Delhi District Court
Page No. 1 Cbi vs . Anil Kumar Aggarwal on 29 August, 2017
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
SPECIAL JUDGE (PC ACT), CBI2, NEW DELHI DISTRICT,
PATIALA HOUSE COURT, NEW DELHI
CC No. 103/2016
RC No. DAI2016A0009
U/s. 7 and 13 (2) r/w 13(1)(d) of PC Act, 1988
Central Bureau of Investigation
Versus
Anil Kumar Aggarwal,
S/o Late Sh. G. L. Aggarwal,
R/o C3/12, 1st floor, Janakpuri,
New Delhi110058 .....Accused
Date of Institution : 29.08.2016
Date on which reserved for judgment : 26.08.2017
Date of Judgment : 29.08.2017
JUDGMENT
The chargesheet 1 The present case was registered against accused Anil Kumar Aggarwal on the basis of written complaint filed by complainant Davender Kumar Ahluwalia on 13.4.2016. It was alleged by the complainant that one Sh. Anil Aggarwal, Superintendent, Service Tax Department, called him on his mobile phone ten days back and introduced himsef as such and directed Page No. 1 CBI Vs. Anil Kumar Aggarwal the complainant to come to his office along with all the documents relating to payment of service tax of his commercial property bearing No. A101, Dayanand Colony, Lajpat Nagar IV, N. Delhi which is in the joint name of complainant and his wife Smt. Mamta Ahluwalia. Complainant visited his office on 6.4.2016 and showed him all the documents relating to his commercial property. However, complainant was directed to bring more documents. Complainant again visited office of accused on 11.4.2016 and showed all the desired documents who again directed the complainant to bring documents pertaining to his company Gita Travel & Tours Pvt Ltd along with bank statements of the said company. On 12.4.2016 a call was received by the complainant on his mobile no. 9873551957 from the mobile no. 9899100204 of accused Anil Aggarwal at about 12: 45 hrs and accused directed the complainant to meet him outside the Sona Rupa Restaurant. Accordingly, complainant met the accused at Nehru Place. During the discussions accused informed the complainant that service tax of the above property including interest and penalty was worked out to be Rs. 36 lacs and if the complainant would pay him Rs. 2.5 lac as bribe, then he will give him one year more time and also not open/initiate his file. The accused further informed the complainant to come with the bribe amount of Rs. 2.5. lac on 18.4.2016 and he would give a call to the complainant on 18.4.2016 at about 11.00 AM.
Page No. 2 CBI Vs. Anil Kumar Aggarwal The complaint was marked by SP, CBI to Insp. Ramesh Kumar for verification. As it was stated in the complaint that accused will call the complainant only on 18.4.2016, Insp. Ramesh Kumar directed the complainant to come to CBI, ACB on 18.4.2016 for further action.
2 On 18.4.2016 verification of the complaint was conducted in the presence of an independent witness namely Sh. Narayan Bahadur. A DVR was also used during the verification. The complainant discussed the matter with the accused on his mobile phone. The said call was recorded in memory card through DVR. According to the conversation the accused inquired from the complainant that he had called him upon which the complainant confirmed and also informed that he had arranged Rs. 1.5 lacs against the demand of Rs. 2.5 lacs. The accused also confirmed from the complainant whether he was coming today and also informed the complainant that he is in the field with commissioner and will give a call to the complainant whether to meet today or tomorrow. The transcript of the conversation was given in the charge sheet. On 18.4.2016 itself at about 16:43 hrs a call was received on the mobile phone of complainant from the mobile phone of accused which was recorded in memory card through DVR in the presence of independent witness. During the said conversation the accused directed the complainant to come to Janakpuri and told that address of meeting would be sent through SMS. He also inquired from the Page No. 3 CBI Vs. Anil Kumar Aggarwal complainant whether the bribe money was with him ie "Samaan hai tere Pass". This established the demand of illegal gratification on the part of accused. Verification also established that bribe amount of rs. 2.5 lac was negotiated and was reduced to Rs. 1.5 lac by accused. Accordingly verification memo was prepared. The memory card used for recording the conversation in the verification was removed from DVR and sealed with the CBI brass seal. DVR and CBI brass seal used during verification were handed over to independent witness Narayan Bahadur. On the recommendation of verifying officer Insp. Ramesh Kumar a regular case was registered against the accused and the investigation was entrusted to Insp. R. C. Sharma. Thereafter, a trap team including TLO Insp. R. C. Sharma, Insp. N. C. Nawal, Insp.Parmod Kumar, Insp. Ramesh Kumar, Insp. S. K. Khullar, independent witnesses Narayan Bahadur and Budhi Singh was constituted. Pre trap formalities were observed and recorded in the Pre trap memo.
3 The complainant then produced a sum of Rs. 1,50,000 comprising of 150 GC notes of Rs. 1000/ each. The numbers of GC notes were noted in the pre trap memo. A demonstration was given to explain the purpose and significance of use of phenolphthalein powder and its chemical reaction with sodium carbonate in water. The GC notes were treated with phenolphthalein powder by Insp. Parmod Kumar. Independent witness Budhi Singh was asked to touch the tainted amount with his right hand Page No. 4 CBI Vs. Anil Kumar Aggarwal fingers and wash them in the colourless solution of sodium carbonate in water in a glass tumbler. On doing so, the solution turned pink which was thrown away after explaining the significance of reaction. The tainted bribe amount was then kept in the left side front pant pocket of the complainant by Budhi Singh and complainant was directed not to touch the bribe amount and to hand over the same to the accused on his specific demand and not otherwise or on his specific direction to some other person. DVR which was used during verification was produced by Narayan Bahadur along with CBI Brass seal. A new memory card was arranged and introductory voices of both the independent witnesses were recorded in the memory card after ensuring its blankness. Independent witness Narayan Singh was asked to act as a shadow witness and to remain close to the complainant to overhear the conversation and see the transaction of bribe amount which may take place between the complainant and the accused. He was also directed to give signal by rubbing his head with his both hands, after the transaction of bribe is over. The complaint was also directed to give a missed call from his mobile phone to the mobile phone being carried by TLO immediately after the transaction of bribe is over.
4 After the completion of pre trap formalities, the trap team members left the CBI office at about 18:10 hrs and reached nearby the vicinity of Janakpuri at about 18:35 hours. On reaching there a call was Page No. 5 CBI Vs. Anil Kumar Aggarwal made from the mobile phone of complainant to accused and the conversation was recorded in the memory card through DVR. Complainant informed the accused that he had reached St. Marks School. Accused told the complainant that he is coming there. Thereafter, DVR in the recording mode was kept in the upper left side front pocket shirt of complainant. The shadow witness Narayan Bahadur was directed to remain in close proximity of the complainant and to watch the movements and see the transaction of bribe which may take place between the complainant and accused in the car. The rest of the CBI team members took suitable positions in a scattered manner along with other independent witness nearby the vicinity of Aslatpur Road. At about 18:55 hrs, it was seen that one person wearing white half sleeves shirt and spectacles came near the car of the complainant and sat on the front seat adjacent to the driving seat occupied by the complainant. At about 19.05 hrs, the complainant gave the pre appointed signal by putting on the parking light of his car and immediately TLO Insp. R.C. Sharma and other trap team members rushed towards the car of the complainant. Insp. Ramesh Kumar took back the DVR from the complainant and switched it off. Insp. Parmod Kumar opened the left front door of the car and caught hold the left hand wrist of the accused and right hand wrist of accused was held by Insp Naresh Nawal from the right hand side back door of car. TLO Insp. R.C. Sharma after giving his introduction challenged the accused as to whether he had demanded and accepted the bribe amount of Rs.1.5 lacs Page No. 6 CBI Vs. Anil Kumar Aggarwal from the complainant. On this the accused kept mum and became perplexed. Complainant confirmed the identity of accused. Complainant informed that accused after sitting on the front seat of the car entered into conversation with him and demanded the bribe amount in between the conversation. The complainant took out the tainted bribe amount and extended towards the accused. The accused asked for an envelope to enable him to kept the bribe amount. The complainant was not having any envelope. On this accused stated that "Marwai Ga Tu", Aise Nahin Lete Naa Beta". Thereafter, accused took out his white colour handkerchief and took the bribe amount in it and kept near his seat. Independent witness Budhi Singh was instructed to recover the bribe amount. Accordingly the bribe amount was recovered by Budhi Singh which was lying adjacent to the seat of accused in a white colour handkerchief. The wash of right hand and left hand of accused Anil Kumr Aggarwal was taken separately in a colourless solution of sodium carbonate and water which turned pink. The said washes were transferred in clean glass bottles and paper slip was pasted on the bottle and bottle was marked as RC09(A)/2016 RHW and RC09(A)/2016 LHW. The glass bottle was sealed by using cloth wrapper and CBI brass seal. The cloth wrapper and paper pasted on the bottles were signed by both the independent witnesses. Thereafter, wash of handkerchief of accused was taken in similar manner which also turned pink. The solution was transferred in clean glass bottle and paper slip was pasted on the bottle and Page No. 7 CBI Vs. Anil Kumar Aggarwal marked as Handkerchief Wash in RC09(A)/2016. The bribe amount was tallied by independent witnesses. Personal search of accused was taken at the spot vide arrest cum personal search memo. The car search cum seizure memo of his car was also prepared. Rough site plan was prepared. Thereafter, trap team along with accused and independent witnesses left the spot for CBI office and reached there at about 20:30 hrs. Accused was arrested vice arrest cum personal search memo at 23:30 hours. His specimen voice was taken. Sealed bottles, recovered bribe amount, DVR were taken into possession vide post trap memo. Facsimile of the CBI brass seal was also appended on each page of Post Trap Memo. The seal used during trap proceedings was handed over to independent witness Budhi Singh. 5 During the course of investigation opinion on washes was obtained, voice exhibits were sent to FSL for opinion, CDR/CAF of mobile no. 9899100204, 9899100304 and 9873551957 was collected.
