Delhi District Court
C B I vs Mukesh Kumar on 30 January, 2025
IN THE COURT OF MS. SUNENA SHARMA
SPECIAL JUDGE : CBI-20 (PC ACT): ROUSE AVENUE
COURT : NEW DELHI
CBI Case No. 62/2019 (1/19)
RC No.DAI-2018-A-0031/CBI/ACB/New Delhi.
CNR No. DLCT11-000151-2019
Date of Institution : 24.12.2018
Final arguments concluded on : 24.01.2025
Judgment pronounced on : 30.01.2025
In the matter of:
Central Bureau of Investigation (CBI)
5B, 3rd Floor, CGO Complex,
Lodhi Road, New Delhi.
Versus
Mukesh Kumar
S/o Late Sh. Ram Premi
R/o 1/191, Ground Floor,
Subhash Nagar, New Delhi
....... Accused no. 1
Shyam Sunder
S/o Late Sh. Nanak Chand
R/o 325, Block F-II, Madangir, Phase-II
Dr. Ambedkar Nagar.
........ Accused no. 2
INDEX
S.No. Particulars Page no.
1.Factual Matrix 3-8 2. Cognizance/Charge 8 3. Prosecution Evidence 8-10 (I) Complainant and Independent 10-31 Witnesses (ii) CBI witnesses of verification and 31-42 CBI Case No. 62/2019 (1/19) Page no. 1/134 trap proceedings (iii) Expert witnesses from CFSL 42-46 (iv) Witness to voice identification of 46-48 accused no.1 (v) Witness to CDR and related 48-50 documents pertaining to phone instruments/numbers used by complainant and accused at the relevant time (vi) Witnesses pertaining to Sanction 50 under Section 19 of PC Act, 1988 (vii) Witnesses to the Inspection 50-54 conducted on 14.09.2018 (viii) Other formal Witnesses 55-57 4. Statement of Accused/Defence Evidence 57-58 5. Prosecution Arguments 58-67 6. Defence Arguments. 67-73 7. Analysis of material by the Court 73-90 (i) Pre-complaint Demand 90-93 (ii) Post-complaint Demand raised at 94-105 the time of Verification. (iii) Demand raised at the of Trap 105-114
(iv) Discrepancies in the Transcripts of 114-116 Q1, Q-2 and Q-3.
(v) Acceptance and Recovery of 116-122
tainted money.
(vi) Validity of Sanction under Section 122-127 19 of PC Act.
(vii) Admissibility Voice Identification. 127-134 8. Conclusion 134 Judgment
1. The instant chargesheet is the outcome of the case FIR/RC DAI-2018-A-0031/CBI/ACB/New Delhi dated 25.09.2018 registered under Section 120-B read with CBI Case No. 62/2019 (1/19) Page no. 2/134 Section 7, 7A of Prevention of Corruption Act, 1988 (hereinafter referred as PC Act).
Factual Matrix
2. The aforementioned FIR/RC was registered on the basis of a joint complaint dated 24.09.2018 filed by two brothers namely Ramesh Kumar and Naresh Kumar. As per the complaint, the allegations were that accused Mukesh Kumar (Public Servant/accused no.1), Assistant Commissioner, Food & Supply Department (South), GNCT, Delhi and accused Shyam Sunder (Private Person/accused no.2), in furtherance of their common intention had a raid carried out on 14.09.2018 in the Fair Price Shop No.9230 belonging to family of complainants and seized sale & stock register from the shop without issuing any receipt thereof. The license of said Fair Price Shop was in the name of Nirmala Devi, the wife of complainant Rajesh Kumar. It is also alleged that on 17.09.2018, the accused no.2, who often used to meet the complainants in the office of accused no.1, gave a call to the complainant Naresh Kumar and demanded a bribe of Rs.1,50,000 in connection with the raid conducted in their ration shop.
3. Subsequently, on 21.09.2018, accused Mukesh Kumar met the complainant Naresh Kumar in his office and demanded Rs.50,000 in order to save him from the prosecution and cancellation of license of their Fair Price Shop. Since the complainants were not willing to pay bribe, they lodged a joint complaint with CBI on 24.09.2018. The complaint was assigned to SI Umesh, CBI, ACB (verification officer), who joined independent witness Gaurav Sharma for CBI Case No. 62/2019 (1/19) Page no. 3/134 the purpose of verification and got a phone call made on the mobile phone of accused Shyam Sunder who asked the complainant Naresh Kumar to meet him on the next day i.e on 25.09.2018 in the office of accused Mukesh Kumar. The said conversation was recorded in the Memory Card Q-1 through DVR.
4. On 25.09.2018, as directed by accused Shyam Sunder, complainant Naresh Kumar met accused Mukesh Kumar in his office and requested him to reduce the bribe amount. The complainant was assured not to worry and through gesture, he was asked to talk to accused Shyam Sunder, who took him to the adjoining room wherein, he demanded Rs.70,000 and told that Rs.50,000 was for Mukesh Kumar and Rs.20,000 was for the Inspector. After that when complainant and accused Shyam Sunder came out of the adjoining room, complainant was again assured by accused Mukesh Kumar by uttering that he would fight for him (complainant) till end. The entire conversation between the complainant and the accused persons was recorded in the memory card Q-2 through DVR. The verification proceedings of each day were recorded in the respective verification memos dated 24.09.2018 and 25.09.2018.
5. After verification, the aforementioned RC No. DAI-2018-A-0031/CBI/ACB/New Delhi was registered on 25.09.2018. The investigation of said FIR was entrusted to Insp. C.M.S. Negi, who constituted the trap team for laying the trap. As per the instructions of the TLO, the complainant arranged Rs.50,000 in the denomination of Rs.500 each. The CBI Case No. 62/2019 (1/19) Page no. 4/134 GC notes were applied with the phenolphthalein powder, demonstration of which was also given to the trap team for showing its reaction with the solution of water and sodium carbonate. The trap was laid and accused Shyam Sunder was caught red-handed by the trap team while demanding and accepting the tainted amount of Rs.50,000/-.
6. After his apprehension by the trap team, accused Shyam Sunder disclosed that the bribe amount was accepted by him on the instruction of accused Mukesh Kumar. On the asking of CBI, accused Shyam Sunder made some telephonic calls to accused Mukesh Kumar, who initially did not pick up the calls but after sometime, he picked up the call and informed that he was in a meeting. After some time, a call was again made to accused Mukesh Kumar and during said call, accused Shyam Sunder informed him about having received Rs.50,000, to which accused Mukesh Kumar replied "theek hai". The said calls were also simultaneously recorded in the memory card Q-3 through DVR by keeping the mobile phone of accused Shyam Sunder on speaker mode.
7. Thereafter, the accused Mukesh Kumar was apprehended from his ITO office, where a search was also conducted and File No. FPS9320 alongwith other documents were seized from his office.
8. The entire sequence and manner of execution of pre-trap and post-trap proceedings were recorded in the respective memos. During investigation, one mobile phone of i-phone bearing no. 8178967723 (Jio) and one mobile phone of Samsung having two SIM numbers, bearing CBI Case No. 62/2019 (1/19) Page no. 5/134 number 8826766542 (Airtel) and 9213816186 (Jio) were recovered from the personal search of accused Shyam Sunder. One mobile phone Vivo bearing No. 9811988484 was also seized on the personal search of accused Mukesh Kumar. The message history of SMS and WhatsApp messages exchanged between accused Mukesh Kumar and co-accused Shyam Sunder was photographed from the aforementioned mobile phones of the accused and printouts of the same were taken.
9. During investigation, specimen voice of both the accused were recorded in memory card S-1 and S-3 respectively, while the complainant's specimen voice was recorded in a separate memory card S-2. The sealed bottles of right hand wash and left hand wash of accused Shyam Sunder, which were prepared after his apprehension with the tainted money, were sent to CFSL for chemical examination. The CFSL report confirmed the presence of phenolphthalein in the washes.
10. During investigation, IO also collected CAFs, CDRs, Cell ID Charts in respect of the aforementioned mobile phones of the accused persons and also that of the complainant from the concerned service providers and it showed that the above-mentioned phone numbers were issued in the respective names of the accused Shyam Sunder and the complainant. The mobile phone of accused Mukesh Kumar bearing no. 9821897761 was found to be registered in the name of his daughter namely Sony. The inspection report dated 14.09.2018 and the office order of the Assistant Commissioner i.e. accused Mukesh Kumar CBI Case No. 62/2019 (1/19) Page no. 6/134 herein to carry out the inspection at the aforementioned shop of the complainants were seized from the FSO (Enforcement), Food & Supply Department, Govt. of NCT of Delhi vide production-cum-seizure memo dated 04.10.2018.
11. Investigation revealed that on 14.09.2018, a surprise inspection was done by Sh. V.P. Singh, FSO Circle- 48 and Mehar Singh, FSI Circle-48 at FPS 9230 in the presence of complainants and two independent witnesses namely Mr. Vishal and Smt. Seema. During inspection, records of FPS 9230 i.e. 1 stock register and 4 sale registers were seized vide counting-cum-weightment memo dated 14.09.2018. The inspection report was thereafter, forwarded to the Assistant Commissioner, Food & Supply, Enforcement Branch, Mr. Mukesh i.e. accused no.1 herein, on 17.09.2018 for further action. During investigation, Sh. Arun Kumar Mishra, Special Commissioner, Food & Supply Department recognized the voice of accused Mukesh Kumar in the questioned conversation vide voice identification memo dated 08.10.2018.
12. Investigation also revealed that accused Shyam Sunder was running a fair price shop no.5237, Circle-48, Public Distribution System at 325, Ground Floor, F Block-II, Madangiri, New Delhi and said shop also falls under the jurisdiction of accused Mukesh Kumar with whom, accused Shyam Sunder was in contact through calls, SMS and WhatsApp messages.
13. After completing the investigation and obtaining the sanction of Section 19 of PC Act against accused Mukesh Kumar, the IO filed the chargesheet on 24.12.2018, against CBI Case No. 62/2019 (1/19) Page no. 7/134 both the accused for the offences punishable under Section 120-B IPC read with Section 7, 7A of PC Act, 1988 and for substantive offences thereof. As per record, cognizance was taken by the court on the same date and both accused were summoned.
Cognizance/Charge
14. Vide order on charge dated 10.07.2019, sufficient material was found on record to frame the charges of alleged offences against both the accused. In accordance with the order dated 10.07.2019, a formal charge for the offence of conspiracy punishable under Section 120-B IPC read with Section 7, 7A of PC Act was framed against both the accused. Besides that, accused Mukesh Kumar was charged for the substantive offence punishable under Section 7 PC Act, while accused Shyam Sunder was charged for the offence punishable under Section 7A of PC Act.
Prosecution evidence
15. In order to prove its case, 20 witnesses were examined by the prosecution and their examination-in-chief is succinctly discussed herein below. All the witnesses were cross examined at length by the Ld. Defence Counsels but, as and when required, relevant part of the their cross- examination shall be referred in the later part of this judgment starting under the heading "Analysis of material by the Court". For the sake of convenience, witnesses have been categorized in following eight categories.
(i) Complainant and Independent Witnesses CBI Case No. 62/2019 (1/19) Page no. 8/134
(ii) CBI witnesses of verification and trap proceedings
(iii) Expert witnesses from CFSL
(iv) Witness to voice identification of accused no.1
(v) Witness to CDR and related documents pertaining to phone instruments/numbers used by complainant and accused at the relevant time
(vi) Witnesses pertaining to Sanction under Section 19 of PC Act, 1988
(vii) Witnesses to the Inspection conducted on 14.09.2018
(viii) Other formal Witnesses
(i) Complainant and independent witnesses
1. Sh. Naresh Kumar (Complainant) (PW-1)
2. Sh. Rajesh Kumar (Complainant) (PW-2)
3. Sh. Gaurav Sharma (Independent witness) (PW-9)
4. Sh. Rahul Jaiswal (Independent witness) (PW-10)
(ii) CBI witnesses of verification and trap proceedings
5. SI Umesh Kaushik (verification officer) (PW-12)
6. Insp. C.M.S. Negi (Trap Laying Officer) (PW-19)
7. Inspector Kuldeep Sharma (IO) (PW-21).
(iii) Expert witnesses from CFSL
8. Ms. Deepti Bhargava Sr. Scientific Officer/Chemical examiner) (PW-15)
9. Sh. Vijay Verma, Sr. Scientific Officer, Grade-II (documents)-Assistant Chemical Examination, CFSL (PW-16).
10. Sh. Mahesh Kumar Jain, Sr. Scientific Officer, CFSL (Chandigarh) (PW-18)
(iv) Witness to voice identification of accused no.1
11. Sh. Arun Kumar Mishra, Special Commissioner, Food & CBI Case No. 62/2019 (1/19) Page no. 9/134 Supply Department, Govt. of NCT of Delhi (PW-11)
(v) Witnesses to CDR and related documents pertaining to phone instruments/numbers used by complainant and accused at the relevant time
12. Sh. Pawan Singh, Nodal Officer, IDEA (PW-3)
13. Sh. Kamal Kumar, Nodal Officer, Reliance Jio (PW-4)
14. Sh. Saurabh Aggarwal, Nodal Officer Vodafone (PW-17)
15. Sh. Ajay Kumar, Nodal Officer, Bharti Airtel Ltd.
(PW-20)
(vi) Witnesses pertaining to sanction under Section 19 of PC Act, 1988
16. Sh. Vijay Kumar Dev, Chief Secretary, Govt. of NCT of Delhi (PW-14)
(vii) Witnesses to the Inspection conducted on 14.09.2018
17. Sh. Vishal, Independent Witness to the Inspection (PW-5)
18. Smt. Seema, Independent Witness to the Inspection (PW-6)
19. Sh. Virender Pal Singh, FSO, Food & Supply Department, Govt. of NCT of Delhi (PW-7)
(viii) Other formal witnesses
20. Smt. Nirmala, the Licensee of FPS-9230 (PW-8)
21. Sh. Randheer Kumar, FSO, Food & Supply Department, Govt. of NCT of Delhi (PW-13) (witness to the search conducted in the office of accused no.1).
(i) Complainant and independent witnesses
16. PW-1 is complainant Sh. Naresh Kumar. As per his version, Rajesh Kumar is his brother and the license of FPS 9230 was in the name of wife of Rajesh Kumar, namely CBI Case No. 62/2019 (1/19) Page no. 10/134 Smt. Nirmala. The said FPS at Neb Sarai, New Delhi was run in the name of Rajesh Store since 2015 and he and his brother were looking after the work of said ration shop. On 14.09.2018, at about 04.10 PM, FSO V.P. Singh and FSI Mehar Singh carried out inspection of said FPS 9230 and joined two persons namely Seema and Vishal of the locality, who were cardholders and were taking rations from their shop at that time. They also inspected the entire record of their shop and seized the sale & stock register from there after the inspection. A memo was prepared by the inspecting officers and they took their signatures on the same. The statement of his younger brother Rajesh Kumar was also recorded. He identified the signature on the statement (Ex.PW1/A) of his younger brother Rajesh Kumar and he claimed that the same was written by him (PW-1). PW-1 also identified the signatures of Vishal and Seema on said document Ex.PW1/A. 16.01 PW-1 further deposed that next day, he went to enquire about the outcome of the inspection at the office of V.P. Singh, FSO in Asian Market and V.P. Singh asked him to talk to accused no.1. Thereafter, on 17.09.2018, he (PW-1) received a call from accused no.2 Shyam Sunder, who asked him to pay Rs.1.5 Lakhs to accused no.1 to avoid registration of FIR and cancellation of license of his shop. However, PW-1 expressed his inability to pay such huge amount and requested him to reduce the amount but, he was asked to meet Mukesh Kumar. On 20.09.2018, PW-1 met Shyam Sunder at the office of Mukesh Kumar and he was asked to come again on 21.09.2018 at 09.30 AM to meet accused Mukesh Kumar.
CBI Case No. 62/2019 (1/19) Page no. 11/134 16.02 On 21.09.2018, PW-1 reached Asian Market at 09.30 AM and met both the accused in a car and told them that he did not have the capacity to pay Rs.1.5 lakh, upon which, he was told to arrange atleast Rs.50,000. After 2-3 days, PW-1 again met accused Shyam Sunder in the office who asked PW1 to arrange additional sum of Rs.20,000 for the FSO and the FSI. Finding no other option, PW-1 with his brother went to CBI office on 24.09.2018 and lodged the complaint Ex.PW1/B, which was written by complainant/PW- 1 and signed by both of them i.e. PW-1 and his brother i.e. co-complainant/PW-2.
16.03 PW-1 further deposed that after filing of said complaint, SI Umesh called an independent witness namely Gaurav Sharma and sent him with PW-1 and his brother to the office of Mukesh Kumar but he (Mukesh Kumar) was not found available in the office. Before leaving the office of SI Umesh, a DVR with a new memory card, was given to PW-1 on switch on mode and PW-1 was asked to keep it in his left side pant pocket. PW-1 then gave a call to accused no.1 from the CBI office itself and he was asked to come to the office of Mukesh Kumar on 25.09.2018 at 09.30 PM as Mukesh Kumar was not in the office on that day i.e. on 24.09.2018. The said conversation was recorded in the DVR.
16.04. PW-1 proved on record the verification memo dated 14.09.2018 (D-31 as Ex.PW1/C). PW-1 also correctly identified his signature as well as of his brother on the brown envelope as well as on the cover of the memory card taken out from said envelope and proved brown envelope, cover of memory card and the memory card(Q-1) as Ex.P1, P2 and P3 respectively. The yellow envelope containing CBI Case No. 62/2019 (1/19) Page no. 12/134 aforementioned brown envelope was brought in sealed condition with the seal of CFSL and the same was exhibited as Ex.P-4.
16.05. PW-1 deposes further that on 25.09.1998, he went to the office of accused Mukesh Kumar at 9:30 a.m. However, prior to that, he alongwith his brother Rajesh Kumar had visited CBI office at 8-8:15 am where they met witness Gaurav Sharma and SI Umesh. A fresh memory card was taken by SI Umesh and its seal was opened and thereafter, it was put in the DVR. The memory card was blank and voice sample of Gaurav Sharma was recorded to check its blankness. At about 8:50 am, they (PW-1, his brother Rajesh Kumar, SI Umesh, witness Gaurav Sharma and driver of SI Umesh) left the CBI office, in a govt. vehicle and reached the Asian Market at about 9:30 am. SI Umesh and his driver remained in the car, while PW-1, Rajesh Kumar and Gaurav Sharma went to the office of accused Mukesh. Before leaving the car, the DVR was switched on and put in the pocket of the complainant/PW-1.
