Delhi District Court
Title: State (Cbi) vs . Rakesh Bansal And Another on 25 November, 2014
IN THE COURT OF MS. SWARANA KANTA SHARMA, SPECIAL JUDGE,
CBI05, PATIALA HOUSE COURTS, NEW DELHI
CC No: 09/2012
RC No: 8A/2007/CBI/ACB/New Delhi
Unique Case ID No: 02403R1072062008
Title: State (CBI) Vs. Rakesh Bansal and another
1. Dr. Rakesh Kumar Bansal, S/o. Late Sh. Harbans Lal Bansal.
R/o. Present Address: Q. No. E11, TypeIV, New Police Lines,
Kingsway Camp, New Delhi.
Permanent Address : Opposite Civil Hospital, TehsilJaitu
Mandi, District : Faridkot, Punjab.
2. Jagdish Kumar, S/o. Sh. Dharam Chand.
R/o. 220/28, Jyoti Park, Near Sector7, Gurgaon, Haryana.
U/s: 120B IPC r/w Section 7, 13(2) r/w Section 13(1)(d) of Prevention of
Corruption Act, 1988.
Date of Institution : 12.12.2008
Date of reserving order : 20.11.2014
Date of pronouncement : 25.11.2014
(Appearances)
Sh. Akshay Gautam, Ld. Senior PP for CBI.
Accused no. 1 Dr. Rakesh Bansal and accused no. 2 Jagdish Kumar on bail.
JUDGMENT
CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 1 of 76
1. Brief facts of the case are that accused Rakesh Kumar Bansal and Jagdish Kumar, while being posted as ACP and SubInspector in AntiExtortion Cell, Crime Branch, Delhi Police, R.K. Puram,New Delhi, had entered into a criminal conspiracy and had demanded a sum of Rs. 15 lakhs as bribe from complainant Sh. Gurmeet Singh Wadalia, in order to hush up a complaint received against him in the Crime Branch. The demand was subsequently reduced to Rs. 5 Lakhs. On 31.01.2007, in pursuance to the conspiracy, accused Jagdish Kumar was caught red handed while demanding and accepting bribe of Rs. 1,50,000/ as part payment from the complainant, at Major Som Nath Marg, R.K. Puram, New Delhi.
2. After completion of investigation, chargesheet was filed. Both the accused persons had appeared in the Court and copies of documents, as required by Section 207 Cr.P.C., were supplied to them to their satisfaction.
3. Charges were framed against both the accused persons under relevant Sections of Law to which they pleaded not guilty and claimed trial.
4. Now, the points for determination are:
(i) Whether the accused persons, being a public servant, CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 2 of 76 demanded and accepted bribe from the complainant in the discharge of their official duties?
(ii) Whether the bribe amount was recovered from the accused Jagdish Kumar taken on behalf of accused Dr. Rakesh Kumar Bansal?
(iii) Whether the accused persons obtained the bribe amount by corrupt or by illegal means or by otherwise abusing their official position?
The relevant sections of Law in this regard are : Section 7 of the P.C. Act provides as under:
"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 CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 3 of 76 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 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.....".
Section 13 of the P.C. Act provided as under:
(1) A public servant is said to commit the offence of criminal misconduct .................................................. ......................................................................
..(d) if he
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantages; or
(ii) by abusing his position as a public servant, obtains for himself or CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 4 of 76 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....."
(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."
Section 20 of the P.C. Act provides as under:
"Presumption where public servant accepts gratification other than legal remuneration : (1) Where, in any trial of offence punishable under Section 7 or Section 11 or Clause (a) or clause (b) of subsection (1) of Section 13 it is proved that an accused CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 5 of 76 person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under Section 12 or under Clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 6 of 76 that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in subsections (1) and (2), the court may decline to draw the presumption referred to in either of the said subsections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption my fairly be drawn."
5. Let me examine the testimony of the material witnesses and the other documents filed before me in light of law and the case law to decide whether charges are proved against both the accused persons or not.
6. CBI in support of their case have examined 30 witnesses.
7. PW1 HC Pyare Lal stated that on 20.01.2007 he was posted as Constable in Anti Extortion Cell, Crime Branch, R.K. Puram, New Delhi. During the relevant period accused Rakesh Bansal was his ACP and accused Jagdish Kumar was Sub Inspector posted in the said Branch. CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 7 of 76 At about 1:30 pm on that day, a Crime Branch team consisting of himself, ACP Rakesh Bansal, Sub Inspector Jagdish Kumar, Head Constable Sanjay, driver Sukhbir had gone to Safdarjung Enclave to a house in an official Qualis vehicle. Accused Rakesh Bansal had gone inside the house and the remaining team had waited outside that house. Within a few minutes accused Rakesh Bansal had come out along with four other persons. Thereafter, the entire team and those four persons had also come to the Crime Branch Office, R.K. Puram. Amongst those four persons, one Sikh gentleman were in their own Sonata Gold Car.
He further stated that on 30.2.2007, he was posted as duty officer in Crime Branch, R.K. Puram. He stated that he has no knowledge as to where accused Rakesh Bansal had gone on 1st and 2nd February, 2007. He stated that he had given his statement u/s. 161Cr.P.C. to CBI.
He was declared hostile and on being cross examined by Ld. PP for CBI he was confronted with his statement under Section 161 Cr.P.C. Ex.PW1/X. He denied the contents of the statement. He denied that he had told CBI that the house number was B4/24, Safdarjung Enclave that accused no. 1 Rakesh Kumar Bansal had visited on 30.2.2007.
On being cross examined by Sh. S.P. Ahluwalia, Ld. Counsel for accused no. 1, he stated that Dr. Rakesh Bansal had come out of the house he had visited on 20.01.2007 along with 34 other persons. The CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 8 of 76 atmosphere was cordial and there was no tension.
The witness was not cross examined by Ld. Counsel for accused no. 2 despite opportunity being given.
8. PW2 HC Haqiqat Rai, stated that in January, 2007 he was working as Reader to Accused Dr. Rakesh Bansal, who was posted as ACP in Anti Extortion Cell. Accused Jagdish Kumar was posted as Sub Inspector there. He proved certified copy of Station Daily Diary from the period 18.1.2007 to 31.01.2007 certified by ACP Jasbir Singh, Ex.PW2/A. He stated that no entry was made in Rojnamacha regarding complaint of Avais U. Agbotwala. There is no entry regarding the said Sub Inspector Jagdish Kumar, ASI Gyanender Singh, Head Constable Sanjay Kumar, Constable Pyare Lal and Constable/Driver Sukhbir Singh on 20.01.2007 as per this document. No departure or arrival entry had been made by ACP Dr. Rakesh Bansal in this Diary as he is a Gazetted Officer. The witness was shown the written complaint of Sh. A.U. Agbotwala which he identified as Ex. PW2/B. He stated that this complaint was received from the office of commissioner of Police, Delhi through proper channel and was marked to ACP, Anti Extortion Cell, R.K. Puram. He stated that he had placed it before the ACP in a folder. He stated that no diary entry was made regarding the same since he had not received it back. The witness proved certified copy of the complaint register, Anti Extortion Cell for the period from 08.1.2007 to 05.2.2007 certified by the then ACP Jasbir Singh CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 9 of 76 Ex.PW2/C. He stated that there is no entry in this register regarding the above mentioned complaint. He proved certified copies of daily register of Anti Extortion Cell for the period from 18.1.2007 to 02.2.2007 Ex.PW2/D and stated that there is no entry regarding the above mentioned complaint in this register also.
On being cross examined by Ld. Counsel for accused no. 1 he stated that only one Rojanamacha register is maintained in Anti Extortion Cell. He stated the Daily Diary Register used to be maintained by him.
The witness was not cross examined by Ld. Counsel for accused no. 2 despite opportunity being given.
8. PW3 Head Constable Dharam Pal, stated that in January, 2007, he was posted in Anti Extortion Cell, R.K. Puram, Delhi as driver to the ACP. He used to drive the the official vehicle i.e. Qualis Car bearing no. DL 6CJ 0516 of ACP Rakesh Bansal. The accused was posted as ACP and accused Jagdish Kumar was posted as Sub Inspector. On 31.01.2007, he had taken the vehicle to the residence of ACP Rakesh Bansal and from there to the Office of ACP Dr. Rakesh Bansal at R.K. Puram. Thereafter, accused Rakesh Bansal had gone in the official vehicle driven by him to the Police Head Quarter and from Police Head Quarter to Tis Hazari Courts. From Tis Hazari Courts, the ACP had returned in the same official vehicle to his residence and thereafter, he had parked the vehicle outside the residence of ACP CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 10 of 76 Rakesh Bansal. He stated that he cannot tell whether while coming from Tis Hazari Courts, ACP Rakesh Bansal had received any call from CBI or not. He stated that he had given a statement to the CBI.
He was declared hostile by Ld. PP for CBI and on being cross examined by Ld. PP for CBI, he was confronted with this statement given under Section 161 Cr.P.C. to CBI Ex.PW3/X. He stated that he had not stated before the CBI that ACP had received any call from CBI. He denied the contents of the statement as well as making any such statements to CBI. He denied that while they had gone to Tis Hazari Courts, a phone call was received from Inspector Raj Singh of CBI of Mobile Phone of accused ACP Dr. R.K. Bansal. He denied that on receipt of the said phone call he had gone to the Head Quarter to meet senior officers and had reported the matter. He denied that they had reached Najafgarh and accused Rakesh Bansal had accompanied Raghubir Singh. He also denied that thereafter, one Mr. Gupta of Bank of Baroda had accompanied accused Rakesh Bansal to an unknown place. He was asked to take the vehicle to the residence of ACP.
On being cross examined by Sh. S.P. Ahluwalia, Ld. Counsel for accused no. 1 he stated that a log book is maintained for every official vehicle wherein movements of the vehicle are recorded. He denied that Rakesh Bansal had not gone to Ghaziabad for buying a plot from Sh. Gulshan.
CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 11 of 76
9. PW4 Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd., proved letter dated 15.2.2007 as Ex.PW4/A. He stated that through this letter, he had made made available call details in respect of mobile phone numbers 9810805099, 9818099081 and 9818270001 for the period 18.01.2007 to 31.01.2007 to CBI. He proved the said call details regarding the above mentioned phone numbers Ex.PW4/B. On being cross examined by Sh. Y.K. Dullar, Ld. Counsel for accused no. 2 Jagdish Kumar he stated that he does not possess any technical qualification. The data is collected from the computer in his office. The call data is automatically generated and registered in the server and the same can be accessed through the computer for retrieving the data. He stated that there are 34 computers installed in his office for the purpose of retrieving the call details. He denied that the data can be manipulated in the server and it is automatically generated when the calls are made.