6 The aforesaid facts and circumstances disclose commission of offence punishable U/s 7 and 13 (2) read with 13 (1) (d) of P CAct on the part of accused Anil Kumar Aggarwal.
Charge
7 Thereafter, on 2.01.2017, charge u/s 7 and 13 (2) r/w section
Page No. 8 CBI Vs. Anil Kumar Aggarwal
13(1) (d) of PC Act was framed against the accused to which he pleaded not guilty and claimed trial.
Prosecution Evidence 8 The prosecution in order to prove its case examined 13 witnesses.
9 PW1 is Davinder Kumar Ahluwalia. He deposed that he runs a travel agency by the name of Gita Tour & Travel Pvt Ltd from his residential premises C41, Second Floor, Dayanand Colony, Lajpat Nagar IV. New Delhi. He is having another house bearing No. A101, Dayanand Colony, Lajpat Nagar IV which is a commercial building and chargeable under service tax. He had not paid the service tax wef April 2014 to March 2016. In the first week of April he received a telephone call. The person on the other sated that he was Anil Aggarwal from service tax department. He asked him to come to his office and meet him. The next day PW1 went to service tax office and meet Sh. Anil Aggarwal.
Sh. Anil Aggarwal told PW1 that there were complaints against him and that service tax against his property was due. He then asked PW1 to come next day along with his service tax papers. PW1 went to him on the next day with the file of his service tax return. Anil Aggarwal calculated and found that PW1 had correctly deposited the tax till 2014. He then inquired from him why PW1 had not paid tax after 2014. He asked Page No. 9 CBI Vs. Anil Kumar Aggarwal PW1 about his profession/business and PW1 told him that he ran a travel agency. Anil Aggarwal asked PW1 to get the papers of the travel agency business. The next day PW1 again went to him along with papers of his travel agency business. He then asked PW1 to bring form AS26 and PW1 went to him next day with form AS26. Thereafter, Anil Aggarwal demanded few more papers and asked PW1 to meet him again two days thereafter. On 11th April 2016 PW1 finally met Anil Aggarwal in his office for the last time and after seeing all the documents Anil Aggarwal said that a lot of service tax was due against PW1. He further stated that a penalty of 100% and interest of 100% was also to be paid. He kept some of the papers and again asked PW1 to visit him on next day along with bank statement of company and his wife.
PW1 further deposed that on 12.4.2016 at around 12.45 or 1.00 pm he received a telephonic call from Anil Aggarwal on his mobile no. 9873551957. During this call Anil Aggarwal asked him to come and meet him. PW1 inquired from him about the place of meeting and he asked PW1 to reach restaurant namely Sona Rupa. PW1 reached Sona Rupa restaurant at around 1.20 pm. In around 10 minutes Anil Aggarwal reached there. PW1 asked Anil Aggarwal as to what did he want from him because he had been repeatedly calling PW1 and not doing anything. Anil Aggarwal told him that the tax amount due against him was very heavy and demanded bribe amount of Rs. 2.5 lac for settling the issue. PW1 told him that if he Page No. 10 CBI Vs. Anil Kumar Aggarwal had that much money he would have paid the tax but Anil Aggarwal was not agreeing. PW1 requested him for time to collect money and Anil Aggarwal gave him time till Monday to do so.
On the 13.4.2016, PW1 went to CBI office at Lodhi Road. On reaching there, at the reception he inquired about the person who would be dealing in corruption cases. From the reception PW1 was made to talk to one Dy. SP on telephone who thereafter called him upstairs and took him to the SP. The SP inquired about his case and he narrated the entire facts. Thereafter, he met one Insp. Sharma who asked him to give his complaint in writing and he gave his complainant written in Hindi. The complaint bearing signatures of PW1 at point A is proved as Ex. PW1/1. The CBI Inspector asked PW1 to arrange the money and come on Monday.
On Monday i.e. 18.4.16 at around 10.30 am PW1 reached CBI Office. He was carrying Rs. 1.50 lacs i.e. 150 notes of Rs.1000 each. At around 11.30 a.m./11.45 a.m., PW1 called the accused on his mobile phone but he did not pick up the phone. The accused called him back at around 12.30/12.45 p.m. and asked PW1 about his whereabouts. PW1 told him that he was in Delhi Cantt and cannot reach in a short time. At around 4.30/4.45 p.m., PW1 received a call from the accused who asked about the whereabouts of PW1. Accused Anil Aggarwal asked the complainant whether he had the 'samaan'. Complainant answered in affirmative. Anil Page No. 11 CBI Vs. Anil Kumar Aggarwal Aggarwal asked him to reach Janak Puri but did not tell the place. They had left CBI office in three vehicles to reach Janak Puri. One of these vehicles was of PW1. Two independent witnesses were also with them. After reaching Janak Puri, PW1 received a call from accused at around 6.30/6.35 pm and PW1 told him that he was standing in a street which was adjoining a school in front of Channan Devi Hospital. Around 15 or 20 minutes thereafter, accused reached there in his car. He parked his car on the road and walked to the car of PW1. He sat in the car of PW1. Thereafter, accused asked PW1 whether he had brought the money and PW1 answered in affirmative and took out money from right pocket of his pant and extended towards accused. Accused said that he would not receive the money in his own hands. He asked whether PW1 had envelope and PW1 said that he did not have envelope. Accused then said that he had envelopes in his car. On this PW1 said that the car was at a quite distance and who would go to that car. Upon hearing this, accused took out a handkerchief from left side of his pant pocket. He unfolded his handkerchief and asked PW1 to put the money upon it. PW1 then put Rs.1.50 lacs upon the handkerchief. Accused then folded the handkerchief with money in it. PW1 then asked him that he had taken money for doing his work but he had an apprehension that somebody else might open his file again. Accused then told PW1 that he need not worry because accused had opened his file and would close it whereafter no body would open it. As per the plan and as Page No. 12 CBI Vs. Anil Kumar Aggarwal instructed by CBI, PW1 switched on the parking light. After seeing the signal, CBI team with independent witnesses immediately came and surrounded the car of PW1/complainant. One of them tried to open the driver side door of the car but it did not open and in the meantime, the door on the side of the seat of the accused was opened. The said door also did not open fully as there was a pavement near about which was obstructing it. Then one of those person caught hold of the hands of the accused and asked him to dip his hands in a glass containing a solution. Accused was not agreeing to it so a lot of strength was used to have his hands dipped in the glass. Thereafter, they poured that solution of the glass in a bottle and closed the bottle. PW1 also deposed that he was given a recorder which was put in his pocket and was asked to switch it on when accused came. PW1 switched on the recorder when accused came to him. After the accused had been taken out of the car and apprehended, the recorder was taken back from PW1. The said recorder was then taken to CBI office and sealed in CBI office. One of the team members took the money from the accused. The vehicle of accused was also searched. Thereafter, Insp. Sharma told PW1 to reach CBI office and the team proceeded to CBI office in all the three vehicles in which the team had come.
At around 8/8.30 p.m., they reached CBI office. Thereafter, the handkerchief of accused was dipped in a water like solution which Page No. 13 CBI Vs. Anil Kumar Aggarwal turned reddish pink. PW1 signed on that handkerchief. A few other persons also signed that handkerchief. The water was kept in a bottle and the bottle was sealed. Thereafter, throughout the night till about 6 a.m., PW1 kept sitting in CBI Office. A lot of documents were prepared at CBI office and he was made to sign on those documents. He was made to read those documents .The verification memo Ex.PW1/2 bears his signatures This memo was prepared at CBI office on 18.04.2016. On that day, when he had reached CBI office, a new chip was called for and was taken out from its package in his presence.
The FIR of the present case Ex. PW1/3 bears the signatures of PW1 at point A. He further deposed that before they left for trap, the numbers of all the notes which he had handed over to CBI were typed on a piece of paper and he had signed that paper. The same is Ex. PW1/4. The pre trap memo Ex. PW1/5 was prepared at night after they had reached back at CBI office. Post trap memo dt. 18.4.06 Ex. PW1/9 was prepared at night in CBI office.
Around one and a half or after two months of the incident, he was again called to CBI office. Both the independent witnesses were also present. On that day, both the recordings i.e. recording prior to trap and during the trap were played. Transcripts of those recordings were prepared.
Page No. 14 CBI Vs. Anil Kumar Aggarwal
He had signed those transcripts.
The transcripts Q1 and Q2 having signatures of PW1 are
proved as Ex.PW1/10 and Ex. PW1/11 and transcript cum voice identification memo dated 29.6.16 is proved as Ex.PW1/12. On the asking of CBI he had also deposited documents of the property bearing no. A4/101, Dayanand Colony, Lajpat NagarIV as well as service tax record of himself and his wife. Vide seizure memo dated 15.6.2016 Ex. PW1/3 he had handed over to CBI photocopy of service tax no. AAEPA6756BST001 in his name, Copy of service tax AADPA1992LST001 in the name of his wife, copy of agreement to sell and conveyance deed papers regarding property no. AIV/101, Lajpat Nagar, copy of lease deed in favour of Anglo Eastern Maritime Training Centre and copy of acknowledgment receipts of HDFC Bank in his name and in the name of his wife.
