Delhi District Court
Cbi vs S. K. Dev on 24 July, 2024
DLCT110003182023
Presented on : 23.12.1996
Registered on: 23.12.1996
Decided on : 24.07.2024
Duration : 28 years 7 months
IN THE COURT OF
SPECIAL JUDGE (PC ACT) (CBI-21)
AT ROUSE AVENUE COURT
(PRESIDED OVER BY SH. RAJEEV BANSAL)
CBI/52/2023
CBI ...Prosecution
(Mr. Amjad Ali, Ld. PP for CBI)
VERSUS
S K Dev
S/o Late Sh. B.R. Bhardwaj
R/o G-645, Brave Hearts Society,
Raj Nagar Extension,
Ghaziabad, UP. ... Accused
(through Dr. Sushil Kumar Gupta &
Ms. Sunita Gupta, Advocates)
Offences punishable under :
Section 7 of the PC Act 1988 &
13 (2) r/w 13(1)(d) of the PC Act 1988
CBI No. 52/2023 CBI v S K Dev Page 1 of 83 Digitally signed
by RAJEEV
RAJEEV BANSAL
Date:
BANSAL 2024.07.24
11:27:50
+0530
JUDGMENT
24.07.2024
1. Succinctly stated, case of the prosecution is that the Complainant Sh. Prabodh Kumar filed a written complaint addressed to SP, CBI, ACU-VI, CBI, Lok Nayak Bhawan, New Delhi on 02.05.1991 to the following effect:
- that the accused S.K. Dev, the then Deputy SP of ACB, CBI was investigating a matter RC/FIR No. 9 (A)/91- ACB against the complainant according to which the complainant was engaged in private trade while in Government service as UDC with NCERT, New Delhi;
- that the accused had demanded Rs. 10,000/- from him on 01.05.1991 for recommending the case in his favour;
- that when the complainant expressed his inability to pay such heavy amount, the accused called him at his residence in the evening on 01.05.1991 and the demand was reduced to Rs. 8,000/-;
- that the accused asked the complainant to keep the bribe amount ready on 02.05.1991;
- that the accused told the complainant that he would intimate the time, place and date of the payment of bribe on telephone on the evening of 02.05.1991;
Digitally CBI No. 52/2023 CBI v S K Dev Page 2 of 83 signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:28:45 +0530
- that the accused asked the complainant to keep the amount of bribe in an envelope and instructed the complainant to come alone at the place to be intimated later;
- that the complainant is not willing to pay the bribe, hence he is bringing the matter to the notice for taking necessary legal action against the accused.
2. It is the case of the prosecution that on the aforesaid complaint, the present case i.e. RC-1(A)/91 was registered against the accused u/s 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988 (hereinafter called the 'Act') on 02.05.1991.
3. Perusal of records show that previously on three occasions, Closure Reports were filed by CBI in this case i.e. on 23.12.1996, 12.11.1997 and 13.02.2002. However, these Closure Reports were not accepted by the Court vide Orders dt. 15.05.1997, 11.5.1999 and 24.07.2004, and rather directions were given to make further investigations.
4. On 15.02.2006, yet another Closure Report was filed by CBI. Again, this Closure Report was also not accepted by the Court Digitally signed by CBI No. 52/2023 CBI v S K Dev Page 3 of 83 RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:28:52 +0530 and this time, cognizance of the offence u/s 7 and 13(1)(d) read with Section 13(2) of the Act was taken by the Court vide Order dt. 22.11.2011. As a sequel, charge the following charge u/s 7 and 13(1)
(d) read with Section 13(2) of the Act was framed against the accused on 30.05.2012, to which the accused pleaded 'Not Guilty' and claimed trial.
That you accused SK Dev, while working as Dy SP, CBI, New Delhi demanded a gratification other than legal remuneration; bribe amount of Rs. 10,000/- on 01.05.1991 at Delhi from the Complainant Sh. Prabhod Kumar and, thereafter, reduced the amount and agreed to accept and accepted Rs. 8,000/- on 03.05.1991 as a motive or reward for doing or forbearing to do any official act, for recommending the case against the complainant in his (complainant's) favour wherein he had allegedly engaged himself in private trade while in Govt. service and thereby you committed an offence punishable u/s 7 of the PC Act 1988 and within my congnizance;
Secondly, that during the aforesaid date time and place, you while working as DSP, CBI, New Delhi by corrupt or illegal means or by abusing your official position obtained pecuniary advantage to the tune of Rs. 8,000/- from the Complainant on 02.05.1991 for your self and thereby you committed an offence punishable u/s 13 (2) r/w 13(1)(d) of the PC Act 1988 and within my congnizance.
5. Accused filed a Criminal Revision Petition No. 340/12 against the Order dt. 30.05.2012 but the same was dismissed vide Order dt. 12.07.2012.
Digitally signed by CBI No. 52/2023 CBI v S K Dev Page 4 of 83 RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:29:00 +0530
6. Accused then filed Special Leave to Appeal (Criminal) No. 5794/2012 in which, the proceedings before the Trial Court were stayed vide Order dt. 01.08.2012. The SLP was numbered as Criminal Appeal No. 1394/2013 and the proceedings before this Court were directed to remain stayed vide Order dt. 09.09.2013.
7. Vide Order dt. 26.04.2018, the Hon'ble Supreme Court set aside the Order dt. 12.07.2012 passed by the Hon'ble High Court with further directions to pass a fresh Order.
8. Vide order dt. 23.03.2023, the present matter was restored and the trial resumed.
9. To prove its case, CBI examined 11 witnesses as under:
9.1 PW1 Prabodh Kumar is the complainant. In his deposition, he stated that in 1990, he was working as UDC in NCERT and that the accused was the IO in a case filed against him by CBI on the allegations of running a private trade. He stated that the accused called him to his office 2-3 times in connection with the said case on Digitally signed CBI No. 52/2023 CBI v S K Dev Page 5 of 83 by RAJEEV RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:29:06 +0530 working days as well as on holidays. He stated that the accused conducted raid at his house and at the residence and office of his brother and that the accused told him that no incriminating evidence has been found against him from his office and that the accused could help him in the case registered against him, for which he demanded a bribe of Rs.10,000/- from him in return of the favor. The witness stated that he told the accused that he did not have enough money and was not willing to pay the bribe amount to the accused. The witness further deposed that the accused reduced the bribe amount by Rs. 2,000/- and told him to pay Rs. 8,000/-. It was further deposed that the accused told him that he would tell the time and place where the alleged bribe amount had to be paid. He further deposed that he went to CBI office from where he was sent to Lok Nayak Bhawan to meet Mr. Dabbas. He stated that he narrated the facts to Mr. Dabbas and filed a written complaint against the accused in CBI office. He proved his complaint dt. 02.05.1991 as Ex.PW1/A and on the said complaint, FIR No. 1(A)/91-ACU-VI was registered, which was proved as Ex.PW1/B. He stated that Sh. K.C. Sharma was deputed in this FIR case, who called him at Pragati Vihar Hostel to meet him. The witness Digitally signed RAJEEV by RAJEEV BANSAL BANSAL 11:29:14 Date: 2024.07.24 +0530 CBI No. 52/2023 CBI v S K Dev Page 6 of 83 stated he arranged Rs.8,000/- as the bribe amount and thereafter, he met Sh. K.C. Sharma who directed the Complainant to inform him whenever the accused called him to pay the bribe amount. He further stated that on the same day, the accused telephoned him from his home land-line number and asked him to meet him on 03.05.1991 at his residence i.e., 17, Kalibari Apartments, 2 nd floor as he claimed to be on leave on that day. The witness stated that on 03.05.1991, he rushed to CBI office at 06:30 am at Pragati Vihar Hostel along with the bribe amount which consisted of 66 notes of Rs.100 and the rest in the denomination of Rs.50/-. He proved the handing-over memo as Ex.PW1/C. He stated that the currency notes brought by him were treated with phenolphthalein powder. He stated that a trap team was constituted, which was explained the purpose of applying phenolphthalein powder and its reaction and when it is dissolved in the solution of Sodium Carbonate. He further stated that a cassette recorder was also handed over to him and he was directed to inform the trap team after the bribe amount had been accepted by the accused by touching his ears. He proved the record of pre-trap proceedings as Ex.PW1/C. He further deposed that they all went to the house of the Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date: 2024.07.24 11:29:20 +0530 CBI No. 52/2023 CBI v S K Dev Page 7 of 83 accused in two cars i.e., in one official vehicle of the CBI and other was his own private vehicle. He stated that he was asked by the CBI officer to go to the house of the accused along with the bribe amount. He stated that a cassette player was given to him in an "ON" mode, which he placed inside his vest. He stated that he went to the house of the accused and ranged the door bell. He stated that the accused came out and the complainant informed him that he had brought the bribe amount demanded by the accused. He stated that the accused called him inside his house and they sat on a sofa in the drawing room. He stated that on asking of the accused, the khaki colour envelope containing the bribe amount of Rs.8,000 was kept by the witness on the centre table kept there. He further stated that the accused asked some-one to arrange for tea and thereafter he picked up the khaki envelope and started counting the bribe amount. He further stated that after counting the bribe amount, he kept it back in the khaki envelope and placed it on the sofa. It was stated that after having tea, the witness along with the accused came down the apartment, on the asking of the accused, to take the balance-sheet of his wife, which the accused had earlier asked the complainant to bring. He stated that Digitally signed RAJEEV by RAJEEV BANSAL BANSAL Date: 2024.07.24 11:29:25 +0530 CBI No. 52/2023 CBI v S K Dev Page 8 of 83 after coming down while the accused was having cigarette, he saw somebody from the raid party. He stated that seeing this, the accused got nervous and immediately ran back to his apartment on the second floor. The witness stated that when the accused was chased, it was realized, he had locked his house from inside. He stated that on knocking his door, his daughter came out and at the asking of the raiding party from his daughter about the accused, she informed that he is inside the bathroom. It was stated that after sometime, the accused came out of the bathroom and the raiding party challenged the accused and asked him about the khaki envelope in which the bribe amount was kept. It was stated that on this, the accused got perplexed and nervous. He stated that when the fingers of the hand of the accused were dipped in water, the water turned pink in colour. He stated that even after searching the house, the bribe amount could not be found and thereafter it was observed by the raiding party that a big khaki envelope containing the bribe amount was lying on the ground floor below the bathroom of S.K. Dev. He stated that the envelope was picked by the raiding party. He stated that thereafter, post-trap memo was prepared by the CBI team (D-3, page No. 12 to 19) and the Digitally signed RAJEEV by RAJEEV BANSAL BANSAL Date: 2024.07.24 11:29:31 +0530 CBI No. 52/2023 CBI v S K Dev Page 9 of 83 witness identifies his signature at point A on each page of post- trap memo i.e., the Recovery Memo which is Ex.PW1/D (colly.). Arrest Memo was proved as Ex.PW1/E. Rough site plan was proved as Ex.PW-1/F (D-4, page no. 20). He stated that the recovered bribe amount was compared with the recovery memo and the number of GC notes tallied with those recorded in the recovery memo. He also proved other documents.
