having left CBI office in two vehicles but could not say if they reached Custom House at 3.00 PM. He further admitted that while sister of Nathan stayed back at Reception in the Custom House, he himself alongwith Nathan went to gate of the room where bribe was to be given. He claimed that accused Ashok Kumar was one of the persons found present in the room. He admitted that while they were present at gate of the room, Nathan called out Ashok Kumar by way of gesture and then some talks took place between them. He volunteered that he did not listen to their talks. He denied the suggestion that he had listened to the talks or was not remembering the same due to lapse of time. He claimed that as he did not remember, he could not say if while introducing him as his elder brother, Nathan had claimed that the money had been arranged by him (witness). He claimed that Rs.5,000/- with Nathan had been handed over by him to Ashok Kumar who kept the same in the front left side pocket of his shirt. He admitted that Nathan then gave the signal whereupon trap team collected and Suneheri Singh caught hold of Ashok Kumar and brought him outside the Custom House. He CC No.85/2008 Page5 of 32 further admitted that Superintendent Darshan Singh also reached near them after signal was given and told Ashok that he had taken money, whereupon Ashok kept quite. He claimed that as he did not remember, he could not say if CBI officers Darshan Singh and Jaggi had caught hold of hands of Ashok Kumar. Money was claimed to have been takenout from pocket of shirt of Ashok Kumar by Sunheri Singh. Ashok was claimed to have been taken to CBI vehicle after apprehension. Witness identified the currency notes Ex. P-1 to P-50. He admitted that both hands of Ashok had been washed and the solutions turned pink. The same were claimed to have been converted into two separate bottles. Witness identified his signatures on the bottle wrappers Ex. P-51 & 52. He claimed that the bottles bearing alphabets R & L did not bear his signature. He admitted that shirt pocket wash had also been taken. He identified his signature on the wrapper in that regard which was identified as Ex.P-53. All the three bottles bearing marking R,L & P were collectively identified as Ex. P-54. He also identified shirt of the accused as Ex P-55. Witness claimed that as he did not remember, he could not say if seal after use was handed over to Suneheri Singh. All the recovery proceedings were claimed to have been reduced into writing on a document Ex. PW-2/2 on which witness identified his signature. He claimed that the same was prepared in CBI office. Arrest and personal search of accused was claimed to have been taken vide Memo Ex. PW-2/3 and witness identified his signature thereupon. He specifically claimed that as he had not heard the talks that took place between Ashok and Nathan he could not say what was spoken by either of them. He claimed that the words spoken had not been stated by him to the CBI officer in his statement recorded. Attention of witness was drawn to statement Mark P-2/A where the same were CC No.85/2008 Page6 of 32 recorded at points X to X1. He claimed that as he did not remember he could not say if while introducing him to Ashok as his elder brother, anything else had also been stated by Nathan. He claimed that Ashok at that stage had only stated "जो लाए हो दे दो". He admitted that thereafter Nathan gave Rs.5,000/- to Ashok. He further admitted that the stamps on Ex. PW-2/2 had been affixed in his presence and that while seal was handed over to Suneheri Singh, the currency notes, bottles and shirt had been retained by CBI officer. He admitted that they all returned back to CBI office at about 5.45 - 6.00 PM alongwith the accused. He claimed that a report was then prepared and CBI officers then took him to a flat in Shalimar Bagh. It was claimed that the flat was found locked and appeared to belong to a poor man. Lock was claimed to have been broken open by using a hammer brought by the flat owner. He claimed that an iron almirah was found in the house and on being asked to produce the key, owner claimed that he did not have the key. It was claimed that the owner himself broke open lock of the almirah and cash Rs.2 - 2.5 Lacs were found in the almirah. He claimed that he did not now remember as to whom the flat belonged to.
During cross examination by Ld. Counsel for accused witness claimed that his statement had not been recorded on 1.6.1988 before leaving CBI office. He denied the suggestion that his statement was not even recorded on 1.6.1988 after returning back to CBI office in the evening. Witness again stated that his statement was not recorded but only a report was prepared. He claimed that he did not remember if the direction received by him from his office to go to CBI was written or verbal. He denied the suggestion that he had never gone to Custom House or had merely signed the documents in CBI office at instance of CBI officer. He also denied the suggestion CC No.85/2008 Page7 of 32 that his statement to the effect that Ashok Kumar stated "jo laye ho de do" is also at instance of CBI officers. He admitted that he had not so stated in his statement to CBI officer. He denied the suggestion that nothing was recovered from possession of accused in his presence or that he was deposing falsely.