16.06 In the office, they met Shyam Sunder. As the accused Mukesh was yet to reach the office, they all three went downstair and apprised SI Umesh about the same. SI Umesh took the DVR from PW-1 and switched it off. Though it was left lying the pocket in the pant of PW-1. They all waited downstairs for some time and again went up stairs at about 10:30 a.m. Before going upstairs, DVR was again switched on.
16.07 Thereafter, they all three reached the office of Mukesh and were standing outside the office. By that time CBI Case No. 62/2019 (1/19) Page no. 13/134 accused Mukesh had already reached his office. Thereafter, accused Shyam Sunder called PW-1 inside the office, while his brother Rajesh Kumar and the independent witness Gaurav Sharma were asked to wait outside. After going inside the cabin of Mukesh Kumar, PW-1 again requested Mukesh Kumar to reduce the amount to which he told him "matter khatam karo, baki sab baad ki baatein hai" and with his hands and eyes Mukesh Kumar gestured towards Shyam Sunder and asked the complainant/PW-1 to talk to him (Shyam Sunder). Accused Shyam Sunder took him in a small room inside the room of accused Mukesh Kumar, where accused Shyam Sunder told him to give Rs. 70,000/-, Rs. 50,000/- for accused Mukesh Kumar and Rs. 20,000/- for FSO and FSI. Thereafter, PW-1 and accused Shyam Sunder came to the room of Mukesh Kumar, where PW-1 again requested Mukesh Kumar to reduce the amount but he told him that "hum baithe hai tumare liye. Tumahre liye aakhir tak ladge". He again told PW-1 to arrange money quickly. Thereafter, PW-1 came out of the cabin of accused Mukesh Kumar and came downstairs with his brother Rajesh Kumar and witness Gaurav Sharma. PW-1 briefed the CBI officer about whatever happened inside the office. SI Umesh took the DVR from PW-1 and switched it off and thereafter, they all came back to the CBI office.
16.08 After return to CBI office, the FIR was registered and PW-1 was told that further proceedings would be conducted by IO CMS Negi. The memory card was taken out from the DVR, recording of conversation contained therein was taken on a laptop and same was heard by the entire team. The memory card was thereafter, sealed and was got CBI Case No. 62/2019 (1/19) Page no. 14/134 signed by PW-1, his brother Rajesh Kumar and independent witness Gaurav Sharma. PW-1 proved the verification memo dated 25.09.2018 as Ex. PW1/D (D-3). Similarly, he identified the memory card of 8 GB make Sandisk, which was taken out from a brown envelope contained in another yellow envelope as Ex. P-5. Ex. P-6 and Ex.P-7 respectively are the brown envelope and the cover of memory card.
16.09 PW-1 further deposes that he was already carrying Rs. 50,000/- with him on 25.09.2018 and said amount was in the denomination of Rs. 500/- (100 currency notes). Another witness Rahul Jaiswal was also joined by CBI officials. The money was counted and number of each currency notes was noted on a paper upon which signatures of PW-1 were taken. PW-1 correctly identified the handing over memo and the list of currency notes as Ex. PW1/E (colly) (D-4). CBI official Sudeep Punia counted the money and sprinkled some powder on the currency notes and also smeared the same powder on the fingers of the hand of Gaurav Sharma. When Gaurav Sharma dipped his hands in the water in a glass, the same changed its colour and became pink. The water was thrown away and Gaurav Sharma was asked to wash his hands. PW-1 was asked to empty his pant pocket and currency notes were put in the right pant pocket of his wearing pant with the directions to PW-1 not to touch the currency notes.
16.10 The entire team came in two govt. vehicle and the complainant's Etios car to Asian market. When they were on the way, PW-1 received a call from accused Shyam Sunder to inquire as to when he (PW-1) would reach. PW-1 told him that he would be reaching within 5-7 minutes. At CBI Case No. 62/2019 (1/19) Page no. 15/134 2:50 to 3 pm, PW-1 with the entire trap team left the CBI office and on the way, again a call was received from accused Shyam Sunder who inquired about the time to reach. After reaching Asian market, the entire team of CBI stationed downstairs, while PW-1 with his brother Rajesh Kumar and witness Gaurav Sharma went to the office of Mukesh, where they met Shyam Sunder but accused Mukesh was not present in said room. PW-1 and his brother Rajesh was called inside the room but the independent witness Gaurav was asked to wait outside. While PW-1 and his brother Rajesh was sitting in the room of Mukesh, PW-1 again asked Shyam Sunder, if the amount of bribe could be reduced and told him (Shyam Sunder) to take a total sum of Rs. 50,000/- out of which Rs. 40,000/- could be given to Mukesh and remaining Rs. 10,000/- for FSO and FSI. Upon this Shyam Sunder became angry and asked "laao paise nikalo". Accordingly, PW-1 took out money from his right side pant pocket of his wearing pant and gave it to Shyam Sunder. Shyam Sunder took money in his right hand and then in his left hand.
16.11 PW-1 further testified that as instructed by CBI officials, his brother Rajesh gave a missed call on the mobile phone of TLO Mr. Negi. After a short while, entire CBI team came to the room and closed the door from inside. Accused Shyam Sunder threw the money on the floor but, SI Umesh and Mr. Negi caught hold of the hand of accused Shyam Sunder. Witness Rahul Jaiswal picked up the money at the instance of CBI and counted them and kept them in an brown envelope. Accused Shyam Sunder was made to wash his right hand in the bottle of water. The water turned CBI Case No. 62/2019 (1/19) Page no. 16/134 pink. The bottle was sealed. Similarly, left hand wash was taken and said bottle was also sealed. Accused Shyam disclosed that he had accepted money at the instance of accused Mukesh Kumar.
16.12 Thereafter, as instructed by TLO, Shyam Sunder made a call to accused Mukesh Kumar, who did not pickup his call. After some time accused Mukesh Kumar called up and informed accused Shyam Sunder that he was in a meeting and would call back later. After sometime, accused Mukesh gave a call on the phone of Shyam Sunder, which was kept on speaker mode. During said call, accused Shyam Sunder told accused Mukesh "sir 50,000/- rupee aa gaye hai", to which, accused Mukesh replied "theek hai".
16.13. PW-1 further deposed that before proceeding for trap, besides bribe amount, a DVR was also kept in the left side pocket of his wearing pant and in the DVR a blank memory card was also placed after recoding the voice of witnesses Rahul Jaiswal and Gaurav Sharma. He deposed further that at the time of demonstration regarding powder sprinkled on the bribe amount, the team members were instructed not to touch the tainted money and were made to wash their hands. The calls received from the accused on the way to Asian Market were also recorded in the DVR by SI Umesh as the phone of PW-1 was put on speaker mode and the conversation was heard by everyone. After the trap of accused Shyam Sunder, a site plan was also prepared by CBI officials.
16.14. PW-1 further deposed that the numbers of the currency notes which were picked up from the room of CBI Case No. 62/2019 (1/19) Page no. 17/134 accused Mukesh were tallied with the numbers mentioned in memo Ex. PW1/E by independent witness Rahul Jaiswal. After sealing the currency notes and bottles of coloured water, another team of CBI officials was constituted and PW- 1 was sent with said team to Food and Supply Headquarter at ITO, where accused Mukesh was having his office on the 2nd floor. After reaching said office of Mukesh Kumar, CBI officials seized everything, which was there and did not allow accused Mukesh to make any phone call. The files pertaining to the ration shop of PW-1 were also called and seized by CBI officials, at about 8:30 to 9 p.m proceedings were completed. CBI officials with PW-1 and Mukesh Kumar came to CBI office, where the recordings of memory card were heard, memos were prepared, DVR and the memory card were sealed. Search of accused Mukesh was conducted. PW-1 proved the recovery memo dated 25/26.09.2018 as Ex PW1/F. He further deposed that on 05.10.2018, he had again visited the CBI office and in his presence the recordings were heard and transcripts were prepared.
16.15 As per PW-1, he again visited CBI office on 08.10.2018 and on that day, recorded conversation was again heard on the laptop in his presence and in the presence of Rahul Jaiswal and Gaurav Sharma. The transcription of said recorded conversation was got prepared by the IO through some stenographer. On 08.10.2018, PW-1 and his brother Rajesh had also taken witnesses Seema and Vishal with them to identify their signatures on Ex. PW1/A. However, the said two witnesses denied their signatures on Mark PW1/P, prepared by FSO on 14.09.2018. PW-1 CBI Case No. 62/2019 (1/19) Page no. 18/134 identified his signature on the transcript-cum-voice identification memo Ex. PW1/G as well as Ex. PW1/H (Colly) containing the transcription of Q-1, Q-2 and Q-3. PW-1 stated further that on 08.10.2018, Arun Kumar Mishra, Special Commissioner, Food and Supply had also visited the CBI office and he identified the voice of Mukesh Kumar and Shyam Sunder in the aforementioned recorded conversations. PW-1 correctly identified the currency notes Ex. PW8A/1 to PW8A/100 produced from the sealed envelope bearing the seal of CBI. As per PW-1, accused Mukesh Kumar and Shyam Sunder were asked to give their sample voice in the CBI office on 25.09.2018, but accused Mukesh refused to give his sample voice, while accused Shyam Sunder gave his sample voice voluntarily. The sample voice of Rahul Jaiswal, Gaurav Sharma and that of PW-1 and his brother Rajesh were also recorded.
16.16. During the course of his examination-in-chief, recorded conversation of the respective files contained in memory cards Q-1, Q-2 and Q-3 were played and he tallied the conversation in said memory cards with their transcript in the document Ex. PW1/H (colly). PW-1 also proved on record the office search memo Ex. PW-1/I (part of D-18) prepared at the time of search of the office of accused Mukesh Kumar. The memory card containing the voice sample of PW-1 and the DVR used to record the questioned conversations were also identified by PW-1 during his examination-in-chief as Ex. P-11 and P-13.
17. PW-2 Rajesh Kumar is the brother of PW-1 Naresh Kumar. Barring few minor discrepancies, the CBI Case No. 62/2019 (1/19) Page no. 19/134 testimony of PW-2 is broadly similar to the version of his brother PW-1. As per PW-2, on 25.09.2018, at the time of trap, he was also present with his brother Naresh in the office of Assistant Commissioner and it was in his presence, accused Shyam Sunder demanded and accepted bribe amount. As per his (PW-2's) version, Gaurav Sharma was not permitted to enter into the office of Asstt. Commissioner and therefore, he (Gaurav Sharma) kept waiting outside the office, while he (PW-2) and his brother (PW-1) went inside the office.
17.01 During his examination, PW-2 proved entry-cum- search-cum-recovery-cum-counting-cum-weighment memo as Ex. PW2/A (part of CFSL report page 9/C). PW-2 further proved on record daily sales register (04 in number) for September 2018 carrying entries of period from 16.08.2018 to 02.09.2018, 03.09.2018 to 06.09.2018, 07.09.2018 to 10.09.2018 and 12.09.2018 as Ex. PW2/B1 to Ex. PW2/B4. PW-2 also identified the stock register, which was handed over by him to Sh. V.P.Singh and Mehar Singh and exhibited the same as Ex. PW2/C. He also identified his signatures at point A on the first page of said register. During his deposition, PW-2 also identified his signatures on the production-cum-seizure memo vide which the two daily sale registers were seized from the aforementioned shop of the complainant. Said memo was exhibited as Ex. PW2/D (D-20).
17.02 During examination in chief, PW-2 also identified his signatures on the documents already exhibited during the examination of PW-1, i.e. PW-1/A, Ex. PW1/B, Ex. PW1/C, Ex. PW1/D, Ex. PW1/E, PW1/F, Ex. P-1, Ex.P-2, Ex. P-3, Ex. P-
CBI Case No. 62/2019 (1/19) Page no. 20/134 5, Ex.P-6 and Ex. P-7.
18. PW-9 is the independent witness Sh. Gaurav Sharma, UDC, ESIC Headquarters. He deposed that on 24.09.2018, he went to CBI office in connection with the present case and Duty Officer introduced him with SI Umesh. Complainant Naresh Kumar was also present and they all were introduced with each other and apprised about the contents of complaint, upon which verification was conducted by SI Umesh. As regard the mode and manner of the verification conducted on 24.09.2018 and 25.09.2018, PW-9 has deposed on the lines of the version of complainant except that he did not mention about the alleged visit of complainants to the office of accused Mukesh Kumar at Asian Market on 24.09.2018 as alleged by PW-1 and PW-2 in their depositions before the Court. As per version of PW-9, only a telephonic call was made by PW-1 to accused Shyam Sunder to meet him on the next date i.e. on 25.09.2018.
18.01 As per his version, on 25.09.2018, he reached CBI office, where Naresh and Rajesh were also present and they met SI Umesh, who brought the same device (DVR used on 24.09.2018) with a new memory card, which was checked/verified to be blank. He was directed by SI Umesh to pretend to be the nephew of Naresh Kumar and to visit to the place wherever required. PW-9 further deposed that SI Umesh, Naresh, his brother Rajesh and the driver reached at Asian market, Pushp Vihar, New Delhi at about 9:30 am and SI Umesh switched on the said DVR/device and kept the same in the pocket of Naresh Kumar and thereafter, he alongwith Naresh and Rajesh went to the building of Food CBI Case No. 62/2019 (1/19) Page no. 21/134 and supply Office where they came to know that accused Mukesh Kumar had not yet reached the office. Therefore, they returned to the place where SI Umesh was standing. At 10 am, he (PW-9) alongwith Naresh and Rajesh again went to said office and after few minutes, Shyam Sunder reached there and they exchanged some talks and thereafter, accused Mukesh Kumar also reached there and they all started entering in the cabin of Mukesh Kumar but he and Rajesh were stopped by Shyam Sunder outside the cabin by saying that only one person should go inside. After few minutes, complainant Naresh Kumar came out of the cabin and shared with them what transpired between him and the accused.
18.02 PW-9 further deposed that complainant Naresh Kumar shared that Shyam Sunder had demanded Rs. 70,000/- out of which, Rs. 20,000/- was to be paid to Inspector and Rs. 50,000/- to Mukesh Kumar and in the presence of Mukesh Kumar, Shyam Sunder asked him to arrange atleast Rs.50,000/- and further assured that nothing would happen in said matter against Naresh Kumar and he will be saved. Thereafter, Naresh and Rajesh came back to SI Umesh, where SI Umesh switched off the DVR and they came back to CBI office, where SI Umesh took out memory card from said device and sealed the same vide a memo, which was signed by him (PW-9). PW-9 identified his signatures on the verification report Ex. PW1/D. PW-9 deposed that before sealing the memory card (Q-2), SI Umesh had copied its data on the laptop.
18.03 It is further deposed by PW-9 that thereafter, a CBI Case No. 62/2019 (1/19) Page no. 22/134 trap team was constituted, in which independent witness Rahul Jaiswal, one Sh. Negi and one Punia Ji were also joined. The team was briefed about the trap process and a demonstration was also given of phenolphthalein (PPL) powder and liquid solution. Deposition of PW-9 with regard to pre-trap proceedings is also more or less similar to the deposition of complainant/PW1 and he also identified his signature on the pre-trap memo Ex. PW1/E. PW-9 deposed that thereafter, they all proceeded to Asian Market, Food and Supply office and he, Negi Ji and SI Umesh sat in a vehicle driven by Naresh and enroute, some calls from Sh. Shyam Sunder (i.e your co-accused) were also received by Sh. Naresh Kumar on his phone and in another vehicle, the remaining team members followed them.
18.04 He further deposed that, upon reaching the spot, he (PW-9), Naresh and Rajesh proceeded to the office of Food and Supply Department. As per PW-9, Naresh and Rajesh met accused Shyam Sunder outside the office of accused Mukesh Kumar and then accused Shyam Sunder took Naresh Kumar inside the cabin while rest waited outside. After few minutes, Rajesh gave a missed call to Negi ji and thereafter, the entire team members rushed to the spot and they entered into the cabin of accused Mukesh Kumar, where accused Shyam Sunder was found sitting on a chair and the independent witness Rahul Jaiswal was also present. One wrist of Shyam Sunder was caught hold by Punia Ji and the other was caught hold by SI Umesh and the packet/gaddi of Rs. 50,000/- was lying on the floor. Upon being challenged by CBI team for having accepted the bribe amount, accused Shyam Sunder became perplexed and CBI Case No. 62/2019 (1/19) Page no. 23/134 disclosed that he had taken said amount at the instance of accused Mukesh Kumar. Thereafter, hand washes were prepared by asking the accused Shyam Sunder to dip his hands into the water solution, which turned pink and the said solution was sealed separately.
18.05 PW-9 further deposed that as directed by CBI team, Shyam Sunder made few mobile calls to accused Mukesh Kumar, which were not picked up but after few seconds, Mukesh Kumar called back and informed that he was busy in a meeting and as Shyam Sunder informed regarding receipt of bribe amount of Rs. 50,000/-, Mukesh Kumar replied "Theek hai". The currency notes were counted and tallied with their numbers and sealed with other articles. One team of CBI went to the ITO office to apprehend Mukesh Kumar. All the documentation work was done and signatures were taken and due to late evening hours, remaining proceedings were done in CBI office. On reaching CBI office, personal search of Shyam Sunder was conducted and his mobile phone was seized vide arrest cum personal search memo Ex. PW9/A. 18.06 During examination-in-chief, PW-9 identified his signatures on Ex. PW1/F, Ex. PW9/B (LHW) and Ex. PW9/C (RHW), currency gaddi Ex. P8A/1 to Ex. P8A/100 (as per serial numbers mentioned in list Ex.PW1/E). He deposed that the data of memory card of the Sony device was copied on the system/laptop/computer of the CBI and the original memory card was sealed. Thereafter, other team also reached to the office alongwith Mukesh Kumar and independent witness Rahul Jaiswal and personal search of CBI Case No. 62/2019 (1/19) Page no. 24/134 Mukesh Kumar was also conducted and his mobile phone was seized. The relevant Whatsapp chat/ messages of said mobile phone of both the accused persons were seen and printouts were taken and thereafter, sample voice of Shyam Sunder was taken in a new memory card. Accused Mukesh Kumar however, refused to give voice sample. PW-9 further deposed that a new memory card was inserted into the DVR device, in which his (PW-9) sample voice and that of Rahul Jaiswal were taken and then the said memory card was sealed separately. He proved on record the personal search- cum-arrest memo of Mukesh Kumar as Ex. PW9/D by identifying his signatures on the same; printouts of the relevant Whatsapp message of accused Shyam Sunder and accused Mukesh Kumar as Ex. Ex.PW9/E (colly) and PW9/F (colly) respectively and site plan as Ex. PW9/G. 18.07 He further deposed that DVR was sealed with other articles and after use, seal was handed over to independent witness Rahul Jaiswal and in the CBI office, on 05.10.2018, his statement was recorded. On 08.10.2018, the transcript Ex. PW1/H (colly) of voice recordings was prepared and Sh. Arun Kumar Mishra, an officer from the office of accused Mukesh Kumar also identified the voice of accused Mukesh Kumar. PW-9 identified his signature on Ex. PW1/G, Ex. P-1, Ex.P-2, Ex. P-3, Ex. P-5, Ex. P-6, Ex. P-7, Ex. PX-1 Ex. PX-2 (colly). He also identified his introductory voice in file no. 180925_0847, file no. 180924_1703 and file no. 180925_1352; voice of another independent witness in file no. 180925_1353. PW-9 further correctly identified the voices of the speakers in the conversation (between accused Shyam Sunder and Naresh) in file no. 180925_1403, file no.