9.1.1 The following Exhibits were proved by the Complainant -
PW1.
Sl. Article Exhibit No. 01 Complaint PW-1/A 02 FIR PW-1/B 03 Handing Over Memo PW-1/C 04 Recovery Memo PW-1/D 05 Arrest Memo PW-1/E 06 Rough Site Plan PW-1/F 07 Cassette Transcription PW-1/G 08 Brown Envelope containing One bottle with the writing M- PW-1/H 75/91 09 Brown Envelope containing second bottle with the writing PW-1/I M-75/91 10 One Glass bottle containing dried white powder but no PW-1/J liquid 11 Second Glass bottle containing dried white powder but no PW-1/K liquid 12 Brown Envelope containing a piece of cloth having seal of PW-1/L CBI 13 Piece of cloth having seal of CBI PW-1/L-1 Digitally signed RAJEEV by RAJEEV BANSAL BANSAL Date: 2024.07.24 11:29:37 +0530 CBI No. 52/2023 CBI v S K Dev Page 10 of 83 14 A white envelope containing one brass seal of CBI ACB PW-1/M
ND, one piece of cloth bearing the seal impression of the seal of CBI ACB ND and one brown envelope with Ex. M3 written on it (M-74/91) in opened condition containing one micro cassette 15 Brass Seal PW-1/M1 16 Cloth bearing Seal impression PW-1/M2 17 Micro cassette PW-1/M3 18 Yellow envelope in sealed condition having seal 'YRS'. PW-1/N 19 white envelope in open condition (Taken out from PW-1/N1 PW-1/N) 20 white envelope in open condition (Taken out from PW-1/N2 PW-1/N1) which contained Govt. currency notes 21 Brown envelope sealed with the seal of CFSL (containing PW-1/O SD card) 22 SD Card 32 GB with its cover PW-1/P 23 Blue envelope (containing micro cassette) PW-1/Q 24 Specimen of brass seal used in trap PW-1/R 25 Impression of CBI seal PW-1/S 26 Brown envelope (containing cloth impression of CBI seal) PW-1/T 27 Cloth Impression of CBI seal PW-1/T1 28 Envelope sealed with court seal PW-1/U 9.1.2 In his cross examination, he admitted that his full name is Prabodh Kumar Rastogi. He admitted that due to the investigation and the searches conducted by CBI, the complainant felt humiliated. He stated that he does not remember whether accused told him that there was no incriminating evidence against him at the time of search Digitally signed RAJEEV by RAJEEV BANSAL BANSAL Date: 2024.07.24 11:29:46 +0530 CBI No. 52/2023 CBI v S K Dev Page 11 of 83 but volunteered to add that the accused told the complainant that there was no incriminating evidence against the accused. He replied that the accused told the complainant on 2.5.91 as well that there was no incriminating evidence against the complainant. He stated that the accused made demand from him for bribe on the very first day when he told the complainant that there was no incriminating evidence against him i.e., before 2.5.1991 as well. He stated that he made an oral complaint to Sh. Balbir Singh/DIG at the office of the accused after he demanded bribe from the complainant the very first time. He stated that he had gone to CBI office first time in relation to this case on 2.5.1991. He stated that after reaching CBI office, he informed the CBI officials that accused is demanding Rs.10,000/- as bribe from him. He stated that perhaps he had given the complaint to Mr. Dabbas at CBI office and the CBI officers asked him to inform them of the date and time on which the complainant would visit the accused for handing over the bribe amount. He stated that he received the call from accused after returning home. He stated that he had told Sh. K.C. Sharma at Pragati Vihar Hostel before leaving for the house of the accused that the accused had asked him to bring the balance-sheet. Digitally signed by RAJEEV
RAJEEV BANSAL
BANSAL Date:
2024.07.24
11:29:52 +0530
CBI No. 52/2023 CBI v S K Dev Page 12 of 83
He stated that he had not shown the balance-sheet to Sh. K.C. Sharma. He stated that he had told Sh. K.C. Sharma that the balance-sheet is in a white envelope which was kept in the dash board of his car at the time when he handed over the bribe amount to him for trap proceedings. He denied the suggestion that he had shown the said envelope to Sh. K.C. Sharma at the time when proceedings were drawn by him, or that phenolphthalein powder was applied on the white envelope at the time of drawing of the proceedings. He stated that neither he had not taken the white envelope along-with him while going inside the residence of the accused nor the accused asked for it when he reached his house. He stated that he had not come downstairs along-with the accused to take the balance-sheet from the car after reaching his house, but voluntarily added that the accused came downstairs with him after accepting the bribe amount from him. He admitted that after coming downstairs, accused bought a cigarette for himself and some toffees for the complainant. He admitted that after that, the complainant went to his car and handed over the white envelope containing the balance-sheet of his wife to the accused. He denied the suggestion that after handing over the envelope he sat on Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:29:59 +0530 CBI No. 52/2023 CBI v S K Dev Page 13 of 83 the driving seat and left from there. He further stated that he saw the accused running till the lift after that but the complainant did not see him reaching his home after that. He stated that he had not gone anywhere with his car after that. He denied the suggestion that he had planted the envelope on the ground floor while the CBI team was at the house of the accused or that he had told Sh. Ashok Singh that the brown envelope is lying on the ground floor. He stated that he does not remember as to whether the khaki envelope containing the bribe amount was in an intact condition and in a folded condition at the time when it was recovered by CBI. He stated that he handed over the cassette recorder back to CBI in as it is mode. He stated that the cassette was played at the CBI office. He stated that the transcript was prepared after hearing the micro-cassette which was given to him during trap proceedings, but could not tell as to when was the transcription Ex.PW1/G was prepared.
9.2 PW-2 MC Dass, an Office Supdt of CBI deposed that he had provided the service book of the accused to Mr. H.C. Singh, Jodhpur Branch vide letter dt. 27.05.1991 and proved the said letter as Ex. PW- Digitally signed
RAJEEV by RAJEEV BANSAL BANSAL Date: 2024.07.24 11:30:05 +0530 CBI No. 52/2023 CBI v S K Dev Page 14 of 83 2/A. 9.3 PW-3 Head Constable Hawa Singh stated that the memo dated 10.05.1991 Ex.PW3/A regarding preparation of two copies of a micro-cassette by the CFSL person was drawn in his writing during the course of investigation. He also proved Memo dt. 09.08.1991 as Ex. PW-3/B regarding preparation of two copies of micro cassette with the help of Mr. Narayan from SU, CBI in presence of complainant Prabodh Kumar. He also stated that the transcription memo dated 13.8.1991 Ex. PW-1/G was drawn in his writing and through this memo, transcript of the conversation contained in the MELTRACT cassette was prepared.
9.3.1 In his cross examination, he stated that the two copies of cassettes which were prepared by CFSL with the help of original cassette were used for the preparation of the transcript of the conversation. He stated that no transcription was got prepared on 10.5.1991 and further stated that he does not remember the reason as to why the transcription was not prepared on 10.5.91. He admitted that he had got prepared two more cassettes from Special Unit CBI on Digitally signed RAJEEV by RAJEEV BANSAL BANSAL Date: 2024.07.24 11:30:20 +0530 CBI No. 52/2023 CBI v S K Dev Page 15 of 83 9.8.1991. He also admitted that he was in possession of those two copies on 9.8.1991 when he had ordered for preparation of two more copies of the cassettes. He however stated that he does not remember the reason as to why two more copies of the cassette were ordered to be prepared from special unit of CBI. He denied the suggestion that the MELTRACK cassette have been prepared in special unit and not CFSL and therefore they are tampered.