10 PW2 is Sh. Budhi Singh. He deposed that he was working as head constable in BSF and on 13.4.2015 had joined IOCL on deputation. On 17.4.2016 his superior directed him and Narayan Bahadur Chatri to report to CBI head quarter on 18.4.2016 at 9.30 AM. Accordingly, he and Narayan Bahadur reported to CBI office on 18.4.2016 and at reception passes were issued to them. They then went to ACB branch and reported to duty officer who sent them to Insp. Ramesh Kumar. Insp. Ramesh Kumar introduced them to Davinder Ahluwalia and informed him that Davinder Page No. 15 CBI Vs. Anil Kumar Aggarwal Ahluwalia made a complaint against one Anil Kumar Aggarwal. The complaint Ex. PW1/1 was also shown to him which he read. Thereafter, a fresh SD card was called and inserted in a recorder and his introductory voice was recorded. Insp. Ramesh Kumar told them that Davinder Kumar Ahluwalia would call Anil Kumar Aggarwal. The first call was not answered. After 1015 minutes second call was made and this call was answered and the person on the other side replied that he was in field and himself would call Mr. Ahluwalia. At around 4.30/4.45 PM a call was received on the mobile phone of Davinder Kumar Ahluwalia. The phone was put on speaker mode. The person who was stated to be Anil Kumar Aggarwal told Davinder Kumar Ahluwalia to reach Janakpuri. Thereafter, Insp. Ramesh Chander told him that Davinder Kr. Ahluwalia had brought 1.5 lac rupees and asked him to count that money. A list of number of currency notes were prepared and he ( PW2) along with Narayan Bahadur Chatri tallied the numbers of the currency notes with the numbers mentioned in the list. Insp. Ramesh Chander than gave a powder and asked him to apply it on the currency notes. He applied the powder on all the currency notes. Thereafter, he was asked to dip his hands in a glass which contains water and on doing so the solution turned pink. On the instructions of Insp. Ramesh Chander, he placed the currency notes in the right side pocket of trouser of Davinder Kr. Ahluwalia. The water which had turned pink was thrown away.
Page No. 16 CBI Vs. Anil Kumar Aggarwal At around 5.00 pm the entire team left the CBI office. They proceeded in three vehicles, one of which belonged to complainant Davinder Kr. Ahluwalia. The vehicle of Davinder Kr. Ahluwalia was occupied by Davinder Kr. Ahluwalia and Narayan Bahadur Chatri. At around 5.45/ 6.00 pm they reached near a school in Janakpuri. Davinder Kr. Ahluwalia parked his vehicle there and the CBI vehicles were parked at a safe distance. Thereafter, the SD card was placed in a DVR and after switching on the DVR , Insp. Ramesh Chander put the DVR in shirt pocket of Davinder Kr. Ahluwalia. Narain Bahadur Chatri was instructed to remain at a close distance of about 1015 yards of the vehicle of Davinder Kr. Ahluwalia. Rest of the team surrounded the area at a safe distance but from the places wherefrom the activities around the car could be visible. Davinder Kr. Ahluwalia was also instructed that on the completion of the transaction with accused he should give a signal by switching on the parking lights of his car. Around 15 or 20 minutes later one person came to the vehicle of Davinder Kr. Ahluwalia, opened the front door of the passenger side and sat in that vehicle. Around 05 minutes later, the parking lights of the vehicle of Davinder Kr. Ahluwalia were switched on. The team rushed towards the vehicle. He (PW2) and Insp. Ramesh Chander reached towards the driver side and two other persons reached the passenger side. Both the front doors were opened. Anil Kumar Aggarwal, whose name PW2 came to know lateron, tried to get out of the car and run away but he was caught by Page No. 17 CBI Vs. Anil Kumar Aggarwal both his lower arms. Between Davinder Kr. Ahluwalia and Anil Kumar Aggarwal, was lying a handkerchief with something wrapped in it. Insp. Ramesh Chander asked PW2 to take up that handkerchief. PW2 picked up that handkerchief and on unwrapping it he found that it had money. On being inquired by Insp. Ramesh Chander, Anil Kumar Aggarwal told that handkerchief belonged to him. Thereafter, Anil Kumar Aggarwal was taken out of the vehicle and his hands were washed. The handkerchief was also washed. On the hands and handkerchif of Anil Kumar Aggarwal being washed, the colour of solution turned slightly pink. The hand wash solutions and the handkerchief wash solution were transferred into empty glass bottles and PW2 signed on the bottles. Site plan Ex. PW2/1 was prepared and everybody signed that site plan. After the hands of accused Anil Kumar Aggarwal and the handkerchief had been washed, the recorder was taken back from Davinder Kr. Ahluwalia. The vehicle of Anil Kumar Aggarwal was also searched. Thereafter, Anil Kumar Aggarwal along with his vehicle was taken to CBI office and they also reached to CBI office. Before leaving for CBI office, the recording of conversation between Anil Kumar Aggarwal and Davinder Kr. Ahluwalia was played and heard by the team.
On reaching the CBI office the conversation was reheard whereafter the SD card was taken out from the recorder, the recorder and SD card were sealed separately and a memo in this regard was prepared.
Page No. 18 CBI Vs. Anil Kumar Aggarwal The currency notes which were seized at the trap scene as well as the handkerchief in which these notes were found were also sealed. The entire proceedings were then reduced in writing and everybody present signed those documents. The post trap memo is Ex. PW1/9. The seal was then handed over to him vide receipt Ex. PW2/2. Accused Anil Kumar Aggarwal was arrested vide memo Ex. PW2/3.
After about one /one and half month PW2 was called to CBI office where he met Insp. Harnam Singh. There Harnam Singh inquired from him about the day of the trap and the documents which he had signed on 18.4.2016 and he reconfirmed the truthfulness of those events and documents. The envelope in which the seized currency notes /bribe money was sealed at CBI head quarter is Ex. PW2/4. The envelope in which recorder was sealed is Ex. PW2/5. The envelope in which chip/SD card was sealed is Ex. PW2/6. 'The package of SD card is Ex. PW2/7 and the plastic packing of SD card is Ex. PW2/8. The wrappers LHW, RHW and handkerchief wash having signatures of PW2 are Ex. PW2/9, Ex. PW2/10 and Ex. PW2/11. The brown colour envelope containing containing packaging of SD card is ex. PW2/12, packaging of SD card is Ex. PW2/13 and plastic packaging is Ex. PW2/14.
The envelope containing the packaging of SD Card is Ex.
PW2/12. The packaging is Ex.PW2/13. The plastic packaging is
Page No. 19 CBI Vs. Anil Kumar Aggarwal
Ex.PW2/14. The car search memo dated 18.4.2016 having signatures of PW2 at point A is Ex. PW2/15.
11 PW3 is Sh. Pradip Singh. He deposed that he joined Vodafone in the year 2010. In the year 2016 he was summoned by CBI with regard to this case and call details etc were requisitioned from him. Vide letter dated 9.5.2016 Ex. PW3/1 he had sent CDR of three mobile numbers ie 9873551957, 9899100204 and 9899100304. The CDR for mobile phone No. 9873551957 is for the period 1.4.2016 to 18.4.2016. The CDR is Ex. PW3/3 and the certificate U/s 65 B of Indian Evidence Act accompanying the CDR is Ex. PW3/2. The CDR of Mobile No. 9899100304 wef 1.4.16 to 18.4.16 is Ex. PW3/5 and the certificate U/s 65 B accompanying this CDR is Ex. PW3/4. The CDR in respect of Mobile No. 9899100204 wef 1.4.16 to 18.4.16 is Ex. PW3/7 and the certificate U/s 65 B is Ex. PW3/6. He had also sent certified copies of customer application forms for these mobile numbers to CBI. The mobile no. 9873551957 was applied for and allotted to Sh. Davinder Kumar Ahluwalia. The photo copy of CAF along with other documents given at the time of allotment of this number is Ex. PW3/8. As per record mobile no. 9899100204 was alloted to Sh. Anil Kumar Aggarwal. The photocopy of CAF along with other documents given at the time of allotment is Ex. PW3/9. The mobile No. 9899100304, as per record was allotted to Sh. Sauravh Shrivastava. The photocopy of CAF along with other documents given at the time of Page No. 20 CBI Vs. Anil Kumar Aggarwal allotment is Ex. PW3/10.
12 PW4 is Sh. Rajeev Kumar Gupta. He deposed that in April, 2016 he was posted as Superintendent Head Quarter in Service Tax Department, Nehru Place. On 19.4.2016, on the instructions of Joint Commissioner he joined the CBI team which conducted searches in the room of Anil Kumar Aggarwal, another Superintendent in Anti Evasion Branch and seized certain documents vide search list dated 19.4.2016 which is Ex. PW4/1.
13 PW5 is Ms. Deepti Bhargava. He deposed that she joined CFSL in December 2012 as Sr. Scientific OfficerII. In the present case vide letter dated 27.4.2016 three sealed glass bottle, were received from SP CBI ACB, New Delhi in CFSL Chemistry Division, for laboratory examination and expert opinion. The same were allotted to her by HOD Chemistry. The three sealed bottles LHW, RHW and handkerchief were sealed with the seal of CBI. Seals were found intact. On chemical examination, the exhibits RHW, LHW and handkerchief wash gave positive test for the presence of phenolphthalein and sodium carbonate. After examination, remnants of exhibits were sealed with the seal of CFSL. She prepared her report Ex. PW5/1 having her signatures at point A. Vide letter dated 17.5.2016 of Sh. Rajinder Singh, Director CFSL, SP CBI was informed to collect the report as well as remnants. The letter is Ex. PW5/2.