CBI Case No. 62/2019 (1/19) Page no. 25/134 180925_1433 and file no. 180925_1446 and deposed that the said conversations were recorded through the phone of Naresh, which was put on speaker mode and at that time, he (PW-9) was accompanying him. PW-9 also identified voices in the conversation between Shyam Sunder and Mukesh in file no. 180925_1543 and file no. 180925_1553 and deposed that he (PW-9) was present at the time of said conversation.
19. PW-10 is Rahul Jaiswal. He is the second independent witness, who was joined at the time of trap. As per his testimony, on 25.09.2018, he was joined in the investigation of this case by the CBI. On that day, when he visited the CBI office, he was introduced to the team member including the complainants and the independent witness Sh. Gaurav. He was informed that the complainant Naresh Kumar had filed a complaint against Assistant Commissioner Mukesh, upon which the verification proceedings were conducted on 24.09.2018 and 25.09.2018. On 25.09.2018, it was confirmed that a demand of bribe was raised from the complainant. PW-10 correctly identified the complaint dated 24.09.2018.
19.01 He further deposed that demonstration of the phenolphthalein powder (PPL powder) with sodium carbonate solution was also given to him and thereafter, the serial number of the curency notes brought by the complainant were noted on a document and thereafter, PPL powder was applied on said currency notes, physical demonstration was given by asking him to touch said currency notes and to dip his fingers into the glass of solution which turned pink. Thereafter, he conducted the CBI Case No. 62/2019 (1/19) Page no. 26/134 personal search of Naresh Kumar. Independent witness Sh. Gaurav Sharma was directed to put the currency notes in the pocket of the complainant and instructions were given to the complainant not to touch said currency notes and to hand over the same only upon the demand of the accused. Thereafter, all the members of trap team washed their hands and the used solution was thrown away.
20. PW-10 further deposed that one DVR and fresh memory card was arranged and the introductory voice of independent witness Gaurav's was recorded. The witness identified his signature on the handing over memo Ex. PW1/E (D-4) prepared by the CBI before leaving for the spot. As per his version, the CBI team proceeded to the spot in two government vehicles and one personal car of the complainant. The independent witness Gaurav was accompanying the complainant in his car, while PW-10 was sitting with the CBI official. They reached the office of the Assistant Commissioner at Asian Market around 3:00 pm. The complainant, his brother Rajesh and the independent witness Gaurav went to the first floor while the team members kept standing in disguise at the ground floor. Instructions were given to the complainant to give the signal by rubbing hands on his face or giving a missed call after the transaction was over.
20.01 PW-10 further deposed that after 10-15 minutes, they received a missed call and immediately thereafter, CBI team rushed to the spot and upon the signal given by co-complainant Rajesh, they entered into the room, where they found complainant Naresh with one person CBI Case No. 62/2019 (1/19) Page no. 27/134 present, who was carrying money in his hands and when CBI team caught hold of his hands, he dropped the money, which fell down on the floor.
20.02 Careful perusal of his (PW-10's) examination in chief shows that his version with regard to post trap proceedings, preparation of hand washes, site plan, seizure of currency notes, is similar to the version of the other independent witness Gaurav Sharma. PW-10 also deposed that the inquires were made from accused Shyam Sunder, upon which he disclosed that he had taken money on behalf of the senior officer Mukesh Kumar. As per PW-10, accused Mukesh Kumar was given a call by accused Shyam Sunder as per the instructions of CBI officials by keeping his mobile phone on speaker mode and the conversation of the connected call was recorded on the DVR. During said call, accused Shyam Sunder had disclosed that he had received Rs. 50,000/- to which Mukesh said "theek hai".
20.03 Thereafter, accused Shyam Sunder was brought to CBI office and after some time, the other accused Mukesh Kumar was also brought there by the other team of CBI. The mobile phones of both the accused were taken and their data of Whatsapp chats were transferred and their print outs were taken. Witness correctly identified said printouts of whatsapp chats as Ex.PW9/E-colly (D-6/III) and Ex.PW9/F- colly. (D-6/IV).
20.04 He further deposed that the original memory card upon which the conversation was recorded was taken out and from it a copy was prepared, the contents of the original data were heard by playing it on the laptop and CBI Case No. 62/2019 (1/19) Page no. 28/134 thereafter, the memory card was sealed. Voice sample of Shyam Sunder was recorded on a new memory card after recording the introductory voice of Gaurav, while accused Mukesh denied to give his voice sample. Voice sample of complainant was recorded separately after recording the introductory voice of Gaurav and PW-10. Both said memory cards were also sealed, the DVR was also separately sealed and said seal was handed over to him with directions to keep it in safe custody. During examination, PW-10 had brought said seal, which was taken on record. He correctly identified the recovery memo Ex.PW1/F (D-5) bearing his signature at point D. 20.05 PW-10 also identified his signatures on Arrest- cum-personal search memo of accused Shyam Sunder Ex. PW9/A and that of accused Mukesh Kumar at Ex. PW9/D. He also identified his signature on the other already exhibited documents such as Ex.PW9/B, Ex.PW9/C, Ex.P8A/1 to P8A/100. PW-10 duly proved on record the envelop carrying the DVR make Sony Ex. P-13 as Ex.PW10/A by identifying his signature on the same.
20.06 PW-10 further testified that he had again visited the CBI office on 05.10.2018 when his statement was recorded and on 08.10.2018, when the transcripts of the questioned recordings dated 24.09.2018 and 25.09.2018 were prepared. As per his version, he identified his own voice and that of Gaurav, while the complainant Naresh Kumar identified voice of Shyam Sunder and Mukesh Kumar in said recorded conversation. As per his version, one senior officer from the office of Mukesh Kumar had identified his CBI Case No. 62/2019 (1/19) Page no. 29/134 voice (Mukesh Kumar) in the recorded conversation.
20.07. PW-10 identified his signatures on transcription- cum-voice identification memo [already Ex.PW1/G and Ex.PW1/H (colly) (D-8)] at points C on each page. PW-10 also identified his signature on the SD card Ex. PX-2, which was played in the court with the help of write blocker and as per his version, same was found containing various files. In file no. 180925_1352, PW-10 identified introductory voice of Gaurav Sharma, in file No. 180925_1353 his own introductory voice. On hearing the conversation contained in file No. 180925_1403, file No. 180925_1432 and file No. 180925_1446, PW-10 identified the same to be the one tallying with the transcription memo Ex. PW1/H of the conversation between Naresh and Shyam Sunder. As per his version, the conversation recorded in the file No. 180925_1451 was not recorded in his presence.
20.08 PW-10 also identified the recording of the calls exchanged between Shyam Sunder and Mukesh contained in file No. 180925_1543 and file No. 180925_1553. As per his version, the said conversation is shown in the transcription memo Ex. PW1/H at point G to H and I to J, respectively. The SD card/memory card Ex. P-6 was also played during the examination of PW-10 and PW-10 deposed that file No. 180925_0927 contained the conversation between Shyam Sunder and Naresh and file No. 180925_1034 contained the conversation between Shyam Sunder, Mukesh and Naresh, transcribed in the transcription memo Ex.PW1/H from point X to X. Similarly, the SD card Ex. P-2 was played and found containing introductory voice of CBI Case No. 62/2019 (1/19) Page no. 30/134 Gaurav in file No. 180924_1703 and the conversation between Shyam Sunder and Naresh in file No. 180924_1705, as transcribed in the transcription memo Ex.PW1/H from point Y to Y. 20.09 PW-10 also correctly identified the specimen voice of accused Shyam Sunder, that complainant Naresh KUmar as well as the introductory voice of Gaurav Sharma and his own concluding voice contained in said SD cards taken out from the yellow colour envelop S-1 and S-2. PW- 10 proved on record Ex.PW10/B (colly), which is the brown envelop taken out from yellow envelope S-2 from which the SD card containing the specimen voice of accused Shyam sunder was taken out. PW-10 also identified the specimen voice of accused Mukesh in the two files contained in SD card taken out from S-3.
(ii) CBI witnesses of verification and trap proceedings;
21. PW-12 Sh. Umesh Kaushik is the verification officer. He was posted as SI, CBI, ACB, New Delhi at the relevant time. As per his version, on 24.09.2018 SP, CBI introduced him to Naresh Kumar and Rajesh Kumar in the CBI office and he was informed that they had lodged a complaint against Sh. Mukesh Kumar, Assistant Commissioner, Food & Supply Department, Pushp Vihar, Delhi and Sh. Shyam Sundar, a private person for raising a demand of bribe and said complaint was assigned to him for verification. As regard the contents of the complaint Ex.PW1/B (D-1) and mode and manner of verification proceedings conducted by him for verification of the complaint, his version is more or less on the lines of version CBI Case No. 62/2019 (1/19) Page no. 31/134 of complainants PW-1 and PW-2, except that this witness also did not disclose anything about the physical visit of complainants to the office of Assistant Commissioner at Asian Market on 24.09.2018 as alleged by PW1 and PW2.
21.01 Similar to the version of independent witness Gaurav Sharma (PW9), PW12 also stated that upon a call made by Naresh Kumar to Shyam Sunder, Naresh Kumar was asked to visit the office next day at around 09.30 AM and said call was recorded on DVR by keeping the mobile phone of complainant Naresh Kumar on speaker mode. Further, as per PW12, it was Naresh Kumar, from whom the missed call was received by TLO after the transaction of bribe. Even as per PW12, when Rajesh was asked to narrate the incident after the trap of accused Shyam Sunder, he informed that he was asked to remain outside. PW-12 deposed that it was Gaurav Sharma, who upon being asked by CBI team to narrate the incident, corroborated the complainant's version.
21.02 PW-12 identified his signatures on certain documents, which were already exhibited during deposition of PW-1 i.e. Verification Reports dated 24.09.2018 and 25.09.2018, Ex.PW1/C (D-3/I) and Ex.PW1/D (D-3/II) respectively, two memory cards with its plastic/paper packing Ex.P-2 (Q-1) and Ex.P-6 (Q-2) containing the recording of verification calls exchanged between complainant Naresh Kumar and accused Shyam Sunder. PW- 12 further deposed that verification revealed demand of bribe on the part of Sh. Mukesh Kumar, Assistant Commissioner, F&S Office in connivance with Sh. Shyam Sundar and therefore, an FIR was registered against them CBI Case No. 62/2019 (1/19) Page no. 32/134 and entrusted to Insp. CMS Negi for investigation.
21.03 PW-19 Inspector C.M.S. Negi, is the Trap Lying Officer. He proved on record FIR Ex.PW19/A (Colly.) (D-2) by identifying the signature of SP Dharambir Singh on the same and deposed that he had worked with him and seen him writing and signing during course of his duties. As per his deposition, on 25.0920218, he was handed over the aforementioned FIR by the Incharge SP Dharambir Singh with the directions to investigate the same. The said FIR was registered on the basis of a joint complaint filed by two brothers namely Naresh Kumar and Rajesh Kumar. The complaint was filed in connection with the demand of bribe of Rs.50,000/- raised from them by Asstt. Commissioner, Food and Supply Office Sh. Mukesh Kumar. The verification of said complaint carried by Sub Inspector Umesh Kumar on 24.09.2018 and 25.09.2018 established that a demand had been raised by accused Mukesh Kumar through a private person i.e. accused Shyam Sundar, who acted as a conduit.
21.04 PW-19 testified that for the purpose of investigation, he formed a trap team of CBI officials consisting of Insp. N.C. Naval, Insp. Raman Shukla, Insp. Parveen, Insp. Sudip Punia, Insp. Vikas Pannu, SI Umesh and some more CBI officials. During trap, two independent witnesses namely Gaurav Sharma and Rahul were also joined. The complainants were also present and Gaurav Sharma was asked to act as a shadow witness. All the team members were read over the contents of verification memos and the complaint. The distinctive number of Rs. 50,000/- brought by the complainant were noted on a separate sheet CBI Case No. 62/2019 (1/19) Page no. 33/134 and were tallied by the independent witnesses. Demonstration regarding chemical reaction of phenolphthalein powder with a solution of sodium carbonate and water was given by Insp. Sudip Punia to the trap team. Thereafter, GC notes were treated with phenolphthalein powder by Insp. Sudip Punia. Demonstration of phenolphthalein powder was given. As the accused was in touch with complainant Naresh Kumar, he (Naresh Kumar) was asked to carry the tainted money. After carrying personal search of Naresh Kumar, independent witness Gaurav kept the tainted money in the right side pant pocket of the complainant Naresh Kumar, who was asked not to carry anything except the mobile phone. Complainant was further asked not to touch the said GC notes and to hand them over to the accused or to anyone as specified by the accused on their specific demand.
21.05 The DVR and the brass seal, used during verification proceedings were taken from SI Umesh Kumar and independent witness Gaurav Sharma respectively. A fresh memory card was taken and inserted in the DVR. Introductory voices of both independent witnesses were recorded in the memory card through the DVR. The witness Rahul was instructed to remain with CBI team while Gaurav Sharma was also directed to remain as close as possible to the complainants during the trap proceedings and to try to overhear any conversation between the complainants and the accused persons. Complainants were directed to give a signal by rubbing their face with both hands or by giving a missed call on his (TLO's) mobile number as soon as the transaction of the bribe money was over.
CBI Case No. 62/2019 (1/19) Page no. 34/134 21.06 The entire pre-trap proceedings were recorded in a memorandum, which was prepared on the official laptop and contents of the same were explained to all the team members, who then signed it as a token of its correctness. The handing over proceedings were concluded at about 1410 hours on 25.09.2018. PW-19 identified his signatures on handing over memo dated 25.09.2018, Ex.PW1/E (Colly.) (D-4). Thereafter, team left for the office of the Assistant Commissioner, Food & Supply, in the Asian Market, Pushp Vihar. Rest of the deposition of said witness with regard to making of calls by the complainant to accused Shyam Sunder enroute is same as deposed by the complainant Naresh. The narration of mode, manner and execution of trap laid on the spot upon the accused Shyam Sundar, is also more or less on the same lines as deposed by the independent witnesses. PW-19 deposed that at 3:15 p.m he received a missed call from complainant Rajesh Kumar, upon which he alerted the other team members and rushed to the office of accused Mukesh Kumar, where Rajesh Kumar and Gaurav Sharma were found outside the office and when PW-19 with other team members entered into the office room of accused Mukesh Kumar, they found complainant and accused Shyam Sunder inside said room. Upon indication from the complainant Naresh Kumar, Inspector Sudip Punia and SI Umesh Kumar caught hold hands of accused Shyam Sunder, who was holding the tainted bribe money in his hands.
21.07 As per PW-19, accused Shyam Sunder dropped the tainted bribe money on the floor. Accused Shyam Sundar was challenged of having demanded and accepted a CBI Case No. 62/2019 (1/19) Page no. 35/134 bribe money of Rs.50,000 from complainant Naresh Kumar, upon which he became perplexed. The DVR was taken from complainant Naresh Kumar and switched off. Upon interrogation, accused Shyam Sundar admitted having demanded and accepted the bribe money of Rs.50,000 from complainant Naresh Kumar at the instance of Assistant Commissioner Mukesh Kumar. As per the instructions, independent witness Sh. Rahul recovered the tainted amount from the floor, tallied the distinctive number of the recovered GC notes with the numbers noted down in the annexure that was part of handing over memo and the same were found to be matching in toto. The signature of both the independent witnesses were taken on the said annexure as a token of their having matched the distinctive numbers of the GC notes. The recovered tainted amount was sealed in an envelope, which was signed by PW-19 as well as the independent witnesses.
21.08 Careful perusal of examination of PW-19 shows that his version with regard to the narration of the facts by the complainant regarding what all transpired between him and accused Shyam Sunder inside the office of accused Mukesh Kumar; regarding preparation of handwashes RHW and LHW is on the lines of the deposition of the complainants. On the bottles carrying the right hand wash and left hand wash of accused Shyam Sunder, PW19 identified his signatures. He also identified his signature on site plan already exhibited as Ex.Ex.PW9/G (D-7).
21.09 PW-19 deposed that since the accused Mukesh Kumar was not in the office, it was decided to make a phone CBI Case No. 62/2019 (1/19) Page no. 36/134 call to him from the mobile phone of accused Shyam Sunder. After a few unattended calls, the call got connected and during said call, accused Shyam Sunder informed accused Mukesh Kumar about his having accepted Rs.50,000/- from Sh. Naresh Kumar. On this, accused Mukesh Kumar had consented by saying "theek hai". The said calls were recorded on the DVR as the mobile phone of accused Shyam Sundar was kept on speaker mode. PW-19 proved on record the Authorization under Section 165 CrPC Ex.PW19/B (D-18) issued by him in favour of Insp. Shitanshu Sharma for apprehending accused Mukesh Kumar from the Head Office I.P.Estate. PW-19 also identified his signatures on the Office Search Memo dated 25.09.2019 Ex.PW1/I (Part of D-18). His signatures on the separate authorization under Section 165 CrPC in favour of Sh. Arjun Singh and Insp. Dharmender Kumar for conducting the searches at the residence of accused Shyam Sundar and accused Mukesh Kumar were also identified by PW-19.
