Delhi District Court
Cbi vs . Samay Singh Meena Etc. Page No. 1 Of 81 on 29 March, 2014
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IN THE COURT OF MS. POONAM A. BAMBA:
SPECIAL JUDGE (PC ACT) : CBI - 03 :
NEW DELHI DISTRICT : PATIALA HOUSE COURT :
NEW DELHI
In re :
CC No. 06/12
Case ID No. 02403R0031142012
RC No. 12(A)/2011-DAI/CBI/ACB/New Delhi
u/Sec. 120B IPC, Sec. 7 & 13(2)
r/w Sec. 13(1)(d) of PC Act
STATE (CBI)
Vs.
1. Samay Singh Meena,
S/o Late Sh. Kirodi Lal Meena,
R/o. 382, DDA, LIG Flat Pocket-13,
Phase-I, Dwarka, New Delhi
Permanent Address :
Lalpur, Roth Hadiya, Salempur,
Distt. Dausa, Rajasthan-321608
2. Arvind Kumar Tony,
S/o Late Sh. Sant Ram Singh
R/o. Gali No. 5, Nagla Road,
Mangla Puri, Karnkar,
Khera, Meerut Cantt.
Date of filing of charge sheet - 27.04.2012
Date of framing of charge - 21.09.2012
Date on which arguments concluded- 25.03.2014
Date on which judgment pronounced- 29.03.2014
APPEARANCES:
Sh. S. C. Sharma, Sr. Ld. PP for the State (CBI).
Sh. J. R. Priyani, Advocate for A-1 Samay Singh Meena.
Sh. B. P. Singh, Advocate for A-2 Arvind Kumar Tony.
CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi
CBI Vs. Samay Singh Meena etc. Page No. 1 of 81
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29.03.2014
JUDGMENT
1.0 The criminal justice system was set into motion on the complaint of Sh. Umakant Sharma ('complainant', in short) dated 25.08.2011. As per the complaint, the complainant is engaged in business of ration supply and repair/ maintenance to RIS (O) (Ration Issue Stand Office); the said business is run under the name and style of M/s Kumar & Company, P-8, Mohan Garden, New Delhi; he is a government approved contractor and general order supplier; he had been awarded several local purchase orders during the months of March 2011, May 2011 and June 2011 for supplying cheese spread, cheese slices, spices, semiya, etc. to RIS(O), INS India, Ministry of Defence, Logistic Complex, Dalhousie Road, New Delhi; towards the supplies made by the complainant against the contracts, bills were raised by him to the Commanding Officer, INS India (CO, in short); the said bills were forwarded to the Joint Controller of Defence Accounts (Navy), Sea Bird, West Block-V, R.K. Puram, New Delhi by Lt. Commander, Officer-in-charge, RIS(O), INS India, for auditing and passing the same. The complainant had submitted total eight (08) bills bearing nos. 127, 128, 129, CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 2 of 81 -3- 130, 132, 133, 134 & 135, dated 21.03.2011, 18.03.2011, 17.03.2011, 17.03.2011, 17.03.2011, 10.5.2011, 21.06.2011 and 21.06.2011, respectively; out of these 8 bills, bill no. 129, dated 17.03.2011 was cleared and payment was received by the complainant; but, the payment in respect of remaining 07 bills was pending; A-1 Samay Singh Meena, Auditor, O/o Joint Controller of Defence Accounts (Navy), Sea Bird, West Block-V, R. K. Puram, New Delhi, demanded Rs. 1500/- per bill for clearing the aforesaid bills; he even told that the said 07 bills would not be cleared, in case the bribe amount for the same, and also for the already cleared one bill, was paid.
1.1 As the complainant did not want to pay illegal gratification, on 25.08.2011, he made the aforesaid complaint to SP, ACB, CBI, New Delhi alleging the demand of bribe by A-1 Samay Singh Meena. The complaint was marked to SI Sandeep Gautam for verification. SI Sandeep Gautam verified the complaint, in the presence of an independent witness namely, Sh. Vikas Kumar, Inspector, Customs and Central Excise; for verification of the complaint, the complainant was directed to make a phone call from his mobile no. CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 3 of 81 -4- 9810124683 (Airtel) to mobile no. 09654870244 of A-1 Samay Singh Meena; the complainant accordingly called A-1, with his mobile phone on speaker mode; the said conversation was heard by all present and was also recorded simultaneously in the DVR; during the said conversation, A-1 Samay Singh Meena demanded bribe of Rs.1500/- per bill; but, on complainant's request A-1 agreed to accept Rs.1000/- per bill as bribe; as the said conversation established the demand of bribe of Rs.8000/- (Rs.1000/- per bill), FIR vide RC No. 12(A)/2011-DLI was registered on 25.08.2011. 1.2 Consequently, on the same day i.e., 25.08.2011, a CBI team including Trap Laying Officer (TLO), Sh. Yogesh Kumar, Inspector, CBI, ACB, independent witnesses Sh. Vikas Kumar and Sh. Hari Chand, Assistant, Institutional Land Branch, A Block, Second Floor, Vikas Sadan, DDA, INA, Delhi, the complainant and other CBI officials was constituted. After completing pre-trap formalities recorded in "Handing Over Memo" dated 25.08.2011, the trap team left for A-1's office; independent witness Vikas Kumar was asked to act as a shadow witness and to remain close to the complainant, to over hear the conversation and see the CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 4 of 81 -5- transaction of bribe. The trap team reached West Block-V, R. K. Puram, Sector-1, New Delhi and parked the vehicles in the nearby parking; on the direction of TLO, the complainant made a call from his mobile no. 9810124683 to the mobile no. 09654870244 of A-1 Samay Singh Meena, in presence of the team members; the said conversation was heard by all present and was also recorded in DVR; the complainant informed A-1 that he would be reaching outside his office in another 10 - 15 minutes; after some time, the complainant again called up A-1 at his aforesaid mobile number; on which, A-1 asked the complainant to talk to one Sh. Arvind Kumar Tony (A-2), who was already known to the complainant, as he was the dealing hand prior to the posting of A-1 Samay Singh Meena, in his place; A-2 told the complainant that they (A-1 & A-2) were coming to meet the complainant in next five minutes; this conversation was also simultaneously recorded in the DVR.
1.3 The complainant alongwith shadow witness Sh. Vikas Kumar went in the complainant's Santro car no. DL-8C N-1954; whereas, the other team members including independent witness Hari Chand, took appropriate position in CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 5 of 81 -6- a disguised manner; the DVR was kept in the left side shirt pocket of the complainant; after a while, A-2 Arvind Kumar Tony came and sat on the rear seat of the complainant's car; thereafter, A-1 Samay Singh Meena also came and sat on the rear seat; A-1 then asked the complainant to drive the car towards State Bank; accordingly, the complainant drove the car and halted the same, as per the directions of A-1 Samay Singh Meena. Complainant then discussed with A-1 Samay Singh Meena, the matter of his bills, which were pending for about 5 - 6 months; A-1 Samay Singh Meena informed the complainant about some objections in the bills, but, assured to clear the same and asked for the bribe money; the complainant then took out the money from his right side pant pocket and extended the same towards A-1; A-1 asked the complainant to put the money in some envelope; the complainant told A-1 that he did not have any envelope; on which, A-1 asked the complainant to wrap the money in newspaper; at his insistence, the complainant tore a piece of newspaper, which was lying in his car and wrapped the tainted money in it and gave it to A-1; A-1 accepted the same and kept it in his backside pant pocket; thereafter, the complainant moved the car towards a bus stop located near CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 6 of 81 -7- Mohan Singh Market, R. K. Puram on the pretext of having some tea/ cold drink; on reaching there, the independent witness Vikas Kumar got down from the car and gave the pre- decided signal by making a phone call on the mobile phone of SI Sandeep Gautam.
1.4 On receipt of signal, the CBI team rushed towards the complainant's car, where, the complainant alongwith independent witness and A-1 & A-2, was standing at the tea/ cold drinks stall; on identification by the complainant, SI Sandeep Gautam and TLO Insp. Yogesh Kumar caught hold of A-1 Samay Singh Meena and TLO challenged him for having accepted bribe of Rs.8000/- from the complainant for clearing his pending bills; on this, A-1 started crying and pleaded for mercy; the DVR was taken back from the complainant and switched off. On being asked about the bribe money, A-1 took out the same, (which was wrapped in newspaper), from his right side pant pocket and put it on the rear seat of the government vehicle; on directions, independent witness Sh. Vikas Kumar took the bribe money wrapped in newspaper in his custody.
1.5 Thereafter, the complainant and the shadow CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 7 of 81 -8- witness Vikas Kumar narrated the entire happenings and payment of bribe money; they also told that A-1 had not touched the tainted bribe amount with his hands; therefore, the hand-wash and pant pocket wash of the accused was not taken. The DVR was played and heard; the conversation, which took place during the transaction of bribe was heard in the presence of independent witnesses, which corroborated the version of the complainant and the shadow witness. The independent witnesses, on being directed, tallied the numbers and denomination of the Government Currency Notes (GC Notes), recovered from A-1 Samay Singh Meena with the details mentioned in the Hading Over Memo prepared in CBI office and the same totally tallied. As the place had become crowded, the accused were taken to CBI office, for further proceedings.
1.6 On reaching CBI office, after completing the other formalities of arrest, search, etc., the recorded conversation, which took place during the trap proceedings, was transferred to blank audio CDs, which was marked as Q-2; the same was then sealed; thereafter, the specimen voice of A-1 was taken in the presence of independent witnesses, which he CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 8 of 81 -9- voluntarily gave; the specimen voice was then transferred to a blank CD, marked as S-1. The said CD S-1 was also sealed; both the CDs marked Q-2 and S-1 were taken into possession vide recovery memo; the CBI brass seal used during the trap proceedings was handed over to independent witness Sh. Vikas Kumar; the recovery memo was prepared incorporating the entire proceedings. During investigation, specimen voice of A-2 Arvind Kumar Tony was also obtained in the presence of an independent witness and recorded in the CD Mark S-2, which was sealed; the complainant had identified the voices of both the accused persons in CD Mark Q2 and the transcript of the said recordings was prepared.
1.7 In the aforesaid conversation (CD Mark Q-2), the complainant specifically asked A-2, whether his bills would be cleared as per procedure or would he have to pay bribe for the purpose. On which, A-2 told the complainant that he would have to take the trouble and give the bribe amount as decided; from the same it was clear that A-2 had prior knowledge that A-1 was demanding bribe from the complainant for clearing his bills; and that, the bills would not be cleared, if the complainant failed to pay the bribe money. CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 9 of 81
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Further, A-2 remained present throughout the transaction, but, did not object to demand and acceptance of bribe by A-1. Rather, A-2 asked the complainant to clear the previous balance as he (A-2) had also dealt with the bills of M/s Kumar & Company and was known to the complainant. The charge- sheet further mentions that although, A-2 was not named in the complaint, but, from these facts, knowledge on his part and his complicity in the matter was evident; and therefore, he was also arraigned as an accused.