10. PW5 Sh. V.B. Ramteke, Senior Scientific Officer, GradeII, Chemistry, CFSL proved the report regarding hand washes Ex.PW5/2. He stated that exhibits 1 to 4 were received with intact seals which tallied with the specimen seals. He stated that Ex. 1 to 4 were chemically examined by his which revealed positive tests for presence of phenolphthalein powder and sodium carbonate. He stated that his report in this regard Ex.PW5/2 is correct.
On being cross examined by Sh. R.M. Tuffail, Ld. Counsel for CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 12 of 76 accused no. 2, he admitted that chemicals used for trap proceedings, are likely to get transferred on the human body or any other object with which the chemical comes in contact. He stated that CFSL is under the administrative control of CBI.
11. PW6 Sh. Manish Saxena, stated that in the year 2006 he was working as broker in Diamond and Jewellery Business. The Complainant Sh. Gurmeet Singh Wadalia was known to him and had been introduced to him by a friend Gurjeet Singh Arora. Sh. Gurmeet Singh Wadalia had placed an order with him for rare diamonds i.e. 56 carats each. Sh. Gurmeet Singh Wadalia had told him that he had an important client who needs these rare diamonds and therefore, requested him to arrange them. He had contacted one of his associates Sh. Avais Agboatwala who was doing jewellery/diamond/gems business in Mumbai. He had a conveyed the specifications of diamonds required by Sh. Gurmeet Singh Wadalia. He stated that he had told Sh. Gurmet Singh Wadalia that his client or he himself should visit Mumbai as these diamonds were very costly. Thereafter, he had taken the complainant Sh. Gurmeet Singh Wadalia to a famous outlet of jewellery/diamonds of South Extension, PartII so that he may himself see how rare the diamonds are. Sh. Gurmeet Singh Wadalia had insisted that his client is a very important person and will not be in a position to visit Bombay. Thereafter, Sh. Gurmeet Singh Wadalia had insisted that diamonds to brought to Delhi. The CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 13 of 76 witness further stated that in these types of dealings, usually advance payment or part payment is taken from the buyer. Accordingly, he had asked Abais and had convinced him to bring the required diamonds in Delhi. Simultaneously, he told Mr. Wadalia that it would be a complete settlement in the same meeting at Delhi as Mr. Wadalia had already approved the specifications of certified diamonds. He stated that diamonds are Certified by Gemological Laboratory after examination and its certificates are widely accepted in this business. Mr. Avais had informed that diamonds of specifications required by Mr. Wadalia were available with pre certification of Gemological Laboratory. Copy of the certification by Laboratory was sent by Mr. Avais through email to him as well as to Mr. Wadalia. He had generated the hard copy of the e mail certificate received from Mr. Avais. After receiving the copy of certificate through email, Mr. Wadalia was convinced with the certification and had asked him to deliver the diamonds in Delhi. On 09.01.2007 Mr. Avais Agbotwala had come to Delhi with six pieces of diamonds worth more than Rs.2 crores alongwith the original certifications by Gemological Laboratory. The flight from Mumbai was delayed. He received Mr. Avais Agbotwala from Delhi Airport and had spoken to Mr. Wadalia over phone and on the asking of Mr. Wadalia, he along with Mr. Avais had reached the house of Mr. Wadalia at Safdarjung Enclave at about 11 pm. They had met Mr. Wadalia in his drawing room and had showed him the diamonds along with original certificates. Mr. Wadalia had taken four diamonds and had gone inside CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 14 of 76 his house. The witness stated that he was under impression that Mr. Wadalia might have gone inside his house to show those diamonds to his wife or relatives. Within 57 minutes he had received a call on his mobile phone from Mr. Wadalia. He had telephonically informed him that he was on the way to Punjab Bhawan where his important client happens to be at that time and further told him to have some snacks etc. he told him that it was too late in the night for settlement and therefore, had asked them to come at 11 m on the next day at his residence. Next day i.e. on 10.01.2007, he had tried to contact Mr. Wadalia telephonically but despite his best efforts, Mr. Wadalia did not pick up the phone. Accordingly, he along with Mr. Avais Agboatwala reached the residence of Mr. Wadalia at Safdarjung Enclave at about 11:00 am on 10.01.2007 but his house was locked. Then they went at the showroom of Mr. Wadalia which was at Lajpat Nagar where he was running a showroom of interior designing and furniture. But his showroom at Lajpat Nagar was also found locked. In the evening, he had received a call on his mobile phone from Mr. Wadalia who had asked him that due to death of his motherinlaw he had to suddenly rush out of Delhi. He had also asked them not to worry and further wait for his call. Again for a couple of days there was no contact with Mr. Wadalia. After 34 days Mr. Wadalia had called on his mobile and asked him to come to his show room at Lajpat Nagar. In the morning, he along with Mr. Avais Agboatwala had met Mr. Wadalia at his office/showroom at Lajpat Nagar. Mr. Wadalia told them that his client CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 15 of 76 has approved diamonds and that one of his associates was in Mumbai and therefore, he will finalize the deal in Mumbai which will be good for Avais also. Thereafter, Mr. Wadalia had contacted somebody on his mobile phone stating that he is talking to one of his associate at Mumbai and gave his mobile phone to Mr. Avais to talk to the person on mobile phone for confirmation of payments. From the other side the person on the phone asked Mr. Avais to contact him at Mumbai for the payment. Later on Mr. Wadalia gave the telephone number of that person at Mumbai to Mr. Avais. He stated that he does not know the name of the person, Mr. Wadalia was talking to on the other end of the phone purportedly to be in Mumbai. Mr. Avais Agboatwala reached Mumbai on Saturday. Mr. Avais informed him on phone from Mumbai that he had contacted the person at Mumbai and that person had asked him to contact him on Monday. On Monday Mr. Avais told him that the payment had not been made by that person at Mumbai on the excuse that some confirmation had not been received by him from Delhi. Thereafter, he had started calling Mr. Gurmeet Wadalia. After few days Mr. Wadalia picked up his phone. Thereafter, he alongwith Mr. Avais and some other persons had met Mr. Wadalia on 16.01.2007 at his showroom at Lajpat Nagar. From his showroom again he left and telephonically informed him that he was in Punjab Bhawan and called them to come there. They went to Punjab Bhawan but Mr. Wadalia could not be contacted. After couple of hours i.e. in the night, he telephonically informed him to come on 20.01.2007 at his residence CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 16 of 76 and there he would settle everything. On 20.01.2007 he along with Mr. Avais and other persons reached at the house of Mr. Wadalia. Mr. Wadalia tried to give some cheques to Mr. Avais Agboatwala on account of payment of diamonds but there was no account number mentioned on the said cheques. Mr. Avais was not convinced about the cheques and therefore, he did not accept the cheques. Mr. Avais called somebody over phone and after about 510 minutes ACP Mr. Bansal reached at the residence of Mr. Wadalia. Mr. Wadalia told ACP Mr. Bansal that at that point of time he neither had the diamonds nor the payment. Thereafter, ACP Mr. Bnsal asked Mr. Wadalia to come to his office at Crime Branch, R.K. Puram as there was a complaint against him. The witness along with Mr. Avais, other persons and Mr. Gurmeet Singh Wadalia and Mr. Gurjeet Arora had reached the office of ACP Mr. Bansal at about 2:00 pm. Mr. Wadalia had informed ACP Mr. Bansal that he had sorted out the issue and his wife will be back with diamonds by 5:30 pm and asked them to come to his residence at 5:30 pm. At 5:30 pm they went to the house of Mr. Wadalia with Mr. Avais, Sh. Gurjeet Arora and other persons and ACP Mr. Bansal was also with them. While they were sitting in the drawing room of Mr. Wadalia, they heard a voice from inside the house. ACP Mr. Bansal rushed inside. Mr. Wadalia was found in the kitchen in injured condition and he was taken to hospital. They went to the office of ACP Mr. Bansal at R.K. Puram and waited for few hours. Mr. Wadalia was discharged from the hospital and had come in the office of ACP Mr. CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 17 of 76 Bansal. Mr. Wadalia told them to meet on 22.01.2007 to settle the case. On 22.01.2007, they again went to the office of Crime Branch. Mr. Gurmeet Singh Wadalia had come with two diamonds and handed over them to Mr. Avais and assured that he would return rest of the two diamonds within a week. But Mr. Avais was not convinced with the assurance. Mr. Wadalia offered to give them cheque of Rs. 5 Lakhs for the security with the condition that cheque would not be presented as he had no balance in account. It was settled that cheque is only for the purpose of security and would be kept by Mr. Sonu Khandelwal. It was further settled that Mr. Wadalia will bring the payment of Rs. 5 Lakhs in cash in the office of ACP Mr. Bansal where after receiving the cash, cheques given to Sonu Khandelwal would be returned to Mr. Wadalia and cash amount of Rs. 5 lakhs would be handed over to Sonu Khandelwal. As per settlement, Mr. Avais gave in writing to ACP Mr. Bansal that he did not wish to pursue his complaint after payment of Rs. 5 lakhs in cash is made by Mr. Wadalia as per settlement and his assurance.
The witness was declared hostile by Ld. Senior PP for CBI. The said PW was cross examined by Ld. Senior PP for CBI since the witness was resiling on certain material points from his statement u/s. 161 Cr.P.C. On being cross examined by Ld. Senior PP for CBI, he admitted that he was interrogated by Inspector D.K. Thakur on 23.02.2007 and his statement u/s. 161 Cr.P.C. He admitted that they had gone to the showroom of Mr. Wadalia at Lajpat Nagar on CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 18 of 76 17.01.2007 along with Sonu Khandelwal, Agboatwala and Khalil Beg. He also admitted that Sh. Gurjeet Singh Arora had also reached there and it was decided on 17.01.2007 in the office of Mr. Wadalia that by 6:00 pm either Mr. Wadalia would make the payment or would disclose the name of the person/client of Punjab to whom he had given the diamonds so that the matter may be pursued for the payment. He stated that he does not remember that Mr. Wadalia had told them that he had given the diamonds to one politician of Punjab and that the said politician was busy at that time due to distribution of tickets for coming election.
He admitted the contents of his statement Ex.PW6/X from portion A to A1. He admitted that on 20.01.2007 ACP Rakesh Bansal had come to the residence of Mr. Wadalia and 34 policemen had also come alongwith him. He denied that policemen took Mr. Wadalia, himself and Avais Agboatwala etc. in their police vehicle. He admitted that on 20.01.2007 in the office of Crime Branch, Mr. Wadalia was questioned by the police. He also admitted that at that time ACP Mr. Bansal was there in the office alongwith one other police official. He denied that on 20.01.2007, ACP Bansal had told them that the diamonds have been recovered. The witness further denied that there was no agreement regarding that cheque of Rs.5 Lakhs given by Mr. Wadalia would be only for security and will be kept by Sh. Sonu Khandelwal, who would return the cheque after receiving the payment of Rs. 5 lakhs in cash. He denied that he had made improvements in CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 19 of 76 his statement and had introduced new facts to help accused.