9.4 PW-4 K.C. Sharma is the IO of the present case. He deposed that in the year 1991-1992, he was posted as Deputy SP CBI, Jaipur, and he came to Delhi on 2.5.1991 as per instructions of the then SP/CBI/Jaipur and met the then DIG/ACB branch, Delhi as desired. He stated that he was told to meet SP Mr. J.C. Dabbas SP ACU-VI in Loknayak Bhawan in connection with some assignment to be given by him. He stated that accordingly, he met Mr. Dabaas who informed him that some trap is to be laid against some CBI officer and also that he (the witness) had been attached to that branch for the purpose. He stated that he was entrusted with the FIR of RC 1A/91 ACU-VI for investigation. He stated that the present FIR was registered on the Digitally signed RAJEEV by RAJEEV BANSAL BANSAL 11:30:29 Date: 2024.07.24 +0530 CBI No. 52/2023 CBI v S K Dev Page 16 of 83 basis of complaint Ex. PW1/A made by Sh. Prabodh Kumar, complainant in the present case. He stated that after going through the FIR, he found that said bribe money was to be passed on that day or next day and hence, he requested Sh. Dabbas, SP to arrange meeting with the complainant immediately. He stated that he met the complainant in Flat No. E-021, Pragati Vihar, CBI Hostel and interrogated him for the purpose of verification of the contents of the complaint and after being satisfied, he asked the complainant whether he has brought the demanded bribe money. He stated that the complainant informed him that earlier the accused had demanded Rs.10,000/- and finally the bribe amount has been reduced to Rs.8,000/- and he has brought the same. He further stated that the complainant also disclosed him that the accused shall finalize the place and time where said bribe money is to be passed on to him in the evening hours through telephone provided at complainant's residence. He stated that he directed the complainant to go to his residence to receive the call of the accused and the time and place of payment of bribe money be informed to him by telephone. He stated that the complainant informed him on telephone at about 20 hours that the Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:30:36 +0530 CBI No. 52/2023 CBI v S K Dev Page 17 of 83 accused had called him to pay the bribe amount at his residence between 9-9.30 hours on next day that is, 3.5.1991. He stated that he informed Sh. Dabbas about this and in consultation with him the other CBI staff including Sh. Ashok Singh, who came with this witness from Jaipur, were directed to report in said room of E-021, Pragati Vihar Hostel at about 7 hours on 3.5.1991 sharp while the complainant was directed to report by 6-6.30 hours with bribe money. He stated that on 3.5.1991, he visited the place of residence of the accused alongwith the complainant to visualize the positions to be taken at the trap team at the time of transaction. He stated that thereafter he came back to Pragati Vihar Hostel where other members of the team and independent witnesses were already present. He stated that contents of the handing over Memo dt. 3.5.1991 Ex. PW-1/C which also contained the serial number of the Govt. currency notes brought by the complainant, was dictated by him, which was written by Ashok Singh. He stated that the currency notes were smeared with phenolphthalein powder and kept in an envelope as desired by the accused and the envelope was smeared with phenolphthalein powder, whereafter the bribe amount was handed over to the complainant with the directions Digitally signed RAJEEV by RAJEEV BANSAL BANSAL Date: 2024.07.24 11:30:53 +0530 CBI No. 52/2023 CBI v S K Dev Page 18 of 83 not to touch it till it was demanded by the accused. He stated that since the accused had directed the complainant to come alone to his house, a mini tape recorder with mini empty cassette was handed over to the complainant to record the conversation at the time of transaction of bribe. He stated that they reached Kalibari Apartments, where the accused lived, at about 9 am and Complainant entered the house of the accused alone. He further stated that after about 20 minutes, he saw accused and the complainant coming out of the premises. He stated that the accused moved towards a grocery shop and thereafter accused went to see off the complainant. He stated that accused returned to his house, whereafter he (the witness) and Ashok Singh rushed towards the house of the accused on second floor. He stated that the house of the accused was bolted from inside and on ringing the door bell, the door was opened by the daughter of the accused and on inquiry she informed that the accused was in the bathroom. He stated that they entered the house and after few moments, accused came out of the bathroom. He stated that he introduced himself and his other team members to the accused and asked him as to whether he had accepted bribe from the complainant, which the accused denied. He stated that Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:31:00 +0530 CBI No. 52/2023 CBI v S K Dev Page 19 of 83 the Complainant, who had come to the house, informed that the accused had asked him to keep the bribe money on sofa. He stated that the accused again denied to have received any bribe, whereafter, search of the house of the accused was got conducted and while searching the bathroom, it was noticed by Sh. Ashok Singh from the adjoining balcony that the envelope containing bribe money was lying on the ground floor just below the bathroom of the house of the accused. He stated that the team members with accused approached the spot and the said envelope containing bribe amount was picked by independent witness Sh. Lokender Singh. He stated that after this they all again went to the house of the accused and on fresh inquiry about receipt of bribe money, the accused informed that the complainant had given him a white colour envelope containing balance sheet of his wife. He stated that the complainant told him that he had also given an envelope containing bribe money. He stated that the complainant handed over the micro cassette containing conversation which took place during the transaction between him and the accused, which was sealed in the presence of the team members. He stated that thereafter handwash of the hands of the accused was Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:31:06 +0530 CBI No. 52/2023 CBI v S K Dev Page 20 of 83 taken, and a recovery memo Ex. PW-1/D was also prepared. He proved the Arrest memo of the accused as Ex. PW-1/E. He also proved a letter dt. 6.5.1991 as Ex. PW-4/C which was sent by CBI to CFSL for examination of the hand wash. He also proved another letter dt. 9.5.1991 as Ex. PW-4/D through which the micro cassette was sent by CBI to CFSL for preparing transcript of the conversation recorded in the micro cassette.
9.4.1 In his cross examination he admitted that he had not verified the complaint of the complainant. He admitted that he did not hear the accused demanding bribe from the complainant. He admitted that neither he nor his any team member saw the complainant handing over the bribe amount to the accused. He also admitted that he had not seen the accused dropping the money from the second floor of his house to the ground floor. He admitted that he was instructed on 1.5.1991 during late evening to visit Delhi and accordingly, he reached Delhi on 2.5.1991 in the morning. He admitted that he received the copy of the FIR along with the complaint prior to his visit to Pragati Vihar Hostel. He stated that the contents of the complaint came to his knowledge for the first time when he received the copy of the FIR and Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:31:13 +0530 CBI No. 52/2023 CBI v S K Dev Page 21 of 83 not prior to that. He stated that he did not accompany Prabodh Kumar nor did he send any other officer to his residence to verify receipt of call by him from accused S.K. Dev on the evening of 2.5.1991. He stated that he did not provide Prabodh Kumar with any recording device for recording of the said call. He stated that he did not make any arrangement for verification of the call to be received by the complainant on 2.5.1991. He denied the suggestion that the white envelope along with its contents was smeared with phenolphthalein powder. He proved the white envelope and its contents as Ex. PW- 4/DA. He stated that he had not sent this white envelope to CFSL for chemical examination but he had sent the bottles containing hand wash of the accused, to CFSL for chemical examination. He stated that he had not obtained any swab from sofa where the bribe money was allegedly kept nor he had taken the sofa cover in his custody to determine presence of Phenolphthalein powder on it. He admitted that when Ashok Singh had pointed out towards the envelope lying on the ground floor, complainant had reached the residence and was with the CBI team. He admitted that the Recovery memo does not mention that the envelope lying on the ground floor was pointed out by Ashok Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:31:19 +0530 CBI No. 52/2023 CBI v S K Dev Page 22 of 83 Singh.
9.5 PW-5 Lokendra Singh stated that on 2.5.1991 he was instructed by his Assistant Director to be a witness in a CBI case, at which he reported to CBI Office at Lok Nayak Bhawan during day time. He stated that in the evening he went to Pragati Vihar Hostel, where he met 3-4 CBI Officers including KC Sharma (PW-4) in a CBI Office. He stated that nothing was told on 2.5.1991 about the person against whom the complaint was made. He stated that the complainant also came there after some time. He stated that thereafter he was asked to come to CBI office on 3.5.1991 in early hours. He stated that on 3.5.1991 he met K.C. Sharma and other CBI officers.
He stated that the complainant brought the bribe amount to be given, which was then smeared with Phenolphthalein powder. He stated that after reaching the residence of the accused, the complainant went inside the house of the accused S.K. Dev whereas he alongwith others waited downstairs. He stated that after receiving signal, he alongwith others went upstairs to the house of accused where everybody was found searching for the money. He stated that after some time somebody informed that the bribe amount is lying downstairs, at Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:31:33 +0530 CBI No. 52/2023 CBI v S K Dev Page 23 of 83 which he went downstairs with one CBI officer and picked up the envelope containing the bribe amount and brought the said envelope to the house of the accused. He stated that the envelope was found containing the same GC notes which were handed over by the complainant. He stated that the hands of accused were washed in the solution of sodium carbonate and that turned pink in colour. He proved various documents of the proceedings of 3.5.1991. 9.5.1 In his cross examination, he stated that he was in Pragati Vihar hostel on 2.5.1991 till around 9-9.30 pm but could not remember for what time period Prabodh Kumar was present in the hostel but stated that he was there for sometime. He stated that the envelope picked by himself from the ground floor was intact and in a folded condition.
9.6 PW-6 Inspector Ashok Singh is a CBI Officer, posted at Jaipur at the relevant time who came with PW-4 K.C. Sharma to Delhi on 02.5.1991. He stated that on 2.5.1991, he was directed by SP Jaipur Late Sh. Shankar Sarolia to visit Delhi and accordingly he along with Sh. K.C. Sharma, Ramesh Pawar/ASI and Driver Ashok Digitally signed by RAJEEV RAJEEV BANSAL Date: BANSAL 2024.07.24 11:31:56 +0530 CBI No. 52/2023 CBI v S K Dev Page 24 of 83 Purohit left Jaipur at 4 am and reached Delhi at 10 am on that day. He deposed about the proceedings of 2.5.1991 and 3.5.1991. Regarding the incident, he deposed that after reaching the spot, A.C. Bhar and complainant went upstairs to the house of the accused. He stated that after 15-20 minutes, the complainant came downstairs with accused.
He stated that A.C. Bhar informed that the bribe money has been handed over by the complainant to the accused which is kept in the drawing room on sofa of the house of the accused. He stated that the accused returned back to his house on the second floor through a lift whereas he along with K.C. Sharma went to the house of the accused using stair-case, asking rest of the trap team members to follow to the house of the accused. He stated that they kept knocking at the door of the house of the accused and after some-time the gate was opened by the daughter of the accused. He stated that she was asked about the whereabouts of the accused and she informed that he is in the bathroom. He stated that after sometime, he came out and when K.C. Sharma challenged him that he has taken the bribe amount, the accused refused to have taken any such amount. He stated that the accused got perplexed on being asked several times about the bribe Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:32:02 +0530 CBI No. 52/2023 CBI v S K Dev Page 25 of 83 money. He stated that the bribe amount could not be found in the house of the accused and after some-time it was noticed that the bribe money in a brown envelope was lying on the ground floor below the window of the bathroom of the accused. He stated that the envelope was picked up from the ground floor and brought to the house of the accused. He also stated about the recovery proceedings and the procedural hand wash.
9.6.1 In his cross examination he stated that he was told to visit Delhi for the very first time on 1.5.1991 by K.C. Sharma. He admitted to have not seen the accused accepting the bribe and also that no demand was made in his presence. He also admitted to have not seen the accused throwing money from his bathroom window. He admitted that no verification of the complaint took place in his presence. He admitted that accused had handed over a white colour envelope containing the balance-sheet of his wife and other correspondence to the CBI team, when the accused was challenged at his residence. He denied the suggestion that phenolphthalein powder was applied on the said white envelope and its contents. He stated that no sofa wash or piece of sofa cover was seized in his presence by Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:32:07 +0530 CBI No. 52/2023 CBI v S K Dev Page 26 of 83 CBI.
9.7 PW-7 Inspector Anil Kumar of ACU-VI, CBI, New Delhi deposed that on 2.5.1991, he was directed by his SP Sh. J.C. Dabbas at about 4 pm to attend before one Sh. K.C. Sharma, the then DSP / CBI in Pragati Vihar Hostel, Lodhi Road, New Delhi in connection with some secret duty. He stated that he attended before Sh. K.C. Sharma in Pragati Vihar Hostel at about 5 pm and was directed to wait for further directions. He stated that at about 9-9.30 pm, he was asked to go and attend the same place in the morning of 3.5.91 at about 7 am.