1.8 Charge-sheet also mentions that Calls Detail Record (CDRs) of A-1 and the complainant further corroborated the date, time and duration of the telephonic conversation between the complainant and A-1 on 25.08.2011. Vide Voice Examination Report dated 23.02.2012, the CFSL has given positive opinion on the questioned voice of both the accused persons. These facts revealed conspiracy between A-1 and A-2, who were serving in the same office; in furtherance of the said conspiracy, A-1 demanded and accepted bribe from the complainant for clearing pending bills of M/s Kumar & Company.
2.0 After obtaining sanction for prosecution of the CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 10 of 81
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accused persons from the competent authority, the charge- sheet, under Section 120-B IPC read with Section 7 and Section 13 (2) read with Section 13 (1) (d) of The Prevention of Corruption Act, 1988 (PC Act) and substantive offences thereof, was filed in court on 27.04.2012. 3.0 The charge under Section 7 and Section 13 (1) (d) read with Section 13 (2) of the PC Act was framed against A-1 Samay Singh Meena; and charge under Sections 12 PC Act & 109 IPC read with Section 7 read with Section 13 (1) (d) of the PC Act was framed against A-2 Arvind Kumar Tony, by the Ld. Predecessor Court on 21.09.2012. Needless to mention that the accused persons pleaded not guilty and claimed trial. 4.0 In support of its case, CBI examined 12 witnesses. PW1 Uma Kant Sharma, is the complainant. PW5 Sh. Vikas Kumar, Inspector, Central Excise Office, ITO, New Delhi, is the shadow witness. PW9 Sh. Hari Chand, Assistant, Institutional Land Branch, Vikas Sadan, DDA at INA, New Delhi, is the other independent witness, who was part of the trap team. PW10 SI Sandeep Gautam is Verification officer. PW11 Insp. Yogesh Kumar is TLO and PW12 Insp. Shitanshu Sharma is the Investigating Officer (IO). CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 11 of 81
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4.1 PW3, Mrs. Uma Hemant Kumar, AAO in AO(P), Sea Biard, R. K. Puram, New Delhi, is the official from office of the accused persons. PW6, Sh. Savitur Prasad, Principal Controller, Defence Accounts (Navy), Cooperage Marg, Colaba, Mumbai, is the sanctioning authority. 4.2 PW2 Sh. R. K. Singh, Nodal Officer, Bharti Airtel Ltd., proved ownership details of mobile phone/ CDRs of the complainant. PW4 Sh. Anuj Bhatia, Nodal Officer, Vodafone Mobile Services Ltd., proved ownership details/ CDR of mobile phone of A-1.
4.3 PW7 Sh. Amrendra Kumar, LDC, Vigilance Unit, CPWD, Nirman Bhawan, New Delhi, was the witness to recording of specimen voice of A-2 and transferring of the same to CD. PW8 Sh. Amitosh Kumar, Senior Scientific Officer, is the expert from CFSL.
5.0 Statement of A-1 Samay Singh Meena u/Sec. 313 Cr.PC was recorded on 31.10.2013 and 01.11.2013, and that of A-2 Arvind Kumar Tony was recorded on 12.11.2013. The accused persons denied the incriminating facts/ evidence put to them and stated that they have been falsely implicated by CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 12 of 81
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the complainant in connivance with CBI officials. 5.1 A-1 Samay Singh Meena also stated that he was beaten by the complainant and the CBI officials, when he refused to accept the bribe. As he had started weeping due to such beatings; the public had gathered at the spot; out of fear of public protest, the CBI officials forcibly took him to CBI office, in their vehicle and falsely implicated him in the present case. A-1 has further stated that certain objections were raised by the Senior Accounts Officer, due to which, the complainant's bills were pending for payment; a mistake was committed by the office of INS India, to which the bills were submitted by the complainant, by splitting the financial powers; INS India officials, specially Sh. Gulab Singh, in order to conceal their mistakes, instigated the complainant to make a false complaint against A-1, as he was the junior most official in the Audit Office; on 24.08.2011, no bill was pending with him; remaining bills were with the department of Additional CDA (IDA Office).
5.2 A-2 Arvind Kumar Tony stated that he had nothing to do with the matter; he was only enjoying the lighter moments with the complainant, as they were very well CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 13 of 81
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acquainted with each other and were on friendly terms. 5.3 Both the accused persons sought to lead defence evidence. A-1 Samay Singh Meena led defence evidence and produced DW1 Sh. O. P. Upadhyay, Asst. Accounts Officer, Accounts Office (P) Sea Bird, R. K. Puram, New Delhi. A-2 Arvind Kumar Tony did not lead any defence evidence, although, sought to do so vide his statement u/Sec. 313 Cr.PC. 6.0 I have heard the Sh. S. C. Sharma, Ld. Senior PP for the State/ CBI and Sh. J. R. Priyani, Advocate for A-1 Samay Singh Meena, at length and have given my thoughtful consideration to written submissions filed by Sh. B. P. Singh, Advocate for A-2 Arvind Kumar Tony. I have also perused the record carefully.
7.0 PW-1 has testified that he has been running a business in the name and style of M/s Kumar & Co. from P-8, Mohan Garden, New Delhi; and has been supplying various ration items to the Ministry of Defence, Navy, that is, INS, India, Dalhousie Road; his bids were accepted in the months of March, May and June, 2011 and accordingly, he had supplied goods/ ration items; he had raised eight different CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 14 of 81
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bills against eight supply orders; the said eight bills are Ex.PW1/1 to Ex.PW1/8; as per practice, the bills should have been cleared for payment within 30 to 45 days of submission with the CO, INS, India; but, his bills were not cleared within the stipulated time period, except one bill Ex.PW1/5. 7.0.1 PW-1 has further deposed that as his bills were not cleared within stipulated time, he visited the office and met the concerned officials to enquire about the same; he was told that his bills were under process and would be cleared; as the bills were still not cleared for long, he started corresponding with the Department for expediting and the said correspondence is Ex.PW1/9 (colly.) (D-43). 7.1 The facts that the complainant's firm M/s Kumar & Co., was supplying ration items to the office of Naval Head Quarters, INS India; towards such supplies made during March 2011 to June 2011, eight bills, that is, Ex.PW1/1 to Ex.PW1/8 were submitted by the complainant's firm to the CO; only one bill Ex.PW1/5 was paid and the remaining seven bills were pending for payment, as on the date of filing of complaint, are admitted by A-2 A.K. Tony vide his statement under Section CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 15 of 81
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313 Cr.PC. Pendency of complainant's bills is not disputed even by A-1 Samay Singh Meena vide his statement u/Sec. 313 Cr.PC, although, he has stated that the bills were pending because of illegality committed by the office of INS India, by splitting the financial powers; therefore, the Sr. Accounts Officer had raised objection and did not clear some of the bills. He has further stated that no bill was pending with him on 24.08.2011.
7.2 Further, the facts that A-1 and A-2 were posted as Auditors in AO (P), Sea Bird at the relevant time; and that earlier A-2 and thereafter A-1, after his posting on 9.5.2011 to Store Section, dealt with/ put up the bills received from INS India, Ministry Of Defence, have come on record vide accused persons own admission vide their statements under section 313 Cr.P.C and also vide testimony of PW3 and documents placed on record by CBI.
7.2.1 PW-3 has deposed that he remained posted as Assistant Accounts Officer, AO (P), Sea Bird since 23.07.2010 and was the Section In-Charge of the Store since August 2010 till 31.03.2012; three Sr. Auditors including A-1 and A-2 worked under him; A-1 Samay Singh Meena, Sr. Auditor was CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 16 of 81
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transferred to Store Section with the task of D section vide order dated 09.05.2011, Ex.PW3/C. A-1 Samay Singh Meena has admitted Ex.PW3/C and his posting, vide his statement under Section 313 Cr.PC. PW-3 has further testified about nature of work in their section and the procedure. He has stated that their Section dealt with the third party claim (contractor) and release of funds. The bills received through Naval Units in Record Section were handed over to the Auditor concerned, to complete the audit of the bills; and if the bills were found in order, the Auditor submitted the same to the Section Officer, that is, AAO/ SO (A), who checked the bill and submitted the same to the Officer In-Charge of the Section for scrutiny and approval. PW-3 has further testified that the bills of M/s Kumar & Co., Ex.PW3/I, Ex.WP3/F, Ex.PW3/G and Ex.PW3/H (these are the same bills as Ex.PW1/1 to Ex.PW1/4), were resubmitted for early clearance by INS India vide letter dated 22.07.2011, that is, Ex.PW3/M; and the aforesaid resubmitted bills were pending with A-1 Samay Singh Meena as on 23.08.2011; A-1 put up a note (in his handwriting) dated 23.08.2011, which is Ex.PW3/N. The said note is admitted by A1,in view of the suggestion put by him to PW-3,in cross examination. It was suggested to PW3 that the CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 17 of 81
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said note was put up by A1 with PW-3's consent. 7.2.2 It has also come in the testimony of PW-3 that the said bills were passed on 24.10.2011 vide note Ex.PW3/O. 7.3 From the above, it is established that the complainant's bills were pending for payment as on the date of filing complaint by him on 25.08.2011; and that A-1 was the dealing hand, who put up the bills to the higher officers. It has also come on record vide Ex.PW1/9 that the complainant had been corresponding with the Department/ INS India for expediting payment of his pending bills. The same has also come on record vide testimony of PW3, who has deposed that the complainant's bills were resubmitted to their department by INS India for early clearance, vide their letter EX-3/M. 8.0 PW-1 has further deposed that on 23rd or 24th August, 2011, in the evening at about 04:00 pm, he received a call from someone, who identified himself as Samay Singh Meena (A-1), posted in CDA, who told him that their bills were returned due to some objections and were pending before him for processing; but, he was evasive about the nature of CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 18 of 81
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objections; A-1 suggested that some "seva pani" would have to be done, if he wanted the bills to be cleared and told him to pay 2% of the total bill amount.
8.1 PW-1 has also testified that thereafter, he visited the office of Logistics Complex, INS, India and met Sh. Gulab Singh, Commander and apprised him about the pendency of his bills and also about the phone call received from CDA; Sh. Gulab Singh then called the office of CDA and spoke to A-1 Samay Singh Meena and enquired about the reason of his bills being not cleared; A-1 then informed Sh. Gulab Singh that the bills were pending for processing and would be cleared soon; Sh. Gulab Singh then assured him that his bills would be cleared in a day or two.