On being cross examined by Sh. S.P. Ahluwalia, Ld. Counsel for accused no. 1 Rakesh Bansal he admitted that at the residence of Mr. Wadalia, they had told police that the matter will be sorted out in the office of Crime Branch. He admitted that Mr. Wadalia had said that his wife will be coming with diamonds and matter will be sorted out. He admitted that Mr. Bansal had told them that whatever would be the settlement between them, he would have to report to his senior officers. He admitted that the cheque of Rs. 5 lakhs given by Mr. Wadalia was never presented as it was only for security.
12. PW7 Gurjeet Singh Arora, stated that he is in the business of Real Estate and Public Relations. He knew Sh. Gurmeet Singh Wadalia in connection with Real Estate Business. He knew Sh. Manish Saxena who was in the business of diamonds and had introduced him to Sh. Gurmeet Singh Wadalia. Sh. Wadalia was interested to deal in diamonds. He stated that he also knew one Kishore Lahoti who was also in the business of Real Estate.
On 17.01.2007, he had received a telephonic call from Manish Saxena and Kishore Lahoti that they had some problem pertaining to the deal of Real Estate Business with Gurmeet Singh Wadalia. They also told him that Sh. Gurmeet Singh Wadalia was not making payment of diamonds. He went at the showroom at Lajpat Nagar and met Sh. Gurmeet Singh Wadalia and requested him to make the payment of CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 20 of 76 diamonds purchased by him through Sh. Manish Saxena from a diamond merchant of Mumbai, whose name was "Avis". Sh. Gurmeet Singh Wadalia told him in presence of Sh. Manish Saxena, Kishore Lahoti, Avis and Sonu Khandenwal that he will make the payment. He also told that his wife was coming from Punjab with the payment or with the diamonds itself. Thereafter, Sh. Gurmeet Singh Wadalia told them to come with him at Punjab Bhawan, New Delhi so that he may request the politician concerned to arrange for an early payment of the diamonds. They kept sitting in the lobby of Punjab Bhawan, New Delhi but later on they came to know that Sh. Gurmeet Wadalia had disappeared from Punjab Bhawan.
Thereafter, for twothree days Sh. Gurmeet Wadalia could not be contacted despite efforts. Thereafter, Sh. Gurmeet Singh Wadalia told them over phone that due to death of one of his relatives, he was not able to contact them and asked them to come to his house on 20.01.2007. On 20.1.2007 he alongwith Sh. Manish Saxena, Avis, Kishore Lahoti and other persons contacted Sh. Gurmeet Singh Wadalia at his home where in lieu of payment, Mr. Wadlia offered two cheques and gave it to Avis. Avis had refused to accept the cheques as they did not bear account number. There was exchange of heated arguments between Sh. Gurmeet Singh Wadalia and Avis etc. At about 1/ 1:30 pm, one gentleman came at the house of Sh. Gurmeet Singh Wadalia and told that he was officer of Crime Branch. He also told that there was a complaint against Sh. Gurmeet Singh Wadalia and CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 21 of 76 other persons. He asked them to come to his office at R.K. Puram, Crime Branch, New Delhi. Later on he came to know that the name of the gentleman was ACP Dr. Rakesh Bansal present in the Court. Thereafter, all of them reached the office of ACP Dr. Rakesh Bansal at R.K. Puram. In the Crime Branch Office, the ACP had made inquiries from them. Sh. Gurmeet Singh Wadalia assured that his wife is coming from Punjab and he would either make the payment or would return the diamonds. It was decided that all of them should reach at the house of Sh. Gurmeet Singh Wadalia and accordingly, all of them including ACP Dr. Rakesh Bansal and his team members, reached at the house of Gurmeet Wadalia. At the house of Sh. Gurmeet Singh Wadalia, they had heard cries from inside portion of the house and they had come to know that Sh. Gurmeet Wadalia had suffered an injury/ cut on his hand. Sh. Gurmeet Singh Wadalia was taken to some Hospital by ACP Rakesh Bansal and other police officials. They were directed by ACP Rakesh Bansal to reach his office at Crime Branch, R.K. Puram and accordingly, all of them reached office of Crime Branch office. In the Office of Crime Branch after discussion Sh. Gurmeet Singh Wadalia returned four diamonds to Sh. Manish Saxena and Avis and told that two diamonds have been lost. Thereafter, they were asked by ACP Rakesh Bansal that due to some parade/ programme he was busy on 21.01.2007 and asked them to come to Office of Crime Branch on 22.01.2007. On 22.01.2007, he alongwith Manish, Avis and other persons again reached at the office of ACP Rakesh Bansal at Crime CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 22 of 76 Branch, where Sh. Gurmeet Wadalia gave a cheque of Rs. 5 lacs for remaining payment. Sh. Gurmeet Singh Wadalia told not to present the cheque in the bank as he did not have sufficient funds in his bank account. He assured that as and when he would make the payment of Rs. 5 lakhs, he will take the cheque given by him.
On being cross examined by Sh. S.P. Ahluwalia, Ld. Counsel for accused no. 1 Dr. Rakesh Bansal he admitted that on 22.01.2007, they had gone to the office of Crime Branch for settlement of the dispute. He admitted that there was a settlement between Sh. Gurmeet Singh Wadalia and Avis without the intervention of the police officer including Dr. Rakesh Bansal. He admitted that after the settlement between Sh. Gurmeet Singh Wadalia and Avis, all of them had left office of Crime Branch as they were asked by ACP Rakesh Bansal. ACP had also asked them to report to him about final settlement so that he could report to his senior police officers. He admitted that on 22.01.2007, they had reported to ACP and his team members when the matter had been settled.
On being cross examined by Ld. Counsel for Jagdish Kumar he admitted that Sh. Gurmeet Singh Wadalia had told them that he had some relations in CBI.
13. PW8 Sh. Baldev Raj, stated that on 17.11.2008, he was called in CBI Office, CGO Complex, Lodhi Road, New Delhi. He had visited the office of CBI and had met Inspector S.K. Sinha. He was informed CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 23 of 76 that specimen voice of ACP Rakesh Bansal was to be recorded by S.K. Sinha and he had been called to witness the proceedings. ACP Rakesh Bansal had refused to give his specimen voice. A memorandum in this regard had been prepared. He stated that he was not informed about the details of the case.
14. PW9 Sh. Devashish Dey, stated that on 31.01.2007, he had received a letter from CBI to report to CBI Headquarter. At CBI Headquarter he had met Inspector Satya Murti and another inspector of CBI. Thereafter, he alongwith another officer were asked to accompany them for a secret operation. They had reached Ring Road in separate cars along with three other CBI officials in one Jeep. Sh. Laxmi Narain was in another car along with CBI officials. He had met Sh. Gurmeet Singh Wadalia in CBI Office along with some other persons who had come there in connection with some complaint. He had not spoken to Sh. Gurmeet Singh Wadalia. They had reached Ring Road. At Ring Road they had parked their vehicle and after about 15 minutes they were asked to start the vehicle. When they had reached there, they saw a car of another raiding party which was already there. Inspector D.K. Thakur, Inspector Satya Murti and one constable had come near the car and had told that from the car of accused, money had been recovered. A test was conducted in a liquid by dipping the hands of one Jagdish Kumar in the solution in glass. It had turned slightly pink. He stated that he could not identify Jagdish CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 24 of 76 Kumar. Upon being asked by the Court, he stated that he cannot identify accused Jagdish Kumar since he was sitting in the car. He also stated that the solution was sealed in a separate bottle. He also stated that he does not know where the money said to have been recovered from the car of Jagdish Kumar was kept by IO. Search of the room of office of accused jagdish Kumar had been taken. Nothing incriminating was recovered from the office of accused Rakesh Bansal or Jagdish Kumar. He identified his signatures at the bottles of hand washes. He also identified his signatures on audio cassette Ex.1. The witness also could not identify the trap money.
The witness was declared hostile on material points and on being cross examined by L.d PP for CBI he stated that he does not know whether his statement was recorded by CBI. The witness was confronted with his statement u/s/ 161 Cr.P.C. Ex.PW9/Q. He admitted that when he had visited CBI Office on 31.01.2007, Sh. Gurmeet Singh Wadalia was present in the CBI Office. He denied that any complaint was shown to him by Sh. Gurmeet Singh Wadalia pertaining to the demand of bribe of Rs. 15 lakhs by ACP Rakesh Bansal and Sub Inspector Jagdish Kumar. He also denied that the complaint had been verified. He also denied that Sh. Wadalia had produced a sum of Rs. 1.5 Lakhs before the IO to be used as trap money. He stated that he did not notice whether the distinctive numbers of GC notes were recorded in the Handing Over Memo in pretrap proceedings in his presence. He admitted that the audio cassette had been shown to him CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 25 of 76 by Inspector D.K. Thakur and they were told that the conversation between the complainant and two police officials were recorded in it, but the cassette was not played in his presence and therefore, he cannot state whether it related to the demand of bribe by accused persons from the complainant. He admitted that Phenolphthalein powder, arranged from Malkhana, CBI was applied on the GC notes produced by the complainant and the procedure as to how it works was explained. He admitted that before proceeding at the spot, one digital voice recorder was arranged and was handed over to the complainant with the direction to switch on the recorder before approaching accused. He stated that he had not heard the complainant having any telephonic conversation that the person on the other end had agreed to meet the complainant near Hyatt Hotel. He denied the other contents of the statement pertaining to the post trap proceedings. He denied that complainant gave a signal by scratching his head by right hand after completion of transaction of bribe. He denied that accused was seen talking to the complainant. He denied that he had told the IO that accused was apprehended by wrist of right hand and left hand by CBI team members. He stated that a lot of public persons had gathered at the spot, therefore, they had gone to a vacant plot of land to record the proceedings. He denied that accused had informed CBI team members that the bribe money was kept inside the glove box of his car. He also denied that the complainant had narrated the events and informed the demand of accused Jagdish Kumar and handed over the CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 26 of 76 tainted bribe amount to accused. He denied that the alleged bribe money was recovered from the Glove Box of car of accused at his instance. He also denied the rest of the post trap proceedings regarding preparation of documents, hand washes etc. He denied that on being questioned by CBI officials, Jagdish Kumar had stated that he had taken bribe amount ofRs.1.5 Lakhs on the directions of Rakesh Bansal.
On being cross examined by Sh. Y.K. Dullar, Ld. Counsel for accused no. 2 Jagdish Kumar he stated that he is also a witness of CBI in 56 other cases.
15. PW10 Sukbir Singh, stated that on 20.01.2007 he was posted at Anti Extortion Cell, R.K. Puram. On that day, he had gone to Safdarjung Enclave alongwith Constable Gianender Singh, HC Sanjay Kumar, ACP Rakesh Bansal and SI Jagdish Kumar to B4/246. He stated that he was sitting in the vehicle. He did not now as to what had happened inside that residence.