21.10 PW-19 deposed that after the employees of Food & Supply office at Asian Market Pushp Vihar left the office, the CBI team alongwith complainant Rajesh Kumar, independent witness and accused Shyam Sundar left for the CBI office and reached there at about 1945 hours. After about an hour, the CBI team that was sent to the Head Office at IP Estate, also returned with accused Mukesh Kumar. Both the accused persons were interrogated and were later arrested vide separate arrest memos. The recordings of the memory card were also heard through the DVR and the recordings were found to be corroborating the version of the complainant and the witnesses. The version of CBI Case No. 62/2019 (1/19) Page no. 37/134 PW-19 regarding post trap proceedings is not repeated herein for being similar to the version of the complainant and the independent witnesses. PW-19 also deposed similar to the version of said other witnesses on the point of recording of sample voice of the accused and the complainants. He identified his signature on the arrest memos, on the print outs of WhatsApp chat and messages stored in the mobile phone of accused persons. As per his version, DVR was sealed after recording of voice of accused Shyam Sunder.
21.11 During his examination, PW19 correctly identified the currency notes Ex.PW-8A/1 to Ex.PW-8A/100 used during trap proceedings, the SD card Ex.PX-2 taken out from yellow colour envelop Q-3 and S-1; S-2 and the brown envelope Ex. PW10/A containing the DVR make Sony. Witness also correctly identified the DVR Ex. P-13, upon which he identified his signature at point C.
22. PW-21 Inspector Kuldeep Sharma is the IO of the case. As per his version, he was entrusted with the investigation of the present case by SP, CBI, ACB, New Delhi. The case was pertaining to Fair Price Shop (FPS) 9230 in the name of M/s. Rajesh Store, in which a raid was conducted by enforcement officers of Food & Supply Department, GNCT Delhi. During said raid, four Sale Registers and one Stock Register were seized by Food & Supply Officers. After said raid, accused Shyam Sundar had made a phone call to complainant Naresh Kumar and asked him to pay bribe of Rs. 1.5 lakh to avoid any adverse action. PW21 further deposed that since the complainant did not want to pay the CBI Case No. 62/2019 (1/19) Page no. 38/134 illegal gratification therefore, he made a complaint no. 39/2018 to CBI on 24.09.2018, which was assigned to SI Umesh for verification. About the mode and manner of verification proceedings, PW-21 has largely deposed on the same lines as deposed by the verification officer/PW-12 Umesh Kaushik.
22.01 PW-21 further deposed that on the basis of the verification, the FIR 31/2018 was registered and same was assigned to Inspector CMS Negi, who conducted the trap proceedings as per the procedure and the guidelines and after completion of trap proceedings, the case was assigned to him for the further investigation. PW-21 deposes that during investigation, he sent the hand washes of accused Shyam Sundar to CFSL, CBI for chemical examination. Further, since accused Mukesh Kumar had refused to give his sample voice therefore, permission was sought from the Court to take his sample voice. Thereafter, the sample voice of accused Mukesh Kumar was taken in the presence of independent witness. The voice sample of the complainant Naresh Kumar and accused Shyam Sundar were already taken before the case was assigned to him. All the voice samples of both the accused and the complainants alongwith questioned audio recording/conversation were sent to CFSL for the purpose of voice identification of the speakers in the questioned conversations. The voice identification memo was prepared in the presence of the Special Commissioner Sh. Arun Kumar Mishra who identified the voice of the accused.
22.02 He further deposed that during investigation, he CBI Case No. 62/2019 (1/19) Page no. 39/134 noticed that the seizure memo prepared at the time of raid in the shop of the complainant for seizure of registers from the shop, were not signed by the independent witnesses namely Seema and Vishal, who were joined by Food & Supply Officer at the time to conducting said raid. Later on, it was revealed that accused Shyam Sundar had forged the signature of said independent witnesses on the seizure memo. In view thereof, with the permission of the Court, the specimen signature and handwriting of accused Shyam Sundar were taken and the signature of Smt. Seema and Vishal were also taken by him in his office. Thereafter, the signatures of the accused Shyam Sundar and the said witnesses of Seema and Vishal were sent to CFSL for the purpose of their comparison with the signature on aforementioned seizure memo. PW-21 further deposed that at the time of assignment of the case to him, he was handed over the case files with all the documents i.e. office cum seizure memo, seized articles, verification memo, trap memo, recovery memo, FIR, complaint etc. The CFSL reports of hand washes of the accused Shyam Sundar was received prior to filing of the chargesheet but the other reports of voice identification and hand writing expert were received subsequent to filing of chargesheet and in due course, the same were filed on court record.
22.03 During examination, PW21 further deposed that he had also seized the CAF, CDR and Call Location Chart of the mobile phone of the accused persons, complainant Naresh Kumar and recorded the statement of witnesses u/s 161 Cr.P.C. During investigation, it was revealed that the license of FPS 9230 was in the name of Nirmala Devi w/o CBI Case No. 62/2019 (1/19) Page no. 40/134 complainant Rajesh Kumar. On 04.10.2018, the file pertaining to the raid conducted at the shop of the complainant was obtained/seized from the office of Assistant Commissioner, Mukesh Kumar, Food & Supply Department and same was seized from Randheer Singh, the FSO, from the office of Enforcement, Food & Supply Department, GNCT, ITO. Requisite sanction under Section of 19 PC Act was obtained from the competent authority and thereafter, chargesheet was filed by him before the Court.
22.04 PW-21 identified the documents received by him from the TLO. He identified his signatures on the transcription cum voice identification memo dated 08.10.2018 (D-8) Ex. PW1/G, which was prepared by him in the presence of independent witnesses and complainant Naresh Kumar. He deposed that he had also prepared the transcription of the recorded conversations, which had taken place during the verification and trap proceedings.
22.05 PW-21 identified the court order dated 10.10.2018 Ex.PW21/A (D-11), vide which Court had directed the accused Shyam Sundar to give his specimen handwriting and signature and accused Mukesh Kumar was directed to give his specimen voice to the IO. PW-21 identified signatures of the then SP on Ex. PW18/C {Colly), Ex. PW16/A {Colly}; Ex. PW16/B {Colly}. He identified his own signatures on the documents exhibited during the deposition of other witnesses i.e. Ex. PW13/B (D-19), Ex. PW2/D (D-20). Ex. PW3/E (D-21), Ex. PW3/A (D-21), Ex. PW4/C (part of D-
22), Ex. PW4/H (D-23), Ex. PW17/A and Ex. P-14 (colly).
22.06 During his deposition, PW-21 proved the copy CBI Case No. 62/2019 (1/19) Page no. 41/134 of production- cum-seizure memo dated 04.10.2018 as Ex. PW21/B vide which he had taken possession of various documents mentioned therein. As per his version, the specimen handwriting and signatures of accused Shyam Sunder Ex. PW16/F, FSO Virender Pal Singh Ex. PW7/E and Ex. PW7/F), Vishal (Ex. PW5/A) and Seema (Ex. PW6/A) were taken in the presence of independent witness and on all these exhibits, PW21 identified his signatures.
(iii) Expert witnesses from CFSL;
23. PW-15 Sr. Scientific Officer Ms. Deepti Bhargava is the witness from CFSL, New Delhi. She deposed that on 05.12.2012, she examined the exhibits of the present case and gave her report. As per her version, vide letter dated 28.09.2018, two sealed glass bottles Marked as RHW and LHW were forwarded by the SP, CBI, ACB, New Delhi to the Director, CFSL, New Delhi and the same were received in Chemistry Division of CFSL on 28.09.2018 and allotted to her for necessary action by HOD, Chemistry. PW15 proved her Chemical Examination Report dated 18.10.2018 addressed to SP, CBI, New Delhi as Ex.PW15/A (Part of D-17) as per which, the exhibits gave positive tests for the presence of phenolphthalein and sodium carbonate. She also proved the Forwarding Letter dated 26.10.2018 as Ex.PW15/B (Part of D-17).
24. PW-16 Sr. Scientific Officer Sh. Vijay Verma is also from CFSL. He deposed that vide Letter No. RC-DAI- 2018-A0031/12353 dated 18.10.2018, Ex.PW16/A (Colly.) (D-
14), the documents of this case i.e questioned documents Q- 1, Q-2 and Specimen Handwriting Mark S-1 to S-15 CBI Case No. 62/2019 (1/19) Page no. 42/134 purported to be of accused Shyam Sunder were deposited/forwarded by the then SP, CBI, ACB to Director, CFSL, New Delhi. Vide Letter No. RC-DAI-2018-A0031/13232 dated 15.11.2018 Ex.PW16/B (Colly.) (D-15), some additional documents i.e Specimen Handwriting Mark S-16 to S-26 purported to be of Shyam Sunder; Specimen Handwriting of Virender Pal Singh Mark S-27 to S-36 and S-37 to S-41 purported to be of one Vishal and admitted signatures A-1 to A-7 were also deposited.
24.01 Vide letter No. RC-DAI-2018-A0031/1088 dated 01.02.2019 Ex.PW16/C (Colly.) (Part of File Part-IV), some more Specimen Signatures/Handwriting Mark S-42 to S-46 purported to be of Smt. Seema were deposited. PW16 deposed that he expressed his opinion, after thorough and careful examination of all the above documents and gave his opinion vide his report Ex.PW16/D (Colly.) (Part of File Part-IV) and as per Para 7 of his report Ex.PW16/D (Colly.), the writer of specimen writings Mark S-1 to S-21 attributed to co-accused Shyam Sunder is the person responsible for writing the questioned signature Mark Q-1.
25. PW-18 is Scientist-B Sh. Mahesh Kumar Jain from CFSL, Chandigarh. As per his version, the exhibits of the present case were received in their laboratory on 04.10.2018 alongwith forwarding letter of Superintendent of Police, CBI, ACB, New Delhi and the same were assigned to him for examination by Sh. D.K. Tanwar, HOD (Physics). He further deposed that they had received three questioned exhibits i.e. Q-1, Q-2 and Q-3 and specimen exhibits i.e. S-1, S-2 and DVR; subsequently, one more specimen exhibit S-3 CBI Case No. 62/2019 (1/19) Page no. 43/134 was received on 12.10.2018 and same were examined by him on 06.02.2019. He opened the aforementioned exhibits; examined the questioned and the specimen voice, took some common words and through spectrographic examination, prepared spectrograph of common words. PW- 18 further deposed that he also examined the voice (auditory analysis) manually and then prepared a draft report and after approval of his HOD, he finalized the report and then intimated to the forwarding authority to collect the same.
25.01 During examination-in-chief, PW-18 deposed that he took out a common word from the specimen voice of accused Shyam Sundar S-1(1) and questioned voice attributed to said person in Q-1 i.e. Q-1(1)(S) and used the same for spectrographic analysis. Similarly, he took common word from the specimen voice S-2(1) of Naresh Kumar and questioned voice attributed to said person in Q-1 i.e. Q-1(1) (N) and used the same for spectrographic analysis and that similar procedure was adopted for examination in respect of the conversation contained in Q-2, which was carrying the voices attributed to three speakers namely complainant Naresh Kumar, accused Shyam Sundar and Mukesh Kumar.
25.02 PW-18 further deposed that the voice attributed to accused Mukesh Kumar was given exhibit Q-2(2)(M) and the voice attributed to accused Shyam Sundar was given exhibit Q-2(1)(S) and Q-2(2)(S), the voice attributed to Naresh Kumar was given exhibit Q-2(1)(N) and Q-2(2)(N). The conversation of 9 calls, contained in Q-3 was also put to examination by adopting same procedure and was CBI Case No. 62/2019 (1/19) Page no. 44/134 compared with the respective specimen voices of the speakers Naresh Kumar (S-2)(1)(N), Shyam Sundar (S-1)(1) (S) and Mukesh Kumar (S-3)(1)(M). The respective voices of the speakers contained in the aforementioned 9 calls of Q-3 were given marking as given in the table on Page 6 of his report.
25.03 He further deposed that the common words picked up from the conversation contained in Q-3 and the respective specimen voices of the speakers were put to spectrographical examination. PW-18 deposed further that after examination, he came to the following conclusion:- (1) That the Voice Mark Q-1(1)(S), Q-2(1)(S), Q-2(2)(S) and Q- 3(2)(S) to Q-3(9)(S) were the probable voices of Sh. Shyam Sundar, whose specimen voice was Mark S-1(1)(S); (2) That the Voice Mark Q-1(1)(N), Q-2(1)(N), Q-2(2)(N) and Q-3(1) (N), Q-3(2)(N), Q-3(3)(N), Q-3(4)(N) and Q-3(5)(N) were the probable voices of Sh. Naresh Kumar, whose specimen voice was Mark S-2(1)(N) and (3) That the Voice Mark Q-2(2)(M), Q-3(8)(M) and Q-3(9)(M) were the probable voices of Sh. Mukesh Kumar, whose specimen voice was Marked as S-3(1) (M).
25.04 PW-18 deposed that his aforementioned opinion is based on both the auditory and spectrographic examination of the questioned voices and sample voices and spectrographical examination is based on number of formants frequency distribution, intonation pattern and other general visual features in voice grams.
25.05 PW-18 had also given opinion on the query no. 2 that the recording contained in Q-1, Q-2 and Q-3 and S-1, S-
CBI Case No. 62/2019 (1/19) Page no. 45/134 2 and S-3 were continuous and no form of tampering was detected in the recordings contained in the aforementioned micro SD cards. With regard to query no.3, he gave the opinion that test recording done by DVR compared with audio recording contained in micro SD cards Q-1, Q-2 and Q- 3 and S-1, S-2 and S-3 revealed that the said DVR could have been used for recordings of aforementioned exhibits/micro SD cards.
25.06 He proved on record the forwarding letter alongwith CFSL report as Ex.PW18/A (Colly.) (Part III of judicial file). PW-18 further deposed that vide forwarding letter dated 04.10.2018, Ex.PW18/B (Colly.) (D-10), CBI had sent the exhibits mentioned therein to the CFSL, which were received on 04.10.2018 by his office. Vide forwarding letter dated 12.10.2018, Ex.PW18/C (D-13), CBI had sent the specimen voice of accused Mukesh Kumar, i.e. S-3 and that the said letter/exhibit was received in his office on 12.10.2018.
(iv) Witness to voice identification of Accused no.1
26. PW-11 is Sh. Arun Kumar Mishra, who was posted as the Special Commissioner, Food & Supply Department, GNCTD, ITO, Delhi at the relevant time. He proved on record the Enforcement Branch Notings from 1/N to 3/N as Ex.PW11/A (Colly.) (D-18/II) by identifying his signature on the same. He further deposed that said notings were regarding introduction of the aforesaid e-POS system and directions were given that the enforcement activities shall be carried out by the Zonal Assistant Commissioners. He further deposed that accused Mukesh Kumar was posted CBI Case No. 62/2019 (1/19) Page no. 46/134 as Assistant Commissioner, South Zone and also holding the charge of Assistant Commissioner (Enforcement) and all the powers under law (the applicable Acts in the said department) have been delegated upon the Assistant Commissioner by the Commissioner, F&S. The said power include Inspection of the Fair Price Shop, Levying Penalty, Cancellation of Shops, etc. 26.01 During his examination, he deposed that he joined the investigation and identified the voice of accused Mukesh Kumar in the recordings played on the laptop of CBI official. He also exhibited the Voice Recognition Memo dated 08.10.2018 alongwith the Transcripts annexed therewith as Ex.PW11/B (Colly.) (D-9) by identifying his signatures on the same. PW-11 also identified the voice of accused Mukesh Kumar in the conversation recorded in the question conversation (Q-2) on the Forensic Computer System of the File bearing No. 180925-1034 and deposed that the sentences heard from the said voice recording were found matching with the sentences of the Transcript Memo. The sentences/speech attributed to Mukesh Kumar and it was identified to be the voice/sentence of accused Mukesh Kumar. The voice recording in File No. 180925-1543 contained in Q-3 was also played and the sentences heard from the said voice recording were matched with the sentences of the Transcript Memo in front of the name "Mukesh Kumar" and were identified by the witness to be the voice/sentence of accused Mukesh Kumar.
26.02 The voice recording of File No. 180925-1553 contained in Q-3 was also played but the witness deposed CBI Case No. 62/2019 (1/19) Page no. 47/134 that the voice quality of the said recording was not very clear but he could say that the words "Theek hai, hello and ab-bolo" appeared to be the voice of accused Mukesh Kumar. PW-11 correctly identified accused Mukesh Kumar, who was present in Court on the date of recording of examination in chief.
(v) Witnesses to CDR and related documents pertaining to phone instruments/numbers used by complainant and accused at the relevant time.
27. PW-3 Sh. Pawan Singh is the Nodal Office from Vodafone Idea Ltd, who upon receipt of letter dated 28.09.2018 Ex. PW3/E from the IO, had furnished E-KYC of mobile no. 9910691882 in the name of Naresh Aggarwal, his certificate under Section 65-B of Indian Evidence Act and CDR from 24.09.2018 to 25.09.2018 and he proved said documents as Ex. PW3/B to Ex. PW3/D respectively. As per his deposition, all the aforementioned documents were seized by the IO vide seizure memo Ex. PW3/A.
28. PW-4 Kamal Kumar, is the Nodal Officer from Reliance Jio Infocomm Ltd. As per his deposition, vide letter dated 28.09.2018 Ex.PW4/G, IO had demanded certain documents and vide letter dated 03.10.2018 Ex. PW4/A, he had handed over E-KYC Ex. PW4/C; CDR (from 24.09.2018 to 25.09.2018) and Cell ID Chart Ex. PW4/D (colly) of mobile phone no. 8700255347 subscribed in the name of Naresh Aggarwal and he also supplied E-KYC PW4/E and CDR Ex. PW4/F, of mobile no. 9213816186 in the name of Shyam Sunder. He also furnished combined certificate under Section 65 B of Indian Evidence Act in respect of documents pertaining to the above said mobile numbers as Ex. PW4/B. CBI Case No. 62/2019 (1/19) Page no. 48/134 He further deposed that vide letter dated 15.10.2018 Ex. PW4/H, the IO had sought certain more documents in respect of mobile no. 8178967723 and he (PW-4) handed over CAF, CDRs, certificate under Section 65 B of Indian Evidence Act and Cell ID chart of said mobile no. 8178967723 to the IO vide his (PW-4) letter dated 16.10.2018 Ex. PW4/ (colly).
29. PW-17 is the Nodal Officer Sh. Saurabh Agarwal from Vodafone-Idea Ltd. He deposed that vide letter Ex.PW17/A (Part of D-25), IO of the case had requested for providing the certified copy of CAF, CDRs with Location Chart and Certificate under Section 65-B of Evidence Act of mobile nos. 9873548477 and 9811988484 for the period from 24.09.2018 to 25.09.2018 and vide forwarding Letter dated 02.10.2018, addressed to Inspector, CBI, he had handed over the CDRs, CAFs, Location Chart of aforementioned mobile for the requisite period as well as certificate under Section 65-B of Indian Evidence Act in respect of printouts of said documents and PW17 proved the same on record as Ex.PW17/B (Colly.) (Part of D-25). As per his version, the mobile number 9873548477 was in the name of Mayank Garg S/o Sh. Rajesh Kumar and the mobile number 9811988484 was in the name of accused Mukesh Kumar S/o Sh. S.R. Premi.