8.2 PW-1 has further deposed that thereafter, he consulted his father, who advised him to approach CBI and lodge a complaint with them. He then visited CBI office on 25.08.2011 and met Sh. Ganesh Verma, SP and apprised him about the entire facts and also showed him the documents/ correspondence made with office of CO, INS; he then gave a complaint in his writing, dated 25.08.2011 (Ex.PW1/10). CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 19 of 81
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Pre-trap proceedings/ verification of demand of bribe 9.0 PW-1 has further testified that Sh. Ganesh Verma, SP, CBI had called Insp. Sharma to look into the genuineness of the allegations made by him in his complaint; meantime, Sh. Sandeep Gautam was also called, who heard his grievance; and thereafter, one public witness Vikas Kumar was also called, who was also briefed about the complaint. PW-1 has also stated that thereafter, he was instructed to make a phone call from his mobile number 9810124683 to the mobile number of A-1 with his mobile on speaker mode; accordingly, he made a call to A-1, which was recorded on DVR of make Sony. During that conversation he told A-1 that he had been thinking about his demand, which he found very high and then bargained with A-1 to reduce the same; A-1, during the discussion demanded Rs.1500/- per bill, which was reduced to Rs.1000/- per bill, on his pursuation; thereafter, he asked A-1 as to when should he meet him to pay the money; A-1 asked him to come straight-away to his office; but, he expressed his inability to reach immediately; A-1 then asked him to come at any time between 4 pm and 5 pm on that day; A-1 also advised to call him, on reaching outside his office, to which he agreed. Thereafter, the recorded conversation was CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 20 of 81
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again heard and was transferred on to a CD. Verification Memo Ex.PW1/11 was prepared. Insp. Sandeep Gautam, then informed SP Ganesh Verma about the verification of the complaint, who then instructed to lay a trap. 9.1 PW-1 has stood by his testimony, in his cross- examination. The improvements, as pleaded (by Ld. Defence counsel) to have been made by the complainant in his testimony, are nothing but details given by the complainant, as would be discussed a little later in para 21.0 and its sub- paras (infra). Testimony of PW-1 is corroborated by independent witness PW-5 Vikas Kumar as well as by Verification Officer PW-10, Insp. Sandeep Gautam. 10.0 PW-5 Vikas Kumar, the independent witness has corroborated about his visit to CBI office on 25.08.2011 and being introduced to the complainant and being briefed about the complaint. He has corroborated that as per the instructions of SI Sandeep Gautam, the complainant from his mobile phone on speaker mode had called A-1 Samay Singh Meena on his mobile phone; the said conversation was simultaneously recorded on DVR. PW-5 further deposed that in the said conversation, the complainant talked to A-1 about the CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 21 of 81
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clearance of his bills. PW5 then stated that during the said conversation, A-1 had not spelt out the exact demand, but had asked the complainant to meet him. However, he again stated that A-1 had demanded Rs.1000/- per bill. PW5 in his cross-examination clarified that he was confused due to lapse of time and categorically denied that he changed his version on being tutored by CBI. PW-5 has also corroborated that the said recorded conversation was transferred by CBI officials in his presence on to CD Mark Q-1, which was sealed in his presence. He has also stated that his introductory voice was recorded in the CD, before transferring of conversation. 11.0 PW-10, SI Sandeep Gautam, Verification Officer has also corroborated the version of PW1, about the verification of the complaint by him. He has categorically stated that the conversation held between the complainant/ PW-1 and A-1, which was recorded in DVR, disclosed the demand of Rs.8000/- and that the said conversation was transferred to CD Mark Q-1.
12.0 It may be mentioned that the mobile phone numbers of A-1 Samay Singh Meena, i.e., 9654870244 and that of A-2 Arvind Kumar Tony, i.e., 8650284844, are not in CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 22 of 81
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dispute. A-1 as well as A-2 in their statement u/Sec. 313 Cr.PC, (vide Question No. 46) have admitted their aforesaid phone numbers.
12.1 So far as the mobile number 9810124683, is concerned, PW-2 R. K. Singh, Nodal Officer, Bharti Airtel Ltd. has testified that the said number is in the name of Umakant Sharma, S/o Sh. Suresh Kumar Sharma and proved the enrollment form for the said number and ID proof, which is Ex.PW2/A. He also proved the CDR of the said mobile number for the period 25.07.2011 to 25.08.2011, which is Ex.PW2/B and the certificate u/Sec. 65B of Indian Evidence Act, Ex.PW2/C. He has deposed that the data of the said call details was stored on the company's computer in the ordinary course of business and that he himself took the print out of the said data from the computer. In his cross-examination he further stated that he had accessed the said data by using his Unique ID and password. Nothing could be extracted from PW-2's testimony, so as to create doubt about the authenticity of the said CDR.
12.2 The CDR of A-1's mobile phone number 9654870244 for the period 25.07.2011 to 25.08.2011 has CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 23 of 81
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been proved by PW-4 Anuj Bhatia, Nodal Officer, Vodafone Essar Mobile Services Ltd. Same is Ex.PW4/B and the certificate u/Sec. 65B of Indian Evidence Act is Ex.PW4/C. The CDR has not been disputed by A-1 Samay Singh Meena as nothing to the contrary was put to PW4 in cross-examination. The only suggestion which was put to PW-4 was that the said CDR does not provide the details of conversation and the persons/ the subscriber, who was conversing in those calls. 13.0 Testimony of PW1/ complainant, independent witness PW5 Vikas Kumar and PW10, Verification Officer/ Insp. Sandeep Gautam is further corroborated by CDRs of PW1's and A-1's mobile numbers, Ex.PW2/B and Ex.PW4/B, respectively. As per the same, the complainant had called up A-1 on 25.08.2011 at 14:13:01, i.e., on the same date around the same time, as deposed by the witnesses. 13.1 It has come in the testimonies of PW1, PW5 & PW10 that the above conversation between complainant and A-1 was transferred to CD Mark Q1. Preparation of the transcript of the said conversation Ex.PW1/15 has been proved by PW1, PW5 and PW9. PW5 in his cross-examination has stated that he had put his signatures on the transcript, CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 24 of 81
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after hearing the recorded conversation. It may be mentioned that when CD Mark Q1 was played in the court, PW1 identified his as well as A-1's voice and categorically stated that his and A-1's dialogues are indicated as 'C' and 'SO', respectively, in the transcript Ex.PW1/15.
13.1.1 PW-5 also identified his introductory voice in CD Mark Q1, as well as the voice of the complainant and A-1 Samay Singh Meena, in the recorded conversation, when CD Mark Q-1 was played in the court, during his testimony. It is significant to note that the observation by court was made during recording of testimony of PW1 that the recorded conversation conformed to the transcript Ex.PW1/15. 13.2 Besides oral testimony of PW1, PW5 and PW10, the fact that A-1 is in conversation with PW1 in CD Mark Q-1, is further substantiated by Sr. Scientific Officer, PW8's report Ex.PW8/C. 13.2.1 It may be mentioned that CD Mark Q-1 (as well as CDs Mark Q-2, Mark S1 and Mark S-2) were sent for examination to CFSL. [taking of voice samples of accused persons, has come on record vide testimony of witnesses, and CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 25 of 81
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discussed in paras 15.6 & 17.2 (infra)] Questioned voice of A-1 in CD Mark Q1 and Q2, when compared with his specimen voice in CD Mark S1, has been found by the Expert, PW8 Sh. Amitosh Kumar, Senior Scientific Officer, in his report Ex.PW8/C, to be of the same person, on the basis of linguistic, phonetic and spectographic examination. 13.2.2 PW8 has also observed in his report that the conversation might not have been tampered as there is no pause, discontinuity of speech, no change in background noise in speech conversation; no spikes in speech wave form could be detected. PW8 has stood by his deposition in his cross-examination and categorically denied that there were gaps and pauses showing discontinuity in the recording in questioned CDs. No doubt, PW8 admitted that with modern technology it is possible to edit the conversation; and that the voice of any person can be imitated by anyone. But, he clarified that such editing/ differences could be easily detected with the help of spectrography. Nothing could be extracted in PW8's cross- examination, so as to create any doubt about his report or authenticity and accuracy of the recorded conversation. It CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 26 of 81
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may also be mentioned here that court observation was made, when CDs Mark Q1 & Q2 were played in court during recording of testimony of PW1, that the audio quality of both the CDs is very clear and free from distortions or any disturbance.
13.3 In view of the above, voice of A-1 has been duly identified in questioned CD Mark Q1; and authenticity and accuracy of recorded conversation is also established.
13.4 Ld. counsel for A-1 argued that the conversation recorded in CDs Mark Q-1 and Q-2 can not be admitted in evidence, as the DVR, in which the conversation was recorded was not seized and sent to CFSL for examination. Rather, the conversation was transferred to CDs, which are only the secondary evidence. Reliance in this regard was placed upon the judgment of Hon'ble Bombay High Court in Mrs. Havovi Kersi Sethna Vs. Mr. Kersi Gustad Sethna, AIR 2011 Bom 283.
13.4.1 It would be pertinent to refer here to the judgment of the Hon'ble Supreme Court in R.M. Malkani Vs. State of CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 27 of 81
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Maharashtra, AIR 1973 SC 157. The Hon'ble Apex Court while reiterating the views of the Hon'ble Court in N. Sri Rama Reddy Vs. V.V. Giri AIR 1971 SC 116, observed as under :
"23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape-record. A contemporaneous tape-record of a relevant conversation is a relevant fact that is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. ......
.......
27. When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. ......"
13.4.2 It may also be mentioned that the Three Judges Bench of the Hon'ble Supreme Court in Ziyauddin CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 28 of 81
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Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors., AIR 1975 SC 1788 (1) held that the use of tape recorded conversation is not confined to purpose of corroboration and contradiction only. When duly proved to be genuine, it can be used as substantive evidence. The Hon'ble Court also noted that there could be no more direct or better evidence of a statement than its tape record. The observations made by the Hon'ble Court in this regard are reproduced hereunder:-
"19. We think that the High Court was quite right in holding that the tape records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs........ .......
21. The High Court also referred to N. Sri Rama Reddy v. V. V. Giri, (1971) 1 SCR 399 = (AIR 1971 SC 1162), for the proposition that, like any document, the tape record itself was "primary and direct evidence admissible of what has been said and picked up by the receiver." In other words, its use was not confined to purposes of corroboration and contradiction only, but, when duly proved by satisfactory evidence of what was found recorded and of CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 29 of 81
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absence of tampering, it could, subject the provisions of the Evidence Act, be used as substantive evidence. Thus, when it was disputed or in issue whether a person's speech, on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape record, assuming its authenticity to be duly established.
22. In our opinion the High Court had rightly relied upon the tape recorded reproduction of the appellant's speeches....."