The witness was declared hostile by Ld. Senior PP for CBI. On being cross examined by Ld. Special PP for CBI he stated that he did not know whether his statement was recorded by the CBI or not. On being confronted with statement Ex.PW10/A, he denied the contents of the same.
On being cross examined by Sh. Vivek Singh, Ld. Counsel for accused Jagdish Kumar he stated that since ACP Rakesh Bansal is a CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 27 of 76 higher officer he was not bound to make an entry in Rojnamacha for going on raid.
16. PW11 HC Dilip Kumar Sharma, stated that on 19.01.2007 he was working as dispatch clerk in the Office of DCP, Crime and Railway. He stated that a complaint had been received in their office vide correspondence in Diary Ex.PW11/A. He proved the complaint of AGBOADWALA Ex.PW2/B. On being cross examined by Sh. S.P. Ahluwalia, Ld. Counsel for accused no. 1 he stated that ACP, Anti Extortion Cell was working under DCP, Crime and Railways.
17. PW12 SI Gyanender Singh, stated that on 20.1.2007 he had been posted as ASI in Anti Extortion Cell, R.K. Puram. On that day he along with ACP Rakesh Bansal, SI Jagdish Kumar, HC Sanjay and some other staff visited Safdarjung Enclave in B Block. ACP Rakesh Bansal had entered the house and had come out of it within twothree minutes. Thereafter, they had come back in their own vehicles and the resident of the house no. B4/246, Safdarjung Enclave had reached the Office of Crime Branch in their own vehicle.
On being cross examined by Sh. S.P. Ahluwalia, Ld. Counsel for accused no. 1 he stated that the occupants of B4/246 were standing on the gate of the house and had volunteered themselves to reach the office of crime branch.
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18. PW13 HC Sanjay, on 20.01.2007 he was posted at Anti Extortion Cell, R.K. Puram. He had accompanied ACP Rakesh Bansal, SI Jagdish Kumar and other staff members to B4/246, Safdarjung Enclave. ACP Rakesh Bansal had entered the house and came back after some time and they left for R.K. Puram Office. In the evening, the again visited the said house and ACP Rakesh Bansal and some other persons entered in the house and he had remained outside the house. They heard some noises from inside the house. On reaching inside the house it was found that Sh. Gurmeet Singh Wadalia was having some injury and ACP Rakesh Bansal was also having some injuries. He also stated that Sh. Gurmeet Singh Wadalia had himself inflicted the injuries, thereafter, they were taken to the hospital where their MLCs were prepared. They came back to the office of Crime Branch. ACP Rakesh Bansal directed Gurmeet Singh Wadalia to come to R.K. Puram Office on 22.01.2007. On 22.01.2007 both the parties came to the office. The advocate of Sh. Gurmeet Singh Wadalia also accompanied them. Both the parties entered into an agreement amicably and it was settled and four pieces of diamond were returned in lieu of two pieces of diamond valued at Rs.7,70,000/. Mr. Wadalia issued a cheque to the tune of Rs. 5 Lakhs to the complainant.
The Ld. Special PP for CBI cross examined the said witness on some material points as he was resiling from his earlier statement given to CBI. On being cross examined he stated that he did not know CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 29 of 76 whether statement u/s. 161 Cr.P.C. had been recorded. He denied that he had told the IO that SI Jagdish had told him that ACP Rakesh Bansal had told that Sh. Gurmeet Singh Wadalia will return the articles to SI Jagdish Kumar. He also denied sh. Gurmeet Singh Wadalia had told ACP that some of the items were missing which were handed over to him later on. He also denied that a telephonic call was received from Sh. Wadalia made by his wife informing him that some diamonds have been brought by her from Chandigarh to Delhi were available in the house. He also denied that ACP and Jagdish Kumar along with Sh. Grumeet Singh went to his house. Sh. Gurmeet Singh, his Counsel and Jagdish Kumar had gone inside the house and had brought some items. He denied that he along with SI Girish Kumar, Ct. Pyare Lal went to B4/246 Safdarjung Enclave and SI Jagdish Kumar entered the house and came back after five minutes. He denied that Sh. Gurmeet Singh Wadalia had called his wife at the gate of the house and his wife delivered on packet containing diamonds to ACP Rakesh Bansal.
On being cross examined by Sh. S.P. Ahluwalia, Ld. Counsel for accused no. 1 Rakesh Bansal he admitted that on 20.1.2007 when they had reached House of Sh. Gurmeet Singh Wadalia at Safdarjung Enclave, they had found him standing on the gate and thereafter he volunteered himself to reach the office of Crime Branch in his own vehicle for settlement. He admitted that in the agreement between both the parties it was settled that Sh. Gurmeet Singh Wadalia issued a cheque of Rs. 5 Lakhs in lieu of the price of two diamonds. He had CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 30 of 76 also asked them not to present the cheque to the bank and that the cheque be returned to Mr. Wadalia on payment of Rs. 5 lakhs in cash.
19. PW14 Ms. B. Bhamathi, Additional Secretary, Ministry of Home Affairs proved order of sanction for prosecution of accused Rakesh Bansal Ex.PW14/A. On being cross examined by Sh. Puneet Ahluwalia, Ld. Counsel for accused Rakesh Bansal, she stated that she had not received any draft sanction from CBI.
On being cross examined by Sh. R.M. Tuffail, Ld. Counsel for accused Jagdish Kumar, she stated that she had received list of documents along with request for grant of sanction.
20. PW15 Dr. Rajender Singh, Principal Scientific officer, CFSL, Delhi, stated that on 22.03.2007 he had received six parcels from SP, CBI which were marked Q1, Q2, Y, Z, S1 and S2. The parcel Y contained normal audio cassette which containing questioned voice recording of Jagdish Kumar and Z contained questioned voice of Jagdish Kumar and Rakesh Bansal. S1 and S2 contained specimen voices of Jagdish Kumar and Rakesh Bansal. He stated that after examination and perusal of the same he had found that the questioned voices matched with the specimen voices of both the accused persons in respect of their linguistic, phonetic and general spectrographic parameters. He proved his report Ex.PW15/A. CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 31 of 76 On being cross examined by Ld. Counsels for accused persons he stated that he does not know whether Chandigarh, CFSL had refused to produce the report on these cassettes in respect of spectographic. He stated that he did not know whether there is any inbuilt mechanism in cassette to ensure that the same cannot be tampered with. He stated that in the year 2007, they did not have any equipment to check tampering of cassettes and, therefore, the same used to be sent to the Chandigarh by CBI. He stated that at the relevant time his only job was to examine the questioned voice with the specimen voice with scientific methods available with them as per specific request received from CBI. He admitted that there will be difference in recording on the quality of the node of recorder and the person recording. He admitted that various softwares are available in the market which are used for the purpose of voice changing and editing. He admitted that mark Q1, recorded conversation has highly interfering background electronic noise throughout the recording and could not be considered for examination. He admitted that cassette Ex. Z could not be subjected to voice spectrographic examination since sufficient common clearly audible sentence, words could not be detected specimen voice of accused Dr. Rakesh Bansal recorded in cassette Mark S2. He admitted that when voice, data is transferred from DVR to cassette, the possibility of it being doctored, edited being tampered with cannot be ruled out.
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27. PW16 Sh. Arun Kumar Walia, DASS Grade II, stated that on 31.10.2008 he was posted at Directorate of Education. At the request of CBI, he had visited their office. On that day specimen voice of one person was to be taken but he refused to give his specimen voice. He proved Memo in this regard Ex.PW16/A. He stated that he cannot identify the persons who had refused to give the voice samples.
He was declared hostile by Ld. Special PP for CBI. On being cross examined, he denied that accused Jagdish had refused to give his voice sample and has deliberately refused to identify accused Jagdish Kumar to help him.
28. PW17 Sh. J.K. Singh, Under Secretary, Ministry of Petroleum and Natural Gas proved the letter dated 24.7.2008 Mark PW17/A, vide which he had forwarded the order of sanction for prosecution of accused Rakesh Bansal to CBI.
29. PW18, Statement of Sh. Sudhanshu Shekhar, stated that on 10.12.2008 he was posted at Employees State Insurance Corporation, New Delhi. At the request of CBI, he had visited their office. On that day specimen voice of one person was to be taken but he refused to give his specimen voice. He proved Memo in this regard Ex.PW18/A. He stated that he cannot identify the persons who had refused to give the voice samples.
He was declared hostile by Ld. Special PP for CBI. On being CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 33 of 76 cross examined, he denied that accused Jagdish had refused to give his voice sample and has deliberately refused to identify accused Jagdish Kumar to help him.
30. PW19 Sh. Brijmohan Mitroo, stated that on 01.02.2007 he was posted at MCD, Shahadra, South Zone, Delhi. At the request of CBI, he had visited their office. He had met one Inspector. That inspector had recorded voice of one person in a cassette whom he cannot identify. He stated that the cassette in which voice was recorded was sealed on which he had put his signatures. He proved Memo in this regard Ex.PW19/A. He stated that he cannot identify the persons who had refused to give the voice samples.
He was declared hostile by Ld. Special PP for CBI. On being cross examined, he denied that accused Jagdish had refused to give his voice sample and has deliberately refused to identify accused Jagdish Kumar to help him.
31. PW 20 Satish Kumar, stated that on 22.02.2007 he was working as peon in NDMC Palika Kendra, New Delhi. On that day he had visited CBI office on the directions of Senior officer. In the CBI office statement of some person was being recorded and one cassette was shown to him which was blank. The person who was recording his statement was asked whether he was giving his statement out of his own free will. He further stated that the voice was recorded in the CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 34 of 76 cassette. He stated that the name of said person was Dr. Bansal but he cannot identifiy the said person. He stated that after recording of voice of that person it was sealed. The cassette was shown to the witness. He identified the wrapper as Ex. PC and Ex.PD. He also identified his signatures on the specimen voice recording memo Ex. PW20/A.The witness was declared hostile by Ld. Spl. PP for CBI as he was not supporting the prosecution case and was cross examined. On being cross examined he denied that he was deliberately not identifying Dr. Bansal in the court.
On being cross examined by ld. Counsel for accused no.1 he stated that he did not know the technology of recording the voice.
32. PW 21 Shri Om Prakash, stated that on 13.03.2007 he was working as Senior Vigilance Inspector, MCD, Delhi. On that day he had witnessed the proceedings of seizure of one mobile phone which was sealed in cloth wrapper. He stated that he had put his signatures on the cloth wrapper and seal after use was handed over to him which he had proved in the court. The seizure memo was proved as PW21/A and the Seal as Ex.PX. The witness has proved the cloth wrapper as Ex.PG and the mobile phone as Ex.PH.