30. PW-20 is the Nodal officer Sh. Ajay Kumar from Bharti Airtel Ltd. He deposed that he could identify the handwriting and signatures of Nodal Officer Sh. Wasim Mohammad, who had left the services of Bharti Airtel in 2018, as he (PW-20) had worked with him and had seen him CBI Case No. 62/2019 (1/19) Page no. 49/134 writing and signing during the course of his official duties. He proved on record the letter dated 07.10.2018, vide which CDRs and attested copies of CAFs of mobile numbers 8826766542 and 9821897761 Ex.PW20/A (Colly.) (D-24) were forwarded to the IO.
(vi) Witnesses pertaining to Sanction under Section 19 of PC Act, 1988.
31. PW-14 Sh. Vijay Kumar Dev, Chief Secretary, Govt. of NCT of Delhi is the sanctioning authority. As per his version, during the relevant period, he had received a request letter annexed with certain documents viz. copy of FIR, statement of witnesses, complaint, transcription and various memos, etc. from the CBI seeking prosecution sanction against accused Mukesh Kumar. He deposed that he had gone through all the aforesaid documents, applied his mind and on the basis of said documents, he opined that a case was made out and therefore, he accorded sanction for prosecution of accused Mukesh Kumar. PW-14 further deposed that being posted as Chief Secretary, he was the competent authority for removal and appointment of Assistant Commissioner in Food & Supply Department, Govt. of Delhi and therefore, he was competent to grant said sanction. PW-14 duly proved on record the Sanction Order dated 24.12.2018 as Ex.PW14/A as well as the official noting in this regard as Ex.PW14/B.
(vii) Witnesses to the Inspection conducted on 14.09.2018
32. As per the deposition of PW-5 Sh. Vishal and PW- 6 Ms. Seema, on 14.09.2018 and on the request of Rajesh, they had joined the inspection of his shop at Neb Sarai. They CBI Case No. 62/2019 (1/19) Page no. 50/134 further deposed that they had gone to the shop alongwith the ration card and appended their signatures on the statement of Rajesh Kumar Ex. PW1/A as the same was recorded in their presence. They also appended their signatures on the Daily Sale Register Ex. PW2/D (at serial no. 947 at page 10 and serial no. 202 at page no. 3 respectively) and the Inspection File, Daily Sale Register and Inspection Report were seized at the time of inspection by the officials in their presence. PW-5 deposed that he had given his specimen signatures (S-37 to S-41) Ex. PW5/A (colly) to the IO on 15.11.2018. As per PW-6, she gave her specimen signatures (S-42 to S-46) Ex. PW6/A (colly) on 28.01.2019.
33. PW-7 Sh Virender Pal Singh is from Food and Supply Department, who at relevant time was the Incharge of circle 48, Ambedkar Nagar with additional charge of circle Deoli at the office in Asian Market, Sector 3, Pushp Vihar, Saket, New Delhi. As per his deposition, his duties were to ensure that the ration at fair price shop were distributed in accordance with the rules and procedure and as per Essential Commodities Act and for that, he used to undertake inspection of the FPS (Fair Price Shops). As per his version, accused Mukesh Kumar, was having the charge of Asstt. Commissioner Enforcement and was his immediate supervisor officer and on 13.09.2018, accused Mukesh Kumar had constituted enforcement teams for entire Delhi to conduct inspections of Fair Price Shops by issuing order Ex. PW7/A and by virtue of said order, he (PW-3) headed a team comprising of himself and Inspector Mehar Singh with the assignment of inspection of FPS no. 9230 in the name of CBI Case No. 62/2019 (1/19) Page no. 51/134 M/s Rajesh Store (circle no. 46 (Chattarpur).
33.01 PW-7 further deposed that on 14.09.2018, he alongwith Inspector Mehar Singh visited FPS 9230, as per the address given in the order, but was unable to locate the same and after contacting FSO, he got new address of said shop, which was changed with due permission of the office and on reaching the FPS, they met authorized person Mr. Rajesh and his brother Naresh. Mr. Rajesh informed him that the license was in the name of his wife Nirmala, however, entire family members i.e. he himself (Rajesh), his brother Naresh and his wife were running the said shop. He further deposed that on his asking, Rajesh summoned two ration card holders to witness the inspection and he (PW-7) counted and quantified the food articles in the shop and made entry in the seizure memo Ex.PW2/A. Thereafter, on his asking, Rajesh produced sale register, stock register but failed to produce cash memo pertaining to the month of September, 2018, as the same was not maintained by Rajesh and he (PW-7) made the entries accordingly in the said seizure memo Ex. PW2/A bearing his signatures and that of Inspector Mehar Singh as well as of Rajesh, however, by mistake he failed to take the signatures of witnesses namely, Vishal and Seema.
33.02 PW-7 further deposed that on 14.09.2018, he recorded statement of Rajesh Ex. PW1/A (colly), which was signed by Rajesh as well as by witnesses Vishal and Seema. PW-7 had also seized the stock register Ex. PW2/C and the sale register Ex. PW2/B1 to B4 and after the inspection of the FPS, they submitted the Statement of Stock Variation CBI Case No. 62/2019 (1/19) Page no. 52/134 (SSV) alongwith the inspection report and other documents, collected from the shop, Ex. PW7/B (colly) to accused Mukesh Kumar on 15.09.2018.
33.03 As per deposition of PW-7, the short comings found at the FPS were duly noted in the inspection report and the kind of short comings found in the FPS 9230 invited penalty of Rs. 5000/- by virtue of circulars issued by the department Ex.PW7/C and that Asstt, Commissioner Mukesh Kumar was competent authority to impose penalty on the FPS found at fault. He further deposed that on 24.09.2018 at about 9 AM, he received a call from accused Mukesh Kumar and on his directions he visited his office at Vikas Bhawan, ITO, where he was returned the aforesaid SSV and inspection report by accused Mukesh Kumar with direction to keep the same in Pushp Vihar, Sector 3 office for examination to be conducted and he (PW-7) accordingly, kept the file in said office.
33.04 It is further deposed by PW-7 that on 25.09.2018, accused Mukesh Kumar visited his office at Pushp Vihar and on his instructions, he (PW-7) signed the first and last page of the stock and sale register of FPS 9230 and took the report and SSV with supporting documents to the office of accused Mukesh Kumar at Vikas Bhawan and on the that day itself, he (PW-7) handed over the same to accused Mukesh Kumar at his office at Vikas Bhawan, in the presence of one Arjun/Arjan. He further deposed that accused Mukesh Kumar asked him to retain the sale and stock register at the office of Pushp Vihar itself and that he may call the same later on and he (Mukesh Kumar) retained CBI Case No. 62/2019 (1/19) Page no. 53/134 the inspection file, SSV etc. PW-7 further deposed that on 03.10.2018, he received a call from Enforcement Branch, Headquarters asking him to submit the stock and sale register of the FPS 9230 to the headquarter and on the same very day, as per the directions of FSO Enforcement Mr. Randhir Bhaskar, vide a covering letter Ex. PW7/D, he (PW-
7) submitted the said stock and sale register after signing all the pages. He further deposed that on 25.09.2018, at 3 PM, Mr. Rajesh Kumar, Naresh Aggarwal and one person had come to his office cabin at Pushp Vihar but they left his cabin after about 2-5 minutes and after 10-15 minutes, when he was going to washroom, he found them alongwith one FPS holder Shyam Sunder, who were waiting outside the cabin of Asstt. Commissioner Mukesh Kumar and when he (PW-7) came out of the washroom, he found them entering into the cabin of accused Mukesh Kumar and then he came to know that Shyam Sunder was raided/arrested.
33.05 During his examination in chief, PW-7 further deposed that he knew FPS holder accused Shyam Sunder as he used to frequently visit the office at Pushp Vihar and meet him (PW-7) as well as accused Mukesh Kumar. PW-7 correctly identified accused Mukesh Kumar and Shyam Sunder on the date of his deposition. PW-7 further deposed that he had joined the investigation and his statement was recorded by the CBI. PW-7 deposed that on the asking of IO, he had written 'Seema' and 'Vishal' on sheets of paper and also signed said papers Ex. PW-7/E (Colly) and that he had written said words of his own as no formation of word 'Seema' and 'Vishal' was given to him.
CBI Case No. 62/2019 (1/19) Page no. 54/134
(viii) Other formal Witnesses.
34. PW-8 is Ms. Nirmala, who deposed that she was running a shop in the name of M/s Rajesh Store, having license no. 9230 Ex. PW8/A, and said shop was earlier situated at D-33, Neb Sarai, New Delhi but later on, it was shifted to 132, Neb Sarai, New Delhi. Further that, she had filed a copy of the order Ex. PW8/B of the Food and Supply Department regarding change of shop address. PW-8 deposed that on the date of inspection i.e. 14.09.2018, the said shop was run by her husband and jeth Naresh Aggarwal.
34.01 PW-13 Sh. Randheer Kumar is the FSO, Food & Supply Department, Delhi. He deposed that Accused Mukesh Kumar, the Assistant Commissioner, South District was having additional charge of Assistant Commissioner Enforcement and Enforcement activities were conducted with the approval of Commissioner Food and Supply. Further that, Zonal Assistant Commissioner was the Licensing Authority and used to Supervise Fair Price Shop under his jurisdiction and being Licensing Authority, Zonal Assistant Commissioner was holding all the powers like suspension of licence, cancellation of Licence, imposing penalty and forfeiture of security deposits. He further deposed that since the Enforcement Branch did not have sufficient staff for conducting enforcement drive at large scale, they used to take staffs randomly from the circle office in the Delhi and generally the team consisting of one FSO and two FSI, working under supervision of one Assistant Commissioner used to inspect the Fair Price Shop and after closing of inspection work, the team was to submit its reports duly CBI Case No. 62/2019 (1/19) Page no. 55/134 signed by inspecting members through Zonal Assistant Commissioner along with seized document and stock variation statement to the Enforcement Branch Head Quarter.
34.02 PW-13 further deposed that on 25.09.2018, he came to know that CBI had raided the room of Mukesh Kumar, Assistant Commissioner Enforcement, Room No. 215, K Block, Vikas Bhawan, ITO, Delhi and on the directions of CBI, he (PW-13) provided desired documents against seizure memos and some documents were recovered from the room of the Assistant Commissioner, Enforcement. He identified his signatures on documents already exhibited as Ex. PW1/I (D-18), Ex. PW7/B (colly), Ex. PW2/A, Ex. PW11/A (colly). He further deposed that File Movement Register [(D-18 (iii)] was also handed over to the CBI team from Branch and proved the same as Ex. PW13/A(colly) [(D-18
(iii)]. As per PW13, the Inspection Report File was recovered from the office room of accused Mukesh Kumar. PW-13 deposes that the CBI team had inquired and searched the inspection report file of FPS No. 9230 in the branch but the same was not found there and it was disclosed by the concerned LDC that the file was with accused Mukesh Kumar, who had taken the same one day before and said fact was not in the knowledge of FSO, Enforcement. He further deposed that vide Production-cum-seizure memo dated 04.10.2018, he had handed over the documents mentioned therein to the IO and PW-13 proved the same as Ex. PW13/B (D-19) by identifying his signatures. He also identified the signatures of Sh. M.S.Premi on the forwarding letter dated 03.08.2018 Ex PW13/C (D-19) whereby, Sh.
CBI Case No. 62/2019 (1/19) Page no. 56/134 M.S.Premi had handed over documents mentioned therein.
Statement of Accused/Defence Evidence
35. After conclusion of prosecution evidence, statement of both the accused were recorded under Section 313 CrPC wherein all the incriminating evidence was put to them but as expected, the same was denied by the accused persons as wrong and incorrect. The accused persons pleaded their innocence and came up with the plea that they have been falsely implicated by the complainants as they were apprehending registration of FIR and suspension of FPS License of their shop no.9230 as the outcome of inspection dated 14.10.2018. They stated further that no money was ever demanded from the complainants for any purpose by any of the accused nor any illegal gratification was accepted by accused Shyam Sunder either for himself or on behalf of accused Mukesh Kumar.
35.01. They further stated that false and manipulated documents have been created by the complainants in connivance with CBI officers and the witnesses joined by CBI in the alleged verification and trap proceedings are also stock witnesses. The accused persons categorically denied that the voice attributed to them by the prosecution witnesses in Q1, Q2 and Q3 were their voices. Both the accused denied the voice identification report of the expert Ex.PW18/A stating that the opinion contained in said report regarding their alleged voices in Q1, Q2 and Q3 is incorrect and manipulated.
35.02 Accused Shyam Sunder categorically denied the CBI Case No. 62/2019 (1/19) Page no. 57/134 alleged recovery of tainted money from him. Accused Shyam Sunder further stated that he was Member Secretary of FPS, All India Dealer Association and the complainants Naresh and Rajesh, who were managing many FPS shops on contract basis once approached him to get their matter pertaining to their FPS Shop sorted with the Food and Supply Department. But, since he refused to render any help to them, they (complainants) developed grudges against him and got him implicated him in the present case.
35.03 In defence evidence, only accused Mukesh Kumar examined one witness, the Nodal Officer from Airtel as DW-1. DW1 was examined to prove the call records of the relevant dates of his mobile phone no. 9821897761.
35.04. Arguments were advanced at length by Ld. Counsels Sh. Sanjay Gupta, for accused Mukesh Kumar and Sh. Tushar Sinha, for accused Shyam Sunder. On behalf of CBI, the arguments were addressed by Ld. Public Prosecutor, Ms. Amita Verma. Written submissions were also filed on behalf of CBI and the accused persons. I have given my thoughtful consideration to the rival contentions raised from both the sides and also carefully perused the entire record including the written arguments and the supporting judgments filed on record by the parties.
Prosecution Arguments
36. Ld. PP for CBI has argued that prosecution has successfully proved the charges against both the accused by leading clinching evidence in the form of direct and circumstantial/link evidence and in this regard, she has CBI Case No. 62/2019 (1/19) Page no. 58/134 relied upon the testimony of the complainants Naresh Kumar (PW-1), Rajesh Kumar (PW-2) and the independent witnesses namely Gaurav Sharma (PW-9), who remained part of both verification and trap proceedings, Rahul Jaiswal (PW-10), the other independent witness who was joined only at the time of trap proceeding as well as the Verification Officer SI Umesh Kaushik (PW-12) and Trap Laying Officer Inspector C.M.S. Negi (PW-19). Ld. PP has referred to the alleged incriminatory portion of their testimonies in detail in the written submissions filed on behalf of CBI.
36.01. It was further argued that with regard to demand and acceptance of bribe, the complainants have more or less deposed on the lines of their joint complaint dated 24.09.2018 Ex. PW1/A. It was argued that a small discrepancy regarding the physical visits of the complainants to the office of accused at Asian Market on the first date of verification, which was conducted on the very date of the complaint i.e. on 24.09.2018 ought not to be given much weight because such discrepancies are bound to occur as only the tutored witnesses can give the parroted version of the incident, which is actually in violation of the spirit of law. Even otherwise, said discrepancy is not of much significance especially in the light of the fact that verification of 24.09.2018 remained incomplete and with respect to 2nd verification conducted on 25.09.2018, corroborative evidence in the form of recorded conversation Q-2 is available on record, which clearly shows that a demand of Rs.70,000 was raised by accused Shyam Sunder at the instance of accused Mukesh Kumar and to meet their illegal demand, the complainant made the part payment of CBI Case No. 62/2019 (1/19) Page no. 59/134 Rs.50,000 to the accused Shyam Sunder in the office at Asian Market where he was trapped red-handed by the trap team.
36.02 Ld. PP submitted that the complainants in their examination-in-chief have consistently deposed that on 14.09.2018, a raid was conducted at their Shop FPS 9230, which was licensed in the name of Smt. Nirmala Devi, wife of Rajesh Kumar and just after a gap of two days, a call was received by Naresh Kumar from accused Shyam Sunder on 17.09.2018, who told that accused Mukesh Kumar had been demanding Rs.1.5 Lakh to settle the matter in connection with the raid conducted on their shop on 14.09.2018. Later, upon the asking of accused Shyam Sunder, Naresh Kumar met the accused persons in the Asian Market on 21.09.2018 and there also, he was threatened that he had to pay atleast Rs.50,000 for avoiding cancellation of license of his shop and to save himself from the prosecution. However, since the accused did not want to give any bribe, therefore, they preferred to make a complaint to CBI. Subsequently, a joint complaint was made by them with the CBI on 24.09.2018, which was assigned to SI Umesh Kaushik for the purpose of verification.
36.03 It was argued that since the verification on 24.09.2018 remained incomplete for lack of any demand coming up from the side of the accused therefore, the verifying officer instructed the complainants to visit the office of the accused Mukesh Kumar again on 25.09.2018 as asked by accused Shyam Sunder. On 25.09.2018, the independent witness Gaurav Sharma also accompanied CBI Case No. 62/2019 (1/19) Page no. 60/134 them. However, after arrival of accused Mukesh Kumar, accused Shyam Sunder asked only the complainant Naresh Kumar to come inside the office while his brother Rajesh and the independent witness Gaurav Sharma were asked to wait outside. It was further argued that inside the office of accused Mukesh Kumar, a conversation, which was duly recorded through DVR placed in the pocket of complainant, took place between Naresh Kumar and Mukesh Kumar during which, accused Mukesh Kumar with the gesture of his hand and eyes, asked complainant to talk to Shyam Sunder, who took him inside a small room where he reiterated the demand of Rs.70,000/-.
36.04 It has been argued that from the conversation, recorded in Q-2 and transcribed at page 15 to 25 of Ex PW1/H (Colly), it is evidently clear that accused Shyam Sunder was acting as a conduit for accused Mukesh Kumar and it was at the behest of accused Mukesh Kumar, he demanded and accepted money from the complainant. It was argued that with regard to the trap proceedings, which took place in the afternoon of 25.09.2018, there appears to be a minor discrepancy in the version of independent witness Gaurav Sharma/PW9 as per whom, only Naresh/PW1 was allowed to enter into the room of accused Mukesh Kumar while he and co-complainant/Rajesh/PW2 remained outside the office.