He stated that he attended before Sh. K.C Sharma in Pragati Vihar hostel on 3.5.91 at about 7 am when it was told that one Sh. S.K. Dev, the then DSP had demanded bribe of Rs.8000/- from one Sh. Prabodh Kumar. He stated that two independent witnesses namely, A.C. Bhar and Lokender Singh from ED had also joined the proceedings. He stated that the money was produced by the complainant which was smeared with phenolphthalein powder whereafter, it was put in an envelope which was also smeared with phenolphthalein powder. He stated that the CBI team along with the witnesses left the Pragati Vihar Digitally signed by RAJEEV RAJEEV BANSAL Date: BANSAL 2024.07.24 11:32:13 +0530 CBI No. 52/2023 CBI v S K Dev Page 27 of 83 hostel at about 8.30 am. He stated that after reaching Kalibari apartments, he along with one of the witnesses waited in front of the main gate of Kalibari apartments where the house of the accused was situated and after some time, Inspector Ashok Singh gave a signal and thereafter, they all went to the second floor of the Kalibari apartments where the residence of the accused was situated. He stated that when he reached there, Sh. K.C. Sharma and Ashok Singh were already there and were questioning the accused regarding acceptance of bribe amount of Rs.8,000/- and the accused was refusing by stating that he had neither demanded nor accepted any bribe. He stated that Sh. K.C. Sharma searched the house of the accused but the said tainted money could not be found. He stated that the complainant was stated to be downstairs and Sh. K.C. Sharma told him to bring the complainant from downstairs. He stated that he brought the complainant from the downstairs and the complainant told the trap team members that the bribe amount was lying down below. He stated that thereafter, the trap team members went downstairs and recovered the envelope from downstairs.
Digitally
signed by
RAJEEV
RAJEEV BANSAL
BANSAL Date:
2024.07.24
11:32:24
+0530
CBI No. 52/2023 CBI v S K Dev Page 28 of 83
9.7.1 In his cross examination he stated that no demand was
made by the accused in his presence nor he saw the accused accepting the bribe. He also stated that he did not see the accused throwing money out of the window of his house.
9.8 PW-8 J.C. Dabas was the SP, ACU-VI, CBI, New Delhi. He is the witness of ordering registration of FIR in the present case. 9.9 PW-9 U.K. Goswami and PW-11 Rajpal Singh are the two IOs who deposed about filing of different Closure Reports in the case.
9.10 PW-10 Ashok Kumar was posted at SP-II, Anti- Corruption Branch, CBI, New Delhi in 1991. In his cross examination, he stated that the Room E-21 at Pragati Vihar Hostel must have been booked in his name on 2.5.1991 and 3.5.1991, as being In-charge, the rooms were used to be booked in his name, for being used for official purposes.
Digitally signed by RAJEEV
RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:32:30 +0530 CBI No. 52/2023 CBI v S K Dev Page 29 of 83
10. During the course of trial, the accused admitted the Chemical Examiner's Report dt. 06.05.1991 and 3.1.1992 u/s 293 Cr PC vide his statement dt. 18.10.23.
11. The accused was examined u/s 313 Cr PC when all the circumstances of the case were put to him. The accused admitted that he was the IO in the CBI case against the complainant and that he had conducted a raid at the house of the complainant as well as his brother and had also conducted a raid at the office of his brother but stated that the same was under Court warrants. He stated that he never demanded any bribe from the complainant and a false FIR was registered against him. He denied that he had telephonically called the complainant to come to his house on 03.05.1991. He admitted that the complainant had come to his house on 03.05.1991 but stated that he had come to hand over the balance sheet and another letter to him. He admitted that the solution turned pink but explained the change of colour by stating that the same happened due to the reason that phenolphthalein powder was put on the envelope, which was fetched by the complainant from his car containing the balance sheet. Regarding Digitally signed RAJEEV by RAJEEV BANSAL BANSAL Date: 2024.07.24 11:32:36 +0530 CBI No. 52/2023 CBI v S K Dev Page 30 of 83 recovery of money, he stated that no money was found from his house and the envelope which was found from the ground floor below the bathroom of his house, was planted by the Complainant, which was recovered at his instance in intact and folded condition. Regarding registration of case against him, he stated that a false case was registered against him in collusion with certain Officers of CBI, against whom the accused had certain information. In response to Q 32 that the accused had asked the Complainant to bring the balance sheet of his wife, he replied that he never asked the Complainant to give the balance sheet and it was the Complainant who himself wanted to give it. In answer to Q 61 he stated that he had never asked the complainant to visit his house and on 03.05.1991, the complainant came to his house of his own free will to hand over the balance sheet and another letter contained in a white envelope. Regarding the question as to why the complainant deposed against him, he stated that complainant deposed against him because besides finding incriminating material for prosecuting the complainant under the FIR registered against him, certain other material with regard to disproportionate assets was also found by the accused against the Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:32:42 +0530 CBI No. 52/2023 CBI v S K Dev Page 31 of 83 complainant.
12. Defence Evidence:
12.1 Accused examined a Dy. SP of CBI namely Sh. Chetan Kumar, as DW-1 in his defence. This witness acted as Defence Assistant of the accused in the Departmental Enquiry. He proved the proceedings dt. 07.12.1992 and 08.12.1992 during the said Departmental Enquiry.
13. Arguments on behalf of CBI 13.1 It was argued on behalf of CBI by the Ld. Prosecutor Sh.
Amjad Ali, that though Closure Reports were filed on behalf of CBI on four occasions but the said Reports were so filed because of technical reasons and not on the merits of the case. He emphatically argued that in a case of bribery, prosecution is required to prove 'Demand', 'Acceptance' and 'Recovery of bribe money' and despite the fact of filing Closure Reports on four occasions, CBI has been able to bring home the charge against the accused. It was argued that the Digitally signed by RAJEEV RAJEEV BANSAL Date: BANSAL 2024.07.24 11:32:48 +0530 CBI No. 52/2023 CBI v S K Dev Page 32 of 83 accused 'demanded' bribe on 01.05.1991 as was stated by the Complainant in his complaint dt. 02.05.1991 and promptly FIR was registered. He stated that the accused was admittedly investigating a complaint against the Complainant and to favour the complainant in the said case, he demanded a bribe of Rs. 10,000/- which was later on reduced by him to Rs. 8,000/- and he called the complainant to his own home on 03.05.1991 to pay the bribe amount. He argued that as a part of the trap proceedings, the Complainant went to the house of the accused to pay the bribe amount of Rs. 8,000/-, which the accused 'accepted' and after having accepted the bribe amount, when the accused saw the CBI officials, he threw down the envelope containing the bribe amount to the ground floor below from the window of his bathroom, from where it was 'recovered' by independent witnesses. He argued that the complainant and all other witnesses withstood their extensive cross examination.
13.2 It is vociferously argued that the accused was on leave on 03.05.1991 and he called the accused at his house on 03.05.1991. He argued that accused had no reason to call the complainant (who was Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:32:54 +0530 CBI No. 52/2023 CBI v S K Dev Page 33 of 83 facing an investigation) at his home on a day when the accused was on leave and this shows that the accused had called him at his home only to 'accept' bribe money. It was argued that the accused was not supposed to entertain the Complainant at his house on a day when he himself was on leave, and if at all the accused had to take any document from the Complainant, the same should have been taken by him at his office and not at his home. It was argued that the accused had offered tea to the complainant and had also bought him toffees, as it came out in cross examination of the Complainant and all this shows that the accused was friendly with the Complainant and this friendship shows complicity of the accused.
13.3 It was stated that though the conversation between the accused and the complainant was recorded on a micro - cassette but due to lapse of about 32 years since the incident, the cassette could not be played, and as per Court Orders dt. 29.05.2023 its contents were copied on an SD Card. It was argued that in such circumstances, the transcription of the said conversation is admissible, being secondary evidence, which clearly show the acceptance of Rs. 8,000/- by the Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:33:00 +0530 CBI No. 52/2023 CBI v S K Dev Page 34 of 83 accused from the complainant.
13.4 From the Recovery Memo (Ex. 1/D) it was pointed out that the accused in the first instance did not say anything about the receipt of 'white envelope' but only as an after thought, on being asked about the money by the CBI raiding team that the accused took plea of only receiving a white envelope.
13.5 It was argued that once the 'demand' is proved, statutory presumption u/s 20 of the Act comes into play. He further argued that on seeing the CBI officials, the accused ran up to his house and it is a relevant circumstance against the accused. 13.6 It was argued that the accused was arrested and there is no challenge by the accused to his arrest, which anybody would have done, in the event of his false implication and arrest. 13.7 It was argued that a case was tried to be built up by the accused through the cross examination of the witnesses that the Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:33:06 +0530 CBI No. 52/2023 CBI v S K Dev Page 35 of 83 present case was registered by CBI against the accused at the behest of senior Officers of CBI. It was stated that however, the accused failed to bring any such evidence on record to substantiate such defence. It was argued that had the present case been falsely registered against the accused, the CBI would not have filed Closure Reports on four occasions and would rather would have filed the charge sheet against the accused in the first instance itself, but that having not been done by CBI, demonstrates that there was no malice on the part of CBI in this regard against the accused.
13.8 Ld. Prosecutor further argued that another defence tried to be built up by the accused was that he did not receive any brown envelope but only received a white envelope containing a balance sheet and a letter and it was the said white envelope that had phenolphthalein powder applied to it as was confirmed by CFSL. It was argued that such defence is baseless as the accused had accepted bribe in the brown envelope, which had the phenolphthalein powder and due to handling the said brown envelope the phenolphthalein powder got transferred to his hands and in turn to the white envelope. Digitally signed by RAJEEV
RAJEEV BANSAL BANSAL Date:
2024.07.24 11:33:11 +0530 CBI No. 52/2023 CBI v S K Dev Page 36 of 83 13.9 Ld. Prosecutor pointed out to another defence built up by the accused through cross examination of the prosecution witnesses that it was the Complainant who himself planted the brown envelope containing bribe money on the ground, below the bathroom of the accused and he himself pointed out the said 'brown envelope' to the Trap Team. It was argued that although this story is not to be believed as the envelope was noticed to be lying on the ground floor by the Trap Team itself from the balcony of the house of the accused, but even if this defence is to be believed, the same becomes improbable as the Complainant could not have known that the accused was in the bathroom of his house so as to enable the Complainant to plant the said brown envelope just below the bathroom of the house of the accused.
13.10 Regarding inconsistencies in depositions, it was argued that the same do not affect the case of the Prosecution as the Complainant stood his ground regarding 'demand' and 'acceptance' of bribe by the accused, which was corroborated by other witnesses. He argued that the testimony of the Complainant is unshakable regarding Digitally signed by RAJEEV RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:33:17 +0530 CBI No. 52/2023 CBI v S K Dev Page 37 of 83 'demand' and 'acceptance' of the bribe amount by the accused, and hence the accused may be convicted of the offences he has been charged with.