13.4.3 In view of the above, for admissibility of a tape recorded conversation in evidence, what is to be ensured is its relevancy, accuracy, authenticity and due identification of the voice of the speaker. These criteria have been duly met in the instant case, as conversation is very much relevant to the matter in issue; voice of A-1 has been duly identified by PW1 & PW5 and even vide Voice Expert Report Ex.PW8/C; the authenticity of the conversation has been established vide oral testimony of these witnesses, CDR and Voice Expert's (PW-8) report. Therefore, merely because the DVR was not seized and sent to CFSL for examination, does not render the recorded conversation in CDs Mark Q-1 and Q-2, inadmissible. CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 30 of 81
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13.4.4 In view of the above, the judgment in H. K. Sethna's case (supra), as relied upon by A-1, is of no assistance to him. More so, as the fact situation was very distinct in that case. It was a divorce petition filed by wife, in which, the husband wanted to confront the wife with the taped conversation recorded by him. Wife objected to the same on the ground that the instrument in which the conversation was recorded, was not produced. It would be relevant to refer to the observation of the Hon'ble court in paras 16 & 18, which read as under :
"16. ....If however, the Defendant desires to set up a specific case, for which the evidence is contained in the CD, he would be required to satisfy the aforesaid three tests, more specially the test of accuracy by producing the original electronic record."
...........
18. It may be mentioned that the Defendant could have produced the same evidence by a non-electronic mode by a manual human source. If a witness was present at the time of the conversation between the Plaintiff and the Defendant, the Defendant could have led oral evidence which could have been CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 31 of 81
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corroborated by the witness. In a tape-
recorded conversation, the electronic mode substitutes the human evidence.
This aspect has been well observed in paragraph 18 in the case of R. M. Malkani (supra) thus :
If the conversation were relayed on a microphone or an amplifier from the telephone and the police officers heard the same they would be able to get direct evidence of what they heard. Here the police officers gave direct evidence of what they saw and what they did and what they recorded as a result of voluntary permission granted by Dr. Motwani. The tape recorded conversation is contemporaneous relevant evidence and therefore it is admissible.
That judgment further held that Articles 20 (3) and 21 of the Constitution or Section 162 of the Criminal Procedure Code were also not offended by a tape-recorded evidence."
13.4.5 The observations made in Para 18 rather, permit reliance upon recorded conversation in the present fact situation. As discussed above, in the instant case, the CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 32 of 81
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telephonic conversation by the complainant was made with mobile on "speaker mode", the mobile numbers of A-1 and PW1 stand proved; actual conversation was heard by PW5 and PW10 and was recorded simultaneously; and the same has been proved vide their and PW1's oral testimony; the voice of the accused has been identified by PW1, PW5, when the CDs were played in the court; the same has also been identified vide Ex.PW8/C; that there is no tampering in the conversation, has also come on record.
13.4.6 Further, A-1 simply suggested to the witnesses (PW1 & PW5) that no conversation between the complainant and the accused was recorded; the CDs are tampered and the conversation is interpolated and fabricated; and that the transcripts are also manipulated. Except for a bald denial of the contents and authenticity of the conversation, no material has been placed on record by A-1, to show that such conversation was fabricated and manipulated. A-1 has failed to specifically point out the fabrication/ editing/ manipulation and doctoring in the recorded conversation, placed on record by CBI. A bald denial of the contents of conversation is not adequate to doubt its authenticity. In Jagjit Singh Vs. State CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 33 of 81
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of Haryana, AIR 2007 SC 590, the Hon'ble Supreme Court observed that simple denial of the allegations in the complaint and authenticity of newspaper report and reporting in electronic media without pointing out as to how and what part of the recordings were not genuine, is not sufficient; and simply on that basis, the authenticity and accuracy of the electronic evidence cannot be doubted.
13.4.6.1 Even otherwise, PW1 in his cross-examination has categorically denied that he had no conversation with A-1 from CBI office; he even specified that the said conversation lasted for about 2 - 3 minutes (same by and large matches with duration of the said call in CDR). PW1 has also explained that the conversation from DVR was transferred to laptop and then on to CD. PW1 has also categorically denied that no conversation of accused persons was recorded and transferred to CDs Mark Q1 (Ex.P-10) & Mark Q2 (Ex.P-13), and that the CDs are tampered.
14.0 In view of the above, it is established that A-1 is in conversation with PW1 in CD Mark Q-1. The relevant portion of the said conversation (in CD Mark Q1) is reproduced hereunder :
CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 34 of 81
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"Track-1 Suspect Officer: Hello .....
SO: Haan namaskar boliye.
C: Umakant bol raha hun. Sir.
SO: Haan boliye.
C: Vo sir aisa tha raat ko baat hui thi na
main thoda late ho gaya tha... subah tender tha na mere maine bataya tha apko.
C: ...father se subah discuss kiya tha maine thoda
sa
SO: Haan Haan
C: Vo Keh rahe the ki itna to isme bachna bhi
nahin hai aur aapne amount - .. thoda sa dekho usme sir.
C: Bas ab thoda sa free ho gaya tha, bataiye sir kaise tha vo raat ko aapne baat ki thi jo ---- kahan aana hai ---kya karna hai.
SO: ....Aa jayie phir aap.
......
SO: Aa---- abhi main bata deta hun apko ---- jo
maine pandrah sau bola the aapko, chalo usko hazar rupee kar lo.
C: Acha hazar rupaye ek bill ka.
SO: Haan ji.
C: To usme sir --- ek to apne 95000/- rupaye ka
clear kar diya tha.
SO: Haan haan haan haan.
C: Aur chaar bache na fir mere vo.
SO: Chaar aur abhi teen aur hai na mere pas
--- saat hai apke...
....
C: To jo unka hai --- baki ke teen bill hai unka
aapko raat ko bola tha ek percent ke liye.
SO: Haan haan haan ji theek hai.
....
C: Acha to ab matlab total kitna de dun sir ---
ye batao --- thoda dekh lena sir --- mer bada nuksan hua isme.
SO: Lagbhag aath ho gaye apke.
C: Aath ho jayega.
SO: Haan.
C: Aath hazar.
SO: Haan haan haan haan.
C: Theek hai to sir thoda sa aur kar lo, bada zyada
lag raha hai, badi mushkil se hi nikalunga --- kyunki aapko pata hai teen hazar to ek bill --- ek supply mein hi profit hota hai hamara.
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SO: Ab yaar mein --- ab main kuch nahi kar sakta --- dekho kuch karna hai to dekh lo nahi to fir--
C: Acha aur agar main de dunga advance to ye kab tak clear kar doge bill sir.
----
SO: Within three days.
C: Within three days --- hai ---
SO: Haan.
C: Theek hai sir --- to mujhe kab ana hai sir.
SO: Abhi.
......
C: To --- matlab chaar baje ka rakh lo.
SO: Nahi yaar - sade teen aao.
...
C: Theek hai sir kidhar aana hai vaise.
SO: Aap ek baar niklo to sahi main bata dunga.
C: Theek hai --- theek hai sir fir main chalne
se paanch - dus minute pehle apko ek baar phone kar lunga ---
SO: Theek hai aa jao fir pakka der mat karo. ...."
14.1 The above conversation further corroborates the testimonies of complainant PW1, independent witness PW5, Vikas Kumar and Verification Officer PW10, Insp. Sandeep Gautam. In the aforesaid conversation, the complainant is referring to the talk he had with A-1, the previous night, i.e., 24.08.2011 - "..... C: Vo sir aisa tha raat ko baat hui thi na main ......bataiye sir kaise tha vo raat ko aapne baat ki thi jo ----kahan aana hai ---kya karna hai." 14.2 The fact that the complainant had conversation with A-1 on 24.08.2011 at night, is corroborated by Ex.PW2/B CDR of the complainant's mobile number 9810124683; same CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 36 of 81
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shows that two calls i.e. at 21:42:50 and 22:09:12 were made by the complainant to A-1.
14.3 PW1's deposition that he discussed the matter (of demand by A-1) with his father, is also corroborated by aforesaid conversation, in which he is telling A-1 that -
"....father se subah discuss kiya tha maine thoda sa ......Vo Keh rahe the ki itna to isme bachna bhi nahin hai aur aapne amount - .. thoda sa dekho usme sir."
14.4 In view of the above, it is established that A-1 initially demanded Rs.1500/- per bill, which was later reduced to Rs.1000/- per bill; he demanded a total sum of Rs.8000/- for clearance of complainant's bills; he even assured that on payment of bribe amount of Rs.8000/-, bills would be cleared within three days.
Trap/ Acceptance of bribe amount:
15.0 PW-1 has further testified that for laying trap, Insp. Yogesh Kumar joined and one more public witness, namely, Hari Chand was also joined in the team. As instructed, he produced Rs.8,000/- in the denomination of 8 Government CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 37 of 81
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Currency (GC) notes of Rs.1000/-. PW1 has stated that a demonstration was given to them; the currency notes were sprinkled with some powder and one of the the public witnesses was made to touch the currency notes and their hand wash was taken in some liquid, which turned pink. All of them had then washed their hands; the currency notes applied with the powder were kept in his right side pant pocket by one of the witnesses; all other belongings of his, including his valet were taken out from his pockets, he was given a DVR and was instructed about its user; and Handing Over Memo Ex.PW1/12 was prepared; the public witness Vikas Kumar was instructed to remain with him at the time of meeting with A-1, while the other public witness Hari Chand was to remain with the CBI officials.
15.1 PW1 has also deposed that thereafter, he alongwith independent witness Vikas Kumar started from CBI office in his vehicle; whereas, the other independent witness with CBI officials travelled in the official vehicle of CBI. PW-1 has further stated that as instructed, while on the way to A-1's office, he called A-1 and informed him about his coming to his office and confirmed about his presence in the office. CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 38 of 81
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Thereafter, he again called up A-1, but, the said call could not get connected; thereafter, the next call made to A-1, around 04:00 p.m. - 04:15 p.m., was picked up by him, but, A-1 asked him to speak to A-2, who was known to him; thereafter, A-2 came on the line and asked about his whereabouts; he informed A-2 that he was in a silver colour Santro car, near the "IN Gate" of CDA Office, located in West Block-V, Sector-1, R. K. Puram, New Delhi.