36.05 It was argued that in this regard, the version of the complainants is however, in consonance of recovery memo Ex.PW1/F which also records that only the independent witness Gaurav Sharma was directed to wait CBI Case No. 62/2019 (1/19) Page no. 61/134 outside the chamber of Assistant Commissioner while both the complainants were allowed to go inside. It has been argued that the said inconsistency in the version of the independent witness is not material in as much as, the testimony of both the complainants is otherwise corroborated with the conversation recorded in Q-3 transcript of which is available on record as part of Ex.PW1/H (page 15 to 25).
36.06 It was contended further that the improvement in the version of the complainants with regard to their physical visit to Asian Market office is nothing but sheer zealousness of complainants to strengthen their case by addings more to the story and same ought to be ignored for not being very material so as to adversely affect the prosecution case. Ld. PP argued that actually the verification call on 24.09.2018 was made by the complainant Naresh Kumar from the office of CBI and since, he was asked by accused Shyam Sunder to come on 25.09.2018, there was no occasion for the complainants to physically visit the office of accused on 24.09.2018 and same is also evident from the verification memo dated 24.09.2018 Ex.PW1/C (D-3/I), which nowhere records any such fact regarding physical visit of the complainants to the Asian Market office of the accused on 24.09.2018 nor even the independent witness Gaurav Sharma narrated any such fact in his deposition before the Court.
36.07 Ld. PP for CBI submitted since the verification done on 24.09.2018 remained incomplete therefore, the verifying officer conducted the second verification in the CBI Case No. 62/2019 (1/19) Page no. 62/134 morning of 25.09.2018 and with regard to 2nd verification, the version of independent witness Gaurav Sharma and the complainants is well in consonance with each other. As per the complainants as well as the independent witness Gaurav Sharma, only complainant Naresh was asked to enter inside the room of accused Mukesh while complainant Rajesh and independent witness Gaurav Sharma were asked to wait outside.
36.08 It was further argued that when during said meeting for verification on 25.09.2018, complainant/PW1 met the accused Mukesh Kumar in his office. When the complainant asked accused him (Mukesh Kumar) to reduce the amount in the presence of accused Shyam Sunder, accused Mukesh told him that "matter khatam karo, baki sab baad ki baten hain". He (accused Mukesh) made a gesture with his hand and eyes towards accused Shyam Sunder and asked complainant Naresh Kumar to talk to Shyam Sunder, who took him to the adjoining room, where he (Shyam Sunder) told complainant Naresh to give Rs.70,000 i.e. Rs.50,000 for Mukesh Kumar and Rs.20,000 for FSO and FSI. Thereafter, accused Shyam Sunder left the office to bring the demanded money within 1-1½ hours and while coming out of the room of Mukesh, he again requested accused Mukesh to reduce the amount, upon which accused Mukesh Kumar asked him "hum bathen hain tumhare liye, tumhare liye aakhir tak ladenge" and further asked him to arrange for money quickly.
36.09 In this regard, Ld. PP has taken me through the detailed examination-in-chief of PW-1 dated 20.08.2019 CBI Case No. 62/2019 (1/19) Page no. 63/134 (from Page 7 to 9). She further submitted that the aforementioned conversation between the complainant and the accused persons is duly recorded in Q-2, transcription of which is available on record as Ex.PW1/H (Colly.) (D-1 to D-
17). She further argued that during investigation, the alleged voice of the accused Mukesh Kumar in Q-2 and Q-3 was got duly identified through Sh. Arun Kumar Mishra, who was posted as the Special Commissioner, Food & Supply Department, GNCTD, ITO, Delhi at the relevant time and even during trial PW-11 duly supported the prosecution case. Besides that, the conversation contained in said memory card Q-2 was also duly examined and compared with the specimen voices of alleged speakers by the Forensic Expert who also gave a positive opinion with regard to their voices in his report Ex. PW18/A. 36.10 It was argued further that the discrepancy in the version of independent witness Gaurav Sharma regarding presence of co-complainant Rajesh/PW-2 at the time of trap had occurred due to time gap and therefore, not much weight can be attached to said discrepancy especially when there is ample evidence of other trap team members for corroborating complainant's version in this regard.
36.11 It was argued that similarly, even with regard to demand and acceptance, there is ample oral and documentary evidence to clinchingly prove that on 25.09.2018, at the time of subsequent visit of the complainant Naresh Kumar in the office of accused Mukesh Kumar for the purpose of trap, accused Shyam Sunder had raised the demand of money and accepted the same on CBI Case No. 62/2019 (1/19) Page no. 64/134 behalf of accused Mukesh Kumar and same is also evident from the fact that during the post-trap telephonic conversation between accused Mukesh Kumar and Shyam Sunder, which was duly recorded on the DVR by the CBI, accused Mukesh Kumar was informed by accused Shyam Sunder regarding receipt of Rs. 50,000 upon which, accused Mukesh Kumar gave his nod by saying "theek hai", and the same clearly shows that accused Mukesh Kumar was the mastermind under whose instructions, accused Shyam Sunder acted as a conduit and he (Shyam Sunder) demanded and accepted money on behalf accused Mukesh Kumar.
36.12 Ld. PP has further relied upon the electronic evidence in the form of audio recordings of verification proceedings (Q-1 & Q-2) and the trap proceedings (Q-3) and finally the recovery of the tainted money as well as the supportive forensic evidence in the form of chemical examination report dated 18.10.2018 Ex.PW15/A (Part of D-
17) in respect of hand washes and voice identification report dated 20.02.2019 Ex.PW18/A. While relying upon the above evidence, Ld. PP for CBI asserted that the prosecution has successfully proved that accused Assistant Commissioner Mukesh Kumar (public servant) through his middleman accused Shyam Sunder (private person), had raised the demand of bribe to hush up the matter relating to the inspection of FPS Shop of the complainants bearing No. 9230 and accepted the demanded money through said middleman/conduit, who was caught red handed by the trap team.
CBI Case No. 62/2019 (1/19) Page no. 65/134 36.13 It was further argued that the audio recordings of the conversation between the accused persons and the complainant Naresh Kumar at the time of verification and trap are ample proof of what all transpired between the complainant and the accused with regard to alleged transaction of bribe. Further, the recovery of money from the possession of the accused Shyam Sunder and conduct of accused Mukesh Kumar in giving his nod by saying 'theek hai' after he was conveyed about receipt of money by the accused Shyam Sunder after his trap by CBI, leaves no scope for any other inference except that the accused persons had conspired together and committed the alleged offences under PC Act and IPC, in the manner and sequence as deposed by the prosecution witnesses. It is further argued that the audio recording of the verification and trap proceedings are well admissible in evidence and have been duly proved on record in accordance with law and the credibility of such evidence is above board.
36.14 It was further argued that by clinching evidence, the prosecution has been able to prove all the foundational facts of demand, acceptance and recovery of tainted money which are necessary to raise the presumption of Section 20 of PC Act and in the background of said circumstances, the burden shifted on the public servant accused Mukesh Kumar to rebut said presumption regarding existence of requisite motive or reward as per Section 7 of PC Act, by leading direct or indirect evidence which he miserably failed to do. Thus, the material on record is sufficient to fasten the guilt of the alleged offences upon the accused persons. In the written submissions, Ld. Public Prosecutor has also relied CBI Case No. 62/2019 (1/19) Page no. 66/134 upon the various case law in support of his arguments which shall be referred in later part of this judgment.
Defence Arguments
37. Per-contra Ld. Defence Counsels for the accused assailed the prosecution case primarily on the ground that the deposition of the complainants is full of material discrepancies and even the testimonies of the independent witnesses suffer from serious infirmities and contradictions making them completely unreliable and untrustworthy. Broadly, following arguments have been raised on behalf of accused by the Ld. Defence Counsels:-
i) That the prosecution has failed to prove affirmatively that the accused public servant by corrupt or illegal means or by abusing his position obtained any pecuniary advantage either for himself or for any other person. The allegations against accused are contradicted by the statements of the witnesses and the documents brought on record thereby, leaving the prosecution case completely insufficient to raise the presumption of Section 20 of PC Act, 1988.
ii) That the facts deposed by the complainants in their examination-in-chief regarding meeting of Naresh Kumar with the accused persons on 21.09.2018, are altogether different from the facts alleged in their complaint dated 24.09.2018 Ex.PW1/B.
iii) That a false story has been introduced by both the complainants in their deposition before the Court regarding their alleged physical visit to the office of accused Mukesh CBI Case No. 62/2019 (1/19) Page no. 67/134 Kumar in the Asian Market for the purpose of verification on 24.09.2018 whereas, it is nowhere the CBI case.
iv) That there is absolutely no iota of evidence to prove the demand on the part of accused Mukesh Kumar in any manner except the story of alleged meeting of 21.09.2018, which is apparently false because 21.09.2018 was a holiday on account of Moharram and the office of the accused Mukesh Kumar was closed and therefore, there was no occasion for him to visit his office at Asian Market, Pushp Vihar on that day.
v) That as per CBI case, accused Mukesh Kumar was not present in the office when the signatures of two witnesses of inspection namely Seema and Vishal were allegedly forged by accused Shyam Sunder. On the contrary, complainant/PW-1 in his deposition stated that even Mukesh Kumar was also present at that time.
vi) That accused Mukesh Kumar has been falsely implicated by the complainants as they were having grudges against the said accused as vide two show cause notice bearing No. F.AC(S)/F&S/SCN/2018/2026 dated 04.08.2018 Ex.PW1/DA (Colly.), accused Mukesh Kumar had imposed penalty of Rs.5,000 each on the complainants in respect of their Shop No. 7780 and 9230.
vii) That in File No.180925_1034 of Q-3, Naresh Kumar can be heard saying "Sahab ko pata hai, sahab to bilkul mana karta hai" and from timing 17:30 to 17:45 min, PW-1 can be heard saying "Humhe nahi kaha sahab ne, iss bare mein bola bhi nahi". Again from timing 36:45 to 37:01, PW-1 is CBI Case No. 62/2019 (1/19) Page no. 68/134 saying "chhote bhai ne kaha 50 dede inko, sahab ko pata hai ya nahi, mujhe nahi pata, inn choto pe yakeen nahi hai". From said content of the conversation attributable to the complainant Naresh Kumar it can be easily gathered that accused Mukesh had never raised any demand from the complainant Naresh Kumar.
viii) That in his cross-examination, PW-1 was further confronted with recording of conversation of file no. 180925_1034 of Q-2 Ex.PX2 from 35:50 to 30:52 minutes, wherein he (PW-1) said to accused Shyam Sunder, "bhai ka phone aaya tha, pachas hazar dena hai" and 36:45 to 37:01 saying "chhote bhai ne kaha, pachas de do inko, sahab ko pata hai ya nahi pata, mujhe nahi pata, iss chhote par yakin nahi hai" and PW-1 identified that it was his voice and he also admitted to have said so. This clearly shows that accused Mukesh Kumar had played no role in the alleged transaction but despite that, PW-1 falsely denied the suggestion that accused Mukesh had never demanded any bribe from him at any point of time nor he was aware about any talks between PW-1 and accused Shyam Sunder.
ix) That on both the both the occasions of verification and trap, the independent witness/shadow witness Gaurav Sharma kept standing outside the office of accused Mukesh Kumar. Hence, neither the alleged verification nor the transaction of bribe at the time of alleged trap was witnessed by any independent witness.
x) That the allegations of forgery raised against accused Shyam Sunder are totally false and same is evident from the inconsistent statement of PW-1, who at the time of his cross-
CBI Case No. 62/2019 (1/19) Page no. 69/134 examination deposed that the signatures of witnesses on Ex. PW2/A were forged by accused Shyam Sunder in the presence of accused Mukesh Kumar. Whereas, as per CBI's own case, accused Mukesh Kumar was not present in his office at the time of complainant's second visit and it was at that time, the signatures of witnesses Seema and Vishal were forged by accused Shyam Sunder on Ex.PW2/A.
xi) That in the recorded conversation contained in file no. 180925_1451 in Q-3 Ex.PX2 (from interval time 11:30 to 12:30), the FSO V.P. Singh is found saying "haanji ek number par aise hi Vishal likh dena, khula chhod dena, address main apne-aap likh doonga" and PW-1 has admitted that said conversation took place between him and V.P. Singh, FSO at the time when he met him in the office of accused Mukesh Kumar on 25.09.2018. But he denied the suggestion that he met V.P. Singh upon his second visit to Asian Market on 25.09.2018. As per his version, he met V.P. Singh at the time of his first meeting to Asian Market office in the morning hours of 25.09.2018.
xii) That the content of voice identification-cum- voice transcript memo Ex.PW1/G (Colly.) has falsified the deposition of PW1 wherein he claimed that on 08.10.2018, when said memo was prepared, his brother Rajesh Kumar i.e. PW-2 was also accompanying him and that he had also signed the said memo. Whereas, on the contrary, as per deposition of Rajesh Kumar/ PW-2, after the date of trap, he had visited CBI office only once i.e on 09.10.2018. Even the memo Ex.PW1/G dated 08.10.2018 nowhere bears his (PW2's) signatures.
CBI Case No. 62/2019 (1/19) Page no. 70/134 Xiii) That as per PW-1, the DVR was taken from him by CBI officer after completion of wash proceeding, seizure of currency notes and the challenge given to accused Shyam Sunder by TLO but none of such facts/proceedings are found recorded in Q-3.
Xiv) That complainant/Naresh Kumar/PW-1 has improved his version to the extent of demand of Rs.50,000/- allegedly raised by accused Mukesh Kumar at the time of verification done on 25.09.2018. Because, neither the verification memo Ex. PW1/D finds mention of any such fact nor the recorded conversation of Q-2 contains any such content of speech attributable to accused Mukesh Kumar nor even its transcript (part of Ex. PW1/H) mentions any such utterance regarding demand of Rs.50,000/- from accused Mukesh Kumar.
(xv) Similarly, there is an improvement regarding the alleged post-trap conversation between accused Mukesh and Shyam Sunder because, the conversation contained in Q-3 reflects that accused Shyam Sunder simply conveyed to accused Mukesh Kumar regarding his having received Rs. 50,000/- without disclosing him the source of said receipt. Whereas, PW-1 in his deposition before the Court made an improvement by saying that accused Shyam Sunder had conveyed to the accused Mukesh Kumar about his having received Rs.50,000 from complainant Naresh.
xvi) That none of independent witnesses joined in trap had witnessed the alleged recovery of tainted money from accused Shyam Sunder as admittedly, they were neither present at the time of alleged demand nor at the time of CBI Case No. 62/2019 (1/19) Page no. 71/134 acceptance of money nor even they saw the money in the hands of the accused Shyam Sunder at any point of time. As per their version, when they entered into the room of Asstt. Commissioner, the tainted money was lying on the floor.
xvii) That in catena of judgments, Hon'ble Apex Court has observed that the testimony of the complainant in the trap cases is in the nature of an accomplice and thus, it cannot be believed without corroboration from an independent source. Whereas, in the instant case, neither the alleged demand was witnessed by any independent witness nor the alleged acceptance of tainted money.
xviii) That the Sanction Order under Section 19 of PC Act, is defective and showing no application of mind by the Competent Authority as it was never supplied with recordings of questioned conversation Q1, Q-2 and Q-3. Further, the voice identification report has been prepared by PW-18, who did not have any requisite qualification in the field of voice examination.
xix) That as per the verification officer/PW-12, he himself had deposited Q1 and Q2 in the Malkhana but said fact was categorically denied by the TLO/PW-20 during his deposition before the Court. For said material contradictions and discrepancies, even the verification officer and TLO are not trustworthy witnesses and their depositions also cannot be relied upon for any purpose.
xx) That from various contradictions in the deposition of complainants and the independent witness Gaurav Sharma, it is apparently clear that the verification reports Ex.PW1/C CBI Case No. 62/2019 (1/19) Page no. 72/134 and Ex.PW1/D were fabricated by the verification officer, who is a partisan witness and therefore, his testimony cannot be relied upon without any corroboration from the independent source.
xxi) That CBI has miserably failed to establish the authenticity and veracity of the verification and trap proceedings. The testimonies of the witnesses examined by the prosecution in this regard, are not in consonance with the factual content narrated in the verification memo Ex.PW1/C and Ex.PW1/D, handing over memo Ex.PW1/E, recovery memo Ex.PW1/F and the actual conversation contained in Q-1, Q-2 and Q-3.
xxii) That CBI has miserably failed to establish any demand of bribe direct or indirect which can be attributed to any of the accused and the same is also evident from the perusal of the transcription memos of the conversation Q1, Q2 and Q3, which nowhere reflect that any such demand of illegal gratification was ever raised by either of the accused.
Analysis of the Material by the Court
38. Before referring to the respective contentions raised at Bar, I may first refer to the judgment of Hon'ble Apex Court in P. Sathyanarayana Murthy v. District Inspector of Police, State AP and another 2015 10 SCC 152 wherein, the Hon'ble Apex Court referred to its previous decision in Sujit Biswas v. State of Assam [(2013) 12 SCC 406 :(2014) wherein, it was observed that "suspicion, however, grave cannot take the place of proof and the prosecution cannot afford to rest its case in the CBI Case No. 62/2019 (1/19) Page no. 73/134 realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise of conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
39. Indisputably, for constituting an offence under Section 7/7A of the PC Act, 1988, the demand of illegal gratification is a sine qua non and for arriving at the conclusion as to whether all the ingredients of the offence viz. demand, acceptance and recovery of 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. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification.
40. In this regard, I may refer to the latest judgment of the Hon'ble Apex Court in 'Soundarajan V State Rep. by the Inspector of Police Vigilance Anticorruption Dindigul, Criminal Appeal No. 1592 of 2022 decided on 17th April, 2022'. In said judgment Hon'ble Apex Court had the occasion to deal with the unamended provision of Section 7 and 13 PC Act. But, even in the amended Section 7 and newly inserted Section 7A PC Act, the legislature has CBI Case No. 62/2019 (1/19) Page no. 74/134 used similar words, 'obtains' or 'accepts' or 'attempts to accept' as used in the unamended Section 7 PC Act. Therefore, reference to the aforementioned judgment can be made for knowing the interpretation given by the Hon'ble Apex Court to said words/phrases. The relevant part of the aforementioned judgment reads as under:-
"9. It is well settled that for establishing the commission of an offence punishable under section of the PC Act, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in case of Neeraj Dutta has reiterated that the presumption under section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof.