14. Arguments on behalf of the Accused 14.1 Mr. Sushil Gupta, Ld. Counsel for the accused argued that the accused has been falsely implicated in this case by the Complainant, against whom the accused was investigating a Complaint in 1990 wherein the allegations were that the Complainant was doing private trade while being in government service. It was stated that the accused had conducted raid at the premises of the Complainant and of his younger brother. He pointed out that in the cross examination, the Complainant admitted to have felt humiliated at such investigation and searches being conducted by the accused. It was argued that motivated by the humiliation faced by the Complainant, he in collusion with CBI Officers, falsely implicated the accused in the present case.
Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:33:22 +0530 CBI No. 52/2023 CBI v S K Dev Page 38 of 83 14.2 It was argued that complicity of the CBI Officers also becomes clear from the fact that the FIR against the complainant was got quashed by CBI, after the accused was trapped in the present case. 14.3 He argued that a Departmental Enquiry was made by Central Vigilance Commission against the accused in which he was exonerated. He however, fairly conceded that although the result of the said Enquiry is not binding on this Court but argued that the findings of the Enquiry will have persuasive value. 14.4 It was argued that a vague complaint was given by the Complainant and without verifying the veracity of the said complaint, CBI registered a case against the accused, which shows that some CBI Officers were interested in implicating the accused in this false case.
He pointed out that PW-4 KC Sharma in his deposition stated that he started from Jaipur on the night of 01.05.1991 for Delhi, and reached Delhi in early hours of 02.05.1991 whereas the complaint itself was made on 02.05.1991 by the Complainant. It was argued that there is no evidence on record that the Complainant had gone to CBI Office on Digitally signed by RAJEEV RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:33:27 +0530 CBI No. 52/2023 CBI v S K Dev Page 39 of 83 01.05.1991 and rather the Complainant stated in his cross examination that he had gone to CBI Office on 2.5.1991 for the first time in relation to the present case and if the complaint itself was made on 02.05.1991 there was no occasion for PW-4 KC Sharma to have come to Delhi for this case even prior to receipt of complaint, and all this show malafide on the part of CBI.
14.5 Regarding tape recorded conversation, it was argued that two cassettes are missing in this case, which is a relevant circumstance and the transcription being relied upon by the prosecution, is nothing but manipulated version of the conversation. It was stated that in the absence of cassettes, the transcription has got no value. It was argued that it was the duty of the prosecution to have ruled out the possibility of tampering of the cassette, which it failed to do and hence the transcription of the cassette cannot be relied upon. 14.6 It was argued that vide Letter dt. 09.05.1991 (D-10), the original micro cassette was sent to CFSL for transcription and for making two copies of it. It was stated that as per Report dt. Digitally signed by RAJEEV
RAJEEV BANSAL Date: BANSAL 2024.07.24 11:33:32 +0530 CBI No. 52/2023 CBI v S K Dev Page 40 of 83
10.05.1991 (D-11) the transcription of Micro cassette was not prepared although two copies of the micro cassette were prepared. It was argued that CBI has not shown as to what happened to those two cassettes, as according to D-15 two new copies of the cassettes were prepared on 09.08.1991. It was argued that authenticity of the original cassette was not preserved and chain of possession was broken and thus possibility of tampering of the cassette cannot be ruled out. It was argued that transcription was prepared from MELTRACK cassette and whether the MELTRACK cassette is the true copy of the original micro cassette, no one can say. Reliance was placed on the judgments of Ram Singh v Col. Ram Singh AIR 1986 SC 3; R.M. Malkani v St. of Maharashtra 1973 (1) SCC 471 and Nilesh Dinkar Paradkar v St. of Maharashtra 2011 (4) SCC 143.
14.7 Further it was argued that so far as transcription is concerned, the same can also not be legally relied upon, being hit by section 162 of the Cr PC as the said transcription shows that some sentences were purportedly spoken by the accused and some by the complainant and the voice was identified by the Complainant in the presence of a Police Officer and at the end of the said recorded Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:33:37 +0530 CBI No. 52/2023 CBI v S K Dev Page 41 of 83 transcription, the complainant put his signatures. It was argued that section 162 Cr PC emphatically provides that a statement made to a Police Officer, signed by a witness loses its value. Reliance was placed on the judgments of Ramkishan Mithanlal Sharma v St. of Bombay 1954 (2) SCC 516; Tori Singh v St. of UP AIR 1962 SC 399 and Jagdish Narain v St. of UP 1996 (8) SCC 199. 14.8 It was argued that there are lot of contradictions and discrepancies in the deposition of prosecution witnesses and as per criminal jurisprudence, if two views are possible, then the view favourable to the accused is to be adopted. 14.9 Ld. Counsel for the accused further argued that the Final Report in the complaint against the complainant was prepared by the Accused and was ready and furnished on 02.05.1991 to Sh. Balvinder Singh, but it was not accepted by him and returned to the accused and on the same day Complainant filed the complaint. It was argued that the act of CBI in not accepting the final Report furnished by the Accused demonstrates that they had already planned to trap the accused.
Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:33:46 +0530 CBI No. 52/2023 CBI v S K Dev Page 42 of 83 14.10 It was argued that malafide on the part of CBI to falsely trap the accused is writ large on the face of it because Phenolphthalein powder was applied to White envelope and its contents as well, and to cover up the same, this white envelope was not sent to CFSL initially but was sent only after 8-9 months and presence of Phenolphthalein powder was confirmed by CFSL in its Report. It was argued that Report of this examination has not been brought on record by CBI. 14.11 Next, it was argued that the Complainant has stated in his cross examination that the accused had told him that there was no incriminating evidence against the Complainant. Taking this Reply further, it was argued that if there was no incriminating evidence against the Complainant, there was no occasion for the accused to demand bribe from the Complainant.
14.12 Ld. Counsel assailed the allegations of 'demand' by arguing that CBI knew it in advance that the accused would inform the date, time and place of handing over the bribe amount to him, by informing the same over telephone. It was argued that if that was so, Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:33:52 +0530 CBI No. 52/2023 CBI v S K Dev Page 43 of 83 it was incumbent upon the CBI Investigating Team to have sent an independent/shadow witness to hear the 'demand' on telephonic call and simultaneously the said call should have been got recorded by the CBI. It was argued that neither of these two steps were taken by CBI, which casts serious doubts over the claim of the prosecution that the accused 'demanded bribe' from the complainant. 14.13 It was argued that the prosecution story that the accused telephonically informed the complainant to come to his house next day at about 9 am to give bribe money is false as according to cross examination of PW-7 Anil Kumar the complainant was at Pragati Vihar Hostel till 9.30 PM on 02.05.1991. It was argued that in view of this deposition, the story of telephonic 'demand' of bribe is false. 14.14 Regarding 'acceptance' it was argued that except the deposition of the complainant, there is no other witness of the act of 'acceptance' of bribe by the accused. It was argued that there was no shadow witness. Further, it was stated that there was a micro cassette which purportedly recorded the conversation between the accused and Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:33:58 +0530 CBI No. 52/2023 CBI v S K Dev Page 44 of 83 the complainant but this cassette was not played and its status of being 'intact' could not be proved by the prosecution and in the absence of the primary evidence i.e. cassette, its transcription cannot be relied upon.
14.15 On the question of 'demand' and 'acceptance', the following judgments were relied upon:
Title Citation Relevant Para
P. Parasurami Reddy v 2011 (12) SCC 294 9 to 13
St. of AP
Rabindranath Prusty v 1984 Cr LJ 1392
St. of Orissa
G.V. Nanjundiah v St 1987 SC 2402 9
Suraj Mal v State 1979 (4) SCC 725 9
Subash Parbat Sonvane v 2002 (5) SCC 86 78
St. of Gujarat
C.M. Girish Babu v 2009 (3) SCC 779 7,8 & 18
CBI
Banarsi Dass v 2010 (4) SCC 450 20-31
State of Haryana
14.16 With regard to 'recovery' of money, it was argued that the
possibility of planting the money by the Complainant himself cannot be ruled out because according to cross examination of the witnesses, the money could not be recovered from the house of the accused and it was the Complainant who pointed out that the said envelope was lying Digitally signed by RAJEEV RAJEEV BANSAL Date: BANSAL 2024.07.24 11:34:04 +0530 CBI No. 52/2023 CBI v S K Dev Page 45 of 83 on the ground floor. It was argued that Anil Kumar and two independent witnesses have corroborated it that it was the Complainant who pointed out the brown envelope. 14.17 Next, it was argued that admittedly the accused came out of the bathroom when he was confronted by the CBI team and as a human nature, one would come out of bathroom only after washing hands. It was thus stated that if there was any Phenolphthalein Powder on the hands of the accused, the same must have washed away. It was argued that in the hands wash of the accused taken by the CBI, the solution turned pink and that was so because the accused had handed over the white envelope, containing Balance Sheet and other document, to CBI and this shows that the white envelope was smeared with Phenolphthalein Powder which got transferred to the hands of the accused, due to which reason the solution turned pink on hand wash.
14.18 Mr. Gupta further argued that a witness namely Surender Prasad was examined in the Departmental Enquiry to the effect that Digitally signed by RAJEEV RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:34:10 +0530 CBI No. 52/2023 CBI v S K Dev Page 46 of 83 the case against the Complainant was turning towards one being of Disproportionate Assets but he was not examined in the present proceedings and his deposition recorded in the Departmental Enquiry can be read in these proceedings by virtue of section 33 of the Evidence Act. Reliance was placed on the judgment of Lanka Lakshmana v Lanka Vardhanamma 1918 SCC Online Mad 124 in this regard.
14.19 On the aforesaid grounds, it was argued that neither the 'demand', nor 'acceptance' nor 'recovery' is proved beyond reasonable doubt against the accused and hence the accused may be acquitted.
15. I have heard both the sides and have perused the records of the case carefully.
16. On 30.05.2012, charge u/s 7 and 13(1)(d) read with Section 13(2) of the Act was framed against the accused. For ready reference, the said Sections, as they stood at that time, are reproduced below:
"7. Public servant taking gratification other than legal Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:34:17 +0530 CBI No. 52/2023 CBI v S K Dev Page 47 of 83 remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the legislature of any State or with any local authority, corporation or government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
"13. Criminal misconduct by a public servant--(1) A public servant is said to commit the offence of criminal misconduct,--
(a)-(c)***
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage;
or Digitally signed by RAJEEV RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:34:22 +0530 CBI No. 52/2023 CBI v S K Dev Page 48 of 83
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e)*** *** (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
17. In Neeraj Dutta v State 2023 (4) SCC 731, a Constitution Bench of the Hon'ble Supreme Court laid down the ingredients of the offences u/s 7 and 13 (1)(d) of the Act, as under:
5. The following are the ingredients of Section 7 of the Act:
(i) the accused must be a public servant or expecting to be a public servant;
(ii) he should accept or obtain or agrees to accept or attempts to obtain from any person;
(iii) for himself or for any other person;
(iv) any gratification other than legal remuneration;
and Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
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(v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour.