Page No. 21 CBI Vs. Anil Kumar Aggarwal
14 PW6 is Sh J. M. S. Rawat. He deposed that in the year 2014
he was posted as Superintendent Service Tax Commissionate at Nehru Place. He was summoned by the CBI twice in relation to this case and he had provided certain documents to CBI. The letters dated 23.6.2016 and 20.6.2016 addressed to Sh. Lallan Kumar Addl. Commissioner Service Tax by Insp. CBI was received by him. The letters are Ex. PW6/1 and Ex. PW6/2. Vide these letters he had produced a letter of Asst. Commissioner, Service Tax before CBI informing about the procedure of the department and the role of the Superintendent. The letter is Ex. PW6/3. It was seized vide seizure memo Ex. PW6/4. He had also handed over letter dated 30.6.2016 to CBI whereby the tax liability of Davinder Kumar Ahluwalia and tax paid by him as well as leaves taken by accused Anil Kumar Aggarwal were informed to CBI. The letter is Ex. PW6/5. It was seized vide seizure memo Ex. Pw6/6. Vide seizure memo Ex. PW6/6 a file opening register Ex. PW6/7 was also handed over to CBI. As per this register the file of Davinder Kumar Ahluwalia relating to property No. A101, Dayanand, Colony, Lajpat Nagar IV N. Delhi having service tax number AADPA1992LST001 was never opened.
15 PW7 is Sh. Narayan Bahadur. He deposed on the lines of PW2 and corroborated the statement of PW2 on material aspects. His testimony shall be discussed at a later stage as and when required.
16 PW8 is Insp. Ramesh Kumar. He deposed that in the year
Page No. 22 CBI Vs. Anil Kumar Aggarwal
2016 he was posted as Inspector in ACB. On 13.4.2016 he was directed by the SP to verify the complaint submitted by Davinder Kumar Ahluwalia. It was written in the complaint that accused Anil Kumar Aggarwal, Superintendent, Service Tax Department would call him to discuss about the bribe amount. He directed the complainant to come to CBI office on 18.4.2016 at 10.00 AM. Accordingly, on 18.4.2016 complainant arrived at CBI office. PW8 arranged an independent witness namely Narayan Singh through duty officer. Witness was made to go through the complaint. A new memory card and DVR was arranged and introductory voice of independent witness Narayan Singh was recorded in it, after ensuring its blankness. It was written in the complaint that accused would call around 11.00 AM. They waited till 11.30 AM. Thereafter, it was decided to make a call to the accused. Complainant made a call on the mobile phone of accused but the accused did not pick the call. A Call was also made on another mobile phone number of the accused but this call was also not pick up by the accused. At around 12.30/12.45 PM accused called on the mobile of the complainant. This call was recorded in DVR by keeping the mobile phone of the complainant on speaker mode. This call was disconnected in the middle of conversation. Then the complainant called the accused. The accused inquired about the whereabouts of the complainant and asked whether the complainant had 'Samaan'. The accused further informed the complainant that he could not attend the call of the complainant as he was busy in the Page No. 23 CBI Vs. Anil Kumar Aggarwal meeting with commissioner. The accused informed the complainant that he would give instructions lateron. At around 4.30/4.45 PM accused again called on the mobile of the complainant and asked the complainant to reach Janakpuri. This call was also recorded in the DVR. In this call the bribe amount had been negotiated and the complainant had stated that he had only been able to arrange Rs. 1.5 lacs. The memory card was taken out from the DVR and sealed in the presence of independent witness. On the basis of this verification, he ( PW8) submitted his verification report to SP, CBI. On the basis of verification report FIR was ordered to be registered and investigation was assigned to Insp. R. P. Sharma. At around 5.45 PM the team consisted of TLO Insp.R. C. Sharma, Insp. Parmod Kumar, Insp. N. C. Naval, Insp. S. K. Khullar, Insp. Ramesh Kumar, independent witnesses Budhi Singh and Narain Singh reassembled at CBI office. The complainant produced Rs. 1.5 lacs which was to be given to the accused as bribe money. The notes were smeared with phenolphthalein powder by Insp. Parmod Kumar. The demonstration of phenolphthalein powder with sodium carbonate was given to the team members by Insp. Parmod Kumar. The numbers of currency notes were noted down in separate annexure. Thereafter, the tainted money was placed in the left pocket of the trouser of the complainant by independent witness Budhi Singh. Trap kit was arranged by TLO. A new memory card was also arranged and after checking its blankness, introductory voices of both the independent witnesses were Page No. 24 CBI Vs. Anil Kumar Aggarwal recorded. Independent witness Narayan Singh was instructed by TLO to remain with the complainant and Budhi Singh was directed to remain with the trap team. Narayan Singh was also directed that on seeing the completion of bribe transaction between the complainant and accused, he should give a signal by rubbing both his hands on his face. The complainant was also directed to give the same signal or to give a miss call on the mobile phone of TLO after completion of bribe transaction. After completion of pre trap proceedings, the CBI team proceeded for Janakpuri in two CBI vehicles. As per the directions of TLO, PW8 and both the independent witnesses were with the complainant in his car. The team reached near Chandn Devi Hospital, Janakpuri at about 6.30/6.45 PM. CBI vehicles were parked in a discreet manner near St. Mark School, Janakpuri. A call was made by the complainant to the accused, to know his location. Accused verified the location of the complainant and told him to wait. This call was also recorded in DVR. Thereafter, DVR was switched on and put in the left shirt pocket of the complainant. The complainant was also directed that if the transaction of bribe amount happened in the car, he would signal by switching on the parking lights of his car. All the team members including the independent witnesses took their respective positions.
At around 6.50 pm, the accused came and sat in the car of the complainant. After about 15 minutes complainant switched on the parking lights of his car. The team surrounded the car of the complainant. TLO Page No. 25 CBI Vs. Anil Kumar Aggarwal introduced himself to the accused and challenged him by alleging that he had accepted bribe from the complainant . The accused denied having accepted any bribe. In the meantime PW8 had taken the DVR from the complainant and switched it off. Insp. Parmod caught the accused from the wrist of his left hand and Insp. Naval entered from the rear door of the car and caught the right hand of the accused from the wrist. It was informed by the complainant that a wrapped handkerchief which was lying between both the seats was containing the bribe amount. Budhi Singh was directed to recover the bribe amount. The hand wash of the accused was taken in the car itself in the solution of water and sodium carbonate and the solution on doing so turned pink. Both the hand washes were transferred in clean glass bottles and the bottles were sealed with CBI brass seal. Thereafter, the wash of handkerchief was taken and on doing so the solution again turned pink. This solution was again transferred in clean glass bottle and the bottle was sealed with the CBI brass seal. A wrapper was pasted on all the bottles which was signed by both the independent witnesses and TLO. Thereafter, both the independent witnesses were directed to tally the distinct numbers of tainted bribe money from the numbers mentioned in pre trap memo and they were found to be same. Thereafter, a rough site plan Ex. PW2/1 was prepared by PW8 Thereafter inquiries were made from the complainant as to the incident who narrated what had transpired between him and the accused in the car.
Page No. 26 CBI Vs. Anil Kumar Aggarwal As it was getting dark and people were started gathering around, it was decided that further proceedings would be conducted at CBI office and the team left for CBI office in the same manner in which it had arrived at Janakpuri. The vehicle of the accused was also searched at the spot and brought to CBI office. They reached CBI office at around 8.30 pm. On reaching CBI office , TLO arrested the accused and intimated wife of the accused through a telephonic call about the arrest of the accused. The conversation which was recorded during the bribe transaction was heard and some lines were selected from that conversation. The memory card was then taken out from DVR and sealed along with its plastic cover and packaging, after putting the same in an envelope.
Thereafter, a fresh memory card was arranged. Introductory voices of independent witnesses were recorded. On the instruction of TLO, PW8 recorded sample of voice of Anil Kumar After recording sample voice of accused closing introductory voices of both the independent witnesses were again recorded. The memory card was then taken out from DVR and sealed along with its plastic cover and packaging, after putting the same in an envelope. The DVR was also sealed in an envelope.
Thereafter, a post trap memo was prepared and impression of CBI seal were embossed on that memo. The proceedings were concluded in the morning of 19.4.2016.
17 PW9 is Sh. Suresh Kumar. He deposed that in the year 2016
Page No. 27 CBI Vs. Anil Kumar Aggarwal
he was posted in SDMC. On the directions of Dy. Health Officer he joined CBI investigation on 19.4.2016. The CBI team went to sales tax office, Nehru Place and conducted searches in that office and seized certain documents vide memo Ex. PW4/1. The documents running into 16 pages seized through this memo are collectively Ex. PW9/1.
18 PW10 is Insp. Harnam Singh. He deposed that on 23.4.2016 he took over the investigation of this case from TLO R. C. Sharma. During the course of investigation he recorded the statement of witnessees and collected documents. On his requisition nodal officer had sent the CAF and CDR of mobile numbers belonging to the complainant as well as accused. He had sent the exhibits to CFSL vide letter dated 27.4.2016 which is Mark PW10/A. Vide letter dated 27.4.2016 Mark PW10/B he had sent right and left hand wash of accused as well as handkerchief wash for expert opinion to CFSL. During investigation he had received the report of FSL Ex. PW5/1. Vide letter dated 22.6.2016 Mark PW10/C he had sent the questioned voice of accused and complainant as well as their sample voices and the DVR for examination and comparison by the expert opinion to FSL. Vide production cum seizure memos Ex. PW6/4 and Ex. PW6/6 he had seized certain documents from J. M. S. Rawat, Superintendent Service Tax. Vide letter Ex. PW6/1 he had requested Addl. Commissioner Service Tax to provide the details of leave taken by Anil Kumar Aggarwal from 1.4.2016 to 18.4.2016 and vide letter Ex. PW6/2 he requested him to provide the service Page No. 28 CBI Vs. Anil Kumar Aggarwal tax liabilities details of Davinder Kumar Ahluwalia and Mamta Ahluwalia. He further deposed that vide letter Ex. PW10/1 he requested the Nodal Officer, Vodafone for production of original CAF, certified CDRs and certificate U/s 65 B of Evidence Act in respect of mobile numbers 9873551957, 9899100204 and 9899100304. During the investigation he had also prepared the transcripts of recorded conversation Ex. PW1/10 and Ex. PW1/11 in presence of independent witnesses.