15.2 PW1 has also deposed that while they were waiting in his car, A-2 Arvind Kumar Tony came out from the office and sat on the rear seat of his car, while he was on driver seat and independent witness Vikas Kumar was on the seat next to him; he introduced the independent witness Vikas Kumar to A-2, as his cousin; during discussion with A-2 about non-payment of his bills, A-2 told that he would have to do some "Sewa Pani" and keep A-1 happy; after about 5 to 7 minutes A-1 also arrived; he also sat on the rear seat of his car; to A-1 also, PW5 Vikas Kumar was introduced as his cousin; A-1 then asked him to drive the car and to take it towards State Bank of India Branch, Near the CDA Office; he drove the car accordingly and discussed the matter of his CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 39 of 81
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pending bills with A-1 and told him to show some mercy as he was asking for too much amount; on which, A-1 told him that he will have to shell out some money as there were certain audit objections and even the senior officer would ask for money to clear the bills; A-1 then asked him to drive further near the bye lane near their office and when he stopped the car at the desired place, A-1 asked him about the money and on his asking as to how much he wanted, A-1 told "eight" and then clarified that he was demanding Rs.8000/-. 15.3 PW-1 has further deposed that on A-1's demand, he took out the money from his pocket and extended towards A-1; A-1 asked him to put the money in an envelope; as he did not have envelope, A-1 asked him to wrap the currency notes in the newspaper pointing towards the newspaper lying in his car; on which, he tore a page of newspaper and wrapped the currency notes in the same and handed them over to A-1; A-1 accepted the money with his right hand and put it in the rear pocket of his pant. PW-1 has further stated that after handing over the money he offered tea/ drinks to the accused persons; he then placed the order for cold drinks, as they had reached Mohan Singh Market at Sector-1, R. K. Puram. CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 40 of 81
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15.4 PW1 has also deposed that in the meantime, CBI officials reached the spot while all of them were standing outside the car; Insp. Yogesh Kumar asked him about A-1 Samay Singh Meena and on his pointing out, the CBI officials caught hold of A-1 by his wrists and A-2 Arvind Kumar Tony was also apprehended; both the accused persons were shocked and started crying; DVR was taken back and switched off; as passers by had gathered at the spot, both the accused persons were brought inside the CBI's vehicle; A-1 was asked as to where he had kept the money, but, he refused to say anything; on being dealt with strictly, he took out the money wrapped in a newspaper from the rear pocket of his pant and placed it on CBI vehicle/ Maruti Gypsy's seat; on which Insp. Yogesh Kumar directed A-1 to unwrap the newspaper and show its contents, but he refused to do so; thereafter, one of the witnesses either Hari Chand or Vikas Kumar on being instructed by Insp. Yogesh Kumar unwrapped the newspaper and counted the currency notes, which were Rs.8000/-; the numbers thereof were tallied in office, later on; the remaining proceedings were conducted in CBI's office, as huge crowd had gathered at the spot.
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15.5 PW-1 has also stated that after reaching CBI office, the conversation recorded in DVR was heard and transferred to CD and the said CD was sealed, in their presence; the numbers of currency notes were also tallied with the numbers in the Handing Over Memo. PW-1 identified in court, the piece of newspaper, which was used to wrap the currency notes handed over to A-1 and also the currency notes (Ex.P-1 to Ex.P-8).
15.6 PW-1 has also testified about taking of specimen voice of the accused persons in his presence; and that the same was transferred on to CD and sealed in his presence. He has also deposed that on 14.11.2011, he again visited CBI Office and the tape recorded conversation was played and heard and the transcript of the conversations between him and A-1, during verification proceedings and during trap, were prepared in his presence. Merely because, PW1 could not recollect (in his cross-examination) whether voice sample of A-1 was taken on 25.08.2011 or on 14.11.2011, does not by itself make his testimony in this regard, untrustworthy. 16.0 Testimony of PW1 is corroborated by PW-5. He has deposed that after verification of demand of bribe amount, a CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 42 of 81
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trap team was constituted, in which another public witness Hari Chand was also joined. PW-5 has also stated that at about 03:30 p.m. he alongwith the complainant left CBI Office, in complainant's Santro car; on reaching near A-1's office, the complainant had made a call to A-1 from his mobile phone, on which, A-1 had told that he would be coming in about 10 - 15 minutes; but, when he did not turn up, the complainant again tried to contact him, once or twice, but, there was no response; thereafter, another call was made which was picked up by A-1, but, he handed over his phone to A-2 Arvind Kumar Tony; after 05 - 10 minutes, A-2 came to them and sat on the rear seat of Santro car. PW-5 even correctly identified A-2 in the court.
16.1 PW-5 has also corroborated that A-1 had arrived about 05 - 10 minutes, later; that he had requested the complainant to move the car; and that the complainant then drove his car around in R. K. Puram area; and during that drive, the complainant discussed with A-1 about his pending bills; A-1 asked for money and the complainant had produced the bribe amount to Rs.8000/-; but, A-1 insisted to give the same in some envelope; as there was no envelope, at A-1's CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 43 of 81
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insistence, the complainant tore a piece of newspaper and wrapped the money in the same and handed it over to A-1, which was kept by A-1 in back pocket of his pant. 16.2 PW-5 has also corroborated that they had halted for having tea/ juice at Mohan Singh Market, R.K. Puram, Sector-1; and that he gave a missed call, when they were having talks about tea etc.; the complainant also gave secret signal. PW-5 has also corroborated the recovery of the said amount from A-1 and has stated that after apprehension of accused persons by CBI, when asked about receiving bribe money, A-1 had started crying and took out the money wrapped in a piece of newspaper and placed it on the rear seat of the Gypsy/ CBI's official vehicle. PW-5 has also corroborated that as the crowd had gathered, Insp. Yogesh Kumar handed over to him, the bundle of bribe money for safe keeping; on their return to CBI office, he had opened the newspaper in presence of other independent witness PW9 Hari Chand and others and the currency notes were counted and their numbers were tallied with the details recorded in Handing Over Memo, which were found to be the same. 16.3 PW1 as well as PW5 have stood by their version in CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 44 of 81
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cross-examination. Nothing could be brought out in their cross-examination so as to discredit their testimonies. It is significant to note that the presence of A-1 at the spot and the factum of bribe money being wrapped in newspaper and that it was placed on the rear seat of the police gypsy, are not disputed in view of the suggestion put by A-1 to PW1 as well as PW5 in their cross-examination. PW1, in response to the said suggestion, responded that, ".....It is wrong to suggest that accused Samay Singh Meena was beaten up by CBI in my presence at the spot and when he was crying, the bribe money wrapped in the newspaper was placed on the rear of the police gypsy by him." To PW5, it was suggested that personal search of A-1 was not taken at the spot and that he was not interrogated prior to making him sit in the (official) vehicle.
16.4 Thus, PW-1's version of demand of bribe, its acceptance by A-1 and the recovery of the bribe amount from A-1, is corroborated by PW-5.
17.0 PW-9, Hari Chand, the other independent witness has corroborated being part of the trap team on 25.08.2011 and the proceedings conducted prior to trap and the CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 45 of 81
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happenings during trap; recovery of bribe amount from A-1; his apprehension etc. He has stated that he was briefed by CBI officials about the complaint lodged by the complainant, whose bills were pending; and that he was introduced with the complainant and he also went through the complaint; the complainant told him about the demand of Rs.1000/- per bill by the accused persons/ dealing assistant. PW-9 has also stated that Rs.8000/- were produced by the complainant, although, initially he stated that the same were produced by CBI officials. PW9 has also corroborated that numbers of the currency notes were noted down. He has also corroborated in material particulars, the version of PW1 about calling up A-1 on reaching near his office and that firstly A-2 came out (at 03:30 p.m.) and that A-1 came out later (at about 04:30 p.m.); and that the discussion between them was recorded in DVR. PW9 referred to shadow witness as Vijay Kumar. 17.1 As PW9 deviated from his version under Section 161 Cr.PC., he was cross-examined by Ld. Prosecutor, with the permission of the court. In his cross-examination, PW-9 admitted that he was not able to correctly state the facts earlier, due to old age and memory loss. He also clarified that CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 46 of 81
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he had forgotten the name of the independent witness and that his name was Vikas Kumar and not Vijay Kumar. In his cross-examination, PW9 corroborated PW-1's version and admitted that A-1 had arrived outside office about 15 minutes after the arrival of A-2. He also admitted that on being questioned after apprehension, A-1 had taken out money wrapped in a piece of newspaper from the backside pocket of his pant and had put it on the rear seat of the official vehicle; and that on instruction of Insp. Yogesh Kumar, PW5 had picked up the bribe amount wrapped in newspaper for safe keeping. He also corroborated the tallying of currency notes and their numbers with the memo. He even identified his signatures on the newspaper Ex.P-9, in which the currency notes were wrapped.
17.2 PW-9 has also corroborated that the conversation recorded in DVR was heard in CBI office and was then transferred to CD Mark Q2 - (Ex.P-13); the CD was sealed and the seal was handed over to PW5. PW9 even identified his signatures on CD Mark Q2 at point 'D'. Both PW5 and PW9 also corroborated that the specimen voice of A-1 was taken in their presence in CD Mark S-1 (Ex.P-16), which bears their CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 47 of 81
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signatures, and that it contains their introductory voices. PW-9 also testified that the transcript of the conversations (recorded in CDs Mark Q1, Q2 & S1) were prepared on 14.11.2011, in his presence and the same are Ex.PW1/15, Ex.PW1/16 & Ex.PW1/17 and Ex.PW1/18, respectively, which bear his signatures at point 'C'. Ld. counsel for A-1 objected to the same. But, the reason for such objection was not specified. Nor was any submission made in this regard during final arguments.
18.0 PW-10, Insp. Sandeep Gautam deposed about being part of the trap team. He has corroborated the version of PW-1 regarding the entire trap proceedings. Even PW11, TLO Insp. Yogesh Kumar, has corroborated the version of PW1, PW5 and PW9.
19.0 Testimony of the witnesses that PW1 called up A-1 Samay Singh Meena twice, during trap on 25.08.2011, around the same time as stated, is corroborated by CDRs of mobile phones of PW1 as well as A-1, i.e. Ex.PW2/B and Ex.PW4/B, respectively. As per the CDR, calls by PW1 to A-1 were made at 15:50:49 and 16:06:45 on 25.08.2011.
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19.1 Further, it has come in the testimonies of PW1, PW5, PW9, PW10 & PW11 that the said telephonic conversation and one to one conversation between complainant and accused persons during trap was recorded in DVR; and that the same was transferred to CD Mark Q2 (Ex.P-13). PW1 identified voice of A-1 Samay Singh Meena as well as of A-2 Arvind Kumar Tony in the CD Mark Q2, when it was played in the court; he even pointed out their dialogues in the transcript. Even PW5 identified A-1's voice in CD Mark Q-2, when it was played during recording of his testimony. No suggestion to the contrary was put to PW1 and PW5 in their cross-examination that they have wrongly identified A-1's voice.
19.2 Testimony of PW1 and PW5 with respect to identification of accused's voices, is further substantiated by PW8/ Voice Examination Report Ex.PW8/C. PW8 vide his report Ex.PW8/C, has opined that the questioned voices of A-1 and A-2 in CD Mark Q-2 are similar to their specimen voices recorded in CDs Mark S1 and S2, in respect of the linguistic and phonetic features, on auditory examination; and even on spectographic examination, in respect of their formant CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 49 of 81
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frequencies, distribution, intonation pattern, number of formants and other general visual features in voice gram. It may be mentioned that Spectogram/ voice prints are like finger prints and are distinctive and unique for each individual and help in speaker identification. It has also come on record [para 13.2.2 (supra)] that there is no tampering in the recorded conversation in CD Mark Q2. Further, it would be pertinent to mention here that A-2 has not disputed, either his voice or the contents of conversation recorded in CD Mark Q2. He has only stated that he was sharing lighter moments with PW1.