6. Section 13(1)(d) of the Act has the following ingredients which have to be proved before bringing home the guilt of a public servant, namely:
(i) The accused must be a public servant.
(ii) By corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
(iii) To make out an offence under Section 13(1)(d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward.
(iv) An agreement to accept or an attempt to obtain does not fall within Section 13(1)(d).
(v) Mere acceptance of any valuable thing or pecuniary advantage is not an offence under this provision.
(vi) Therefore, to make out an offence under this provision, there has to be actual obtainment. Digitally signed by RAJEEV
RAJEEV BANSAL Date:
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(vii) Since the legislature has used two different expressions, namely, "obtains" or "accepts", the difference between these two must be noted.
88. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-
giver without there being any demand from the public servant and the latter simply accepts the Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:34:56 +0530 CBI No. 52/2023 CBI v S K Dev Page 51 of 83 offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
Digitally
signed by
RAJEEV
RAJEEV BANSAL
BANSAL Date:
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(e) The presumption of fact with regard to the
demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.
Digitally
signed by
RAJEEV
RAJEEV BANSAL
BANSAL Date:
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(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para '(e)', above, as the former is a mandatory presumption while the latter is discretionary in nature.
18. Testing the present case at the above touch stone, so far as the prosecution of the accused u/s 7 of the Act is concerned, it is noticed that the accused is a Retired Supdt. Of Police of CBI, and hence undoubtedly a public servant. Hence, the first ingredient of the offence is fulfilled.
19. The Constitution Bench Judgment mandates that proof of 'demand' and 'acceptance' of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
20. Demand 20.1 To prove the factum of 'demand', prosecution has mainly relied upon the deposition of the Complainant. The Complainant Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:35:16 +0530 CBI No. 52/2023 CBI v S K Dev Page 54 of 83 entered the witness box on 02.05.2023 after exactly 32 years of the incident which took place on 02.05.1991. He deposed that accused was investigating a case against him wherein the allegations were that the complainant was running a private trade, despite being a govt. servant. This has not been denied by the accused that he was investigating such a case against the Complainant as is clear from his Reply to Q-1 in his Statement recorded u/s 313 Cr PC. Complainant further deposed that accused had told him that there is no incriminating evidence against the complainant and in order to help the complainant, the accused demanded Rs. 10,000/- from the Complainant in return of the favour. Even in his cross examination, the complainant stated that "the accused told me on 2.5.91 as well that there was no incriminating evidence against me." Complainant further stated in his cross examination that "The accused made demand from me for bribe on the very first day when he told me that there was no incriminating evidence against me i.e., before 2.5.1991 as well. First time, he made the demand at his office. I do not remember how many days was it prior to the date of 2.5.1991." The factum of there being no incriminating evidence against the Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:35:21 +0530 CBI No. 52/2023 CBI v S K Dev Page 55 of 83 complainant has been disputed by the accused and rather it is the case of the accused that on 02.05.1991 he had gone to the SP of CBI to submit the final Report but the SP refused to take it that day and told him to submit the same later.
20.2 The Complainant deposed that the accused reduced the demand of bribe to Rs. 8,000/- when the complainant expressed his inability to pay the bribe amount to the accused. He further deposed that the accused told him that accused would tell him the time and place where the bribe amount is to be paid. The Complainant further deposed that on 02.05.1991 in the evening hours, accused telephoned him from his landline telephone and asked the complainant to meet the accused on 03.05.1991 at his residence.
20.3 It was argued by the prosecution that the accused made the 'demand' firstly orally to the complainant and then through his telephone call, which he made in the evening of 2.5.1991 whereby he asked the complainant to come to his house next day i.e. on 3.5.1991 at about 9 am to hand him over the bribe amount. Digitally signed by RAJEEV
RAJEEV BANSAL BANSAL Date:
2024.07.24 11:35:28 +0530 CBI No. 52/2023 CBI v S K Dev Page 56 of 83 20.4 It is not a case where the accused had demanded bribe in the presence of other witnesses, who could have corroborated the factum of 'demand'. Generally bribes are demanded in seclusion, which become difficult to be proved, but when the 'demand' is made over telephone, which the maker of demand tell in advance that he will tell about the place and time of making payment, then record of such 'demand' can very well be made. No Call Detail Records of the telephone number of the accused or of the complainant has been placed on record, in this case, much less proved by the prosecution.
The Complainant clearly stated in his complaint dt. 2.5.1991 that the accused had told him that he would tell the complainant date, time and place for making the payment of the bribe by telephone in the evening of 2.5.1991. It is the case of the prosecution that the accused made a telephonic call to the complainant in the evening of 2.5.1991 and asked the complainant to come to his house on 3.5.1991 at about 9 am to hand him over the bribe amount. It has not been explained by the prosecution as to why it took no steps to get the said telephonic call recorded when, it was made known to them in advance by the complainant through his written complaint dt. 2.5.1991 that the Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:35:39 +0530 CBI No. 52/2023 CBI v S K Dev Page 57 of 83 accused would communicate the date, time and place of payment of the bribe money in the evening by a telephonic call. Even if the telephonic call made by the accused to the Complainant was not recorded by CBI, nobody stopped it from placing on record and proving the Call Details Record of the telephone numbers of both - the accused and that of the Complainant or of either of them to show that the accused had made telephonic call to the Complainant from his home landline number so that an inference of 'demand' of bribe could be made from the said call log. However, nothing of this sort was done by the prosecution and there is no explanation for this inaction on the part of the prosecution. It was not only incumbent upon the prosecution to get recorded such call, but also to send an independent witness alongwith the complainant to his house to be witness of such call by the accused. If this aspect is ignored for the time being, there is no evidence on record, of 'demand' having been made by the accused, except the own statement of the Complainant. 20.5 The Hon'ble Supreme Court in a recent case titled Mir Mustafa Ali Hasmi v State of A.P. 2024 INSC 503 clearly laid down in Digitally signed by RAJEEV RAJEEV BANSAL Date: BANSAL 2024.07.24 11:35:44 +0530 CBI No. 52/2023 CBI v S K Dev Page 58 of 83 its Judgment dt. 10.07.24 that prosecution is duty bound to prove the factum of demand of bribe by reliable direct or circumstantial evidence. It was held that when a trap is laid down to catch a public servant red handed for accepting bribe, then the factum of demand of bribe by the public servant ought to be verified by the Investigating Officer. It was further held that the factum of demand for bribe can also be verified by recording the telephonic conversation between the complainant and the suspect public servant. 20.6 There is another circumstance, which casts serious doubts over the prosecution version of demand in this case. According to the Complainant, he made the complaint dt. 2.5.1991 to the CBI against the accused during after-noon hours. After-noon hours would mean, in common parlance to be time after 12 Noon. The Complainant stated so during his cross-examination in the following words:
"I had gone to CBI office first time in relation to this case on 2.5.1991. ...............I wrote the complaint in this case at Lok Nayak Bhawan. I had gone to Lok Nayak Bhawan on 2.5.1991. I do not remember the exact time but I reached there during after-noon hours."
Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:35:54 +0530 CBI No. 52/2023 CBI v S K Dev Page 59 of 83 20.7 Thus, according to aforesaid version, the Complainant went to CBI Office regarding the present case, for the first time on 02.5.1991 and that was during the after-noon hours. In other words, there was no intimation/complaint with CBI before 12 Noon of 02.5.1991 about the alleged demand of bribe made by the accused. 20.8 However, this story of prosecution does not corroborate with the version given by the IO i.e. PW-4 K.C. Sharma who stated in his examination in chief itself that he was posted as Dy. SP, CBI at Jaipur in May 1991 and as per instructions of the then SP, CBI, Jaipur, he alongwith Ashok Singh came to Delhi on 02.5.1991 and met the then DIG of ACB branch, as desired. He further stated that he was told to meet SP Mr. J.C. Dabas, SP in Lok Nayak Bhawan in connection with some assignment and on meeting Mr. Dabas, he was informed that some trap was to be laid against some CBI Officer and that he was attached to the said branch for that very purpose. He further stated that thereafter FIR in the present case was entrusted to him for investigation. He also stated that according to the FIR the bribe was to be paid on that day or the next day and hence he Digitally signed by RAJEEV RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:35:59 +0530 CBI No. 52/2023 CBI v S K Dev Page 60 of 83 requested Mr. Dabas to arrange a meeting with the Complainant, which was held at Flat No. E-021, Pragati Vihar Hostel, where the Complainant told K.C. Sharma that he had brought the bribe amount of Rs. 8,000/-. He also stated that after being satisfied, he told the complainant to go home to receive the call of the accused, and intimate about the same to KC Sharma telephonically, with further directions to meet him (KC Sharma) at 6.30 am at Pragati Vihar Hostel on 3.5.1991 alongwith the bribe money to be paid. He then stated that the complainant informed him on telephone at about 8 PM that accused had telephoned him and asked him to pay the bribe amount at his residence between 9-9.30 am on 03.05.1991. 20.9 In his cross examination, he stated that he was instructed on 01.5.1991 during late evening to visit Delhi and accordingly he reached Delhi on 2.5.1991 in the morning. 20.10 PW-6 Ashok Singh stated in his examination in chief that on 2.5.1991 he was directed by SP/Jaipur to visit Delhi and accordingly, he alongwith PW-4 KC Sharma left Jaipur at 4 am and Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:36:05 +0530 CBI No. 52/2023 CBI v S K Dev Page 61 of 83 reached Delhi at 10 am on that day. He stated that in the evening hours, they met the complainant. In his cross examination, he said that he was told by K.C. Sharma on 1.5.1991 to visit Delhi next day. 20.11 Evidence of both these witnesses show that both of them had already been asked on 01.05.1991 at Jaipur to visit Delhi next day.
Evidence also shows that they reached Delhi by 10 AM. According to the complainant, he went to CBI Office for the first time regarding the present complaint of demand of bribe on 02.05.1991 in the after-noon time. It is thus not understood as to how and why PW-4 and PW-6 were asked on 1.5.1991 itself regarding investigation of a case at Delhi when no complaint existed on 01.05.1991. There is no plausible explanation for this circumstance as to how CBI Officers at Jaipur knew it on 1.5.1991 itself about the 'demand' when the complainant himself says that he went to CBI office for the first time on 2.5.1991 with regard to this case.
20.12 From the testimony of witnesses and the material brought on record by the prosecution, and in the absence of convincing and Digitally signed by RAJEEV RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:36:11 +0530 CBI No. 52/2023 CBI v S K Dev Page 62 of 83 legally tenable evidence, the aspect of 'demand' of bribe made by the accused from the complainant does not inspire confidence.