12. There is no circumstantial evidence of demand for gratification in this case. In the circumstances, the offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) have not been established. Unless both demand and acceptance are established, offence of obtaining pecuniary advantage by corrupt means covered by clauses(1) and (ii) of Section 13(1)(d) cannot be proved."
41. In the Constitution Bench Judgment in "Neeraj Dutta V State (Govt. of NCT of Delhi), 2022 SCC OnLine SC1724', the Hon'ble Apex Court was to answer the question framed for determination and while doing so the Hon'ble Court discussed the entire gamut of law on the provisions of Section 7, 13(1)(d) and 20 of PC Act, 1988 and after referring to all its previous judgments on this issue, the gist of the discussion was summarized by the Hon'ble Apex Court in para 88 of the judgment, which reads as under:
CBI Case No. 62/2019 (1/19) Page no. 75/134 "88. What emerges from the aforesaid discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of CBI Case No. 62/2019 (1/19) Page no. 76/134 an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as CBI Case No. 62/2019 (1/19) Page no. 77/134 a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature."
42. After laying down the aforementioned parameters, the Hon'ble Apex court answered the referred questions in para 90 of the judgment and same is also reproduced as under :
"90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:
In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution."
43. Here, I may also refer to the judgment in Neeraj Dutta case which came to be passed by Hon'ble Apex Court in Crl. Appeal no. 1669/2009 decided on 17.03.2023 (2023 SCC OnLine SC 280), after the decision of the Constitution Bench on the aforementioned reference decided on 15.12.2022 (2023 (4) SCC 731). In said decision of Hon'ble Division Bench, the impugned order of Hon'ble High Court confirming the judgment of conviction passed by the Special Court whereby, the accused was convicted under Section 7 and clause (i) and (ii) of 13(1)(d) CBI Case No. 62/2019 (1/19) Page no. 78/134 r/w Section 13(2) of PC Act, 1988, was set aside by holding that "there are no circumstances brought on record which will prove the demand for gratification. Therefore, the ingredient of Section 7 of PC Act were not established and consequently the offence under Section 13(1)(d) PC Act will not be attracted". While setting aside the judgment of conviction some important observations were made by the Hon'ble Apex Court and same are contained in following paras of the judgment:-
"13. Section 7, as existed prior to 26 th July 2018, was different from the present Section 7 . The unamended Section 7 which is applicable in the present case, specifically refers to "any gratification". The substituted Section 7 does not use the word "gratification", but it uses a wider term "undue advantage". When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of subsection (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (i) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the CBI Case No. 62/2019 (1/19) Page no. 79/134 referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence.
14. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand."
44. Further while invoking the provision 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 to call upon to explain as to how the CBI Case No. 62/2019 (1/19) Page no. 80/134 amount in question was found in his 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 and in a proper case, the court may look for independent corroboration before convicting the accused persons. Reliance in this regard is placed on Mukut Bihari & ors. v. State of Rajasthan (2012)11 SCC 642.
45. It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused 'may have committed the offence' and 'must have committed the offence' which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognized as a human right which cannot be washed away. Thus the prosecution has to establish all essential of charge framed to allay this presumption of innocence. Reliance in this regard has been placed on the judgment in Kailash Gour v. State of Assam 2012 (1) LR C (SC).
46. In the same very judgment in Kailash Gour v. State of Assam (Supra), Hon'ble Apex Court also referred to Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble (2003) 7 SCC 749 wherein, the Hon'ble Apex Court discussed as to what all should be taken into consideration and what should be the approach of trial court in criminal CBI Case No. 62/2019 (1/19) Page no. 81/134 trial and the court observed as under:
"The Courts exist for doing justice to the persons who are affected. The trial/first appellate courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth, and oblivious to the active role to be played for which there is not only ample scope but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice in a case where the role of the prosecuting agency itself is put in issue.'
47. Evidence is the only way to prove or disprove anything and oral testimony apart from the documentary evidence are the ways through which evidence is brought on record. Where oral testimony is relied upon, then the credibility of the witnesses becomes very important. It is to be seen whether the witnesses are trustworthy, reliable, narrate factual position in a proper way, truthful and that he or she is not irresponsible or reckless or that he or she has no mala fides, ulterior motive in deposing a particular fact for or against a particular person or a particular act or incident. Thus, the oral evidence has to undergo this acid test.
48. In the instant case, one of the foremost contention raised by Ld. Defence Counsels to challenge the credibility of the prosecution case is the inter-se contradictions in the version of the complainants as well as the contradictions of their versions recorded during the trial with their complaint dated 24.09.2018 Ex.PW1/B. Besides that, it is vehemently contended on behalf of accused Mukesh Kumar that CBI has miserably failed to prove any CBI Case No. 62/2019 (1/19) Page no. 82/134 iota of evidence against said accused to show that he ever raised any demand for illegal gratification or accepted it from the complainant either himself or through any other person. It was argued that admittedly, no tainted amount was recovered from the possession of accused Mukesh Kumar nor any link has been established between said accused and the co-accused Shyam Sunder from whom the tainted amount was allegedly recovered or who allegedly acted on his behalf as conduit.
49. It has been further argued that the testimonies of complainants suffer from serious contradictions and material discrepancies and hence, cannot be relied upon. Even the recorded conversation of Q-2, which allegedly took place between the complainant Naresh Kumar and said accused Mukesh Kumar or even the transcript of the said conversation nowhere reflects any demand of bribe on the part of said accused Mukesh Kumar. It was further argued that demand and acceptance of the bribe is the sine-qua- non for attracting the provisions of Section 7 or 7A of PC Act whereas, both the said ingredients are completely lacking qua said accused Mukesh Kumar or for that matter against any of the accused. It was further argued that no presumption of Section 20 of PC Act, 1988 can arise against accused public servant in absence of the foundational facts of demand and acceptance which CBI has miserably failed to prove against accused Mukesh Kumar (public servant).
50. In order to correctly appreciate the above contentions, I may refer to Section 7, 7A and 20 of PC Act, 1988 which read as under:
CBI Case No. 62/2019 (1/19) Page no. 83/134
7. Offence relating to public servant being bribed. - Any public servant who,-
(a)obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b)obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c)performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration. - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.
Explanation 2. - For the purpose of this section,-(i)the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by CBI Case No. 62/2019 (1/19) Page no. 84/134 any other corrupt or illegal means;(ii)it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
7A. Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence.--Whoever accepts or obtains or attempts to obtain from another person for himself or for any other person any undue advantage as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant, shall be punishable with imprisonment for a term which shall no be less than three years but which may extend to seven years and shall also be liable to fine.
20. Presumption where public servant accepts any undue advantage.--Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11.
51. It is pertinent to note that prior to Amendment Act 16 of 2018, vide which a new provision of Section 7A has been inserted in PC Act, the criminality was attached only to CBI Case No. 62/2019 (1/19) Page no. 85/134 the act of demanding and accepting illegal gratification. However, after said amendments which came into force w.e.f 26.7.2018, the act of even giving bribe to a public servant, has also been made punishable by amending section 8 & 9 of PC Act. Since the alleged offences in this case are pertaining to the period subsequent to 26.07.2018, therefore, the provisions of amended Act would apply.
52. In the instant case, accused Shyam Sunder is a private person while accused Mukesh Kumar is a public servant and as per the case of CBI, accused Shyam Sunder was acting as a middleman on behalf of accused Mukesh Kumar, a public servant. As per CBI's case, it was the accused Shyam Sunder, who first made a telephonic call to the complainants on 17.09.2018 and conveyed him about the demand of Rs.1,50,000/- raised by accused Mukesh Kumar for settling the matter pertaining to the inspection of their FPS Shop No. 9230.
53. Before delving deep into the evidence adduced on record, it is necessary to recount again that mere possession and recovery of currency notes from accused without proof of demand would not establish the offence under Section 7 or 7-A of PC Act. In absence of any proof of demand of 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 is held to be an indispensable element, but it is essentially an inflexible statutory mandate for establishing offences under aforementioned provisions. Further, any presumption under CBI Case No. 62/2019 (1/19) Page no. 86/134 Section 20 of the Act for the purpose of Section 7 of the Act, would also arise only on proof of such demand. The proof of demand of illegal gratification is thus, the gravemen of offence under Section 7 and 7-A of PC Act.
54. At the cost of repetition, I may note again that in a case of trap, the complainant is the interested witness on the side of prosecution and therefore, his evidence should be carefully scrutinized and unless his version is corroborated by some cogent evidence, the case of prosecution should not be accepted. Therefore, the solitary evidence of the complainant without proper corroboration cannot be believed to record conviction.
55. With regard to appreciation of evidence in a trap case, the legal position was summarized by the Hon'ble Madras High Court in 'K.P.Kolanthai vs State By Inspector Of Police in Crl. Appeal no. 693 of 2008 decided on 09.08.2019' as under : -
"12. At the outset, the legal position, which emerges regarding appreciation of evidence in a trap, can be summarized as under:-
(i) To succeed in such a case, the Prosecution is obliged to prove the demand of bribe before and at the time of trap, its acceptance and the recovery of tainted money.
(ii) The demand can be proved by testimony of the complainant as well as from the complaint made by him and other witnesses if proved in accordance with law and if it is corroborated in material particulars.
(iii) A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption, of course, is CBI Case No. 62/2019 (1/19) Page no. 87/134 rebuttable under Section 20 of the Prevention of Corruption Act, 1988.
(iv) If the accused gives some defence, that can be scrutinized by the test of preponderance of probability, while the Prosecution must prove its case beyond all reasonable doubt."
13.The genesis of a trap lies in the previous demand of bribe made by the accused from the complainant, which becomes the basis of laying a trap by the investigating agency. Then, it is for the Prosecution to, again, prove the demand at the time when the trap was laid and thereafter, the question of acceptance and recovery of bribe money also is required to be proved beyond all reasonable doubts."
56. In order to truly understand the contentions raised by the parties with regard to the case being proved or not proved on essential ingredients of demand and acceptance, we need to now dwell deeper into various aspects of credibility, admissibility and sufficiency of the prosecution evidence led on record, in the light of aforementioned legal position on appreciation of evidence. I would be evaluating the evidence under various heads in the light of broad defence arguments. The crucial aspect for determination would be ingredient of demand, manner of verification and spot transaction.
57. In so far as the essential ingredient of demand of illegal gratification is concerned, there are two sets of direct evidence, which have been adduced by the prosecution. For proving the essential ingredient of 'demand', the direct evidence available on record is the oral/ocular evidence in the form of verbal testimony of complainants PW-1 and PW- 2 and documentary evidence in the form of electronic CBI Case No. 62/2019 (1/19) Page no. 88/134 evidence contained in recorded conversation of Q-2 and Q-3. Even as per CBI case, the verification done by the CBI team on 24.09.2018 was unsuccessful as no demand came up from the side of accused Shyam Sunder during the telephonic conversation between him and the complainant and same is also evident from the conversation contained in the memory card Q-1. During said conversation recorded in Q-1, the accused Shyam Sunder simply asked the complainant Naresh Kumar/PW1 to visit him in the office of Assistant Commissioner in the Asian Market on the next date i.e. on 25.09.2018. He (Shyam Sunder) also asked him (PW-
1) to bring his brother Rajesh Kumar and two witnesses of the inspection proceedings conducted on 14.09.2018.
58. Admittedly, the shadow witness Gaurav Sharma was not allowed to enter into the office of the Assistant Commissioner Mukesh Kumar either at the time of verification conducted in the morning of 25.09.2018 nor at the time of trap done in the afternoon of 25.09.2018. At both the said occasions, the shadow witness was allegedly asked to wait outside the office and therefore, he failed to witness the transaction of verification or the trap. In view thereof, for the purpose of proving the demand, the ocular evidence available with the prosecution is only that of the complainants.
59. As already noted above, in a trap case, it is mandatory for the prosecution to prove the demand of bribe both before the trap i.e. at the time of verification as well as at the time of trap. At the time of trap, the demand has to be coupled with the acceptance of bribe and the recovery of CBI Case No. 62/2019 (1/19) Page no. 89/134 the bribe/tainted money from the accused.
60. On the aforementioned important aspects of the matter, the analysis of the material which has been brought on record by both the parties, has been made by the Court in the light of their respective arguments and supporting case law. The discussion has been made under following heads:-
(1) Pre-complaint Demand
(2) Post-complaint Demand raised at the time of
Verification.
(3) Demand raised at the of Trap
(4) Discrepancies in the Transcripts of Q1, Q-2 and Q-3.
(5) Acceptance and Recovery of tainted money.
(6) Validity of Sanction under Section 19 of PC Act.
(7) Admissibility of Expert Opinion on Voice Identification.
Analysis of material on Pre-Complaint Demand
61. As per the case of the CBI, a raid was carried out by the two officers of Food and Supply Department (South) GNCT, Delhi at complainant's Fair Price Shop no. 9230 on 14.09.2018. Thereafter, on 17.09.2018, complainant Naresh Kumar received a phone call from accused Shyam Sunder and conveyed him regarding demand of Rs.1,50,000/- raised by accused Mukesh Kumar in connection with the aforementioned raid and further threatened that in case, the demand was not fulfilled, FIR would be lodged against the CBI Case No. 62/2019 (1/19) Page no. 90/134 complainants and the licence of their shop would also be cancelled. Thereafter, on 21.09.2018, the complainant met the Asstt. Commissioner, Food and Supply Department i.e the accused Mukesh Kumar in his office at Asian Market, Pushp Vihar where the complainant was again threatened that unless he pays Rs.50,000/-, the licence of his shop would be cancelled and he would also have to face the prosecution.
62. For pre-complaint demands of illegal gratification allegedly raised from the complainant Naresh Kumar on 17.09.2018 and 21.09.2018, the case of CBI rests solely on the testimony of the complainant/PW1 and co- complainant/PW-2 as there is no other independent evidence to corroborate their version except the call records of their mobile phones for showing exchange of calls between their phone numbers on 17.09.2018. It is pertinent to note that as per the CDR of mobile phone 8178967723 subscribed in the name of accused Shyam Sunder, which is part of Ex.PW4/1(colly)(D-23), only two calls were exchanged between him (accused Shyam Sunder) and the complainant Naresh Kumar (at complainant's phone number 9910691882) on 17.09.2018 and both the calls were made by the complainant Naresh Kumar and not by accused Shyam Sunder, which is contrary to the version of PW-1/complainant Naresh Kumar, who both in his complaint Ex PW1/B as well as in his deposition before the court stated that he had received a call from accused Shyam Sunder on 17.09.2018 and was conveyed about the demand of Rs. 1.5 lakh raised by accused Mukesh Kumar. As per CDR Ex. PW4/1 (colly) both the calls were made by the complainant CBI Case No. 62/2019 (1/19) Page no. 91/134 Naresh Kumar to accused Shyam Sunder and it falsifies the version of PW-1 that accused Shyam Sunder gave him a telephonic call on 17.09.2018 for conveying the demand of Rs. 1.5 lakh.
63. With regard to the alleged demand of 21.09.2018, the version of PW-1 is not in consonance with his complaint dated 24.09.2018 which is available on record as Ex.PW1/B. As per said complaint Ex. PW1/B, on 21.09.2018, complainant Naresh Kumar had met the Assistant Commissioner Mukesh Kumar in his office in Asian Market, Pushp Vihar where, he/PW1 asked him to tell him (PW1) about his mistake but he (Mukesh Kumar) instead told that proceedings against his shop would soon commence and in case, he (complainant Naresh) wanted to avoid the cancellation of license of his shop, he had to pay him (Mukesh Kumar) at least Rs.50,000. In the complaint, there is no mention about the presence of co-accused Shyam Sunder with accused Mukesh Kumar at the time of said meeting of 21.09.2018, which allegedly took place in Asian Market office of accused Mukesh Kumar.
64. Whereas, in his testimony before the Court, PW1 came up with a different story as he deposed that on 20.09.2018, when he met accused Shyam Sunder in the office of accused Mukesh Kumar, he (Naresh Kumar/PW-1) was asked to come again to meet accused Mukesh Kumar on 21.09.2018 at 09.30 AM. On 21.09.2018, when he reached down to the office of accused Mukesh Kumar at Asian Market, at about 09.30 AM, both the accused came there in a car and when PW1 expressed his inability to CBI Case No. 62/2019 (1/19) Page no. 92/134 accused Mukesh Kumar to pay Rs.1.5 Lakh, he told him (PW-
1) to pay at least Rs.50,000/-.
65. As is clear from the above, there are serious discrepancies in the two versions of the complainant. As per the version of PW-1 narrated before the Court during trial, the alleged meeting of 21.09.2018 took place not in the office but on the road while both the accused came there in the car. Whereas, as per the complaint, the said meeting took place only with accused Mukesh Kumar in his office in the Asian Market and accused Shyam Sunder was not present in the said meeting. Furthermore, complainant came for said meeting pursuant to his previous meeting with accused Shyam Sunder in the Asian Market Office on 20.09.2018. Whereas, there is no mention of any such meeting of 20.09.2018 in the entire complaint Ex.PW1/B.
66. In the light of above discrepancies in the two versions of the complainant/PW-1, his testimony does not inspire confidence and no reliance can be placed on his testimony with regard to alleged pre-complaint demands. CBI has failed to adduce any credible evidence to prove on record the alleged fact of pre-complaint demands. Furthermore, there is no corroborating evidence in this regard. Indeed the CDR Ex.PW4/1(colly)(D-23), which is being placed on record to corroborate the complainant's version, in fact has falsified his version to the extent that the call on 17.09.2018 were made by him to accused Shyam Sunder and not by accused Shyam Sunder, as alleged by him.
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67. Let us now look at the evidence adduced by CBI for proving the post complaint demand. As the verification done on 24.09.2018 was admittedly unsuccessful and incomplete, verification was done again on 25.09.2018. With regard to the alleged demand raised at the time of verification conducted on 25.09.2018, the reliance has been placed on the direct evidence ocular as well as documentary. Besides that, there are other link/corroborative evidences, which would assume importance only after the direct evidence adduced on record is found to be credible, clinching and sufficient to indicate the presence of demand.
68. Ocular direct evidence is the testimony of complainant/PW-1 and the documentary evidence is the recorded conversation contained in the memory card Q-2, which the complainant was carrying with him in DVR kept in his pocket at the time when he entered into the office of accused Mukesh Kumar. It is an admitted case of CBI that at the time of verification dated 25.09.2018, the shadow witness Gaurav Sharma as well as the co-complainant Rajesh Kumar were waiting outside the office as they were allegedly not allowed to go inside with complainant Naresh Kumar/PW1.