19.3 As the voices of the accused persons have been identified; the recorded conversation is relevant, authentic and there is no tampering, same is referred to. The relevant portion of the conversation recorded in CD Mark Q2 is reproduced hereunder: -
"Track No. 1
.........
SO: haan ji Sir
C: Haan ji, Meena Sahab namaskar
.....
C: Sir, Umakant bol raha hun
SO: Haan boliye - boliye
...
SO: As jao office hi, aa jao hamare.
C: Acha, vahan pahunch kar fir phone kar
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dunga apko.
SO: Haan ji haan.
C: Sir 10 minute to...
SO: ek minute meri baat suno aap C: haan ji.
SO: ye Gulab Singh ji se baar baar baat kab ki apne.
C: kaun? Gulab Singh Sahab.
SO: haan, vo baar baar phone kar rahe hai
idhar unko bol to diya kar denge kar denge. C: nahi nahi, unse nahi maine kiya humne to vo apni pehle letter likhe the jo sarkari jo jaise unko --- jinhone kaam diya tha CO Sahab ko.
SO: haan.
C: k sir vo payment vayment nahi hui thi. Bas mai
hi likha tha letter aur kya hai?
SO: nahi, vo baar baar bol rahe hai ki kar do
un billon kar do
C: vo to sir ab apke haath me hain. Hum to, pata
nahi kaun karega.
....
C: aah --- aur main fir pahunch ke karun kya
apko call abhi.
SO: haan, pahunch ke karo aap theek hai.
C: acha, aur theek hai.
SO: aa jao- aa jao ap.
XX
Track No. 05
....
C: haan, ji Meena Sahab, Umakant bol raha hun.
SO: haan - ek minute Tony se baat karo tum -
tum us Tony se baat karo tum - tum us Tony ko jante ho na aap.
....
T: acha acha. To vahi mil Airforce ke gate ke paas na.
C: haan haan haan - theek hai.
T: main neeche ata hun.
C: aa jao, aap aa jao.
Track No 06
....
C: aao Tony sahab, kya haal hai?
T: haal theek hai.
C: aur kahan hai vo Meena Sahab kahan?
T: Meena andar hai.
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C: bulao.
T: bula deta hun.
T: ho gayi baat us se.
C: aa haan.
T: ab hamara tumne kuch kiya nahi, dekh lo
kitna balance hai.
C: kar lenge.
T: tum bhaiya apne phone me aye to phone bhi
nahi uthate.
C: kab kara phone apne.
T: milao to phone.
......
T: kal tumhare father aye the.
.....
C: haan, kya keh rahe the.
.....
C: arey kar do na clear usko, kya rakha hua hai?
T: NEFT detail to do uski.
C: kya dun.
T: NEFT
....
C: kya keh rahe father, kya keh rahe the.
......
C: are kya bat kar rahe ho Tony Sahab aap, apse
baat na kare hum, aisa ho sakta hai kabhi. Abhi ye batao dekho ki kitna time ho gya hamare bilo me.
T: ye ab bhi ho hi rahe hain bhai sahab.
.......
T: ye ab bhi ho rahe hain. varna isme - halki
lakeer
C: acha. abhi bhi vo hi hai objection hai.
T: nahi ab to ho jayenge.
C: acha ab ho jayenge-- nahi vaise hi ho
jayenge, jaise dekho hum jo aap loge ho raha ha seva pani- ya vaise hi kar rahe ho. T: dikkat to tumhe karni padegi, jo tumse unse baat hui hai.
.....
C: aa jao, aa jao bula lo, aa jao aap andar ho aao.
T: adjust ho jao.
C: aao ji aao, Meena sahab, kya haalchaal hai?
SO: udhar lekar chalo yaar SBI ki side me.
C: kahan, SBI me.
......
C: are, Meena sahab, kyun pareshan kar
rahe ho hume?
SO: pareshan aap kar rahe yar ya hum kar
rahe hain.
C: hum kahan pareshan kar rahe hain--pehle ye
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batao aap hai, matlab kasam kha li hai ki bill clear karna hi nahi hai.
........
SO: nahi nahi humne to koi kasam nahi khayi, yaar. C: are kahan, meena sahab aap fir kehte hai Gulab Singh sahab phone karte hain--hum unko thodi kehte hain-- humne to chitthiyaan likhi hui hai bas kar do--bhaiya kar do, kuch kalyan kar do hamara. SO: apse humne do mahine pehle nahi kahi. ......
SO: problem bataiye kisne create kari-- apne to kari, humne kya kari?
........
C: nahi aap ek baat batao, ek admi supply karta hai- maal to pura kar diya unko theek hai, ab margin hota hai chota sa-- 3000 ka 4000 ka ab usme hum kahan jaye, kitni, kitni door tak jaye batao-- ye bhi dekho na ap.
........
SO: panga usme bahut bada hai chota mota nahi hai bhai.
........
SO: mamla kya hai ki ek mahine mein aap sanction le rahe hain kaam ki aur zyada maal utha rahe hain usme.
T: vo ek mahine me do sanction hain.
SO: do sanction hain.
C: acha, isliye panga hai.
SO: isliye panga hai.
.......
SO: objection aa rahe hain hamari marzi ka hai hi
kuch nahi bhai.
C: nahi, aisa bhi hota hai na ke jaan jaan ke
lagana, nahi dena.
SO: bilkul, nahi aisa kabhi bhi nahi karenge hum.
T: ye voi vale bill to hain tumhare bhai sahab.
C: March vale hi to hain--inke paas hi to pade
hain--to fir ek bili aur tha jo senyu vala tha.
SO: sab ho gaye ji.
........
SO: mere paas 4 bills hai apko mere paas
abhi.
C: 4 nahi hai.
SO: 5 hain kya?
.........
C: uske baad ka hai--- apko yaad hai apne
usme original bill hi gayab kar diya.
.........
T: are chalo, ab baat khatam karo--tum apni
baat kar lo--jo tumhe karni hai--jaise tumhara hai.
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......
SO: main to khud dara hua apse zyada.
.......
C: humse kyun dar rahe ho, batao
....
C: apko sab pata hai-- apko sare bill maloom
hai apko.
SO: vo to humne hi ni---
...
T: nahi ho jata hai kai dafa.
C: kya bbat kar rahe ho- afsar keh raha hai
Marvah Sahab keh rahe hain hum sign kare hain bill pe.
....
C: chalo, aur batao kya peena hai chai - vaye, kuch thanka vanda kuch peena aap batao, koi seva karni hai batao kuch- kuch khana - peena kuch batao- hum bhi chai pee lenge is bahane, thanda vanda pee lenge.
....
SO: isme zyada fasa- fasane ka chakkar to nahi rakha.
C: arey kya baat kar rahe ho sahab aap.
SO: police ko phone to ni kar rakha hai kahin
aap logo ne.
C: haan, aisi ulti-- hum kaam karenge- batao.
SO: pehle bata de kahin, hume nahi chahiye
fir to.
C: are nahi nahi sahab ye lo--gin lo aap, apne
aap gin lo hume koi aisa kuch nahi hai.
SO: ek lifafa nahi hai usme band karke de do.
C: lifafa to sir mere pas kuch nahi hai.
SO: nahi hai-- akhbar mein band karke de do.
C: usme vo meri ad hai - uski makan ki.
SO: zarur gadbad hai fir to bhai--
C: le lo bhai, le lo tum le lo yaar, gadbad tum-
arey iske beech vala de do jee ye mante to hain nahi SO: 8 hain na total.
C: hain?
SO: 8
C: ye 8000
SO: haan
C: jo aapne bola hai.
SO: haan haan haan - abhi apka jaise signal
aya suno signal aya teen bill ka vo payment maine ready kar diya.
C: mere malik ap jaldi kar do, bas bade hum dukhi hain, apne jaise bola hain na ki teen din me. ...
SO: aur agar nahi kar paye to fir jis hath se liye use haath se de denge apko vapis.
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C: arey malik ajkal - aj tak kisi ne liye aur diye hain kya kuch.
SO: nahi nahi, with interest de denge.
C: ye lo ab batao ji.
SO: ab batane ki zarurat nahi hai ab.
C: aur seva batao.
SO: kuch seva mat karo, bas itna bahut hai.
....
T: office time paune 6 baje ka ho gya hai.
SO: aap Umakant ji aap benishchit rahiye,
chinta mat kijiye maine 3 bills ka payment bana diya hai-- rahe 4, unka main kal morning me ake kar dunga.
....
T: not clear
......
.....
SO: ab bhi ye bol raha hun-- agar hum ye bill
na kar paye na, hamare level par to apko paise mein vapis lauta dunga - apko bata raha hun main.
C: aisa hai - dekho bill - bill clear kar dena bhaiya, ab kis kis cheez ka objection hai-- ap to keh rahe hain main to kar dunga 3 din me kar dunga.
SO: nahi by chance hai vo --
C: by chance, by chance mat karo."
19.4 The above recorded conversation in CD Mark Q2
further corroborates the version of PW1 and PW5 about the conversation, which took place between PW1 and A-1 during trap.
20.0 Learned counsel argued that A-1 was not competent to either reject or to pass the bills; his only duty was to see that bills were in order, as per rules and put up to senior officers; the bills were scrutinized by the senior officers; therefore, he could not have either passed the CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 55 of 81
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complainant's bills on taking bribe or rejected the complainant's bills on non-payment of bribe. Learned counsel further argued that it has come on record vide testimony of PW-3 that the complainant's bills were not passed for want of funds and for splitting of financial powers by INS; the objections which were raised, were technical in nature and do not reflect any malice on the part of the accused. PW-3 has admitted that it was Additional CDA, who raised objections; A-1 had not raised any objections. None of the witnesses have stated that A-1 deliberately stalled the payments. Moreover, bills were passed and only payment remained to be made. 20.0.1 Admittedly, A-1 was the dealing hand, who put up the bills pertaining to supplies made to INS; complainant's bills were also dealt with by A-1; it has also been established that PW1's bills were pending for clearance; A-1 demanded bribe of Rs.1000/- per bill. Thus, merely because he was not the final authority to pass/ reject the bills, does not have any bearing on the evidence, which has come on record. Rather, in the above conversation, A-1 is assuring that his bills would now be cleared; and if by any chance, they are not cleared, he would return the bribe amount.
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20.1 It was further argued on behalf of A-1 that he never had any talk with complainant/ PW1; same was not possible as A-1 was not carrying his mobile phone in office, as the mobile was not permitted inside office. Reference in this regard was made to the deposition of his witness DW1 Sh. O. P. Upadhyay, Assistant Accounts Officer at Accounts Office (P), Sea Bird, R. K. Puram, New Delhi. No doubt, DW1 has deposed that as per the office order dated 08.04.2009 of Ministry of Defence, Security Office, no staff member can carry mobile phone, pen drive, etc., inside the office premises, without proper permission; and that it is not possible to carry mobile phones inside the office.