7 PW-3 Shri Prabhat Kumar claimed that unaccompanied baggages which reached the Ports at Bombay were transported under Bond by Railways to Delhi Railway Station and then it is accompanied by Inspector, Customs (also known as Escort Officer) to the Custom House. Witness clarified that goods transported 'under bond' implied that the damage or loss to the goods was ultimate responsibility of the passenger. He further stated that a representative of the passenger through an authorized Custom House Agent (CHA) accompanied the goods alongwith Escort Officer from Railway Station to the Custom House. It was claimed that goods used to be brought to Custom House for Custom clearance in accordance with entitlement of the passenger to the Concessions in accordance with Baggage Rules. He further stated that under Transfer of Residence (TR) Rules, a passenger who has stayed abroad for more than two years is entitled duty free clearance of goods which he had used atleast for one year and has brought with him. It was claimed that such type of goods are examined by a Custom Inspector on order of Superintendent Customs to verify that the goods are as per declaration of the passenger and his claim of concession under TR. The claim, it was submitted was processed by the Custom Inspector and if approved by the Superintendent, had to be put up before the Assistant/ Dy. Collector of Customs as per the requirement. He further stated that in case any duty is to be imposed, it was assessed by the Inspector at the time of assessment of claim CC No.85/2008 Page8 of 32 after examination of goods and the passenger had to pay the approved requisite duty. It was claimed that normally the CHA remains present throughout the aforesaid proceedings to facilitate the passenger. When the File (D-11) was shown to the witness, he claimed having dealt with it during course of his Official duties. He claimed that perhaps examination of goods had been done by Shri Gupta and that Shri Sangwan was the Escort Officer. He proved his Note Ex.PW-3/A & A-1 in the File. On perusal of the File, it was claimed that TR claim of the passenger had been passed on 31.05.1988 as per his note Ex.PW-3/B. TR claim in respect of one item i.e. Cooking Range was claimed to have been rejected. Witness further stated that after having deposited the Custom Duty, a passenger can take out his goods within Office hours of the day but in case the process has started during the Office hours, he can take out the goods in continuation even after the Office hours.
During course of cross-examination by ld. Counsel for accused, witness claimed that his statement had been recorded by CBI Officer in this case. He claimed that he might have stated in his statement U/s. 161 Cr.P.C. that he was not able to recollect presence of CHA at the time of examination of the case by him on 31.05.1988. He claimed that he could not say if in this case the passenger had ever complained about any harassment by CHA or anybody else. He admitted that a passenger filing a wrong declaration in respect of TR can be proceeded against U/s. 132 of the Customs Act, but volunteered that it not so in each and every case.
8 PW-4 Shri R.S. Jaggi claimed that on 01.06.1988 while he was posted as an Inspector, CBI, ACB, Delhi, Dy. S.P. Shri Darshan Singh called him to his Office and introduced him to the complainant Shri Nathan and two independent witnesses Shri S.M. CC No.85/2008 Page9 of 32 Mittal and Shri Sunheri Singh who were present there alongwith sister of Shri Nathan . Inspectors Sukhram, R.K. Chadha, Mehar Singh, SI Rao and some other CBI officers were also claimed to have been called. It was claimed that the complainant was introduced to the independent witnesses who also read the complaint and asked details thereof from the complainant. Witness claimed having perused the complaint and having talked to Shri Nathan. Endorsement of SP Amit Verma on the complaint was proved by the witness as Ex.PW-4/1. Witness also proved the FIR Ex PW-4/2. He claimed that the complainant produced the bribe amount of Rs.5000/- in denomination of Rs.100/- each and that serial numbers thereof were noted down in the Handing Over Memo which was being prepared. The currency notes were then claimed to have been treated with phenolphthalein powder and a demonstration was claimed to have been given by SI Rao regarding reaction between phenolphthalein and solution of sodium carbonate. The pink solution was claimed to have been destroyed. He stated that the complainant was directed to put money in his pant pocket and not to touch it till the time accused demanded it. S.M. Mittal, it was claimed was directed to remain with the complainant as a shadow witness. Complainant was claimed to have been directed to give signal by scratching his head with his right hand as soon as transaction was over. A micro cassette recorder alongwith a blank micro cassette was also claimed to have been handed over to the complainant after playing the cassette to ensure its blankness. Paper slip was claimed to have been pasted on the cassette which was signed by both independent witnesses. He stated that the complainant was directed to use it for recording any conversation which might take place. Sister of the complainant was also directed to remain with him. All the proceedings that took place CC No.85/2008 Page10 of 32 were claimed to have been recorded in Handing Over Memo Ex.PW-2/1 and witness identified his signature thereupon. He also identified signature of Dy. SP Darshan Singh who reportedly had expired. He also identified signatures of other CBI team members thereupon. Proceedings recorded in the Handing Over Memo were claimed to have continued from about 11.30 AM till 2.30 PM. It was claimed that thereafter the trap team left the CBI office for CR Building, ITO in two staff cars and one Matador. It was claimed that they all reached near the Custom House a about 3.00 PM and the vehicles were parked in the parking lot of CR Building. The complainant, his sister and the shadow witness, it was claimed were asked to proceed further and talk to Ashok Kumar while rest of the team members scattered and took positions amongst the public persons present there. He claimed that after about half an hour he saw the complainant, shadow witness and the accused coming out of the main gate followed by complainant's sister. He claimed having seen the complainant talking to Ashok Kumar, taking out money from his pocket and handing it over to the accused. It was claimed that the accused after checking the currency notes put the same in his shirt pocket and then the complainant gave the signal. Witness claimed that as they all were nearby, they all rushed and apprehended the accused. Witness claimed having caught hold of right hand of the accused while Darshan Singh caught hold of his left hand. It was claimed that the accused was asked if he had taken bribe from the complainant, but he kept mum. He further stated that on direction of Darshan Singh, Suneheri Singh searched pocket of accused and recovered the bribe amount. Right hand and left hand washes of accused were claimed to have been taken and both turned pink. The same were claimed to have been converted into two separate bottles CC No.85/2008 Page11 of 32 which were sealed and marked "R" & "L". He claimed that inner lining of left upper pocket of shirt of accused was also washed and solution turned pink. It too was claimed to have been converted into a bottle which was then marked "SP". Proceedings in respect of washes and subsequent proceedings were claimed to have been conducted in the Matador. Witness identified the bottles, wrappers and the shirt. He claimed that the complainant then handed over the micro cassette recorder to Darshan Singh which was then converted into a pullanda and sealed. Serial numbers of the currency notes were claimed to have been compared with those mentioned in the Handing Over Memo by Shri Mittal and Suneheri Singh. Witness claimed that on being asked, complainant claimed that money had been taken by Ashok Kumar for being handed over to Custom Officers Gupta and Sangwan. He claimed that as crowd had collected, they went inside and came to know that Shri Gupta was present in the office. Site plan Ex. PW-4/3 was also claimed to have been prepared. Witness also identified the currency notes. Personal search of accused was claimed to have been taken vide Memo Ex. PW-2/3. All proceedings were claimed to have been recorded in Recovery Memo Ex.PW-2/2. He claimed that seal impressions were also taken on the Recovery Memo and seal after use was handed over to Suneheri Singh. Recovery Memo was claimed to have been prepared at the spot itself. Witness claimed that Inspector R.K. Chadha went inside the Custom office and brought the relevant file pertaining to TR of sister of complainant. The file alongwith Seizure Memo Ex.PW-4/5 was claimed to have been handed over by Chadha to Darshan Singh. Witness claimed that A.K. Gupta too was apprehended and he alongwith accused Ashok Kumar were brought back to CBI office by the team and they reached the office at about 6.00 PM.