On being cross examined by ld. Counsel for accused no. 1 he stated that he had never seen the memo prepared regarding the seizure of mobile phone. On being cross examined by accused no. 2 PW 21 stated that he does not remember if the date stored in the CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 35 of 76 mobile phone was written or not. He further stated that he had received a letter a day earlier from his Vigilance department that he had to to CBI office as witness. He stated that he was shown mobile phone and was asked to sign documents of seizure.
33. PW 22 Israr Babu, proved letter issued by his company as Ex.
PW22/A vide which the call details of mobile No. 9811460001 in the name of Gurmeet Singh which were provided to CBI Office.
On being cross examined by ld. Counsel for accused no. 1 he stated that he has no personal knowledge about the documents handed over to CBI Officers.
34. PW 23 Sh. Jinaga Lakshminarayan, stated that he was working as Officer ScaleI in Canara Bank, Nehru Place. On 31.01.2007 he was deputed by his office to attend the CBI office. He stated that no proceedings had taken place on that day, however, next day he was asked to join a secret mission and he was made to sit in a jeep without disclosing destination. The jeep was stopped at one place and they had waited for some time. Thereafter, the officers came to them and told them to sit in the jeep for going somewhere. They were sitting in the jeep and the jeep was stopped in a play ground. One more jeep had come there while they were sitting in their jeep. One person had been held by the CBI officials and they were holding some watter bottles in their hands. Thereafter, the person who had been held by them and CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 36 of 76 was probably a police officer was taken to some office. A search was conducted in that office. He thereafter, stated that he does not know where this office was situated. Thereafter, they went back to CBI office and he was asked to go back. He also told that he will be called again if there will be any need. After 23 days he had received a phone call and he was asked by CBI officials to sign some documents. The CBI officials had made him sign a cloth wrapper containing a cassette as was disclosed by CBI Officials. They had asked him to leave. After 23 days he was again called by CBI Officials and was asked him to sign a cloth wrapper containing some documents. He stated that his statement was never recorded by CBI Officials. The witness was declared hostile by ld. Sr. PP for CBI as he was not supporting the prosecution case.
On being cross examined by ld. Spl. PP for CBI he denied that his statement was recorded by CBI officials or that any trap proceedings had taken place on 31.01.2007. The witness was confronted with his statement U/s 161 Cr.P.C. marked as 23/A. The witness denied the pre trap and post trap proceedings or preparation of any memos in his presence. Witness had also denied the prosecution proceedings or any other proceedings connected with the conversation of the cassette etc in his presence. He denied that any trap amount was recovered from the car of any person in his presence or that any memo in this regard had been prepared. He denied that article recovered from accused Jagdish Kumar were seized in his CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 37 of 76 presence. He denied that a person named Jagdish had been apprehended who had admitted to have taken bribe money of Rs. 1.50 lacs on the instructions of accused Dr. Bansal, ACP. He stated that he cannot identify any accused. He stated that he had seen the bottles containing the watter in CBI.
35. PW 24 Sh. Gurmeet Singh, is the complainant. However his statement cannot be read in evidence since before his cross examination could be concluded he had died and his death was verified by CBI.
36. PW 25 Gajender Kumar, stated that in December 2008 he was posted as LDC in ESIC, Panchdeep Bhawan, CIG Marg, New Delhi. On 10.12.2008 he had visited the CBI Office where one Jagdish Kumar, SI Delhi Police was present. He was asked to give his specimen voice by CBI. He had refused to give his voice samples. The proceedings were reduced in writing. He proved the memo in this regard Ex. PW18/A. On being cross examined by ld. Counsel for accused Jagdish he stated that he does not remember as to whether accused Jagdish had told CBI officials that he had already given voice samples earlier to them on 01.02.07. He stated that CBI officials had not told him any reasons as to why they were making the accused again give his voice sample.
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37. PW26 Sh. Avias U. Agboatwala, stated that he deals with jewellery items and the name of his firm is M/s Jewelship India Pvt. Ltd. He stated that he knew Sh. Manish Saxena who lived in Dwarka, New Delhi who trades in watches and jewellery. He stated that in the second week of December, 2006 Sh. Manish Saxena had asked him to arrange some diamonds. Manish Saxena had come to his office on 29.11.2006. he had handed over the photocopies of the certification of the authentication. Sh. Manish Saxena came to Delhi and told him that he will confirm the order to him on telephone. He further stated that he had come to Delhi on 09.01.2007 with six pieces of diamonds worth Rs. 1.70 crores. Sh. Manish Saxena had come to Delhi Airport to receive and drop him to the house of Sh. Gurmeet Singh Wadalia at Safdarjung Enclave. He stated that they had met Gurmeet Singh Wadalia and had delivered all the 6 diamonds to him alongwith IGI certification. Gurmeet Singh Wadalia and Sh. Manish Saxena had gone to another room while he kept sitting in living room. After while Gurmeet Singh Wadalia told him that the payment would be made on the next day. However, he did not return the diamonds to him.
On 10.01.2007, he alongwith Sh. Manish Saxena had gone to the house of Gurmeet Singh Wadalia, but he was not at home. Thereafter both of them went to his show room at Ring Road, but he was not found at the show room and they were informed by the staff that Gurmeet Singh Wadalia was out of Delhi and will come back after 2 days. He stated that he stayed in Delhi waiting for him for the next CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 39 of 76 two days. After two days he alongwith Manish Saxena had gone to the show room of Gurmeet Singh Wadalia. Sh. Manish Saxena was in touch with Sh. Gurmeet Singh Wadalia over telephone. Mr. Wadalia met them at the showroom and told him and he will make the payment towards the six diamonds at Bombay. Thereafter, he had given him phone number of his business associates, however, later on he came to know that the mobile number that Gurmeet Singh Wadalia had given to him was actually his own number. He kept trying the number, but nobody picked up the phone. Thereafter he came to Delhi after 23 days for his payment. He stated that he and Mr. Manish Saxena had visited the showroom of Gurmeet Singh Wadalia who told him that he cannot give the payment to him since the diamonds were not in his possession. He was very rude. He also threatened him and Sh. Manish Saxena, and said that he will throw them out of the showroom. He further stated that he does not know anything about the diamonds. Thereafter he had approached the sitting Member of Parliament at that time for help who gave him letter in the name of Police Commissioner for help. The police commissioner asked him to meet Mr. Thakur, who had given him another letter and asked him to go to Anti Extortion Cell and meet accused Rakesh Kumar Bansal. Thereafter, he spoke to accused Rakesh Bansal on telephone and asked him to meet next morning. In the meanwhile, he was also trying to search Gurmeet Singh Wadalia. Sh. Manish Saxena had sought help of one of his friend Mr. Arora. They were able to meet Gurmeet Singh Wadalia who CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 40 of 76 had issued a cheque for half the amount which was due towards him. However, he had noticed that the cheque had no account number. He stated that he had already lodged a complaint and, therefore he was called by accused Rakesh Kumar Bansal, ACP who had reached the house of Gurmeet Singh Wadalia with his team. Sh. Gurjeet Singh and Sh. Manish Saxena were already present in the house of Gurmeet Singh Wadalia. He stated that upon seeing the police, Gurmeet Singh Wadalia wanted to escape from the other door of his house. Accused Rakesh Bansal had caught his hand and asked him to accompany the police team to AntiExtortion Cell. They took Gurmeet Singh Wadalia to Police Station. After one or two days he was called by accused Rakesh Bansal who told him that 4 diamonds had been recovered and the other two diamonds cannot be recovered as Gurmeet Singh Wadalia had told them that they were misplaced. He also told that Gurmeet Singh Wadalia was ready to issue a cheque in the sum of Rs. 5 lakhs towards payment of remaining diamonds. He stated that he told ACP accused Rakesh Bansal that the cost of diamonds was Rs. 7.5 lakhs. Gurmeet Singh Wadalia assured him that he will make the remaining payment in the police station in few days. He also requested him to withdraw the complaint as the issue has been settled. The witness further stated that he took his 4 diamonds and came back to Bombay. CBI had recorded his statement at Delhi.
He proved his complaint against Gurmeet Singh Wadalia as Ex. PW2/B and the letter given by the Member of Parliament Mark CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 41 of 76 X. He stated that he had withdrawn his complaint vide letter dated 22.01.2007 Ex. PW26/A. He stated that due to threat of Gurmeet Singh Wadalia he had not deposited the cheque of Rs. 5 lakhs in any bank as he was very scared. He stated that as on date he has not received any diamond or payment towards the diamonds.
The witness was not cross examined by Ld. Counsels for accused no. 1 Rakesh Bansal and accused no. 2 Jagdish Kumar despite opportunity being given.
38. PW 27 Dr. C.P. Singh, Assistant Director (Physics), FSL, stated that on 08.3.2007 he was working as Junior Scientific Officer (Physics) and had received two sealed parcels in the office of CFSL, Chandigarh. The seals on the parcels were intact and tallied with the specimen seals provided with the forwarding memo. The case Exhibits were handed over to him on the same day for examination. After laboratory examination of the exhibits, he had submitted his report Ex. PW27/A alongwith the print out of the messages running into four sheets. He proved one cassette Ex. PW9/M and cloth wrapper Ex. PW23/A. On being cross examined by Sh. Puneet Ahluwalia, Ld. Counsel for accused no. 1 Dr. Rakesh Bansal he stated that the specimen voice of the accused persons was not sent to him by CBI for the purpose of examination and comparison. Upon being asked as to whether Ex. 2 viz Nokia Mobile Phone model 6020 has online recording facility, he CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 42 of 76 stated that he had checked the mobile phone sent to him which contained the above said files and alleged intercepted conversations. He further stated that as far as he remembered, the phone had recording facility. He admitted that he has not mentioned this fact in his report since CBI had not mentioned in the request letter that he was supposed to examine the phone regarding its features also.
He admitted that the data/voice data from any third source can be transferred to the mobile phone memory with the help of connecting peripheral devices.
On being cross examined by accused no. 2 Jagdish Kumar he stated that he had mentioned the make of the audio cassette as TDK in his report. Safety Tab of the audio cassette was already broken. He did not remove the safety tab in the laboratory as there was no mention in the concerned case file.
39. PW28 Inspector D.K. Thakur, stated that in the year 2007,he was working as Inspector in CBI, ACB, Delhi. On 31.01.2007, I was asked to be a Member of CBI Trap Team led by Sh. A. Sathyamurti, Inspector and Supervised by Sh. Vivek Priyadarshi, Deputy SP. Two Independent Witnesses from a Bank were also there. Complaint Sh. Gurmeet Singh Wadalia had submitted a written complaint alleging that accused Dr. Rakesh Kumar Bansal, ACP and accused Jagdish Kumar, SubInspector, Anti Extortion Cell, Crime Branch, R.K. Puram, New Delhi were demanding bribe of Rs. 15 lakhs for showing some kind of CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 43 of 76 favour in a complaint lodged against Sh. Wadalia by Sh. Avais Agboatwala a diamond merchant of Mumbai. Complaint Sh. Wadalia had produced one audio cassette stating that he had recorded conversation with accused R.K. Bansal and accused Jagdish Kumar wherein they were demanding money from him. In the presence of trap team members and independent witnesses, the audio cassette so produced was sealed and marked as X. thereafter, pretrap formalities were completed in CBI office and and handing over memo already Ex. PW9/A was prepared. The complainant had produced Rs. 1,50,000/ comprising of 150 notes of Rs. 1000/ denomination. These notes were treated with phenolphthalein powder and were given to the complainant with the direction to hand over the same to accused on his specific demand. As per the complainant, the accused had called him to his office in R.K. Puram.