20.1.1 As discussed above, it has come on record vide oral testimony as well as documentary evidence that the telephonic conversation between the complainant and A-1 took place thrice, on 25.08.2011; the first call was made from CBI office, in the presence of independent witness PW5 and CBI official PW10; and the subsequent calls were also made in the presence of independent witnesses and CBI officials, and have been corroborated by them. The same is further corroborated by the CDR of A-1's mobile phone Ex.PW4/B as CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 57 of 81
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well as that of complainant's mobile phone i.e., Ex.PW2/B. 20.1.2 It may also be mentioned that A-2 suggested to PW4, Sh. Anuj Bhatia, Nodal Officer, Vodafone, in cross- examination that the CBI has not called for the "tower details"
separately, so as to suggest that the location of the mobile phone at the relevant time of calls, is not on record. PW4 stated that the CDRs contain such details. PW4 was not cross-
examined any further, to elicit the location of the mobile phones of the accused persons at the relevant time, when the calls were made by the complainant to A-1. It may be mentioned that although, A-1 in his statement under Section 313 Cr.PC has stated that mobile phone was not in his possession on 25.08.2011, but he did not cross-examine the witness about tower details. Nor did he place on record any material to demonstrate that his mobile phone was not in office at the relevant time.
20.1.3 Thus, A-1's argument that he did not have any telephonic conversation with A-1, as the mobile phone was not allowed inside office, lacks merit.
21.0 Learned counsel for A-1 also argued that the CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 58 of 81
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complainant's testimony is not trustworthy, in view of the material improvements made by him in his deposition and also considering the discrepancies between his version in the complaint/ in his statement under Section 161 Cr.PC and his deposition before the Court. Learned counsel pleaded that the complainant in his complaint mentioned about demand of Rs.
1500/- per bill, but later he changed his version and stated that the demand was of Rs.1000/- per bill.
21.0.1 Reading of PW-1's testimony in entirety shows that there is no improvement/ discrepancy in PW-1's version. He has stated that A-1 initially asked for Rs.1500/-, but on his persuasion reduced the said amount to Rs.1000/- per bill. Same is corroborated by recorded conversation in CD Mark Q-1 (Ex.P-10).
21.1 It was further contended by Ld. defence counsel that before the court, PW-1/ complainant has stated that he was already in correspondence with INS, India, with respect to delay in payment of his bills. Whereas, no such averment is made in the complaint; nor is it CBI's case that the complainant was making correspondence with the Department. Merely because PW1 provided this detail in his CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 59 of 81
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testimony, which was not mentioned in his complaint does not discredit PW1's testimony. More so, as the same is supported by documentary evidence.
21.2 Learned counsel also pleaded that PW-1 in his testimony has stated that when he met A-1 on 25.08.2011, A-1 confirmed that Rs.8000/- be paid to him. Whereas, no such averment is made by PW-1 in his statement under Section 161 Cr.PC. No doubt, in his statement under Section 161 Cr.PC, PW-1 has only stated that A-1 Samay Singh Meena asked for bribe amount and he handed over the same. But, the fact that A-1 asked for Rs.8000/- and clarified the same on complainant's asking again, is corroborated by recorded conversation in CD Mark Q-2 wherein, A-1 asked "8 hain na total", to which complainant replied "ye 8000". 21.3 Learned counsel also argued that the complainant/ PW-1 deposed that he received a call from A-1 either on 23rd or 24th August, 2011. But, this fact is not mentioned either in the complaint or in the complainant's statement under Section 161 Cr.PC.; this new fact has been introduced by him later on, before the court. Further, when as per complaint/ CBI, the complainant had no dealing with A-1 CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 60 of 81
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earlier, how did he get to know A-1's mobile number for making call from CBI office. It was further pleaded that PW-1 has deposed that vide said call on 23rd or 24th August, 2011, A-1 Samay Singh Meena, informed him that his bills were pending before him for processing and had been returned due to some audit objections; but, he was evasive about nature of objection; and that A-1 suggested to him that he would have to do some "seva pani", if he wanted to get his bills cleared and demanded 2% of the total bill amount. These facts and his further version that he had told A-1 that he would rather wait than pay the bribe; and that thereafter, he met Sh. Gulab Singh, Commander, INS India, and apprised him about the said call from A-1; Sh. Gulab Singh had then called calling A-1 Samay Singh Meena, to enquire about complainant's bills; and A-1 assured Sh. Gulab Singh that the bills were pending and would be cleared soon; and that thereafter, complainant consulted his father, who advised him to approach CBI and lodge a complaint against A-1, do not find mention in his complaint.
21.3.1 Testimony of PW-1, when read in totality and considered alongwith other evidence, which has come on CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 61 of 81
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record, shows that there is no material discrepancy/ improvement in his version before the Court. It may be mentioned that the complaint mentions the gist of complainant's grievance about non-payment of his bills and the demand of bribe by A-1. Merely because, the complainant has not detailed various facts viz., conversation with A-1 Samay Singh Meena on 23rd/ 24th August, demand of bribe, his then meeting Sh. Gulab Singh and discussion with his father about the matter, does not discredit his testimony. More particularly, as these facts have been substantiated vide other evidence, as discussed in detail above. 21.3.2 Even the recorded conversation in CD Mark Q2 corroborates PW-1's version, wherein A-1 Samay Singh Meena himself is asking PW-1 as to why was he meeting Sh. Gulab Singh. Further, PW-1 in his cross-examination has stood by his version and has denied that he has concocted the entire story at the behest of Sh. Gulab Singh in collusion with CBI. He has categorically stated that as his bills were taking too long, he had met Sh. Marwah, Officer In-Charge, besides Sh. Gulab Singh, Dy. Logisitics Officer, in order to expedite payment of his bills; and that he had been meeting them almost on daily CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 62 of 81
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basis whenever he visited their office to make supply. The fact that PW-1 had even discussed the matter with his father (as deposed by him), is also reflected in conversation recorded in CD Mark Q-2.
22.0 Learned counsel for A-1 further argued that the entire story of recovery of tainted money from A-1 is concocted. It was pleaded that as per complainant, the money was handed over to A-1 Samay Singh Meena wrapped in a piece of newspaper; if the complainant had wrapped the tainted money in the newspaper, then phenolphthalein would have come on the hands of the complainant. But, neither the newspaper wash nor the hand wash of the complainant with sodium carbonate solution was taken. It was further contented that as per CBI, the money was found in government vehicle; that being the case, it should have been seized there and then; but it was not seized at the spot; Recovery Memo was also not prepared at the spot; all these facts clearly indicate that the entire story has been cooked up, in order to falsely implicate A-1.
22.1 As discussed above, PW-1's version that A-1 asked him to put the money in an envelope; as he did not have the CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 63 of 81
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envelope, A-1 insisted to wrap the same in the newspaper, which was lying in his car, is corroborated by PW-5, the independent witness Vikas Kumar. Both the witnesses have stood by their versions in cross-examination. Their version is further corroborated vide recorded conversation in CD Mark Q-2. Merely because, the newspaper wash/ hand wash of the complainant was not taken, does not discredit the entire evidence. Further, even the fact that on being apprehended, A-1 had taken out the bribe money wrapped in newspaper and had kept it on the seat of CBI's vehicle, has been proved vide testimonies of complainant, independent witness as well as CBI officials. In view of the same, mere fact that the said amount was not seized at the spot, is not fatal. Moreover, non-seizure of the same and non-preparation of recovery memo at the spot, has been explained by the witnesses. It has come in the testimony of complainant, independent witness as well as CBI officials that the crowd had gathered at the spot and therefore, the remaining proceedings were conducted at the CBI office.
23.0 Learned counsel for A-1 also argued that as per CBI's own witnesses, many persons had gathered at the spot, CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 64 of 81
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but none of such persons has been joined in as a witness to recovery of money from the accused Samay Singh Meena and other proceedings; same shows that the entire story of accused being apprehended from near the kiosk is false. Merely because, a public witness was not joined does not render the evidence on record unbelievable. Moreover, independent witnesses were already joined in by CBI. Be that as it may. A-1 has himself admitted his presence at the spot, as noted above.
24.0 Learned counsel further argued that although, all the witnesses were present when the trap was laid on 25.08.2011, but their statements were recorded later on, on 14.11.2011; delay in recording statement of witnesses shows that the statements were concocted to suit CBI's case. No doubt, that the statements of witnesses under Section 161 Cr.PC must be recorded at the earliest. But, delay of 2/ 3 months in recording of such statements, does not by itself lead to the conclusion that the same are cooked up and not genuine. Reference here with benefit is made to the judgment in John Pandian Vs. State Rep. By Inspector of Police, T. Nadu, 2011 [1] JCC 193. The Hon'ble Court in that case, CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 65 of 81
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observed that it is not an absolute rule of appreciation that where the statement is recorded late, the witness is a false witness or a trumped-up witness; that will depend upon the quality of evidence of the witness. In the instant case, the testimony of the witnesses inspire confidence. Therefore, I find no substance in Ld. defence counsel's argument. 25.0 In view of the above facts and circumstances and evidence on record, it is established beyond reasonable doubt that A-1 demanded Rs.1,000/- per bill from the complainant/ PW1 and accepted illegal gratification of Rs.8,000/- from him; and assured PW1 that his bills would be cleared within three days.
26.0 So far as A-2 is concerned, he is charged for abetment. Before appreciating the evidence on record, it would be pertinent to refer to the relevant provisions of law. Section 109 IPC provides for punishment of abetment and reads as under :
"109. - Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 66 of 81
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the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation - An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
26.1 Terms 'Abetment' and 'Abettor', are defined under Section 107 IPC and Section 108 IPC, respectively. Same read as under :
"107. Abetment of a thing. - A person abets the doing of a thing, who - Firstly - Instigates any person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing."
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Explanation 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
Section 108 "Abettor" -
"A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.
26.2 Learned counsel for A-2 argued that the prosecution has failed to demonstrate that A-2 aided and abetted A-1 in demanding and obtaining bribe from the complainant. He placed reliance upon the judgments of Hon'ble Orissa High Court in Jasobant Narayan Mohapatra & two Ors. Vs. State of Orissa & two Ors., 2009 Cri.L.J. 1043; and Benupani Behera v. State 1992 (1) OLR 571, in support, pleading that the parameters of offence of abetment explained by the Hon'ble High Court have not been met. Let me refer to the said judgments. In Jasobant CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 68 of 81
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Narayan Mohapatra's case (supra), the Hon'ble Court held:
"14. In Benupani Behera Vs. State, 1992 (1) OLR 571, the parameters of offence of abetment have been explained by our own High Court, it has been held :
Section 109 IPC comes into operation if there is abetment of an offence. Section 107 deals with abetment of a thing. Abetment under the provision involves active complicity on the part of the abettor at a point of time prior to actual commission of offence. It is essence of crime, of abetment that the abettor should substantially assist the principal culprit towards commission of offence. Concurrence in the criminal acts of another without such participation therein as helps to effect the criminal act or purpose does not per se become culpable. ....