CC No.85/2008 Page12 of 32 During course of cross examination by Ld. Counsel for the accused witness admitted that the Memo Ex.PW-4/5 did not bear his signature. He claimed that his statement was not recorded by IO on 1.6.1988 and that he had not made any departure or arrival entry in the CBI office. He could not say whether or not any independent verification of complaint had been got done. He claimed that he could not say whether or not he had mentioned in his statement U/s 161 Cr. P.C about his having gone through the complaint or that he too had some talks with Mr. Nathan. His attention was drawn to statement Mark P-4/DA where it was not so recorded. Witness claimed having mentioned in his statement U/s 161 Cr. P.C that the phenolphthalein powder was deposited back in the malkhana and that the complainant had been directed to put money in his pant pocket and not to touch the same till the time accused demanded it. His attention was drawn to his statement Mark P-4/DA where it was not so recorded. He claimed having stated to the CBI officer that after about half an hour he saw the complainant and the shadow witness coming out of the main gate alongwith accused followed by sister of the complainant. His attention was drawn to his statement Mark P-4/DA where it was not so recorded. He claimed that he could not say if he had mentioned in his statement that accused put the currency notes in his shirt pocket after checking the same. His attention was drawn to his statement Mark P-4/DA where it was not so recorded. He could not say if the entire proceedings i.e. from the time of receipt of signal till they left the spot for CBI office were so recorded in the Recovery Memo. Witness claimed that as he did not remember he could not say whether or not he had stated to the IO that on being asked, complainant claimed that money had been taken by Ashok Kumar for being handed over to Gupta and Sangwan. His attention was drawn CC No.85/2008 Page13 of 32 to his statement Mark P-4/DA where it was not so recorded. He could not say if he had mentioned in his statement to CBI Officer that the accused was asked if he had taken bribe from the complainant, but accused kept mum. His attention was drawn to his statement Mark P-4/DA where it was not so recorded. He also could not say if he had mentioned in his statement to I.O. that after recovery, the accused had also been asked the purpose for which they had taken money, but he kept quiet. His attention was drawn to his statement Mark P-4/DA where it was not so recorded. Witness could not say as to whether or not the Micro Cassette had been played and heard during course of proceedings. Witness denied the suggestion that he was not a Member of the Trap Team or had merely signed documents in CBI Office. He further denied the suggestion that all the proceedings and documents were done and prepared in CBI Office itself. He denied the suggestion that accused had been falsely implicated in this case. He could not say if he or the TLO in his presence had made any attempt to check the recording in the Micro Cassette to see if complainant had followed the directions. He denied the suggestion that story of signal was incorrect. He claimed that he had no idea as to where the seal was as on the day his deposition was recorded. He denied the suggestion he was deposing falsely. 9 PW-5 Shri Sukh Ram claimed that during 1988, he was on deputation with CBI, ACB, Delhi as an Inspector. During course of his examination-in-chief, the witness, who was also a member of the Trap Team, reiterated allegations of Prosecution against the accused. He identified his signatures on documents prepared and identified the Case Property.