21. Acceptance 21.1 The next limb in a case for demand of bribe is 'acceptance'. It is the duty of the prosecution to prove that after having made the 'demand' for bribe, the accused 'accepted' the bribe. 21.2 As can be seen from the depositions of the witnesses, except the version of the Complainant himself, there is no other witness of handing over of the bribe amount to the accused. Other witnesses mainly PW-4 KC Sharma, PW-6 Ashok Singh, PW-7 Anil Kumar clearly stated in their respective cross examinations that they did not see the accused accepting bribe from the complainant. Prosecution would argue that the accused had asked the complainant to come alone to his house on 3.5.1991 to give him the bribe amount, and hence no shadow witness could have accompanied the complainant to witness the act of handing over of the bribe amount by Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:36:17 +0530 CBI No. 52/2023 CBI v S K Dev Page 63 of 83 the complainant to the accused. There are doubts about this version because PW-6 Ashok Singh stated in his examination in chief that AC Bhar and the complainant went to the house of the accused and when the accused came down from his house with the complainant, AC Bhar informed the CBI team that the bribe money has been handed over by the Complainant to the accused, which is kept in the drawing room on sofa of the house of the accused. Although the Complainant did not support this version that AC Bhar had also accompanied him, but AC Bhar could not be examined because of his death. In the circumstance, to prove the 'acceptance' of bribe by the accused, prosecution has relied upon two pieces of evidence - namely transcript of the tape which was recorded during the episode of handing over of the bribe amount by the complainant to the accused and secondly, the CFSL report regarding hand wash of the accused that on washing the hands of the accused, the solution turned pink which show that the accused had handled the phenolphthalein powder treated currency notes.
Digitally signed by RAJEEV
RAJEEV BANSAL BANSAL Date:
2024.07.24 11:36:23 +0530 CBI No. 52/2023 CBI v S K Dev Page 64 of 83 21.3 The argument of the prosecution that statutory presumption u/s 20 of the Act would apply, is misconceived. The said statutory presumption can apply only when the prosecution proves with the help of primary or secondary evidence that there was 'demand'. As noted above, the aspect of 'demand' could not be proved by the prosecution and hence the statutory presumption u/s 20 of the Act cannot operate in vaccum.
21.4 To say the least, even these relied upon pieces of evidence do not inspire confidence. So far as the transcript of the tape/cassette is concerned, the same is secondary piece of evidence as the micro cassette could not play. Vide letter dt. 9.5.1991 Ex. PW-4/D, CBI had asked CFSL to make two copies of the sealed micro cassette and a transcript of the conversation recorded on the micro cassette.
According to Memo dt. 10.05.1991, Ex. PW-3/A, two copies of the micro cassette were purportedly prepared by the CFSL at the asking of the CBI. The Memo dt. 10.05.1991 only records that a sealed micro cassette has been produced and the seal was found intact. It does not say as to with which seal the micro cassette which was opened, was Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:36:30 +0530 CBI No. 52/2023 CBI v S K Dev Page 65 of 83 found sealed with. It further says that after preparation of two copies from it, the micro cassette was re-sealed. Further, whether these two copies of the micro cassette were actually prepared by CFSL is doubtful in the circumstances of this case. It is noticed that there is no CFSL Report to substantiate that the sealed micro cassette was opened at CFSL and that after making its two copies, the same was re-sealed by CFSL with CFSL stamp. If the micro cassette had been sent by CBI to CFSL for making its copies and for making its transcript, there must have been a report of CFSL in this regard that it had received such a request and the micro cassette from the CBI. On the contrary, only a memo dt. 10.5.1991 (Ex. PW-3/A) prepared by CBI officials that two copies of the micro cassette were prepared at CFSL under supervision of CFSL Officer, is there, which creates doubts in the prosecution story that the copies of the micro cassette were prepared by CFSL. The absence of CFSL Report regarding preparation of two copies of the micro cassette by CFSL itself casts doubt about the veracity of the claim of the prosecution that CFSL had prepared two copies of the micro cassette in which the conversation between the complainant and the accused was recorded at the time of alleged Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:36:36 +0530 CBI No. 52/2023 CBI v S K Dev Page 66 of 83 handing over of the bribe amount by the complainant to the accused at his home on 03.05.1991. Further, these two copies of the micro cassette, if were prepared, have not been produced in the trial nor any explanation has been furnished for their non production in the trial. What happened to those two copies of the micro cassette, nobody knows. Then, there is no transcript of the micro cassette prepared on 10.5.1991. No explanation is forthcoming as to why the transcript of the micro cassette was not prepared by CFSL despite there being a clear request of CBI for making transcript of the micro cassette in the letter dt. 09.05.1991. If it was a bonafide lapse on the part of CFSL in not preparing the transcript, why an immediate request was not made by CBI to CFSL to make a transcript of the micro cassette? These questions have remained unanswered. Be that as it may, the net result is that neither the prosecution produced and proved the two copies of micro cassette prepared by CFSL nor any transcript, if any, prepared by CFSL on 10.05.1991 was produced and proved so as to lead credence to their story.
Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:36:43 +0530 CBI No. 52/2023 CBI v S K Dev Page 67 of 83 21.5 A transcript of the conversation of cassette was brought on record by the prosecution as Ex. PW-1/G in which it is recorded that the complainant gave bribe amount of Rs. 8,000/- to the accused.
The transcription starts with the sound of opening and closing of the lift door and then records the voice of the complainant wherein he says "namaste ji, aur kya haal hai". The next sentence is in the voice of the accused wherein he says "bete jara 2 cup chai banana jaldi se". Thereafter there is a lot of conversation between the complainant and the accused which is recorded in five pages. On internal page 3 of the transcription, the complainant said "ek to mei ye rupaye laya hu" at which the accused replied "theek hai, koi nahi". Then complainant said "aapne subah subah bula liya". After few lines, the accused asked complainant "khaoge kya" at which the complainant replied, "pooja nahi kari hai. Sunderkand nahi kiya." The complainant then asked the accused, "Dev sahab kya hoga is case mei", at which the accused replied, "jaisa aapke bhagya mei likha hoga". The complainant then said, "maalik hain sahab jo aap karein ", at which accused replied, "hum jo recommend karen". After some time, the complainant said, "vo sahab 10,000/- ki committee thee na, jisme 8000/- hain ye sahab.
Digitally
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RAJEEV
RAJEEV BANSAL
BANSAL Date:
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Isme 8000/- kar diye maine", at which the accused replied, " theek hai. Mai aapko bataunga. Khul kar baat karenge ." The conversation further records that accused took cigarette and offered the same to the complainant also. It also records about toffees. 21.6 The transcript is lending support to the case of the prosecution that the accused had accepted the bribe money. It might have led to a different outcome had the prosecution proved the aforesaid transcript in accordance with the provisions of the Indian Evidence Act 1872. But this important piece of evidence was not handled properly by the prosecution. The prosecution failed to prove that the micro cassette was preserved in a manner that the possibility of its tampering is ruled out. Neither this transcript was prepared from the original micro cassette nor was it prepared immediately after the incident nor was it prepared by CFSL. This transcript has been prepared by ACU-VI unit of CBI on 13.08.1991 i.e. after about 100 days of the incident. This inordinate delay in preparation of this transcript has not been explained by CBI nor it has been explained as to why it was not got prepared from CFSL. This is yet another Digitally signed by RAJEEV RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:36:58 +0530 CBI No. 52/2023 CBI v S K Dev Page 69 of 83 circumstance casting doubt over prosecution case. The corresponding memo Ex. PW-3/B dt. 09.08.1991 show that it recorded "one audio micro cassette duly wrapped and sealed was produced. They checked it and found that its seal was intact". The aforesaid Memo only records 'sealed' but does not say as to with which seal the micro cassette was sealed - whether it was CFSL seal or it was a seal of some Officer of CBI. According to prosecution, from this micro cassette, two MELTRACK cassettes were prepared in ACU-VI Unit on 09.8.1991 and from one of those copied MELTRACK cassette, the transcript dt. 13.08.1991 Ex. PW-1/G was prepared. The original micro cassette was produced in open condition in the Court on 29.05.2023 but it could not play in Court at the time of evidence and nothing could be retrieved from the said cassette even by CFSL although they prepared two copies of the contents of this micro cassette on SD cards. When the SD card was played in Court with the help of a Card Reader on 28.07.2023, some faint sounds were found recorded which were identified by the complainant to be his conversation with the accused. However, there is a Court observation recorded in deposition of PW-1 on 28.07.2023 that "The conversation Digitally signed by RAJEEV RAJEEV BANSAL Date: BANSAL 2024.07.24 11:37:08 +0530 CBI No. 52/2023 CBI v S K Dev Page 70 of 83 between the accused and the witness is not comprehendible and clear".