19 PW11 is Ms. Aruna Narayan Gupta. She deposed that in September 2016 she was posted as Commissioner Service Tax in Delhi. She received request for grant of sanction U/s 19 of PC Act for prosecution of Anil Kumar Aggarwal. After going through the material placed before her, she was of the opinion that it was a fit case for grant of sanction. Accordingly, she granted sanction for prosecution as required U/s 19 of PC Act and passed the sanction order Ex. PW11/1. This sanction order was forwarded to CBI under her directions by her subordinate Sh. Anees C vide forwarding letter Ex. PW11/2.
20 PW12 is Insp. R. C. Sharma. He is the Trap Laying Officer. His testimony shall be discussed later as and when required.
21 PW13 is Sh. Amitosh Kumar. He deposed that he joined CFSL in February 1999 and selected as Scientific Assistant Physics in July 2005. In the present case a request letter dated 22.6.2016 was received from Page No. 29 CBI Vs. Anil Kumar Aggarwal SP CBI, ACB, N. Delhi along with four sealed parcels, specimen seal impression, copy of transcription and certificate. The letter along with certificate is Ex. PW13/1. The case was assigned to him for examination. He opened the parcel for examination on 27.9.2016 after tallying the seals. It was found containing three micro SD cards Ex. Q1, Q2 and S1 and DVR. After examination he prepared his report dated 03.10.2016 which is Ex. PW13/2 bearing his signatures at point A. Thereafter, statement of accused u/s 313 Cr.P.C was recorded. Accused preferred to lead evidence in his defence and examined 02 witnesses as DW1 & DW2. He also examined himself U/s 315 Cr. P. C as DW3.
22 DW1 is Sh. Anil Yadav Inspector Service Tax. He deposed that in April 2015 he was posted as Inspector in Division VII, Range 34, Nehru Place, N. Delhi. His duties were to deal with all the files of Range/Regional Officer for preparing periodical reports, reply to Parliament questions and reply to RTI applications. One RTI application DW1/1 was filed by Sh. Davender Kumar Ahluwalia. Mr. Anil Kumar Aggarwal gave reply to this application vide Ex. DW1/2.
23 DW2 is Sh. Praveen Kumar. He deposed that in April 2016 he was posted as Inspector Service Tax Anti Evasion Branch and Sh. A. K. Aggarwal was his superintendent and they used to sit in the same cabin. On Page No. 30 CBI Vs. Anil Kumar Aggarwal 18.4.2016 Sh. A. K. Aggarwal came to the office at about 1.00/1.30 PM. Separate computer system was allotted to Sh. A. K. Aggarwal. He was not aware if Mr. A. K. Aggarwal checked his computer system on 18.4.2016. He told Mr. A. K. Aggarwal on 18.4.2016 that he was preparing a show cause notice in respect of LDS Engineers. He further deposed that Mr. A. K. Aggarwal probably left the office at about 5.00/5.30 PM on 18.4.2016.
24 DW3 is Anil Kumar Aggarwal (accused). He deposed that before 12.4.2016 he met complainant D. K. Ahluwalia on 6.4.2016 and 11.4.2016 who had come to see him with the documents for the purpose of calculation of service tax. On 12.4.2016 he reached his office at about 10.00 in the morning. He received a call from D. K. Ahluwalia who wanted to meet him. Anil Aggarwal asked him that why he wanted to meet him when he had already calculated his service tax. D. K .Ahluwalia still insisted to meet him so he called him within an hour. He waited upto 12.45 PM and then gave a call to D. K. Ahluwalia who said that he is already on his way and will be there within 1520 minutes. D. K. Ahuwalia came to the office at around 1.00/1.30 PM and told him that he has come to know that a complaint was filed against him by Mr. Bhatia, Director Sumit Aviation and started quarreling with him.
He further deposed that on 18.4.2016 he reached at his office at about 10.00 AM and remained there for about one hour. Thereafter, he was called by his commissioner around 11.00 AM and he left for Saket Page No. 31 CBI Vs. Anil Kumar Aggarwal Office and returned at about 1.30 Noon. During 11.00 AM to 1.30 PM he received 34 calls from the complainant but he did not pick the phone 23 times and lastly he responded to the call made by complainant at about 1.00 noon and told him that he was not in a position to talk with him. He checked the record of the complainant and found that service tax had already been deposited by the complainant. He apprised this fact to the complainant by making a call to him at about 4.30 PM. Complainant insisted Anil Aggarwal to meet him and told that he was at Delhi Cantt as his relative was admitted in Army Hospital. Anil Aggarwal ( DW3) agreed to meet him (complainant ) at Janakpuri at his insistence. DW3 further deposed that he left his office at about 6.00 PM and at about 6.30 PM he received a call from the complainant who told him that he had already reached Mata Chanan Devi Hospital, Janakpuri. He further deposed that he reached Mata Chanan Devi Hospital and met him in his car and asked him to file the return in October 2016 as he has already deposited the service tax. Complainant gave him a list of creditors of Sumit Aviation and while he was going through the list, 45 persons surrounded him and introduced themselves as CBI officials. They told him that he had demanded the money but he replied that he neither demanded the money nor accepted the same. Two CBI officials sat in the rear seat of the car and two offices snatched his wallet, mobile and key of his car. During this scuffle 1520 public persons collected there. CBI officials dragged him outside the car and took him in their vehicle.
Page No. 32 CBI Vs. Anil Kumar Aggarwal
25 It is contended by ld. Counsel for the accused that from the
alleged conversation it is not reflected that the accused demanded the bribe and there is no evidence to show that accused accepted the tainted money. It is also contended that recorded conversation is inadmissible in evidence and recorded conversation was tampered by the CBI officials. CBI was already in possession of transcript before sending the exhibits to CFSL.
It is also contended by ld. Counsel for accused that complaint is also inadmissible in evidence. There are material contradictions and inherent inconsistencies in the statement of witnesses. No proper sanction was obtained by the CBI officials. No verification proceedings had taken place on the the complaint filed by the complaint on 13.4.2016. Complainant has motive to falsely implicate the accused as he had not initiated action against Sumit Aviation. PW7 has stated that money was kept in a handkerchief at CBI office, this belies the story of CBI. There are material contradictions between the statement of witnesses regarding the place where hand wash to accused had taken place, where the handkerchief wash was taken place and regarding the sealing of DVR. It is prayed that accused be acquitted.
26 On the other hand it is contended by Ld. PP for CBI that in the complaint dated 13.4.2016, the complainant has specifically mentioned that the accused was demanding bribe of Rs. 2.5 lac and in his deposition before Page No. 33 CBI Vs. Anil Kumar Aggarwal the court he has specifically stated that accused had demanded Rs. 2.5 lac as some complaints were pending against him ( complainant). It is further contended by Ld. PP for CBI that the demand of bribe by the accused is proved.
It is also vehemently contended by the Ld. PP for CBI that from the verification report it is clear that the accused has categorically stated to the complainant 'Samaan Hai Tere Paas'. This means that the accused was demanding the bribe from the complainant. It is also contended by the Ld. PP for CBI that during the trap proceedings accused was caught red handed while demanding and accepting the bribe of Rs. 1.5 lacs. It is also contended by him that this fact is proved by the complainant when he appeared as PW1 and he proved regarding demand and acceptance of bribe.
It is further contended by ld. PP for CBI that independent witness Narain Bahadur also testified about the verification proceedings and demand of bribe by the accused. It is also contended by ld. PP that PW7 has deposed that during conversation accused inquired about the money from the complainant by referring to as 'Samaan'.
It is also contended by the Ld. PP that PW8 Insp. Ramesh Kumar has also deposed about the demand of money by the accused during verification proceedings. The factum of acceptance of bribe amount is proved by PW1, PW2, PW7 and PW12 Page No. 34 CBI Vs. Anil Kumar Aggarwal It is further contended by Ld. PP for CBI that PW1 has specifically deposed that accused on the day of incident called him at about 6.00/6.30 PM and inquired about his whereabouts. He has deposed that accused came at the spot ie in front of Mata Chanan Devi Hospital. Accused sat in the car of the complainant and inquired whether the complainant had brought the money. The complainant replied in affirmative and handed over the money to the accused. Accused took out his handkerchief and asked the complainant to put the money in it and on the asking of accused, complainant put the money of Rs. 1.5 lac on the handkerchief.
It is further contended that the hand wash of the handkerchief was taken which turned pink showing the presence of phenolphthalein powder.
It is also contended that accused while appearing as DW3 has not denied that he went to Janakpuri and met the complainant near Mata Chanan Devi Hospital. It is also contended that when the complainant has already deposited the service tax, then there was no occasion for the accused to visit Mata Chanan Devi Hospital and met the complainant. It is also contended that the accused has not denied his presence at the spot where he was apprehended in the presence of complainant and CBI officials.
It is also contended by Ld. PP for CBI that neither the accused nor any of his family member had made any complaint about the forcibly Page No. 35 CBI Vs. Anil Kumar Aggarwal lifting of accused by the CBI officials, to the higher officials of CBI.
From the testimony of material witnesses ie PW1, PW2, PW7, PW8 and PW12 demand of bribe and acceptance of Rs. 1.5 lac by the accused from the complainant is proved and CBI has proved its case beyond reasonable doubt. It is prayed that the accused be convicted.