During course of cross-examination by ld. Counsel for the accused, witness claimed that his statement had not been recorded CC No.85/2008 Page14 of 32 on 01.06.1988 and rather was recorded about 30 to 45 days after the incident. He claimed that he had not made any Departure entry before leaving the CBI Office. He claimed that although there were many public persons outside CR Office Building, none of them was requested by Darshan Singh to join investigation. He claimed that he did not remember whether or not he had mentioned in his Statement U/s. 161 Cr.P.C. that sister of the complainant was following him and others when they came out from the CR Building. His attention was drawn to his statement Mark P-5/DA where it was not so recorded. He claimed that he did not remember whether or not he had mentioned in his statement U/s. 161 C.r.P.C. that hands of the accused were caught hold of by Darshan Singh and Inspector Jaggi from the wrists, or that he was so taken to the Matadoor. His attention was drawn to his statement Mark P-5/DA where it was not so recorded. Witness admitted that while handing over the Cassette Recorder to the complainant, he was directed by Darshan Singh to put it "ON" to record the conversation which might take place. He claimed that he could not say if the Cassette Recorder was in 'On' or 'Off' condition when taken back from the complainant. He claimed that it had not been put off in his presence and the cassette had not been played in his presence at the spot. He denied the suggestion that when the cassette was played after returning back to CBI Office, it was found to be blank. He claimed that in his presence, seal on the cassette had never been broken to try to play it nor had he ever been asked to join such like proceedings. He claimed that Sunheri Singh had never returned the seal in his presence to the I.O. He claimed that as he did not remember, he could not say whether or not the three over-writings on the complaint Mark P-4/A existed when it was seen by him or if the same were made subsequently. He denied the suggestion that no CC No.85/2008 Page15 of 32 instruction had been given to the complainant qua the signal. Witness denied the suggestion that he was never a Member of the Trap Team or had never gone to CR Building on 01.06.1988. He denied having merely signed the documents at instance of his Seniors. He denied the suggestion that all documents were subsequently prepared in CBI Office or that no proceeding took place at the spot. He denied the suggestion that accused had been falsely implicated by citing false and convenient witnesses. He denied the suggestion that that he was deposing falsely.
10 PW-6 Shri Kishore Kumar claimed that further investigation of this case came to be marked to him in June, 1988. He claimed having then gone through the complaint. He stated that exhibits of the case were taken by him from Malkhana, CBI and deposited in CFSL for examination alongwith forwarding letter of the SP and sample seal of CBI. He claimed having received back the remnants from CFSL after examination and stated about having deposited the same in the Malkhana. He further claimed having seized documents vide Seizure Memo Ex. PW-6/1 from office of Madan Lal. He claimed that the said document (Receipt D-9) was in respect of Custom Clearance Fees paid by Mrs. A. Ramaswami to Ashoka International on 31.5.1988. He claimed having recorded statements of many witnesses during course of his investigation. He further claimed that documents seized by earlier IO Darshan Singh had all been handed over to him when investigation was transferred to him and also claimed having collected the CFSL report. Witness further claimed that during course of his investigation, the sealed cassette was opened by him in presence of complainant and two independent witnesses and the micro cassette was played with intention to prepare transcript but it transpired that there was no CC No.85/2008 Page16 of 32 conversation recorded in it. It was claimed that the cassette was then re-sealed with seal produced by Suneheri Singh and seal was returned back to him. Witness claimed that it transpired during his investigation that Ashok Kumar had demanded fee of Rs.6,000/- for clearing the unclaimed baggage of sister of complainant and had received the said fee on 31.5.1988. He claimed that it also transpired that the due custom duty of Rs.11,824/- and Rs.100/- had been paid on 2.6.1988. Witness claimed having also collected photocopy of receipt in that regard, but stated that it had not been filed on record with the charge sheet. He claimed that after completion of investigation, charge sheet was filed under his signature.
During course of cross examination by Ld. Counsel for accused, witness claimed that the factum of micro cassette having been found to be blank was not mentioned in the charge sheet. He claimed that he did not confront the complainant with direction mentioned in Handing Over Memo qua the micro cassette recorder nor had he asked Darshan Singh about it. He denied the suggestion that an after thought and false story had been introduced subsequently in this regard. Witness claimed that he did not mention in the charge sheet that complainant Nathan was also a complainant in an earlier trap case. He denied the suggestion that the said fact was intentionally concealed. He also denied the suggestion that Nathan was a stock complainant with CBI whose services were often taken or that the present false trap case had been initiated with his collusion. He denied the suggestion that A. Ramaswamy had made false declaration in her Declaration Form as a result of which penalty of Rs.11824/- had been imposed upon her. He claimed that it was custody (custom) duty on a cooking range which was less than one year old. He admitted that she had not declared in her Baggage CC No.85/2008 Page17 of 32 Declaration Form that the cooking range was more than one year old. He claimed that he could not say if the said conduct was punishable U/s 132 Customs Act. He admitted that as per document Mark P-6/DA, date of purchase of cooking range mentioned therein was 12.2.1987 with value as Rs.1000/-. He further admitted that as per document Mark P-6/DB, date of booking of the article mentioned therein was 6.2.1988 with 10.2.1988 being the date on which delivery was required and the retail sale price mentioned was Rs.449/-. He admitted that as per document Mark P-3/1, the cooking range was brand new and the date of invoice mentioned was 10.2.1988 with possession being less than one year old. He admitted that as per document Mark P-3/4, value of the cooking range was Rs.2,000/-. He claimed that he had not examined nor recorded statement of A. Ramaswamy regarding the cooking range being less than one year old. He claimed that he could not say if custom duty of Rs.5,000/- as 250% duty on value Rs.2,000/- for the cooking range had been imposed upon Mrs. A. Ramaswamy or if duty of Rs.3,400/- as 80% duty on value of Rs.4,000/- for the fridge or duty of Rs.2975/- as 85% duty on value of Rs.3500/- for Air Conditioner and duty of Rs.200/- @ Rs.100/- per TV had also been imposed upon her. He claimed that he could not say if sum of Rs.249/- was further charged as ware housing and handling charges. He claimed that he did not remember if M.M. Joseph had disclosed that Ashok Kumar was not present in Custom House on 31.5.1988 or if he had also stated that he did not meet Ashok Kumar on 1.6.1988. He denied the suggestion that allegation in the complaint to the effect that on 1.6.1988 Inspector Sangwan had told the complainant to pay Rs.1,000/- less to Ashok while paying balance of Rs.6,000/- out of Rs.8,000/- had not been substantiated during course of investigation. He denied the suggestion of having CC No.85/2008 Page18 of 32 intentionally recorded statements of witnesses belatedly or had developed the case from stage to stage to falsely implicate the accused Ashok Kumar. He denied the suggestion that CBI became a tool in hand of the complainant or that it transpired during investigation that the complainant had filed a false complaint only to save her skin. He denied the suggestion that he had not properly investigated the case or was deposing falsely.