A practical demonstration of the use of phenolphthalein solution and sodium carbonate in trap proceedings was given. DVR was given to the complainant with the direction to switch it "on" prior to meeting the accused. At about 11:00 or 11:30 am in the morning they had left CBI office alongwith independent witnesses in Government Vehicle. Complainant had proceeded in his own car. One of the independent witness was briefed to act as a shadow witness and to be as near as possible with the complainant and to hear the conversation and see the transaction, if any. Complainant was asked to give a signal by way of scratching his beard after completion of bribe transaction as CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 44 of 76 predetermined signal. While on the way, complainant told them on mobile phone that the accused Jagdish Kumar was asking him to come near his office situated in SectorVIII, R.K. Puram, New Delhi. Complainant stopped his car on the road. They had taken positions in discrete manner near about. Complainant was seen standing out of his car when a Maruti Wagon R Car came near and a person came out and started talking to him for about 1015 minutes. Thereafter, he, the TLO A. Sathyamurthi and one of the independent witnesses were almost together and other trap team members were in different directions. After about 15 minutes, the person coming in Maruti Wagon R Car was seen by them going inside his car and at that moment, the complainant was seen giving the predetermined signal. They had rushed towards the spot and had tried to stop the person in the Wagon R Car from driving away but he started his car and went away. They chased him in the Hyundai Sonata Car of the complainant. He, Sh. Sathyamurthi, one independent witness and complainant were in that car. The chase lasted about 1 km when the complainant slammed his car with Maruti Wagon R Car overtaking from the right hand side. They were apprehensive that the accused was fleeing away. With the impact of that slamming, the Maruti Wagan R Car had stopped and the person inside was found by them fleeing away on foot. They tried to apprehend him. Lot of people had assembled at the spot. They had to disclose their identity and pacified the people that they were doing their duty. He and Sathyamurthi were holding the accused. After passage CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 45 of 76 of about 1015 minutes other trap team members also came there. At this juncture, they inquired from the complainant to narrate the entire incident upon which he said that the tainted bribe amount was in that Maruti Wagon R Car. They had decided to carry out further proceedings at a safe and peaceful place, therefore, they headed near the office of AntiExtortion Cell in Sector8, R.K. Puram, New Delhi. In a public park, the recovery proceedings work were conducted and the tainted amount was recovered from the car of the person who was identified as accused Jagdish Kumar, SI of AntiExtortion Cell, Delhi Police. On being interrogated it transpired that he was demanding and accepting money on behalf of his supervisory office accused Dr. Rakesh Kumar Bansal. The witness correctly identified accused Jagdish Kumar present in the Court. Thereafter, accused Jagdish Kumar was asked to talk to his ACP accused Dr. R.K. Bansal on mobile which he did and the conversation which took place was simultaneously recorded in Digital Voice Recorder. The conversation which had taken place between complainant and accused Jagdish Kumar was transferred into a blank audio cassette which was sealed and marked as Y. The conversation which took place on mobile between accused Jagdish Kumar and accused R.K. Bansal was transferred into a blank audio cassette and was marked as Z. Hand wash of accused Jagdish Kumar was taken out of which hand wash of right hand had turned slightly pink which was preserved and sealed in a separate glass bottle. The tainted GC CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 46 of 76 Notes were found in glove box of Maruti Wagon R Car and certain articles and papers were touching the same. The washes of those articles and papers were also taken and they produced pink colour and were similarly preserved and sealed in separate glass bottles. Thereafter, they had proceeded to the office of AntiExtortion Cell and the remaining recovery proceedings and preparation of recovery memo was conducted there.
During the recovery proceedings, while in the office of Anti Extortion Cell efforts were made to secure the presence of ACP Accused R.K. Bansal through his senior officers also, but he did not join the proceedings. Accused Jagdish Kumar was arrested and they returned to CBI office. Subsequently, investigation of this case was entrusted to him. During the course of investigation, he had examined relevant witnesses and recorded their statements under Section 161 of Cr.P.C and had obtained relevant documents. After conclusion of investigation, it was decided to file charge sheet under Section 7 and 13(1)(d) of PC Act, 1988. Accordingly, SPs report were sent to the Competent Authority for obtaining sanction for prosecution against accused R.K. Bansal and accused Jagdish Kumar. Thereafter, investigation of this case was entrusted to Inspector S.K. Sinha, CBI, Delhi. The witness proved the transcriptions as Ex. PW28/A. On being cross examined by Sh. R.M. Tufail, Ld. Counsel for accused no. 2 Jagdish Kumar he stated that Sh. A. Sathyamurthi the IO and himself had verified the complaint of the complainant. A file CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 47 of 76 was recovered from the office table of accused Jagdish Kumar in Anti Extortion cell on 31.01.2007 after the raid.
On being asked as to whether before going on raid, did they see the verification and genuineness of complaint of Sh. Gurmeet Singh Wadalaia having been investigated and reported so by any of the officer of CBI, he stated that no verification memo was prepared before proceeding for the raid. He stated that he had presumed that the complaint was genuine as he had heard conversation produced by Sh. Wadalia. He stated that he had not verified the antecedents of PW24 Sh. Wadalia and as to whether any criminal case or other case was pending against him at that time. However, during investigation he had come to know that he had certain criminal cases of cheating and fraud were pending against him. He stated that he had come to know during investigation that Gurmeet Singh Wadalia had concealed the fact that he had not returned one diamond of Agboatwala for which Agboatwala had lodged a complaint. He admitted that that the complainant Sh. Wadalia had given a cheque of Rs. 5 lakhs to Agboatwala towards payment of one diamond which had not returned to him. The complaint in this regard pending with Delhi Police was not closed and was still pending. He denied that since the complainant Gurmeet Singh Wadalia had to part with the diamond which he had not returned to Agboatwala and the Police had to close the case only after Sh. Gurmeet Singh Wadalia did his part of compromise, he had falsely implicated the accused persons in the present case. CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 48 of 76 On being cross examined by Sh. R.M. Tuffail, Ld. Counsel for accused Jagdish Kumar he stated that there were 34 cases of cheating and other cases that the complainant was facing during that time as it came to his knowledge during the course of investigation. He stated that he did not know if, Inspector A. Sathiamoorthy was conversant with writing script Devnagri but he sufficiently could speak Hindi. They had received anonymously list of some cases i.e. FIR No. 150/98 dated 13.8.1998 under Section 406/420/506/34 IPC, PS: Mohali, Punjab, FIR No. 180/98, dated 02.6.98, u/s 406/420/34 IPC, PS:
Mohali, PhaseI, District Ropar, Punjab, FIR No. 121/98, dated 30.9.98, u/s 420 IPC, PS: Sector36, Chandigarh, FIR No. 235/04, dated 04.12.2004, u/s 454/380/467/468/471/420/120B IPC, PS Sector19, Chandigarh, FIR No. 1110/05, dated 14.11.2005. After investigation was completed and the challan was completed in the present case in subsequent years it was reported in the newspapers that certain cheating and fraud cases were subsequently registered against the complainant Sh. Gurmeet Singh Wadalia. He states the he did not personally verify the demand by the accused neither it was verified in his presence.
On being cross examined by Sh. S.P. Ahluwalia, Ld. Counsel for accused no. 1 Dr. Rakesh Bansal he stated that he had seized the mobile produced by the complainant. He did not make any Enquiry from Nokia Company that the model of the mobile produced by the complainant had facility of oncall recording. CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 49 of 76
40. PW29 Sh. A. Sathiamoorthy, Deputy Superintendent of Police, CBI, BS & FC, Bangalore stated that on 31.01.2007. Sh. Suresh Kumar Palsania his SP had called him to his chamber and had handover a written complaint in English written by Sh. Gurmeet Singh Wadalia already exhibited as Ex. PW24/A for verification. Thereafter, he had brought the complainant Sh. Gurmeet Singh Wadalia to his office Chamber. On going through the complaint it was alleged that accused Dr. Rakesh Kumar Bansal, Assistant Commissioner of Police and accused Jagdish Kumar, SubInspector from Anti Extortion Cell, Delhi Police, Sector8, R.K. Puram, New Delhi had demanded bribe amount of Rs. 15 lakhs for hushing up a complaint received against the complainant Sh. Gurmeet Singh Wadalia. Subsequently, demand of bribe was reduced to Rs. 5 lakhs by accused Jagdish Kumar on the instructions of accused Dr. Rakesh Kumar Bansal (Objected to). Further it was alleged in the complaint on 20.01.2007 accused Dr. Rakesh Kumar and accused Jagdish Kumar alongwith other police officials had raided his house and extorted cash and jewellery without making any proper seizure memo. Further the complainant had handed over an audio cassette containing the demand of the bribe by the accused persons. The same was played and it confirmed the demand of the bribe by the accused persons. In the meantime, he had contacted the duty officer to arrange two independent witnesses and accordingly, two witnesses were secured namely Sh. Laxmi Narayan CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 50 of 76 and Sh. Debashish Dey from Canara Bank, Circle Office, New Delhi.
The witnesses were introduced to the complainant and CBI team. Thereafter, the complaint was handed over to the independent witnesses to verify the veracity of the complaint and also the witnesses put some questions to the complainant and confirmed the demand of bribe amount. Further an audio cassette produced by the complainant was played in the presence of the independent witnesses and CBI team which revealed the demand of bribe by the accused persons. Further the complainant told that he was having only Rs. 1.5 lakhs not five lakhs as demanded by the accused persons.
A regular case in RC No. 8/A/2007 under Section 7 of PC Act, 1988 was registered against accused Rakesh Kumar Bansal and accused Jagdish Kumar vide FIR Ex. PW29/A (D2) which was entrusted to him for investigation and for laying the trap by Sh. S.K. Palsania, SP, CBI, ACB, New Delhi. The complainant had produced Rs. 1.5 lakhs in 1000 denomination of 150 currency notes. Thereafter, the trap kit containing sodium carbonate, phelonphathelin powder and other sealing materials have been secured from office Malkhana. On his direction, Sh. D.K. Thakur had prepared the sodium carbonate solution and a demonstration in front of the independent witnesses, the complainant and the trap team had been given. Inspector D.K. Thakur, had smeared the currency notes in the phenolphthalein powder and Sh. Laxmi Narayan, Independent Witness was asked to handle the treated currency notes. Thereafter, he was asked to dip his hand in the CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 51 of 76 colourless sodium carbonate solution which had turned into pink colour. The procedure was explained to all persons. Thereafter, the solution was destroyed and those who were in contact with the sodium carbonate and phenolphthalein had washed their hands with soap and water.