27 Now, I am dealing with contentions of Ld. Counsel for the accused one by one.
Voice Recording Evidence.
It is vehemently contended by Ld. Counsel for the accused that Q1, Q2 & S1 specimen voice were sent to the CFSL vide letter dated 26.04.2016 and same were received by Director, CFSL on 27.04.2016 vide Mark PW10/A. This document Mark PW10/A was not produced in original and Ld. Predecessor of this court while recording evidence has not exhibited the document and only gave mark to identify the document. Ld. Counsel for the accused has also drawn my attention towards D15 which is photocopy and same is proved as Mark PW10/C and on this letter shows that Q1, Q2, S1 & DVR were again sent to the Director, CFSL on 22.06.2016.
Ld. Counsel for accused has also contended that transcription cum voice identification memo dated 29.06.2016 is proved as PW10/12 and Page No. 36 CBI Vs. Anil Kumar Aggarwal vide this document the conversation between complainant and accused was heard and transcription of conversation contained in CD was prepared on 29.6.2016 but CBI had not made it clear when they received the CD containing the alleged conversation from CFSL. There is no document filed by the CBI as to when the CDs were prepared by CFSL and sent to CBI. Ld. counsel for the accused also drawn my attention towards Forensic Voice Examination Report Ex. PW13/2. This report shows that CBI has sent Q1, Q2, S1 & DVR with copy of rough transcription to CFSL on 22.06.2016. Thus, prior to 29.06.2016 CBI has in possession of transcription and this document Ex. PW10/12 is fabricated by the CBI. It is contended that seals on the Exhibits Q1 & Q2 were tampered and transcription was made before 22.06.2016. So, no reliance can be given to Q1, Q2 and transcription. Thus, it shows that CBI officials were already having possession of CDs and cannot be taken into consideration.
28 It is true that vide Mark PW10/A the exhibits Q1, Q2 & S1 were sent to CFSL by Sh. Jagrup Singh Gusinha, SP, CBI/ ACB and one Mithlesh Jha received the exhibits Q1, Q2 & S1 along with two sheets of A4 size sample with seal impressions. Vide this letter, it was requested by Jagrup Singh Gusinha, SP, CBI to Director, CFSL for preparing and supplying five copies of each memory card. The letter was sent on 26.04.2016 and on 27.04.2016 same has been received by CFSL. Exhibits Q1, Q2 & S1 sealed with the seal of AB Tiwari, SSO, CFSL and one sealed Page No. 37 CBI Vs. Anil Kumar Aggarwal envelop containing digital voice recorder were again sent to the CFSL by Sh. Gagandeep Gambhir, SP on 22.06.2016 and these Q1, Q2, S1 & DVR were received on 24.06.2016 by CFSL. The CBI is not able to make it clear as to when it received Q1, Q2, S1 along with copies of CDs having conversation from the CFSL. No documents have been placed on record by the CBI to establish as to when these CDs were received by CBI. Official who has prepared the CDs after desealing the exhibits is not examined during evidence. There is no document on record to prove that CDs were prepared by the official of CFSL.
PW2 has stated that on reaching CBI office the SD card was taken out from the recorder and memo in this regard was prepared. He also categorically stated that on reaching the CBI office the conversation was reheard. PW2 in cross examination categorically stated that when the conversation was reheard at CBI office, the SD card was played in DVR. PW2 also categorically stated that chip was taken out from the DVR and both were sealed at the spot i.e. Janakpuri. PW2 also stated in cross examination that he does not remember whether the DVR was packed or in open condition.
PW12 in examination in chief did not state that DVR was not sealed at the spot and rather he deposed that at CBI office the memory card was taken out from DVR and placed in its plastic cover and paper packaging and thereafter placed in an envelop and sealed with the seal of CBI but in Page No. 38 CBI Vs. Anil Kumar Aggarwal the cross examination this witness stated that DVR was sealed at the spot but he again stated that it was sealed at CBI office during post trap proceedings.
As the CBI has not clarified when it had received the recorded conversation in the CDs from the CFSL and letter Ex. D15 shows that Q1, Q2 , S1 and DVR alongwith transcription were again received on 24.06.2016 by CFSL. CBI has not placed on record any letter of the CFSL to show that CDs were prepared by desealing Q1, Q2 & S1. None of the official of the CFSL had deposed that they had made the CDs from Q1, Q2 & S1. PW13 categorically deposed that he received four sealed parcels, copy of the transcription and certificate on 24.06.2016.
In judgment titled as "Ram Singh v. Col. Ram Singh" it is held that: (1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidence direct or Page No. 39 CBI Vs. Anil Kumar Aggarwal circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of the Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
I am of the view that CBI has not able to prove who has prepared the CDs. Moreover, the CBI has not placed on record original of PW10/A and original of PW10/C. Ld. counsel for accused has placed reliance on judgment (2011) 4 Supreme Court Cases 143 titled as "Nilesh Dinkar Paradkar Vs. State of Maharashtra" and in the judgment Hon'ble Apex Court has held that "evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing, that reality can be completely replaced by fiction. Therefore, courts have to be extremely cautious in Page No. 40 CBI Vs. Anil Kumar Aggarwal basing conviction purely on evidence of voice identification."
In view of the contradiction in the testimony of PW2,PW7, PW8 and PW2 it is not made clear as to where the DVR was sealed. No explanation has been given by the CBI as to why the DVR was not sealed at the spot. There is no explanation as to who prepared the CDs from the Q1 & Q2 and sent the same to CBI. No witness from the CFSL is examined by the CBI to prove as to who had prepared the CDs by breaking the seals on Q1, Q2 and S1. Ex. PW13/2 shows that transcription running into 8 pages were sent to CFSL on 22.06.2016 along with Q1, Q2, S1 and DVR. Thus, the version of CBI that transcriptions were prepared on 29.06.2016 is false. Prior to 29.06.2016 CBI was in possession of transcription and the document ex. PW10/12 is fabricated by CBI. As CBI was already in possession of transcriptions, tampering of Q1, Q2, S1 and DVR can not be ruled out. Thus, no reliance can be given to transcription, Q1, Q2, S1 and DVR.
29. Sanction to Prosecute: The next point of consideration is whether proper sanction was accorded for prosecuting the accused. To prove the sanction PW11 Ms. Aruna Narayan Gupta, Commissioner, Service Tax appeared and she deposed that she was posted as Commissioner Service Tax in September, 2016 and she received the request for grant of sanction u/s. 19 of PC Act for prosecution of Anil Kumar Aggarwal. She deposed that after going through the material she opined that it was a fit case for grant of sanction Page No. 41 CBI Vs. Anil Kumar Aggarwal for prosecution as required u/s. 19 of PC Act. On 02.09.2016 she granted the sanction and passed the sanction order. The sanction order is proved as Ex. PW11/1. The sanction was forwarded to CBI under her directions by Sh. Anees. She also proved the forwarding letter as Ex. PW11/2.
No suggestion was given to PW11 that sanction was not properly accorded. Even this witness has categorically stated in cross examination that she has considered everything which was available in her file.
Hon'ble Supreme Court of India in 2005 CRI. L.J. 2145 "C.S. Krishnamurthy Vs. State of Karnataka", while dealing with the issue regarding validity of sanction, observed as under :
"..... It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is against the frivolous prosecution against public servant from harassment. But, the sanction should not be taken as a shield to protect corrupt and dishonest public servant."
"The sanction itself shows that there is something to be accounted by the accused. When the sanction itself is very expressive, then in that case, the argument that particular material was not properly placed before the sanctioning authority and sanctioning authority has not applied its mind becomes unsustainable. When sanction order itself is eloquent enough, then in that case only formal evidence has to be produced by the sanctioning authority or by any other evidence that the sanction Page No. 42 CBI Vs. Anil Kumar Aggarwal was accorded by a competent person with due application of mind."
From the testimony of PW11 it is clear that entire material was placed before PW11. Hence, there is no deficiency in the sanction order.
30 Now, I am turning to next issue whether prosecution is succeeded in proving the guilt of accused beyond reasonable doubt.
Section 7 of the Prevention of Corruption Act reads as under" "Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or parliament or the Legislature of any Sate or with any local authority, corporation or government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine."
Page No. 43 CBI Vs. Anil Kumar Aggarwal Section 13(1)(d) and (2) of Prevention of Corruption Act reads as under: "13 Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct,
(a) .....
(b) .....
(c) .....
(d) if, he,
(I) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or (II) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (III) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) .....
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extent to [ten years] and shall also be liable to fine."
In the present case the prosecution has to prove following three aspects namely : Page No. 44 CBI Vs. Anil Kumar Aggarwal
(i) demand by the accused
(ii) acceptance of bribe by the accused
(iii) recovery of bribe amount from public servant (accused).
31 Now, I am discussing whether there is demand of money on the part of the accused or not and whether demand has been proved by the prosecution.
As per complaint Ex. PW1/1, accused asked the complainant to meet him on 12.04.2016 and complainant met the accused at Sona Rupa restaurant, Nehru Place and accused demanded a sum of Rs. 2.5 lacs. It is also the case of the prosecution that verification proceeding was carried out and the complainant told the accused that he has arranged Rs. 1.5 lacs against the demand of Rs. 2.5 lacs. The fact regarding demand by accused on 18.04.2016 is not deposed by PW1 in his examinationinchief. PW1 has not deposed that he asked the accused on telephone that he is only able to arrange a sum of Rs. 1.5 lacs nor he stated that on 18.04.2016 accused had demand the amount of Rs. 2.5 lacs or accused had accepted to receive a sum of Rs. 1.5 lacs. Thus, in absence of specific deposition by PW1 in his examination regarding demand by the accused on 18.04.2016, it cannot be held that accused had demanded the bribe on 18.04.2016.