11 PW-7 Madan Lal claimed having handed over some documents from office record to CBI officer which had been seized vide Memo Ex.PW-6/1. He identified D-9 & D-10 as being the documents mentioned in the Memo and handed over by him to CBI officer.
During course of cross examination by Ld. Counsel for accused witness claimed that he did not have any personal knowledge of the case and had only handed over documents to CBI officer. He stated that the documents Mark P-7/A & B (D-9 & D-10) had not been prepared in his presence and he could not say who prepared the same.
12 PW-8 Shri Mehar Singh claimed that he had been on deputation with CBI from 1983 to 2003. He claimed having joined a trap team under Dy. S.P. Shri Darshan Singh on 01.06.1988. During course of his examination-in-chief, witness reiterated allegations of Prosecution against the accused and also identified the Case Property.
During course of cross-examination by ld. Counsel for accused, witness claimed that although departure & arrival entries were made in respect of the Trap Team, he did not remember as to who wrote the said entries. He did not remember as to when his statement U/s. 161 Cr.P.C. was recorded. As regards over-writings in CC No.85/2008 Page19 of 32 the complaint Mark P-4/A, witness claimed that the same existed even when he had seen the complaint in the initial stages. He claimed that he did not remember as to whether or not anyone from the Custom House was joined as a witness at the spot except in respect of seizure of documents from the Custom House. He denied the suggestion that sister of the complainant had not come out alongwith the complainant, independent witness & the accused when they came out from the Custom House or that she was subsequently called by complainant from some other place. He claimed that as he did not remember, he could not say as to whether or not the Micro Cassette was played after the Recorder was taken back from the complainant in order to check whether or not any conversation was recorded therein. He claimed that the Cassette had not been played in his presence on the day his statement was recorded by the I.O. He denied the suggestion that accused had never claimed about having accepted the money on behalf of Gupta & Sangwan or that it was normal practice. He denied the suggestion that the said story was subsequently introduced in this case. Witness claimed that he could not reply to the suggestion that the cassette when played was found to be blank. He further denied the suggestion that present was a false case initiated at the instance of Ms. A. Ramwaswamy in order to save herself in collusion with her brother. He denied the suggestion that no Trap Team was formed or that none went to Custom House or that all proceedings and documents were prepared in CBI Office itself. He denied the suggestion that he was deposing falsely. 13 As despite repeated opportunities, Prosecution was not able to secure presence of some of its witnesses for examination, on 26.04.2014 last opportunity was granted to Prosecution to lead its evidence for 09.05.2014. On request of ld. PP, an additional date of CC No.85/2008 Page20 of 32 17.05.2014 was also granted. Thereafter, in view of what had transpired on 17.05.2014, one more effective opportunity was granted to the Prosecution to conclude its evidence on 02.06.2014. As Prosecution failed to secure presence of the complainant, his sister & some other witnesses even on 02.06.2014 & as cross-examination of PW-6 could not be concluded on 02.06.2014, matter had been adjourned to 05.06.2014 when Prosecution evidence came to be closed.
14 After Prosecution evidence was closed, statement of accused was recorded U/s. 313 Cr.P.C. wherein he denied allegations of Prosecution against him and claimed that since complainant's sister had violated provisions of Section 132 of Customs Act and the complainant was a stock witness of CBI, the complainant and his sister had manipulated the present false case to implicate him by using their connections in CBI. He further claimed that the false story had been modified from stage to stage and that falsity of the case was writ large on facts of the case. He chose not to lead any defence evidence.
15 During course of his submissions, it was submitted by ld. PP that non-examination of the complainant, his sister, TLO & some other witnesses was not an intentional act of the Prosecution to conceal those witnesses from the Court. Ld. PP took this Court through records of the case and submitted that despite repeated attempts by the Prosecution, it was not possible to secure presence of the complainant or his sister and that the TLO and one of the independent witnesses could not be examined as they had expired . It was submitted that it was not a case where material evidence had been withheld. Ld. PP further pointed out that even in absence of those witnesses, Prosecution case stood proved by testimonies of CC No.85/2008 Page21 of 32 PW -2, 4, 5 & 8. It was submitted that these witnesses who had seen the original complaint during pre-trap proceedings and had had an opportunity to talk to the complainant, duly proved on record what infact took place on the day of incident. While referring to their testimonies, it was submitted that they had duly proved the demand & acceptance of bribe by the accused claiming that the same had been received by him for being forwarded to public servants. It was submitted that they had also proved the pre-trap demonstration, post trap proceedings including arrest of the accused. Direct evidence of these witnesses, it was claimed, duly proved case against the accused even in absence of proof of the complaint or examination of the complainant. It was further submitted that as the matter pertained to the year 1988, no importance should be attached to the minor discrepancies which have appeared on record during course of recording of statements of witnesses.