It was also noticed that no Certificate u/s 65-B of the Evidence Act was produced by the prosecution. Finer details noted above show that the prosecution has failed to prove the virginity of the micro cassette and its chain of custody and in the circumstances, the secondary piece of evidence i.e. purported transcript of the micro cassette cannot be admitted in evidence. The prosecution would have done well had they, soon after the incident, got the micro cassette transcribed from an independent agency like CFSL after sending them the voice samples of the accused and of the complainant and then CFSL might have prepared the transcription. But alas, this course was not adopted by CBI, for the reasons best known to them. Neither the micro cassette nor the purported transcription pass the test laid down in para 32 of the Ram Singh's case (supra) with regard to admissibility of tape recorded conversations, which is reproduced below for ready reference:
32. Thus, so far as this Court is concerned the conditions for admissibility of a tape-recorded statement may be stated as follows:
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. Digitally signed by RAJEEV
RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:37:13 +0530 CBI No. 52/2023 CBI v S K Dev Page 71 of 83 (2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence -- direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
21.7 In the absence of any admissible piece of evidence, the purported transcription of the conversation stated to be recorded on a tape/cassette, prepared by CBI itself, cannot be read against the accused, howsoever strong the said transcript may be. 21.8 Similar is the fate of the Phenolphthalein test, which too is not free from doubts. According to the Complainant, sofa wash was taken by CBI of the place where the accused had kept the bribe money after having accepted it from the Complainant. However, this was not corroborated by PW-4 KC Sharma and PW-6 Ashok Singh, when both of them stated in their respective cross examinations that neither any swab from the sofa was taken for chemical examination nor the sofa cover itself was seized to get it chemically examined to confirm the Digitally signed by RAJEEV RAJEEV BANSAL Date: BANSAL 2024.07.24 11:37:23 +0530 CBI No. 52/2023 CBI v S K Dev Page 72 of 83 presence of Phenolphthalein powder on it. There is no explanation as to why chemical examination of the sofa cover was not got done if according to the prosecution, the accused had kept the bribe money, after accepting the same from the complainant, on the sofa. 21.9 Only two chemical reports were produced and proved by CBI which were regarding hand wash of the accused and the reports are positive of the presence of Phenolphthalein powder on the hands of the accused. The defence of the accused with regard to presence of Phenolphthalein powder on his hand is that the accused had handed him over a white envelope and on the said white envelope CBI had smeared Phenolphthalein powder to falsely implicate the accused in bribe case and due to handling of the said white envelope, which already had Phenolphthalein Powder on it, the same got transferred to his hand and thus the hand wash turned pink. It is the case of the accused that no sofa wash was taken and no convincing evidence has been brought on record by the prosecution to counter the claim of the accused that he never handled any bribe amount. To prove that the white envelope was smeared with Phenolphthalein powder, CFSL Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:37:31 +0530 CBI No. 52/2023 CBI v S K Dev Page 73 of 83 Report Ex. PW4/DA was brought on record. According to prosecution, the accused had accepted Phenolphthalein powder applied bribe money of Rs. 8,000/- from the complainant and thus his hands got smeared in the Phenolphthalein powder. Thereafter the accused handled the white envelope and in this process, the Phenolphthalein powder got transferred to white envelope and hence in the CFSL, the white envelope tested positive of Phenolphthalein powder. This explains the presence of Phenolphthalein powder even on white envelope and hence its presence on the hands of the accused. Accused has maintained that he did not handle the bribe money and the Phenolphthalein powder came to his hands from the white envelope. It was argued on behalf of the accused that it has come in evidence that when the CBI team reached his house, the accused was in bathroom and as a general practice, one would wash hands after using the bathroom and if accused had washed his hands while coming out of the bathroom, the Phenolphthalein powder, if any on his hands, would also be washed. It is not the case of the prosecution that the accused handled brown envelope containing bribe money, even after coming out of the bathroom. It also came on record that thereafter the Digitally signed by RAJEEV RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:37:38 +0530 CBI No. 52/2023 CBI v S K Dev Page 74 of 83 accused had handed over the white envelope to the CBI team and thereafter when his hand wash was taken, the solution turned pink. Be that as it may, the presence of Phenolphthalein powder on white envelope creates doubts in the prosecution story. 21.10 To say the least, not only the trap proceedings were held in a superficial manner but even the investigation was done in a shoddy manner in this case. If the complainant had handed over the bribe amount to the accused, why was the accused not nabbed immediately when he came down from his house alongwith the complainant? Why was he permitted to go to complainant's car to handle any other object including white envelope so as to given him an opportunity to transfer the Phenolphthalein powder from his hands to other objects. The CBI would have done well had they nabbed the accused immediately when he came down with the complainant, then taken him to his house for recovery of money, then taken his hand wash after recovering the bribe money from his house. There are no answers to these lapses. All these lapses on the part of CBI creates doubts in the prosecution story.
Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
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22. Recovery 22.1 Next comes the aspect of third limb i.e. 'recovery' of bribe money. Evidence on record show that even the 'recovery' is not free from doubt and the same cannot be convincingly said to have been recovered from the accused.
22. Case of the prosecution is that after the accused came down his house alongwith the complainant after accepting bribe from the complainant, he bought cigarette and toffees from a shop and then they both went towards the car of the complainant, from where the Complainant fetched a white envelope which contained balance sheet of the accounts of the wife of the Complainant and handed it over to the accused. It is further the case of the prosecution that at this time the accused noticed some CBI officer there and he immediately ran back to his house through lift and he was followed by CBI trap team to his house. It is further the case of the prosecution that house of the accused was found bolted from inside and on knocking, it was opened by daughter of the accused who informed the CBI team that her father Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:37:50 +0530 CBI No. 52/2023 CBI v S K Dev Page 76 of 83 was in the bathroom. It is next the case of the prosecution that when accused came out of the bathroom, he was challenged by the CBI team that the accused had accepted bribe but the CBI team could not find the bribe money from the house of the accused. It is further the case of the prosecution that the brown envelope containing the bribe money was found below the bathroom window of the house of the accused on the ground floor.
22.3 According to prosecution, this envelope was thrown from his bathroom window by the accused. However, there is no witness who testified to have seen the accused throwing down the said brown envelope from his bathroom window. PW-4 KC Sharma, PW-6 Inspector Ashok Singh and PW-7 Inspector Anil Kumar - all of them admitted in their respective cross examinations that they had not seen the accused throwing the brown envelope containing the bribe money from the window of his bathroom on the ground floor. According to the defence, this envelope was planted by the complainant to falsely implicate the accused in this case. To counter this argument, it was argued on behalf of the prosecution that the complainant was not Digitally signed by RAJEEV RAJEEV BANSAL Date:
BANSAL 2024.07.24 11:37:58 +0530 CBI No. 52/2023 CBI v S K Dev Page 77 of 83 present in the house of the accused at the time when the CBI team entered his house and the complainant cannot know that the accused was in his bathroom, so as to give him any idea to plant the said envelope below the window of the bathroom of the accused. It may be argued by prosecution that there is a strong possibility that it was the accused who threw the said brown envelope on the ground floor from the window of his bathroom to save himself from the present case.
22.4 The fact remains that the bribe money was neither recovered from the person of the accused nor from his house. Any single circumstance cannot be seen in isolation but has to be adjudged in entirety. There is no eye witness who could depose that the brown envelope containing bribe money was thrown by the accused from the window of the bathroom of his house. It was also deposed by the team members of the raiding team that the complainant did not accompany them to the house of the accused, after the bribe money was paid by the complainant to the accused. Evidence of the witnesses also show that the envelope in question containing the bribe Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:38:03 +0530 CBI No. 52/2023 CBI v S K Dev Page 78 of 83 money, was found in folded and intact condition. The possibility of an envelope being thrown from second floor and its landing on the ground floor in folded and intact condition is too little, and hence the inference of it being kept there cannot be ruled out. In the circumstances, it cannot, beyond doubt, be deduced from the recovery of the bribe money from the ground floor that it was thrown there only and only by the accused and could not have been kept there by anybody else. Thus, the recovery of bribe money from the ground floor below the window of the bathroom of the accused, cannot be fastened to the accused, beyond all reasonable doubts.
23. In K. Shantamma v State of Telangana 2022 (4) SCC 574, the Hon'ble Supreme Court held that an offence under Section 7 of the Act relating to public servants taking bribe requires proof of demand of illegal gratification and acceptance thereof. It was further held that proof of demand of bribe by public servant and its acceptance by him, both are a sine qua non for establishing the offence under section 7 of the Act. In Jagtar Singh v State of Punjab 2023 Livelaw SC 232, following Neeraj Dutta (supra) it was held that demand and Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:38:09 +0530 CBI No. 52/2023 CBI v S K Dev Page 79 of 83 acceptance both must be proved to sustain conviction under the Prevention of Corruption Act.
24. It was argued on behalf of the prosecution that as per the Judgment of the Hon'ble Supreme Court in Neeraj Dutta (supra), the offences under the PC Act can also be proved by way of circumstantial evidence and the evidence taken as a whole in the case circumstantially prove the offences under the PC Act having been committed by the accused. Although it is true that the judgment in Neeraj Dutta (supra) provides for proving the offences u/s 7 and 13 (1)
(d) of the Act by circumstantial evidence as well, but the said course can be adopted only after proving the foundational facts like verification of complaint before registration of FIR and recording the demand. If the prosecution succeeds in proving these foundational facts with admissible primary or secondary evidence, then it can take help of proving rest of the transactions by the aid of circumstantial evidence. However, the tool of circumstantial evidence cannot substitute the requirement of proving the foundational aspects of the offence under the Act. The prosecution having not succeeded in Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:38:42 +0530 CBI No. 52/2023 CBI v S K Dev Page 80 of 83 establishing the foundational aspects of verification of complaint before registration of FIR and recording of the 'demand' made by the accused, it would be dangerous and unsafe to convict the accused for having committed the offences with which he has been charged. This court, thus has no option but to give benefit of doubt to the accused and resultantly the accused is entitled to be acquitted.
25. Although conviction can be recorded against an accused under the PC Act based on the maxim of Res Ipsa Loquitor, but the said maxim would operate if the accused is caught red handed with the tainted currency notes. In Rughubir Singh v State of Haryana, 1974 AIR 1516 SC it was held as under:
"But we may notice that even if the statutory presumption is unavailable, Courts may presume what may in the ordinary course be the most probable inference. That an Assistant Station Master has in his hands a marked currency note made over to him by a passenger whose bedding has been detained by him for which no credible explanation is forthcoming and he is caught red-handed with the note, is a case of res ipsa loquitur. The very thing speaks for itself in the circumstance. We need not, therefore, scrutinize the Digitally signed by RAJEEV RAJEEV BANSAL BANSAL Date:
2024.07.24 11:38:48 +0530 CBI No. 52/2023 CBI v S K Dev Page 81 of 83 substance of the argument based on the inapplicability of S. 4 of the Evidence Act."
Following the aforesaid observations, the Hon'ble Supreme Court in State of AP v. V. Vasudeva Rao, (2003) INSC 560 (13.11.03), applied this principle in convicting an accused where an Asstt. Collector, Weights and Measures was trapped for demanding bribe, and held that the very fact that the accused was in possession of the marked currency notes against an allegation that he demanded and received the amount is res ipsa loquitur. 25.1 However, in the present case, since the accused was not caught red-handed with the tainted currency notes, the maxim res ipsa loquitur would not apply and hence the accused cannot be convicted on the basis of the kind of evidence that is available on record in the present case.
26. In view of the above discussion, based on facts and law on the subject, the irresistible conclusion is that the prosecution has not been able to prove the charges framed against the accused and hence the accused is entitled to be acquitted giving him benefit of doubt. Digitally signed by RAJEEV
RAJEEV BANSAL BANSAL Date:
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27. Accordingly, accused stands acquitted. His current bail bonds are cancelled and sureties stand discharged. He shall however, furnish fresh bail bonds as per Section 437-A Cr PC with one surety in the sum of Rs. 25,000/- to remain valid for a period of six months. Digitally signed by RAJEEV Announced in the open court RAJEEV BANSAL Date:
BANSAL 2024.07.24
today dated 24.07.2024 11:38:59
+0530
(Rajeev Bansal)
Spl. Judge (PC Act) CBI-21
RACC/New Delhi/24.07.2024
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