The personal search of the complainant was conducted and he was not allowed to keep any other item except mobile phone and the treated currency notes. Inspector D.K. Thakur had kept Rs. 1.5 lakhs inside the inner pocket of the jacket of the complainant. Further the complainant was directed not to touch the currency notes and was also instructed that unless the accused persons demand specifically or otherwise any other person on his instructions. The DVR was arranged and the functions of the same was explained to the complainant. Voice of the independent witnesses were recorded after confirming the blankness of the new cassette. The DVR was entrusted to the complainant and he was instructed to switch "on" the DVR before meeting the accused persons.
While the complainant was in the office, he had contacted accused Jagdish Kumar on his mobile phone and asked about the place and time for meeting. Accused Jagdish Kumar had informed him to come to his crime branch office at Sector8, R.K. Puram. The complainant told him to come to Hyatt Hotel, Bhikaji Cama Place, New Delhi. This confirmed the demand of the bribe amount by the accused persons.
CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 52 of 76 The complainant was given instruction that after the handing over of the bribe amount he was to give signal by scratching his beard. The said proceedings were completed at around 11:15.
Thereafter, the complainant proceeded towards Hyatt Hotel in his car. CBI team alongwith independent witnesses had followed the complainant's vehicle. While traveling, the complainant had received a call from accused Jagdish Kumar that the complainant should come to Major Somnath Marg, Sector8, R.K. Puram, New Delhi near his office. The complainant had reached the Somnath Marg meeting the point of Shahid Babu Genu Marg, Sector8, R.K. Puram. He had parked the vehicle on the left side of the road towards Olofe Palme Marg. CBI team alongwith himself and the independent witness Sh. Laxmi Narayan and Inspector D.K. Thakur were standing near the complainant's vehicle. Thereafter, accused Jagdish Kumar had come by his car and had parked it in front of the complainant's vehicle. They had conversation for about 1015 minutes. The complainant had handed over the bribe amount of Rs. 1.5 lakhs to accused Jagdish Kumar who had accepted it with his right hand. Same was witnessed by himself and the independent witnesses and all other CBI team members. Accused Jagdish Kumar had kept the bribe amount inside his car and thereafter, they had received a signal from the complainant Sh. Gurmeet Singh Wadalia. Thereafter, he and the independent witness Sh. Laxmi Narayan and Inspector D.K. Thakur had approached accused Jagdish Kumar. Immediately, he had sat inside his car and CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 53 of 76 had tried to stop the vehicle, but could not stop it. Thereafter, he, the complainant, independent witness Sh. Laxmi Narayan and Inspector D.K. Thakur had followed the accused's vehicle with the help of the complainant's vehicle. The other CBI trap team had followed them. Accused Jagdish Kumar was driving the vehicle very fast towards the Olfo Palme Road. We were asking the accused to stop his vehicle but he did not stop the vehicle. Thereafter, the accused drove the vehicle towards Olfo Palme Marg and took the right turn towards Vasant Marg. Since they could not stop the accused's vehicle, they had decided to stop the accused's vehicle at any cost. The complainant's vehicle had hit the accused's vehicle from the right rear side. Thereafter, the accused had stopped the vehicle and had tried to escape. In the meantime, he and Inspector D.K. Thakur had apprehended the accused. Other CBI team members had also reached at the spot.
Since it was a crowded public place they had taken the accused near his office Vacant Land in Sector8, R.K. Puram, New Delhi. CBI Team alongwith him and the independent witnesses had proceeded towards Sector 8 while traveling alongwith the accused. He was questioned about where he had kept the bribe amount. He told them that he had kept the bribe amount in the glove box of the dash board. By the time, they had reached the vacant land at Sector8, R.K. Puram, New Delhi. Thereafter, sodium carbonate solution was prepared and the accused Jagdish Kumar's right hand wash was taken which had turned into pink colour. Further his left hand wash was CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 54 of 76 taken which had remained colourless.
Formal arrest of accused Jagdish Kumar was made. He had directed the independent witness Sh. Debashish Dey and the other witness to recover the bribe amount from the glove box of the dash board of the car of accused Jagdish Kumar. Same was recovered by the independent witnesses and were compared with the handing over memo in which the denomination of the currency notes as well as the numbers were mentioned and also confirmed the same which were entrusted to the complainant. The same was seized and taken into the possession. He further stated that the currency notes were sealed and signed by the independent witnesses and himself. He stated that the DVR was taken from the complainant's possession which confirmed the conversation which had taken place between the accused and the complainant. The same was transferred into an audio cassette and sealed and signed by the independent witnesses and himself. Since the tainted bribe amount was kept in the glove box of the dash board of the car and also the tainted bribe amount was touching the envelope, bunch of papers alongwith the spectacle cover, washes of the same were taken. Thereafter, accused Jagdish Kumar was questioned about the demand and acceptance of the bribe amount of Rs. 1.5 lakhs. He had stated that he had collected the bribe amount of Rs. 1.5 lakhs on the directions of accused Dr. Rakesh Kumar Bansal, Assistant Commissioner of Police. Thereafter, he had made a call to the mobile phone of accused Rakesh Kumar Bansal. The conversation which had CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 55 of 76 taken place between accused Jagdish Kumar and accused Rakesh Kumar Bansal was simultaneously recorded in the DVR. The conversations were transferred into an audio cassette and the same were sealed and signed by the independent witnesses and himself.
Thereafter, all CBI team members including the independent witnesses and accused Jagdish Kumar proceeded towards the office of Dr. Rakesh Kumar Bansal. The search of the office premises of both the accused persons was conducted in the presence of the independent witnesses and some documents were seized at the time of investigation for which separate seizure memo was prepared. A rough site plan was also prepared showing the position of the accused persons, independent witnesses, CBI team etc. During investigation, he had also examined and recorded the statement of Sh. Pyare Lal, Sh. Gyanender and Sh. Sanjay Tyagi under Section 161 Cr.P.C. Thereafter, the case was transferred to Inspector D.K. Thakur for further investigation.
On being cross examined by Sh. R.M. Tuffail, Ld. Counsel for accused Jagdish Kumar he stated that no verification of the complaint was done. He had not stated in his statement that the complainant had handed over to him his recorded cassette and he told him that he had recorded it on his mobile phone. He had used the complainant's phone which he was carrying at that time and it was capable of recording. No memo was made with regard to taking over his mobile phone and checking the recording.
CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 56 of 76 He had verified the contents of the complaint from the complainant only. He had not confirmed from the complainant as to whether both the accused persons had gone to his house and extorted jewellery and cash from his house without giving him the copy of the seizure memo.
He stated that he was not aware as to whether the IO upon independent verification had found allegations leveled against both the accuseds to be false. He did not verify as to whether any criminal case was pending investigation or trial against the complainant Sh. Gurmeet Singh Wadalia.
41. PW30 S.K. Sihna DSP, CBI, New Delhi, stated that the instant case was transferred to him from the then Inspector D.K. Thakur for investigation. Hef had discussed the case with him who informed him that a communication had since been sent to the Competent Authority seeking sanction for prosecution against accused Dr. Rakesh Bansal, the then ACP, AntiExtortion Cell, Crime Branch, Delhi Police, New Delhi. He had also apprised him that another accused Jagdish Kumar, the then SI had since been dismissed from the service. Hence, sanction for prosecution for accused Jagdish Kumar was not required.
He had also discussed the case with the SP, CBI who had instructed to obtain further voice specimen of both the accused persons for the purpose of voice spectrographic examination. He had summoned both the accused persons and had persuaded them to give CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 57 of 76 further specimen voice which they had refused. He had explained to them the purpose for obtaining further specimen voice. He had prepared a memo incorporating this development vide memos already exhibited as Ex. PW16/A (D36). After filing the charge sheet he had obtained the sanction order for prosecution of accused Jagdish Kumar vide Sanction Order dated 15.12.2009 issued by Sh. Neeraj Thakur, Additional Commissioner of Police, Crime, Delhi.
On the date of filing of the charge sheet i.e. 11.12.2008, accused Jagdish Kumar was already dismissed from his services. As such, before filing the charge sheet, his sanction was not required. However, accused Jagdish Kumar was reinstated on 12.12.2008 and till that date Cognizance was not taken since, Cognizance could not have been taken in the absence of Sanction as such, Sanction was later on obtained vide Sanction dated 15.12.2009 and the sanction order was filed in the Court.
On being cross examined by Sh. R.M. Tuffail, Ld. Counsel for accused Jagdish Kumar he admitted that he had not investigated with regard to the antecedents of the complainant before filing the charge sheet.
42. Prosecution Evidence was closed thereafter.
43. Statements of accused persons were recorded U/s 313 Cr.P.C in which both the accused persons had stated that they are innocent and CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 58 of 76 have been falsely implicated in this case. They refused to lead any evidence in their defence.
44. Final arguments were heard on behalf of Sh. Akshay Gautam Ld. Special PP for CBI as well as Ld. Counsels for accused no. 1 Dr. Rakesh Bansal and accused no. 2 Jagdish Kumar.
45. I have heard arguments and have carefully gone through the case file. After hearing them I am of the opinion that the statement of the complainant cannot be read in evidence since before his examination could be concluded as during the course of trial, the complainant had died. Death verification report of the complainant was received. Since the examinationinchief of the complainant was inconclusive, the testimony of the complainant cannot be read in evidence. However, in light of the testimony of rest of the PWs, I will decide whether prosecution has been able to prove this case against both the accused persons.
46. The material witnesses in this case are PW26 Sh. A.U. Agboatwala, PW6 Sh. Manish Saxena, PW7 Sh. Gurjeet Singh Arora, PW27 Inspector D.K Thakur (TLO) and PW29 Sh. A. Sathiamurthy. All the independent witnesses and Public PWs have turned hostile and have not supported the case of prosecution. They have categorically denied that any pretrap or post trap proceedings had taken place in CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 59 of 76 their presence. The witnesses have denied that any recovery of alleged bribe amount had been made in their presence from the car of accused Jagdish Kumar. They have also denied that accused Jagdish Kumar had any conversation with accused Dr. Rakesh Bansal and that accused Rakesh Bansal or accused Jagdish had demanded bribe amount from anyone. It is also denied that accused Jagdish Kumar had demanded and accepted the bribe amount on behalf of Dr. Rakesh Bansal.
47. Ld. Senior PP for CBI has, however, further stated that not considering the evidence of prosecution witnesses who have been declared hostile is contrary to law and the Court should take into account the deposition of the witnesses if otherwise credible. For this purpose, reliance was placed on Sat Paul Vs. Delhi Administration, AIR 1976 SC 294. It is further submitted that selective portion of depositions of witnesses by considering only their examinationinchief and not taking into account the crossexamination is permissible. It is stated that the entire testimony of such witnesses also cannot be discarded by the Court.