16 Ld. Counsel for accused on the other hand submitted that adverse inference ought to be drawn against genuineness of case of Prosecution for its failure to examine the complainant & his sister. It was submitted that sister of the complainant i.e. Ms. A. Ramaswamy, as per case of Prosecution was a Government servant and it was not difficult to ascertain her present particulars. It was submitted that the complaint on record had not been proved and that the version put forth during trial was quiet different from that mentioned in the complaint. In this regard, it was submitted that no evidence was led on record regarding the accused having demanded Rs.5000/- from the complainant or his sister, as had been mentioned in the complaint. Ld. Counsel further submitted that it was Ms. A. Ramaswamy who could have had any grievance against the accused, but she did not lodge any complaint with CBI and rather it was her brother Shri CC No.85/2008 Page22 of 32 Nathan who infact lodged the complaint. While referring to testimony of PW-6, it was pointed out that the present complainant Shri V. Nathan was also a complainant in an earlier Trap case. It was further submitted that as was evident from the documents (primarily Ex.PW-3/B), formality of the Customs Department regarding imposition of Custom Duty on the Goods of Ms. A. Ramaswamy was over as on 31.05.1988 and as such, there could be no circumstance under which accused could demand bribe from her on 01.06.1988 for doing anything in future in that regard. It was further submitted that there was no proof on record regarding there being a demand of Rs. 45,000/- towards Customs Duty on the Goods brought by Ms. A. Ramaswamy, nor there was any proof regarding accused having initially demanded bribe of Rs.12,000/- to get Custom Duty reduced to Rs.12,000/- or regarding his having reduced his demand to Rs.8000/-. It was further submitted that there was no legally admissible proof as to what talks took place between the complainant and the accused outside the Customs House and as such, Prosecution had not come clear as to for what money, if accepted, was taken by the accused. Delay in recording of statements of witnesses U/s. 161 Cr.P.C. was also highlighted by ld. Counsel. As regards the Micro Cassette, it was submitted that although as per Handing Over Memo and PW-4, 5 & 8, the complainant had been instructed to record any conversation which might take place between him and the accused, no such conversation was recorded therein. It was further submitted that the evidence led on record by Prosecution was insufficient to prove charges framed against the accused in this case. While referring to the Charge framed, it was submitted that Prosecution had failed to show that the accused had initially demanded Rs.12,000/- from the complainant or his sister or then had settled for an amount of Rs.8000/- for clearance CC No.85/2008 Page23 of 32 of excess baggage of complainant's sister from Customs at Customs House or that the accused had accepted a sum of Rs.2000/- from sister of the complainant on 31.05.1988. It was submitted that Prosecution had further failed to prove on record that the accused had ever demanded or accepted Rs.5000/- on 01.06.1988 in the name of Custom Officials. It was submitted on that basis that charge ought to fail. It was further submitted that the original story of complainant had been given a go bye the Prosecution during course of trial. It was prayed that accused be acquitted.
17 During course of his submissions, ld. Counsel placed reliance on Mahavir Singh Vs. State [2014(2)AD(Delhi)594 page No. 1-9] ; Rama Kant Sharma [2014(2)AD(Delhi)353 page No. 10-17] ; State of Maharashtra Vs. Ahmed Shaikh [2009(14)SCC 267 page No. 18-31]; Jarnail Singh Vs. State of Punjab [ 2009 (3)SCC 391 page No. 32-39]; Lahu Kamlakar Patil Vs. State of Maharashtra 2013(6) SCC 417 page No. 40-50] ; State of Rajasthan Vs. Rajendra Singh [2009(11) SCC 106 page 51-53] ; Mohd. Rashid Vs. State [2009(5) AD Delhi 141 page 54-73] ; Ajesh Kumar Vs. State [2009 VII AD (Delhi)29 page No. 74-78] ; State Vs. Raje Ram [2011 III AD (Delhi) 283 page 79-84] ; Munesh Kumar Vs. State [2011 (124) DRJ 7 page No. 85-90] ; Satyajit Banerjee Vs. State of W.B. [2005(1) SCC 115 page 91-98] ; Harihar Chakarvarty Vs. State of W.B. [AIR 1954 SC 26 page No. 1-3] ; Kapildeo Singh Vs. King [1949-50) FCR 834 page No. 4-12] ; Prabhu Babaji Navle Vs. State of Bombay [AIR 1956 SC 51 page No. 20-23] ; Bhagirath Vs. State of M.P. [1976Crl. L.J. 706 page No. 1-3] ; Hari Chand Singh & Anr. Vs. State of Haryana [AIR 1974 SC 344 page No. 4-7] ; State of Haryana Vs. Gurdayal Singh [1974 Crl.L.J. 1286 page No. 8-13] ; Jagjit Singh Vs. State CC No.85/2008 Page24 of 32 of Punjab [1978 Crl. L.J. 1588 page No. 14-17] ; Suraj Mal Vs. State (Delhi Adm.) [1979 Crl. L.J. 1087 page No. 18-20] ; Badri Vs. State of Rajasthan [1976 Crl. L.J. 496 page No. 21-25] ; Narinder Kumar Vs. Harman Singh [2000 Crl. J. 257 page No. 26-31] ; Narinder partap Singh Vs. state of U.P. [ 2009 (2) JCC 1131 page No. 32-46] ; Dhan Bahadur & Others Vs. State [2008 (VI) AD Delhi 225 page No. 47-53] ; & Singra Singh Vs. State of Haryana [AIR 2004 SC 124 page No. 54-62]. .