For the application of Section 109, three essential features must exist, that is, (a) there must be abetment of an offence, (b) the act abetted must have been committed CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 69 of 81
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in consequence of the abetment, and (c) there must be no express provision made in the IPC for the punishment of such abetment. ..........
..... Supreme Court in Shri Ram v. The State of U.P., [1975] 2 SCR 622, in order to constitute abetment, the abettor must be shown to have 'intentionally' aided to commission of the crime. Mere proof, that the crime charged could not have been committed without involvement and/or interposition of the alleged abettor is not enough compliance with the requirements of Section 107. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gills of the offence of abetment under the third paragraph of Section
107. "
26.3 It would also be pertinent to refer here to the observations made by the Hon'ble Apex court in Para 14 in case Saju Vs. State of Kerala, AIR 2001 SC 175 that -
"14. In the absence of existence of circumstances suggesting the hatching of CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 70 of 81
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criminal conspiracy..... To prove the charge of abetment, the prosecution is required to prove that the abettor had instigated for the doing of a particular thing or engaged with one or more other person or persons in any conspiracy for the doing of that thing or intentionally aided by an act of illegal omission, doing of that thing...."
26.3.1 Hon'ble Court in Saju's case also noted that mere meeting would by itself not be sufficient to infer the existence of criminal conspiracy. To prove the charge of criminal conspiracy, the onus lies on the prosecution to prove affirmatively that two or more persons agreed to do an illegal act; all the accused had the intention and had agreed to commit the crime.
26.4 It is alleged against A-2 that he abetted the demand for illegal gratification by A-1, pursuant to which Rs. 8000/- was paid by the complainant/ PW1 to A-1. The evidence which has come on record against A-2 is, that on 25.08.2011, the day the trap was laid, A-2 talked to the complainant over phone, at the asking of A-1; A-2 even came to meet the complainant/ PW1; and on the asking of the CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 71 of 81
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complainant, whether his bills would be passed in ordinary course or would he have to do some "sewa pani", A-2 told the complainant that, - "Dikkat to tumhe karni padegi". It has also come on record that A-2 remained present at the time of transaction i.e. handing over of bribe amount by the complainant and receipt of the same by A-1. A-2's conversation with complainant and his presence during transaction have remained undisputed, in view of the suggestion put by A-2 to PW-1 in cross examination and in view of his statement under Section 313 Cr.PC (his response to Q-54) A-2 has also not disputed the contents of his conversation with PW1/ complainant. He has only stated that he was enjoying lighter moments with the complainant. 26.5 What needs to be seen is, whether on the basis of the evidence on record, abetment on the the part of A-2 is made out. It may be mentioned that the complainant had already spoken to A-1 about his bills; A-1 had asked for bribe for the purpose and had asked the complainant to come to his office; complainant/ PW-1 had accordingly gone prepared with bribe amount to A-1's office. Everything going as per plan, the complainant would have handed over the bribe to CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 72 of 81
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A-1 as agreed. Absence of A-2 from the scene would not have made any difference, either way. No doubt, from the conversation between A-2 and the complainant, it is apparent that A-2 had knowledge about the purpose of complainant's visit; and on the asking of complainant, he expressed his opinion that for clearance of his bills he would have to take the trouble. But, the question is, whether such knowledge on A-2's part and his response that, - "dikkat to tumhe karni padegi"; and other stray comments of A-2 about his balance payment, which apparently had nothing to do with the bills in question, would by themselves lead to the conclusion that A-2 was hand in glove with A-1 and aided/ abetted A-1, in procuring illegal gratification.
26.6 It may be mentioned that in John Pandian's case (supra) it was held that for conspiracy, circumstances in a case when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act. A few bits here and a few bits there on which prosecution relies for connecting the accused with commission of crime of criminal conspiracy, are not CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 73 of 81
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adequate for the purpose. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. Circumstances relied for the purpose of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of alleged conspiracy.
26.7 CBI has failed to place on record any material to show prior meeting of minds between A-1 and A-2 for obtaining bribe with respect to bills in question. CBI has even failed to demonstrate that A-2 instigated A-1 to ask for bribe for clearing bills. The aforesaid conversation and presence of A-2 during the transaction does not by itself lead to the conclusion that he had come to meet the complainant, in furtherance of conspiracy with A-1, to obtain/ receive the bribe amount. It may also be mentioned that there is no reference of A-2 in the complaint; even in his testimony, the complainant has only stated that A-2 told him that he would have to keep A-1 happy and do some "seva paani". 26.8 What remains to be seen is, whether A-1 aided A-2 in obtaining bribe. As is the settled position of law [per Shri Ram's case (supra)] that the essence of offence of CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 74 of 81
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abetment is that the abettor must have intentionally aided the accused; there must be active complicity on the part of the abettor. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. There is no evidence on record to demonstrate active complicity of A-2 prior to the actual commission of the crime. There is nothing on record to demonstrate that A-2 was instrumental in facilitating/ aiding in any manner, the procuring of bribe by A-1. The conversation between A-2 and the complainant appears to be an impromptu conversation. Same does not in any manner show that A-2 persuaded PW-1 to pay the bribe to A-1. 27.0 In view of the above, CBI has failed to prove beyond reasonable doubt that A-2 abetted the demand for illegal gratification by A-1, pursuant to which Rs.8000/- was paid by the complainant/ PW1 to A-1, 28.0 In view of the above findings, A-1 Samay Singh Meena is convicted for an offence punishable under Section 7 and Section 13 (2) read with Section 13 (1) (d) of The Prevention of Corruption Act, 1988. A-2 Arvind Kumar Tony is acquitted as the charge against him has not been proved CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 75 of 81
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beyond reasonable doubt.
29.0 Personal Bond and surety bond of A-2 Arvind Kumar Tony are discharged accordingly.
Announced in the open Court on this 29th March 2014. (POONAM A. BAMBA) Special Judge (PC Act):
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IN THE COURT OF MS. POONAM A. BAMBA:
SPECIAL JUDGE (PC ACT) : CBI - 03 : NEW DELHI DISTRICT : PATIALA HOUSE COURT :
NEW DELHI In re :CC No. 06/12
Case ID No. 02403R0031142012 RC No. 12(A)/2011-DAI/CBI/ACB/New Delhi u/Sec. 120B IPC, Sec. 7 & 13(2) r/w Sec. 13(1)(d) of PC Act STATE (CBI) Vs.
1. Samay Singh Meena, S/o Late Sh. Kirodi Lal Meena, R/o. 382, DDA, LIG Flat Pocket-13, Phase-I, Dwarka, New Delhi Permanent Address :
Lalpur, Roth Hadiya, Salempur, Distt. Dausa, Rajasthan-321608
2. Arvind Kumar Tony S/o Late Sh. Sant Ram Singh R/o Gali No. 5, Nagla Road, Mangla Puri, Karnkar, Khera, Meerut Cantt.
(Acquitted vide Judgment dated 29.03.2014) Date of pronouncement of Judgment :29.03.2014 Date of Order on Sentence :03.04.2014 ORDER ON SENTENCE :
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03.04.2014 1.0 Accused no. 2 A.K. Tony was acquitted.
2.0 Convict Samay Singh Meena has been found guilty of offences punishable under Section 7 and Section 13(2) read with Section 13 (1) (d) of The Prevention of Corruption Act, 1988 (PC Act).
3.0 I have heard learned Sr. PP Sh. S.C. Sharma as well as Sh. J. R. Priyani, Advocate for convict Samay Singh Meena.
I have also perused the record carefully.
4.0 It was submitted on behalf of the convict Samay Singh Meena that he is 37 years of age and has no previous involvement in any criminal case. He remained on bail during the pendency of the trial and never misused the concession of bail.
4.1 It was further submitted on behalf of the convict that he is married having two minor children; a school going son aged about six years and a six months old daughter. It was also submitted that the convict's father died in a road accident; he is the only bread earner of the family; he has to look after his family including his ailing old mother, wife and CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 78 of 81
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children, who are dependent upon him. The convict has also stated that his mother is suffering from serious heart ailment, as her three arteries are blocked and she has been advised a bye pass surgery; she has also lost mental balance since the death of his father. The Ld counsel for the convict has prayed that in view of these facts, a lenient view be taken. 5.0 On the other hand, learned Sr. PP submitted that the convict asked for commission/ bribe for clearing bills of the supply of food items meant for army personnel. Further, the convict tried to influence the complainant during trial and, therefore, he deserves no leniency. Ld. Sr. PP prayed that maximum punishment as prescribed under law, should be awarded to the convict, to send a strong message in the society.
6.0 I have given my thoughtful consideration to the submissions made by both the sides. I have duly considered the facts and circumstances of this case in entirety. It is noted that the convict is a young man of 37 years of age and has clean antecedents. He is a family man and has roots in society; he is the sole bread earner. It is also noticed that during the pendency of the trial, convict Samay Singh Meena CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 79 of 81
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tried to approach the complainant and to influence him for giving statement in his favour; in view of which, the convict's bail was cancelled vide order dated 10.10.2012. 6.1 Thus, keeping in mind the settled position of law, the facts & circumstances of this case, the mitigating and aggravating factors, as discussed above, I am of the considered opinion that under Section 7 PC Act, a sentence of rigorous imprisonment for a period of one year and a fine of Rs.10,000/- (Rs. Ten Thousand); and in default, to undergo SI for a period of two months; AND under Section 13 (2) read with Section 13 (1) (d) of PC Act, a sentence of rigorous imprisonment for a period of one year and six months and a fine of Rs.10,000/- (Rs. Ten Thousand); and in default, to undergo SI for a period of two months, shall meet the ends of justice.
7.0 Accordingly, convict Samay Singh Meena is sentenced as under :
(i) to undergo rigorous imprisonment for a period of one year under Section 7 of PC Act; and to pay a fine of Rs.10,000/- (Rs.Ten Thousand); and in default, to CC No. 06/12 : RC No. 12A/2011/DAI/CBI/ACB/New Delhi CBI Vs. Samay Singh Meena etc. Page No. 80 of 81
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undergo SI for a period of two months;
(ii) to undergo rigorous imprisonment for a period of one year and six months under Section 13 (2) read with Section 13 (1) (d) of PC Act; and to pay a fine of Rs.10,000/- (Rs.Ten Thousand); and in default, to undergo SI for a period of two months.
The sentences shall run concurrently.
Benefit of Section 428 Cr.PC be given to the convict. 8.0 Copy of the judgment dated 29.03.2014 as well as order on sentence passed today be supplied to the convict free of cost.
9.0 Personal bond and surety bond of the convict is hereby cancelled and endorsement, if any, on the documents/ FDR, placed alongwith, be cancelled and the same may be released.
File be consigned to Record Room.
Announced in the open Court on this 03rd April, 2014 (POONAM A. BAMBA) Special Judge (PC Act):
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