32 Now the question arises whether from the testimony of prosecution
Page No. 45 CBI Vs. Anil Kumar Aggarwal
witnesses it is proved that accused has accepted the bribe and recovery has been effected from him.
PW1 has categorically deposed that accused sat in his car and he asked whether he had (complainant) brought the money and he answered in affirmative and he took out the money from his right pocket of the pant and extended money towards him (accused). Accused stated that he would not receive the money in his hand and accused asked whether he is having envelope and he said that he was not having envelope. Then accused told that he was having envelop in his car and he would go to car to bring the envelop. Then, accused took the handkerchief from left side pocket of his pant and he unfolded his handkerchief and asked him (complainant) to put the money upon it. Complainant then put Rs. 1.5 lacs upon the handkerchief.
PW1 stated in this cross examination that money was recovered from the space in between both the front seat of the car. PW2 has also deposed that between Devinder Kumar Ahluwalia (complainant) and Anil Kumar Aggarwal was lying a handkerchief with something wrapped in it.. Inspector Ramesh Chander asked him to take out that handkerchief. As per PW2 he picked up that handkerchief and on unwrapping it he found that it had money. Similar deposition is given by PW8 that it was informed by the complainant that wrapped handkerchief was lying in space between both the seats containing bribe amount and Budhi Singh was directed to recover Page No. 46 CBI Vs. Anil Kumar Aggarwal the bribe amount. PW12 has similarly deposed that the independent witness was asked to recover the bribe amount which was kept adjacent to seat upon which the accused was sitting. He cannot tell whether amount was kept on left side or right side of the seat. Thus, from the testimony of PW1, PW2, PW8 & PW12 it is clear that amount was lying between the two front seats of the car of the complainant. PW7 other independent witness has given a contradictory reply that Anil Kumar Aggarwal was holding the money in his hand and he saw the accused putting the money between both the front seats but this deposition is not given by PW1, PW2, PW8 & PW12 that on seeing the raiding party accused placed the amount in between the two front seats of the car of the complainant. PW12 also stated that he do not remember whether he had reached the left side of the car or the right side of the car of the complainant. Strange, enough the IO do not remember whether he approached the left side of the car or the right side of the car of the complainant at the time of apprehension of the accused.
It is also admitted fact as per complaint, post trap proceedings and evidence of PW1, PW2, PW8 and PW12 that accused asked the complainant whether he had brought the money then complainant replied "laya hu" but this fact was not recorded during conversation. Moreover, it is also admitted fact that accused received the bribe amount by taking his handkerchief from his pocket of the pant and gave gesture to the Page No. 47 CBI Vs. Anil Kumar Aggarwal complainant to place the amount on the handkerchief. But, if we peruse the testimony of PW7, he has categorically deposed that currency notes provided by the complainant was treated with powder, the effect of which had been demonstrated to them. Thereafter, currency notes were placed in an handkerchief and tied and thereafter, placed in the shirt pocket of Davinder Kumar Ahluwalia. As per this witness the notes were tied in handkerchief at CBI office. Thus, it belies the testimony of PW1 & PW2 that the accused had took out his handkerchief and told the complainant to place the bribe amount on the handkerchief. It is a serious dent in the case of the prosecution as the CBI is heavily relying that handkerchief belongs to the accused. No evidence is adduced by the CBI that handkerchief belongs to the accused. In the entire conversation there is no mention of handkerchief. Accused has denied in the statement u/s. 313 Cr.P.C that the handkerchief belongs to him. Thus, it is not proved that accused accepted the bribe amount of Rs. 1.5 lacs from the complainant. 33 It is vehemently contended by Ld. PP for CBI that phenolphthelin powder was detected in both the hand wash of accused and handkerchief.
As PW7 admitted that currency notes after treating with powder were tied in the handkerchief at CBI office and if the wash of the handkerchief is turned pink then no benefit can be given to the prosecution when the CBI has placed the treated currency notes in the handkerchief at CBI office.
Page No. 48 CBI Vs. Anil Kumar Aggarwal
34 In the present case, it is to be seen whether the left and right hand
wash and wash of handkerchief were taken at the spot and it is vehemently contended by Ld. PP for CBI that left and right hand wash of the accused shows that accused had received the money.
PW1 has categorically stated that hand wash of the accused were taken in the car. PW2 deposed that accused was taken out of the vehicle and his hands were washed. PW7 stated that hand wash of the accused were taken outside the car. PW12 in the cross examination stated that the hand wash of the accused was taken after he had come out of the vehicle of the complainant and hand wash of the accused was taken by him. Thus, there is contradictions between the testimony of PWs as to where the hand wash of the accused was taken. There is also major contradiction as to how the hand wash of the accused was taken. PW1 has deposed that one person caught hold the hands of the accused and asked him to dip his hands in a glass containing a solution. Accused was not agreed to do it and a lot of strength was used to have his hands dipped in the glass. PW2 deposed that for taking hand wash of the accused the water from the bottle was poured on his hands which then dripped into the glass underneath. PW7 also deposed that hand wash of one of the hands of the accused was taken by pouring water on his hand from a bottle and collecting that water in a glass tumbler which was placed under the hand of the accused. PW8 & PW12 have given different version that while accused was sitill in the car, the Page No. 49 CBI Vs. Anil Kumar Aggarwal hand wash of the accused was taken in the solution of water and sodium carbonate and the solution on doing so turned pink. PW12 has also given similar version that the accused was asked to dip his left hand in a fresh solution of water and sodium carbonate and on doing so the solution turned pink. Thus, there is contradiction as to how the hand wash of the accused was taken so it cannot be held that accused has accepted the bribe amount and recovery was effected from his possession.
35 Ld. counsel for the accused relied upon the following judgments: (1) Mukhtiar Singh v. State of Punjab; (2) V. Sejappra Vs. State By Police Inspector Lokayukta, Chitradurga; (3) B. Jayaraj Vs. State of Anandhra Pradesh; (4) State of Punjab Vs. Madan Mohan Lal Verma; (5) C.B. Nagaraj Vs. Stae by Lokayuktha Police; (6) State of Kerala & Anr. Vs. C.P. Rao; (7) T.M. Shanmughavelu Vs. State; (8) Banarasi Dass Vs. State of Haryana; (9) Subhash Chand Chauhan & Anr. Vs. CBI; (10) C.M. Girish Babu Vs. CBI; (11) M.K. Harshan Vs. State of Kerala; (12) Suraj Mal Vs. State; (13)State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede; (14) CBI Vs. Ashok Kumar Aggarwal; (15) Nilesh Dinkar Paradkar Vs. State of Maharashtra; (16) Yogesh Alias Sachin Jagdish Joshi Vs. State of Maharashtra; (17) Achchey Lal Yadav Vs. State & (18) Anvar P.V. Vs. P.K. Basheer & Others.
36 Now, I am discussing the judgments relied upon by Ld. counsel for the accused.
Page No. 50 CBI Vs. Anil Kumar Aggarwal Ld. counsel for the accused has placed reliance on judgment titled as "Mukhtiar Singh (since deceased) Through his LR Vs. State of Punjab"
2017 SCC Online SC 742 and para no. 15 of the judgment reads as under:
15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj v. State of A.P. Underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and
(ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand.
Ld. counsel for the accused has also placed reliance on judgment (2016) 12 Supreme Court Cases 150 titled as "V. Sejappa Vs. State By Police Inspector Lokayukta, Chitradurga" wherein, it is held that "In order to constitute an offence under Section 7 of the Prevention of Corruption Act, "proof of demand" is a sine qua non.
Ld. counsel for accused has placed reliance on judgment titled as "B. Jayaraj v. State of Andhra Pradesh" wherein it is held that Page No. 51 CBI Vs. Anil Kumar Aggarwal "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification in sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe.
Ld. counsel for accused has placed reliance on judgment (2013) 14 Supreme Court Cases 153 titled as "State of Punjab v. Madan Mohan Lal Verma" wherein it is held that "while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person."
Ld. counsel for the accused has placed reliance on judgment 2013 Page No. 52 CBI Vs. Anil Kumar Aggarwal SCC Online Kar 5293 titled as "C.B. Nagaraj v. State by Lokayuktha Police, Davanagere" wherein, it is held that " if the offence punishable under S. 7 of the PC Act had been established it could then be said that the appellant was said to have committed the offence of criminal misconduct as contemplated under S. 13 of the PC Act. The argument of the learned State Public Prosecutor that even if the commission of an offence punishable under S. 7 was not established, it is sufficient if it is established that the appellant had by illegal means obtained a pecuniary advantage to attract in rigour of S. 13, cannot be readily accepted."
Ld. counsel for accused has also placed reliance on judgment 2011 SCC Online Mad 305 titled as "T.M. Shanmughavelu v. State, rep. By Inspector of Police, Vigilance and Anti Corruption, Coimbatore", wherein it is held that "Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. Demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken Page No. 53 CBI Vs. Anil Kumar Aggarwal into consideration but then in respect thereof, it is trite, the standard of burden of proof on the Accused visavis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
Ld. counsel for accused has also placed reliance on judgment (2010) 4 Supreme Court Cases 450 titled as "Banarsi Dass v. State of Haryana" and in this judgment reliance was placed on judgment tiled as "Suraj Mal v. State (Delhi Admn.) and in this judgment it is held that "this Court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe." In the judgment, it is also held that "A three Judge Bench in M. Narsinga Rao v. State of A.P while dealing with the Page No. 54 CBI Vs. Anil Kumar Aggarwal contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification."