18 In the reply arguments, it was submitted by ld. PP that most of the judicial pronouncements being relied upon by ld. Counsel for accused were not applicable to facts & circumstances of the present case. It was submitted that minor contradictions in testimonies of witnesses should be over-looked in view of fact that the case pertains to the year 1988. It was reiterated that the complainant and his sister could not be examined as they were untraceable after such a long period of time and that the I.O. and one of the independent witnesses could not be examined having already expired. It was submitted that Prosecution had not intentionally concealed any material witness in this case.
19 Section 162 IPC which has since been repealed read as under:-
"Taking gratification in order, by corrupt or illegal means, to influence public servant: - Whoever accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service of disservice to CC No.85/2008 Page25 of 32 any person with the Central or any State Government of Parliament or the Legislature of any State or with any local authority, Corporation or Government Company referred to in Sec. 21, or with any public servant, as such, shall punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
20 This Court has given thoughtful consideration to arguments advanced and has also perused the records. At the outset, this Court finds itself in agreement with submission made by ld. PP that most of the pronouncements relied upon by ld. Counsel for defence are irrelevant in view of facts & circumstances of the present case.
21 Non-examination of the Investigating Officer and the independent witness Shri Sunheri Singh cannot be termed as withholding of material evidence by the Prosecution in as much as they were not examined due to their having expired. It is also apparent from the records that complainant V. Nathan and his sister A. Ramaswamy could not be produced for recording their testimonies during course of trial as they were reportedly not traceable at their given addresses. It may be pointed out that despite repeated opportunities, present whereabouts of these witnesses could not be traced out and hence they could not be served with summons. Non- examination of the complainant and his sister, as such, cannot termed as withholding of material evidence by the Prosecution which would entail an adverse inference against genuineness of case of the Prosecution. However, their non-examination has definitely weakened case of the Prosecution.
22 Perusal of records reveals that in absence of the complainant V. Nathan or his sister A. Ramaswamy, the complaint CC No.85/2008 Page26 of 32 has remained unproved on record. None of the witness examined has been able to prove the complaint.
23 Be that as it may, fact remains that the complaint had mentioned that accused had informed the complainant that he would have to pay Custom Duty of Rs.45,000/- but in case accused was paid Rs.12,000/- as illegal gratification to be passed on to public servants Gupta & Sangwan, the Custom Duty would be reduced to Rs.12,000/-. Complaint further mentions that after negotiations, Ashok agreed to reduce illegal gratification amount to Rs.8000/- out of which Rs.2000/- was taken by him on 31.05.1988 itself. It further mentioned that the balance of Rs.6000/- was to be paid on 01.06.1988 which amount was further reduced by Sangwan to Rs.5000/-. Now, the charge framed against the accused was on similar lines. 24 As was rightly submitted by ld. Counsel for the accused, Prosecution has failed to bring on record even an iota of evidence to the effect that Custom Duty of Rs.45,000/- was to be levied upon the goods brought in by sister of complainant. There is no evidence on record regarding the accused having ever demanded Rs.12,000/- nor any talks which allegedly took place between complainant and the accused have been proved on record. There is also nothing on record to show that the accused had ultimately agreed to accept Rs.5000/- as illegal gratification.
25 As per case of Prosecution, the complainant alongwith his sister and the independent witness Shri S.M. Mittal had gone to Office of the accused where accused was brought out of the Office and after some talks took place between the accused and the complainant, money was handed over by complainant to the accused. Now the big question in this case is as to what talks infact took place between the complainant and the accused at Gate of the Custom Office. As CC No.85/2008 Page27 of 32 already mentioned, neither the complainant nor his sister were examined. The shadow witness Shri S.M. Mittal when examined as PW-2 had specifically claimed during course of his cross-examination by ld. PP that he did not listen to the talks that took place between Nathan and Ashok at Gate of the room. He reiterated his this stand subsequently when he again said that as he had not heard the talks that took place between Ashok & Nathan, he could not say what was spoken to by each of them.
26 Interestingly, as per case of the Prosecution, a Micro Cassette Recorder had been handed over to the complainant for purpose of recording of conversation which might take place between the complainant and the accused. In this regard, PW-4 claimed that complainant was directed to record any conversation that may take place between them. To similar effect was testimony of PW-5. PW-8 claimed that the complainant was directed to switch 'ON' the Micro Cassette Recorder before start of his conversation with the accused. Interestingly, the said Micro Cassette Recorder or the cassette itself were never produced in Court during course of trial. It was case of the Prosecution that Cassette Recorder had been sealed at the spot itself and when the seal was broken and cassette was tried to be played, it was found to be blank. An explanation in this regard has been sought to be put forward by PW-6 Shri Kishore Kumar. He claimed that on being asked, complainant claimed that he had not put 'ON' the Cassette Recorder as he had been instructed to put it 'ON', only if he was alone and that as the independent witness was with him, he did not put it 'ON'. Firstly, this explanation sought to be put-forth runs contrary to the testimony of PW-4,5 & 8.
27 What has disturbed this Court in this regard is as to why and how the sealed cassette was opened by the I.O. during course of CC No.85/2008 Page28 of 32 investigation to be re-sealed subsequently. He did not seek any prior permission in this regard from the Court nor from any Senior Officer. No document admittedly had been prepared in respect of the same. Even the sole independent witness examined i.e. PW-2 has not stated anything in this regard. In that view of matter, it is apparent that either no conversation took place between the complainant and the accused or the conversation recorded had been intentionally deleted by the Investigating Agency as it did not suit its story being put forward in this case.