It is further stated that only on the basis of testimony of the Trap Laying Officer and the Investigating Officer, conviction of the accused can take place.
48. While dealing with question of appreciation of evidence, CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 60 of 76 Hon'ble Supreme Court in an authority reported as Syed Ibrahim Vs. State of Andhra Pradesh, 2006 VI AD (SC) 593 observed in paragraph no. 11, as under: Stress was laid by the accused appellants on the nonacceptance of evidence tendered by PW1 to a large extend to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of any accused, his conviction can be maintained.
It is the duty of Court to separate grain from chaff.
CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 61 of 76 Where chaff can be separated from grain, if would be open to the Court to convict an accused notwithstanding the fat that evidence has been found to be deficient, out to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim 'falsus in uno falsus in omnibus' has no application in India and the witness or witnesses cannot be branded as liar (s). The maxim 'falsus in uno falsus in omnibus' has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to , is that in such cases testimony may be disregarded, and not that it must be disregarded. CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 62 of 76 The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but is it not what may be called 'a mandatory rule of evidence'. (See Nisar Ali Vs. The state of Uttar Pradesh [AIR 1957 SC 366]). In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurcharan Singh & Another Vs. State of Punjab [AIR 1956 SC 460]). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 63 of 76 be feared that administration of criminal justice would come to a deadstop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 64 of 76 exaggeration, embroideries or embellishment. See Sohrab S/o. Beli Nayata abd Anr. Vs. The State of Madhya Pradesh, [1972 (3) SCC 751] and Ugar Ahir and Ors. Vs. The State of Bihar [AIR 1965 SC 277]. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricable mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details present by the prosecution completely from the context and the background against CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 65 of 76 which they are made, the only available course to be made is to discard the evidence in toto. (Zwinglee Ariel Vs. State of Madhya Pradesh {AIR 1954 SC 15} and Balaka Singh and Ors. Vs. The State of Punjab {1975 (4) SCC 511}. As observed by this Court in State of Rajasthan V s. Smt. Kalki and Anr. {1981 (2) SCC 752}, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however, honest and truthful a witness may be. Material discrepancies are those CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 66 of 76 which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
49. Similarly, in an authority reported as Sunil Kumar Vs. State 2007, IV AD (Delhi) 417, while dealing with a case under Section 7 and Section 13(i)(d) r/w 13(2) of the Act, Hon'ble High Court of Delhi observed in paragraphs 12, 13, 28 and 29 as under: "12. All cases of corruption have two important aspects and they are (i) demand and (ii) acceptance. Unless demand and acceptance of illegal gratification by the public servant charged with under the Prevention of Corruption Act are proved by the prosecution beyond doubt, the CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 67 of 76 presumption provided for in Section 20 of the Act cannot be drawn.
Three cardinal principles of criminal jurisprudence are well settled and they are as follows:
i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
ii) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and
iii) that the onus of the prosecution shifts.
13. The Evidence Act also does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 68 of 76 a criminal charge. In fact, from the cardinal principles referred to above, it follows that it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of his version throws doubt on the prosecution case.
28. In Jaswant Singh Vs. State of Punjab, AIR 1973 SC 707, it was held by the Supreme Court that in a bribery case the complainant is an interested witness and his evidence must be considered with great caution and it can be accepted when this is corroborated by other evidence adduced by the prosecution.
CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 69 of 76
29. In view of the latest trend of the Supreme Court in its judgments particularly in State of UP Vs. Zakaullah's case (supra), the complainant's evidence does not require any corroboration and the court can act upon the testimony of the complainant provided the same is trustworthy to be acted upon."
50. When the testimony of all the witnesses is seen in the light of the law, it is clear that in the instant case there were three material witnesses ( PW6 Sh. Manish Saxena, PW7 Gurjeet Singh Arora and PW26 Sh. A.U. Agboatwala). I have gone through the statements of the independent witnesses. None of the independent witnesses have supported the case of the prosecution. The independent witnesses have not identified the accused persons. The independent witnesses have also not supported the case of prosecution on the point of demand or acceptance of bribe amount either by accused Jagdish Kumar or acceptance of bribe amount by accused Jagdish Kumar on behalf of accused Rakesh Bansal. No evidence has been brought on record regarding demand of bribe by accused Rakesh Bansal or misused of official position.
CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 70 of 76
51. Moreover, the independent witnesses in whose presence allegedly the sample voices of the accused persons were either taken or refused, they also not supported the prosecution case and have not identified accused persons to be the same who had either given the sample voices or had refused to give their sample voices.
52. The case of the prosecution was based on three crucial points i.e. they had to prove the demand and acceptance and the motive thereof. However, as I have discussed above, even the independent witness Sh. A.U. Agboatwala has not supported the prosecution case and has rather given clean chit to the accused persons, blaming the complainant for having cheated him. The independent witnesses Sh. A.U. Agboatwala, Sh. Manish Saxena and Sh. Gurjeet Singh Arora have not supported the prosecution case. They were the crucial witnesses of the prosecution. These three witnesses have gone to the the extent of stating on record that it was the complainant who was threatening them, had cheated them and was not returning the diamonds he had taken from Sh. A.U. Agboatwala and in this regard they had lodged a complaint with the Anti Extortion Cell, Crime Branch, Delhi and accused Rakesh Bansal was investigating the same.
53. It has also come on record that the complainant had taken diamonds from Sh. Agboatwala but he had failed to return two CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 71 of 76 diamonds and in lieu of that he had given him a cheque of Rs. 5 lakhs. However, he had asked him not to present the cheque and that he will give Rs. 5 lakhs in cash to him as part of the settlement. Allegedly the settlement was to take place before Dr. Rakesh Bansal who was investigating the case and Sh. Gurmeet Singh Wadalia who was accused before him in the complaint filed by Sh. A.U. Agboatwala was told by Sh. Gurmeet Singh Wadalia that he will settle the matter by paying the price of the remaining two diamonds.
Therefore, this testimony along with the testimony on the same lines, of the other independent witnesses PW 6 Sh. Manish Saxena, PW7 Sh. Gurjeet Singh Arora and PW26 Sh. A.U. Agboatwala, point out to the fact that accused R.K.Bansal and Jagdish Kumar were investigating the complaint of Sh. Agboatwala against the complainant Sh. Gurmeet Singh Wadalia and it was in that connection that they had gone to the house of the complainant Sh. Gurmeet Singh Wadalia and not for any other reason.
54. The police witnesses PW1 HC Pyare Lal, PW3 HC Dharam Pal, and PW13 HC Sanjay have also stated on record that accused R.K. Bansal and Jagdish Kumar along with other team member of Crime Branch, Anti Extortion Cell had gone to the house of the complainant Sh. Gurmeet Singh Wadalia in connection with investigation of the complaint filed against Sh. Gurmeet Singh Wadalia and not for purpose of Extortion.
CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 72 of 76
55. The case of CBI is that the complainant himself had recorded the conversation regarding demand of bribe amount by accused R.K. Bansal and Jagdish Kumar which had been transferred to a cassette from his mobile phone. However, when cassette was played in the court during trial, despite assistance of CFSL officials who were experts and had been specifically summoned to play the cassette, nothing was audible. Therefore, the recorded conversation regarding initial demand could also not be proved on record.
56. The conversation recorded during verification proceedings also could not be proved on record since no witness identified the voices contained in the cassette.
57. The witness PW 27 Dr. C.P. Singh, Assistant Director (Physics) who has proved the CFSL Report has stated that he had not examined the mobile phone of the complainant to ascertain as to whether it had recording facility. Therefore, since the cassette pertaining to the alleged recording of the demand in the mobile phone of the complainant which had been allegedly transferred into cassette Q1, did not contain any voice recording when played in the court raises a doubt regarding such recording of the conversation pertaining to demand of bribe.
58. The Ld. Senior PP had also argued that since the TLO has CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 73 of 76 stated that alleged bribe amount had been recovered from the glove box of the car of accused Jagdish Kumar, a presumption be drawn that it was bribe amount as Jagdish Kumar could not explain the same satisfactorily. He also states that since the hand washes and the washes of the glove box had given positive report for presence of phenolphthalein powder, a presumption be drawn against accused Jagdish Kumar.
I, however, do not agree with this contention of the Ld. Senior PP since none of the independent witnesses who were allegedly part of the raiding team and eyewitnesses to such proceedings have proved the same. The independent witnesses have not identified the person whose hand washes had been taken in their presence.
59. Thus having gone through the testimony of the independent witness, I am of the view that to constitute the offences under Section 7 of PC Act, it was necessary for prosecution to prove that there was demand of money and the same was voluntarily accepted, either by the accused or by someone on his behalf. Therefore, under the Prevention of Corruption Act, the demand and acceptance of the money for doing a favour in discharge of its official duty is sine qua non for the conviction of the accused. Therefore, firstly there must be a demand and secondly there must be acceptance since the accused had obtained illegal gratification. There has to be clinching evidence to show that if the money has been received on CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 74 of 76 behalf of the accused there has to be a tacit approval of accused that the money had been taken on his behalf is illegal gratification.
60. In their testimony the independent witness have been declared hostile by the Ld. Senior PP for CBI and despite being cross examined at length by the Ld. Senior PP for CBI, they have not supported the case of prosecution regarding the main ingredients of the prosecution which are essential to prove the evidence with which the accused persons have been charged i.e. the demand and acceptance of bribe.
61. Therefore, in a nutshell the prosecution failed to prove the demand, acceptance or motive which are the sine qua non of proving the charge against accused Dr. Rakesh Bansal and accused Jagdish Kumar u/s. 120 B IPC and Section 7 and 13(2) r/w 13(1)(d) of PC Act. I, accordingly, acquit both the accused persons of the charges framed against them.
62. Documents of the sureties be returned to them, after cancellation of endorsement, if any, thereon. However, fresh bail bonds be furnished u/s. 437 A Cr.P.C.
Fresh bail bonds have been furnished and accepted till 25.2.2015.
63. Case property i.e. the alleged bribe amount of Rs.1.5 Lakhs CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 75 of 76 belongs to the complainant as has been deposed by the independent as well as witnesses of CBI. There is no dispute regarding this fact that amount of Rs. 1.5 Lakhs be returned to the legal heirs of the complainant Sh. Gurmeet Singh Wadalia, after the time of appeal is over.
64. File be consigned to Record Room.
Announced in the open Court on 25th of November, 2014.
(SWARANA KANTA SHARMA) SPECIAL JUDGE (CBI05) NEW DELHI / 25.11.2014 CC No. 09/12 State (CBI) Vs. Dr. Rakesh Kumar Bansal & Another Page No. 76 of 76