Ld. counsel for accused has also placed reliance on judgment (2009) 15 Supreme Court Cases 200 titled as "State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede" wherein, it is held that "demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. Even while invoking provisions of S. 20, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.
In view of the testimonies of PWs and judgments relied on by the accused, it is not proved that accused demanded, accepted the bribe amount and recovery of bribe amount was effected from his possession. 37 It is the case of the prosecution that complainant gave signal to the CBI team by switching on lights of his car. In the pre trap memo Ex. PW 1/5, there is no mention that complainant was directed to give the signal by switching on lights of his car. In the memo Ex. PW1/5, it is mentioned that independent witness Narayan Bahadur was directed to give signal by rubbing his head with his both hands. The complainant has also been Page No. 55 CBI Vs. Anil Kumar Aggarwal directed to give the same signal and also to give a missed call from his mobile phone to the mobile phone of TLO. Thus, complainant was not directed to give a signal by switching on the lights of his car. 38 There are material contradictions in the testimony of PWs. PW8 deposed that handkerchief was signed by both the independent witnesses and TLO and thereafter, packed in an envelope which was sealed by CBI Brass seal at the spot. PW12 also deposed that envelope was sealed with the seal of CBI at spot. But, PW1 deposed that currency notes were recovered from the handkerchief were tied in an envelope and sealed at CBI office. PW2 has also deposed that reaching CBI office the currency notes as well as the handkerchief in which notes were found were also sealed. PW2 categorically stated that after reaching CBI office, the currency notes which were seized at the trap scene were in his pocket. PW2 has categorically stated in cross examination that Ex. PW2/4 is the envelope in which the seized currency notes/bribe money was sealed at CBI head quarter. PW7 does not depose about the sealing of the currency notes but he deposed that currency notes were wrapped in the same handkerchief in which they were found and handed over to Budhi Singh. He also deposed that currency notes were then placed in an envelope and then sealed. Thus, there are material contradictions as to where the bribe amount was sealed.
39 PW1 has categorically stated in examinationinchief that he
Page No. 56 CBI Vs. Anil Kumar Aggarwal
signed on the handkerchief but there are no signatures of PW1 complainant on the handkerchief.
40 There are other material contradictions. As per the post trap proceedings the handkerchief was allowed to dry and the same was signed by both the independent witnesses and the TLO and kept in a brown colour envelope. Witnesses PW1, PW2, PW7 & PW8 had not deposed that handkerchief was allowed to dry at the spot.
41 PW1 in cross examination has deposed that he does not know where bottle was sealed. PW1 has deposed that DVR was taken by Mr. Sharma but as per post trap memo the DVR was taken by Ramesh Kumar. PW1 deposed that he do not know what happened with the handkerchief after it was dipped in water. He also deposed that he do not know how these notes were sealed. PW1 deposed that nothing was recorded in the SD card before they left the CBI office but as per case of the CBI both the independent witnesses have given introductory voice. PW1 has also deposed that both the witnesses were present at the time of transcription but as per PW10 & PW12 transcription was made only in the presence of Budhi Singh. PW1 deposed that he do not know what was done with the DVR after it was taken from him.
As per pre trap memo the notes were placed in the left side front pant pocket of the complainant but PW2 has deposed that notes were placed in the right pocket.
Page No. 57 CBI Vs. Anil Kumar Aggarwal
42 It is further contended by the ld. Counsel for accused that
complainant was having inimical terms with the accused. Complainant was putting pressure upon the accused for initiating action against Sumit Aviation and its Director Mr. Bhatia. It is also contended by ld. Counsel for accused that the complainant has taken information about Sumit Aviation by filing RTI application and complainant was pressurizing the accused to take action against Sumit Aviation. It is also contended by him that CBI has placed on record the calculations made by the accused which is proved as Ex. PW1/D1 and this is proved by the complainant in his cross examination and as per this document a sum of Rs. 6,26,661/ was shown as outstanding service tax against the complainant and if this calculation is made by the accused in his own hand writing, then there was no occasion for the accused to demand any bribe.
It is also contended that once the complainant had admitted the document Ex. PW1/D1 in which outstanding tax was Rs. 6,26,661/, the averments made in the complainant in the complaint Ex. PW1/1 that the outstanding service tax was Rs. 36 lac is false.
It is further contended by the ld. Counsel for accused that PW1 in his examination in chief admitted that he visited the CBI office on 13.4.2016 and from the reception he was made to talk to one Dy. SP on telephone and thereafter he went upstairs. PW1 also submitted that Dy. SP Page No. 58 CBI Vs. Anil Kumar Aggarwal took him to SP and thereafter one Mr. Sharma who asked him to give his complaint in writing. It is also contended that after perusing the complaint Ex. PW1/1, the SP marked the complaint to Insp. Ramesh Kumar but Ramesh Kumar is verification officer and Sh. Sharma is TLO. This shows that complaint was drafted at CBI Office itself.
Ld. Counsel for accused has also drawn my attention towards the last part of the complaint where the allegations of bringing money of Rs. 2.5 lac on 18.4.2016 is mentioned. It is also mentioned that accused had told the complainant that he will call him at 11.00 AM on 18.4.2016. It is submitted by ld. Counsel for accused that these two lines were written by the complainant subsequently and the gap between the words and lines shows that these two lines were added lateron. It is further contended by the ld. Counsel for accused that as per the version of PW1 that on 18.4.2016 he reached CBI office and took Rs. 1.5 lac ie 150 notes of Rs. 1000 each. It is also contended that if the version of CBI is to be believed, the bribe amount was not settled till 10.30 AM on 18.4.2016 and the bribe amount was settled during the verification proceedings and this shows that recorded conversation is doctored showing that the verification proceedings were carried lateron.
43 In the present case, PW1 has motive to falsely implicate the accused as in his cross examination he had admitted that he had also Page No. 59 CBI Vs. Anil Kumar Aggarwal discussed case of one Mr. Neeraj Bhatia with the accused. Complainant also admitted in cross examination that he had made a complaint against Mr. Neeraj Bhatia who was running a company by the name of Sumit Aviations and had not paid any service tax for past ten years. He also admitted that he inquired from the accused as to what has been done to his complaint. He also admitted in cross examination that accused told him that he (complainant) had no business with the case of Mr. Neeraj Bhaita and he should talk about his case only. Complainant also admitted that he had also filed an RTI to know what action had been taken on his complaint against Neeraj Bhatia. According to him, Mr. Neeraj Bhatia had an outstanding liability of Rs. 7.18 crores. If we peruse the testimony of DW3, he deposed that complainant D.K. Ahluwalia gave him a list of creditors of Sumit Aviation in his car and while he was going through the list, 4/5 persons surrounded him and introduced themselves as CBI officials. Ld. counsel for the accused has vehemently contended that complainant has also filed criminal complaint against Sumit Aviation in the court but no documents has been placed on record by the accused but taking into consideration the clear admission of the complainant that he was pressurizing the accused to take action against Sumit Aviation. PW1 admitted that accused asked him to give some information about Sumit Aviation. PW1 also admitted that he told the accused in the car why any other information be given when he (accused) is not able to do anything. I am of the view that complainant has Page No. 60 CBI Vs. Anil Kumar Aggarwal motive to falsely implicate the accused when he had not taken any action on the complaint given by the complainant against Sumit Aviation. 44 Ld. counsel for the accused has placed reliance on judgment titled as " State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede" wherein, it is held that "if two views are possible, one in favour of the prosecution and the other in favour of accused. It is held that view in favour of the accused be prevailed.
In the present case, complainant PW1 admitted that accused made his calculation regarding service tax and the calculation was explained to him by the accused. This witness admitted the calculation as Ex. PW1/D1. The complainant admitted that while making calculations in Ex. PW1/D1 the accused had calculated Rs. 06 lac as his outstanding liability and Rs. 02 lacs as interest. The complainant admitted that he had deposited the outstanding tax liability to the tune of Rs. 6 lacs.
There was no occasion to the appellant to demand the bribe as accused made calculation of outstanding service tax liability and complainant had deposited the same as per the calculation made by accused.
45 Ld. PP for the CBI has placed reliance on judgment AIR 1980 Supreme Court 873 titled as "Hazari Lal v. The State (Delhi Admn.)"
wherein it is held that "where the evidence of the Police Officer who laid the trap is found entirely trustworthy, there is no need to seek any Page No. 61 CBI Vs. Anil Kumar Aggarwal corroboration. There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an Officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance."
Ld. PP for CBI has placed reliance on judgment titled as "State of U.P. v. Zakaullah". Ld. PP for CBI has also placed reliance on judgment 2001 CRI. L. J. 515 titled as "M. Narsinga Rao v. State of A.P." wherein, it is held that "when the subsection deals with the legal presumption it is to be understood as in terrorum i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under S. 20 is that during trial it should be proved that the accused had accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that Page No. 62 CBI Vs. Anil Kumar Aggarwal is not the only mode envisaged in the Evidence Act."
In the present case it is not proved by CBI that accused had demanded and accepted the bribe and recovery of bribe amount was effected from him, these judgments are not helpful to prosecution.
46 In view of the my above discussions, I find that the CBI has failed to prove its case against the accused. The accused is accordingly acquitted for the offence punishable u/s. 7 Prevention of Corruption Act and offence punishable u/s. 13(2) r/w section 13 (1)(d) of Prevention of Corruption Act. His bail bond stands cancelled. Surety stand discharged. File be consigned to record room, after necessary compliance.
Announced in open court
On 29.08.2017 N. K. MALHOTRA
Additional Sessions Judge
Spl. Judge(PC Act), CBI02: NDD.
Page No. 63 CBI Vs. Anil Kumar Aggarwal