28 Be that as it may, in view of fact that there is no available record of conversation that might have taken place between the complainant and the accused and in absence of any other person having over-heard the said conversation, it cannot be said as to what had transpired between the complainant and the accused which might have led the accused to accept money handed over to him by the complainant. Circumstances under which accused accepted the money are engulfed in dark clouds of doubts and neither the Investigating Agency nor Prosecution have come out clear in this regard.
29 Besides the aforesaid, there are number of contradictions which have appeared during course of testimonies of the Prosecution witnesses. While PW-2 has claimed that accused was caught hold off by Shri Sunheri Singh after the signal was given and it was he who brought the accused outside the Custom House, it had been claimed by PW-4 Shri R.S. Jaggi that it was he himself who caught hold off right hand of the accused while left hand was caught by Shri Darshan Singh. As regards preparation of Recovery Memo, PW-2 claimed that it was prepared in CBI Office while PW-4 claimed that it had been prepared at the spot itself. There are discrepancies even as regards CC No.85/2008 Page29 of 32 the signal 'Ishara'. As per case of Prosecution, complainant had been directed to scratch his head with his hand. However, PW-2 denied any suggestion to that effect and claimed that he was to waive his hand in air to give the 'Ishara'.
30 A strange fact appears to have come on record during testimony of PW-6. He specifically claimed during course of his examination-in-chief that the due Custom Duty of Rs.11,824/- and Rs. 100/- had been paid on 02.06.1988. He also claimed having collected photocopy of receipt in that regard. Now, as per case of Prosecution, accused had initially demanded bribe of Rs.12,000/- to get the Custom Duty reduced from Rs.45,000/- to Rs.12,000/-. Now the accused, as per case of Prosecution had been caught red handed on 01.06.1988 while receiving the illegal gratification in that regard. Still, for some unknown reasons, the Custom Duty deposited on the next day i.e. 02.06.1988 amounted to Rs.11,924/-. This Court is at a loss as to why, and under what circumstances the Custom Duty had been so levied when the alleged illegal gratification had not exchanged hands.
31 That the complainant Nathan was also a complainant in an earlier trap case has been admitted by PW-6 Shri Kishore Kumar. That being the position, apparently the complainant was known to this CBI Official and also knew nittygritty of CBI investigation. It is not thinkable that despite the same, he would have chosen not to put 'On' the Micro Cassette Recorder merely because independent shadow witness was present near him.
32 There is yet another fact which has surprised this Court. The alleged incident in question related to 01.06.1988. It was case of Prosecution that facsimile of CBI seal used in the case was taken on the Recovery Memo. The seal which appears to have been used in CC No.85/2008 Page30 of 32 this case was of CBI/SPE/11/86. This implies that the seal used was of 1986. No explanation has come forth on behalf of the Investigating Agency as to why seal of 1986 was used in the case of 1988. Members of the Trap Team claimed that facsimile of CBI seal had been used on the Recovery memo which had been duly signed by them. A perusal of the Recovery Memo Ex.PW-2/2 reveals a different story. The said document consisted of three pages. Signatures of Trap Team members and facsimile of CBI seal only appeared on page Nos. 2 & 3 of the Memo. The first page neither bears any signatures nor does it bear facsimile of the seal. Genuineness of the Recovery Memo is rendered doubtful by this fact. 33 Yet another point in this case is that the departure entry by CBI Trap Team before going for the trap and its arrival entry on returning back to the Office have not been proved on record. Infact, copies thereof have also not been placed on record. It was observed in Munish Kumar's case (Supra) that where Prosecution fails to prove on record the departure entry of the Raid party recorded in the daily Diary Register, the circumstance raises suspicion against correctness of Prosecution version.
34 It was observed in Bhagirath's case (Supra) that Prosecution can succeed by substantially proving the very story it alleges. It was observed that Prosecution must stand on its own legs first and cannot make out a new case.
35 In Surajmal's case (Supra), it had been observed that mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when substantive evidence in the case is not reliable. In the present case before us, except for the alleged recovery of tainted amount from person of accused, Prosecution has failed to bring on record any CC No.85/2008 Page31 of 32 substantive evidence or the circumstance under which the amount was paid.
Mere fact that hand-wash turned pink is wholly insufficient to return the finding of guilt in absence of any rebuttable evidence to show that accused either demanded or accepted illegal gratification. 36 It is settled principle of law that Prosecution must prove the case it alleges and cannot prove a case different from one which it had alleged at the initial stage. Prosecution cannot be permitted to change basic structure of its case.
37 Keeping in view the aforesaid, in considered opinion of this Court, Prosecution has failed to discharge the onus of proving that accused had accepted or obtained or agreed to accept or obtain from complainant, for himself or for any other person, any gratification as a motive or reward for inducing by corrupt or illegal means any public servant (Customs Inspector) to do or to forbear to do any official act i.e. reduction of Custom Duty.
38 Individually & cumulatively, the inescapable conclusion is that if not a clear acquittal on merit, atleast with the aid of benefit of doubt, the accused is entitled to an order of acquittal. 39 Accordingly, accused is ordered to be acquitted.
Announced in the open court (M.R. SETHI)
on 30.08.2014 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
CC No.85/2008 Page32 of 32