69. PW-1 in his examination-in-chief has testified that on 25.09.2018, he with his brother Rajesh (PW-2) had visited the CBI office at 08 to 08.15 AM, and there they met the Verifying Officer SI Umesh and the independent witness CBI Case No. 62/2019 (1/19) Page no. 94/134 Gaurav Sharma. The version of PW-1 with regard to preparatory proceedings of verification has already been discussed in his testimony under the heading of 'prosecution evidence'. We may again revert back to said portion of his deposition to check the correctness of the procedure adopted by the verifying officer provided sufficient material is found available in the questioned conversation recorded in Q-2 to establish the essential ingredient of demand.
70. With regard to verification dated 25.09.2019, complainant/PW-1 has deposed that at about 08.50 AM, they (PW-1, his brother Rajesh Kumar/PW-2, independent witness Gaurav Sharma/PW-9 and SI Umesh/PW12) left the CBI office and reached Asian Market office of the accused Mukesh Kumar at 09.30 AM. The DVR in switched on mode with blank memory card was put in his (PW's) pant pocket. After they reached the office, they were informed that accused Mukesh Kumar would reach shortly. After knowing this, all three of them went downstairs and apprised the Verifying Officer that accused Mukesh Kumar was yet to reach the office. DVR was taken back from the complainant and switched off. At about 10.30 AM, again the DVR was given to complainant/PW-1 in switched on mode and PW-1 with his brother Rajesh/PW1 and Gaurav Sharma/PW9 again went upstairs. PW-1 was taken inside the office of accused Mukesh Kumar by the accused Shyam Sunder while his brother Rajesh and the independent witness Gaurav Sharma were asked to wait outside.
71. PW-1 Further deposed that after entering into the office, he again requested accused Mukesh Kumar to CBI Case No. 62/2019 (1/19) Page no. 95/134 reduce the amount to which, accused Mukesh told him "matter khatam karo, baki sab baad ki batten hain". With the hand and eye gesture, accused Mukesh Kumar asked complainant to talk to accused Shyam Sunder, who took him (PW-1) in a small adjoining room, where accused Shyam Sunder told him (PW-1) to give a sum of Rs.70,000/- i.e. Rs.50,000/- for accused Mukesh Kumar and Rs.20,000/- for FSO and FSI and further asked him to bring the money quickly to finish the task. Further, as per the version of PW-1, after he came out in the main room where accused Mukesh was sitting, he again requested accused Mukesh Kumar to reduce the amount but he instead told him "hum baithen hain tumhare liye, tumhare liye aakhir tak ladenge". PW-1 further deposed that he was again asked by accused Mukesh Kumar to arrange money quickly.
72. Memory card Q-2 contains the recorded conversation of the verification dated 25.09.2019, which has been relied upon by CBI to corroborate the aforementioned version of PW-1 regarding alleged demand raised by the accused persons at the time of verification conducted in pre- lunch hours of 25.09.2018. The transcript of Q-2 Ex. PW1/H (colly) was prepared vide transcription-cum-voice identification memo dated 08.10.2018 available on record as Ex.PW1/G. Q-2 contains 2 files bearing No. 180925_927 and 180925_1034 and the transcript of the conversation contained in said files is the part of Ex.PW1/H (from page 2 to 14). As per the transcript, the speakers of the conversation contained in file No. 180925_927, are shown to be complainant Naresh Kumar/PW-1, his brother Rajesh Kumar, FSO V.P. Singh and accused Shyam Sunder.
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73. The recorded conversation of the said file no. 180925_927 however, does not reflect any iota of material to indicate any element of demand for illegal gratification or undue advantage raised from the side of the accused. Rather said conversation appears to have taken place between said speakers on 25.09.2018, when complainants visited the office before the arrival of accused Mukesh Kumar. Same is also evident from the transcript itself where on page 9, complainant Naresh Kumar/PW-1 is shown to have spoken that he would come at 11-11:30.
74. As per further verification report dated 25.09.2018 Ex. PW1/D, the complainants alongwith the independent witness Gaurav Sharma entered into the office of Asstt. Commissioner in the Asian Market for the purpose of verification, firstly at 10:15 am and even at that time complainant was carrying the DVR with him in switched on mode. However, they came back just after some time as accused Mukesh Kumar had yet not reached the office and they were informed that he would come around 10:30 am. At about 10:34 am, complainants were again sent to meet the suspect officer Mukesh Kumar and his conduit Shyam Sunder (private person) and the DVR was again handed over to complainant Naresh Kumar, who alongwith his brother Rajesh Kumar and the independent witness Gaurav Sharma again went to the office of accused Mukesh Kumar. As per the memo, the complainants and the independent witness Gaurav Sharma returned from the office at about 11:20 am and DVR was taken from the complainant Naresh Kumar and was switched off.
75. From the conversation contained in file No. CBI Case No. 62/2019 (1/19) Page no. 97/134 180925_927, it appears that during said conversation, complainant was asked to get signatures of witnesses namely, Seema and Vishal, who were the witnesses of the proceedings of inspection conducted by FSO/FSI on the complainant's FPS shop no. 9230 on 14.09.2018. However, it appears that during trial, the complainant Naresh Kumar/PW-1 wrongly attributed said conversation to their alleged visit of 24.09.2018 to the office of Asstt. Commissioner. Because in his deposition dated 18.11.2019 (page no.5), PW-1 deposed that on 24.09.2018, he alongwith his brother Gaurav Sharma had gone to Asian Market, where accused Mukesh Kumar was not available but he talked to accused Shyam Sunder, who took him to the office of V.P.Singh FSO and told him to call witnesses Seema and Vishal for signatures on some documents. Whereas, as per CBI case, on 24.09.2018 only a telephonic call was made on the mobile phone of accused Shyam Sunder who simply asked the complainant Naresh Kumar/PW-1 to visit the office at Asian Market on 25.09.2018 at 9:30 am. Even the verification report dated 24.09.2018 Ex. PW1/C, does not talk about any such physical visit of the complainants to the office of Asstt. Commissioner on 24.09.2018.
76. During course of final arguments, the conversation contained in another file bearing no. 180925_1034 of Q-2, was also carefully heard. The relevant conversation starts after 33 minutes i.e after the accused Mukesh Kumar arrives in the office. As per Ex. PW1/H, transcript of said conversation is on page no. 13 and 14 between point X to X, which reads as under :-
CBI Case No. 62/2019 (1/19) Page no. 98/134 श्याम सुन्दर साहब आ गए.... थोड़ा रूक जाओ ये इतना जाम क्यों लगता है .....
अच्छा रोड़ पर गाडियां..... खड़ी रहती है आपका का काम क्या है अपना काम बोलो हू...ं . बस मैं देखता हूं आप वेट करो नरेश सर नमस्कार जी, सर सुबह आठ बजे से बैठे है, सर एक छोटी सी एक छोटी सी request है ये बड़ी मेहरबानी होगी मुकेश कुमार मुझे पता है मैनें इतना किया है मैंने कितने पापड़ बेले है आपके लिए नरेश बिल्कुल सर बिल्कुल दस बारह दिन कोई नहीं रूकता मुझे भी पता है एक छोटी सी से कोई इंतजार नहीं करता... ये बड़ी मेहरबानी होगी मेरा छोटा भाई बाहर खड़ा है ये छोटे भाई की दकु ान है 9230.... मेरा छोटा भाई जो बाहर खड़ा है... सर भाई (श्याम सुन्दर) का फोन आया था साहब को पचास करना है सर बताओ क्या करना है....इक्ट्ठा करना है या सब का अलग अलग करना है।
मुकेश कुमार वो मेटर बाद की बात है पहले ये काम खत्म करा नरेश छोटे भाई को free कर दं ू काम खत्म हो जाए श्याम सुन्दर इधर आओ मुकेश कुमार खत्म कर यार नरेश पचास दे दे साहब को पता है या नहीं पता मुझे नहीं पता... इन छोटे वाले
पर यकीन नही है बिल्कुल भी इक्ट्ठा करना है या अलग अलग श्याम सुन्दर 70,... 50 इनके 20 उनके इस्पेक्टर साहब के मेरे हिसाब से नरेश पचास कर दं ू बात हो गयी आपकी केस तो नहीं होगा फिर बाद में........
श्याम सुन्दर अरे नहीं नहीं केस का क्या मतलब...
नरेश कोई लफडा तो नहीं मर जाएगा वो बेचारा......सर में लेने जा रहा हूं
श्याम सुन्दर जल्दी आ जाओ
मुकेश कुमार मेटर खत्म कर जहां होता है वहां खत्म कर दो। कु छ चीजें है जो हमारे
हाथ से होगी
नरेश आपके हाथ में सर.........
मुकेश कुमार मेरे हाथ में जहां तक है ना जब तक है ना मैं बचाऊंगा
नरेश आपके हाथ
मुकेश कुमार लेकिन......खत्म कर.....
श्याम सुन्दर वो तो agree नहीं हुआ था
CBI Case No. 62/2019 (1/19) Page no. 99/134
मुकेश कुमार मैंने बोल तो दिया था
नरेश इन्होंने पूरा आपके ऊपर छोड़ दिया बोला जो साहब बोलेगे वही करूगा
श्याम सुन्दर वही तो तीन दिन शनिवार को आप नहीं आए....
मुकेश कुमार शनिवार को आया.....तुम नहीं आए
श्याम सुन्दर अभी शनिवार को, अंकल कौनसे दिन आए थे
नरेश शुकवार दोपहर चौदह तारीख को
श्याम सुन्दर चलो कोई नहीं अंकल
मुकेश कुमार साइन करो.......यार हम बैठ है तेरे लिए...... कल तक बैठे है तेरे लिए
आखिर तक लड़ लेंगे तेरे लिए
77. The said part of the conversation was carefully heard in the light of the deposition of PW-1 dated 20.08.2019 (from page 7 to 8). As per his version, after he (PW-1) entered into the office of accused Mukesh Kumar, he again requested Mukesh Kumar to reduce the amount but he told him 'वो मेटर बाद की बात है पहले ये काम खत्म करा". Then he (accused Mukesh Kumar) allegedly made a gesture with his hands and eyes towards accused Shyam Sunder and asked him to talk to complainant/PW-1. Accused Shyam Sunder then took him (PW-1) in a small room which was inside the room of accused Mukesh Kumar. There accused Shyam Sunder asked complainant/PW-1 to give Rs. 70,000/-, out of which Rs.50,000/- was to be paid to Mukesh Kumar and Rs. 20,000/- to FSO and FSI.
CBI Case No. 62/2019 (1/19) Page no. 100/134
78. However, in the entire conversation of file bearing no. 180925_1034 of Q-2, accused Mukesh Kumar nowhere appears to have raised any demand for money.
Indeed there appears to be no conversation from his side relating to money. As per CBI case, it was accused Shyam Sunder, who was acting as per his directions and after he was so directed by accused Mukesh Kumar by gesture of hand and eyes, he (Shyam Sunder) took the complainant/PW-1 to a small room where he demanded Rs. 70,000/- , Rs. 50,000/- for accused Mukesh Kumar and Rs. 20,000/- for FSO and FSI. However, there is no independent evidence to support said version of complainant that accused Mukesh Kumar had gestured towards accused Shyam Sunder to ask him to talk to complainant.
79. In absence of any independent evidence, the sole testimony of the complainant cannot be believed to connect the alleged demand raised by the accused Shyam Sunder with the accused Mukesh Kumar especially, when in said conversation with accused Mukesh, complainant/PW-1 Naresh Kumar has stated that "...... मेरा छोटा भाई बाहर खड़ा है ये छोटे भाई की दक ु ान है 9230.... मेरा छोटा भाई जो बाहर खड़ा है... सर भाई का फोन आया था साहब को पचास करना है सर बताओ क्या करना है ....इक्ट्ठा करना है या सब का अलग अलग करना है।". Thereafter, after he was taken in a separate room by accused Shyam Sunder, he had a conversation with accused Shyam Sunder, where he (PW1) further uttered that "जैसे, उसने छोटे ने कहा, पचास दे देना इनको, पता नहीं साहब को पता है या नहीं पता मुझे नहीं पता...". Whereas, in the transcript said conversation with accused Shyam Sunder, which allegedly occurred in the separate room, is incomplete CBI Case No. 62/2019 (1/19) Page no. 101/134 as certain words which are audible in the conversation are missing from the transcript.
80. For clarity sake, I may again refer to the relevant part mentioned in the transcript, which reads as "पचास दे दे साहब को पता है या नहीं पता मुझे नहीं पता... इन छोटे वाले पर यकीन नही है बिल्कुल भी इक्ट्ठा करना है या अलग अलग". Whereas, this conversation is actually like, "जैसे, उसने छोटे भाई ने कहा, पचास दे देना इनको, पता नहीं साहब को पता है या नहीं पता मुझे नहीं पता..... क्यों छोटे ने मुझे कती यकीन नहीं बिलकुल भी ... ये पूछना था की इनके कितने देने है उनके अलग करने है या इनके अपने आप करेंगे साहब ... मेरे को ये doubtful हो रहा है मामला". It is after this part of speech attributed to complainant Naresh Kumar, the accused Shyam Sunder is heard saying that "70,... 50 इनके 20 उनके इस्पेक्टर साहब के मेरे हिसाब से".
81. From the above utterances of the complainant/PW-1 in Q-2, it appears that no demand was ever raised from the complainant/PW-1 . Indeed it was his younger brother Rajesh Kumar/PW-2 who asked him (PW-1) to pay Rs. 50,000/- to the Asstt. Commissioner (accused Mukesh Kumar), who has been referred as 'sahab' in the above conversation with Mukesh. But since, PW-1 had no trust on his younger brother, he (PW-1) was doubtful if such demand had been actually raised by the Asstt. Commissioner and in order to verify, he asked accused Mukesh Kumar as well as Shyam Sunder as to what was required to be done i.e. whether said amount was to be paid together or separately. It is only after this query from the complainant, accused Shyam Sunder stated that "70,... 50 इनके 20 उनके इस्पेक्टर साहब के मेरे हिसाब से". If the above CBI Case No. 62/2019 (1/19) Page no. 102/134 communication is seen in entirety, there seems to be no demand coming up even from the side of accused Shyam Sunder as he also seems to have only disclosed about the apportionment of money after he was asked so by the complainant/PW-1 in the separate room.
82. It has been argued on behalf of the CBI that in the aforementioned transcript from X to X on page 13 of Ex. PW1/H (colly), the complainant Naresh Kumar had first talked to accused Mukesh Kumar and thereafter, to accused Shyam Sunder after he was taken to a separate room. Ld PP argued that in the speech ascribed to complainant while he speaks to Mukesh in the words " .......सर भाई (श्याम सुन्दर) का फोन आया था साहब को पचास करना है.......", the word 'भाई' has been referred to accused Shyam Sunder and not to his brother Rajesh Kumar. However, the reading of portion 'X' to 'X' as a whole shows that no such inference can be gathered from said utterances. I don't feel convinced with the argument that the word "भाई" in said utterance is referable to accused Shyam Sunder. Rather in my considered view, the complainant had referred to his younger brother Rajesh, who is alleged to have called him (PW-1) to ask him to pay Rs. 50,000/-.
83. Furthermore, in the file bearing no.
180925_1034 of Q-2, the part of the conversation ascribed to the complainant from 36:55 and ending at 37:01 minutes, despite being clearly discernible has not been correctly translated in the transcript Ex.PW1/H (colly) where it reads as, "पचास दे दे साहब को पता है या नहीं पता मुझे नहीं पता... इन छोटे वाले पर यकीन नही है बिल्कुल भी इक्ट्ठा करना है या अलग अलग". I have carefully CBI Case No. 62/2019 (1/19) Page no. 103/134 heard said part of the conversation by using the headphones and same is found to be actually worded as "जैसे, उसने छोटे भाई ने कहा, पचास दे देना इनको, पता नहीं साहब को पता है या नहीं पता मुझे नहीं पता..... क्यों छोटे ने मुझे कती यकीन नहीं बिलकुल भी"
84. From the aforementioned actual content of speech, it appears that complainant/PW1 had a doubt upon his younger brother (Rajesh/PW2), who had asked him to pay Rs. 50,000/- by saying "साहब को पचास करना है" . The combined reading of said lines with the remaining part of said conversation makes it clear that 'bhai' has been referred to complainant's younger brother Rajesh Kumar and not to accused Shyam Sunder as suggested by the prosecution. Upon careful comparison of content of audio recording of Q-2, it has been found that certain parts of the transcript are not identical with the actual speech contained therein. As already noted above, the conversation in Q-2 starting from 36:55 and ending at 37:01 is mentioned in the transcript as "पचास दे दे साहब को पता है या नहीं पता मुझे नहीं पता... इन छोटे वाले पर यकीन नही है बिल्कुल भी इक्ट्ठा करना है या अलग अलग" is actually found to be worded as "जैसे, उसने छोटे भाई ने कहा, पचास दे देना इनको, पता नहीं साहब को पता है या नहीं पता मुझे नहीं पता..... क्यों छोटे ने मुझे कती यकीन नहीं बिलकुल भी ...".
85. Upon careful analysis of the actual content of the conversation contained in file no. 180925_1034 of Q-2, it does not found to contain any material to show that any demand of money originated from the side of the accused. Rather said conversation indicates that it was Rajesh Kumar/PW-2, the younger brother of complainant Naresh CBI Case No. 62/2019 (1/19) Page no. 104/134 Kumar, who asked the complainant/PW-1 to pay Rs. 50,000/- to the accused Mukesh Kumar. Had it not been so, there would not have been any occasion for the complainant/PW1 to further say it to accused Shyam Sunder after he was taken to a separate room that "जैसे, उसने छोटे भाई ने कहा, पचास दे देना इनको, पता नहीं साहब को पता है या नहीं पता मुझे नहीं पता..... क्यों छोटे ने मुझे कती यकीन नहीं बिलकुल भी". Whereas, PW-2 Rajesh Kumar, the younger brother of the complainant, in his deposition nowhere raised any such claim that it was he from whom the demand was raised by accused or that he had conveyed said demand to his brother Naresh Kumar/PW-1.
86. If the deposition of complainant/PW1 is seen in the light of the conversation contained in Q-2, he appears to have gravely improved his version by saying that after he came back to the room where accused Mukesh Kumar was sitting, he was again asked by accused Mukesh Kumar to quickly bring the money. Whereas, neither the audio recording of Q-2 nor its transcript supports said assertion of PW1 that he was again asked by accused Mukesh Kumar to quickly bring the money. In view thereof, the prosecution case suffers from serious infirmities making it completely unreliable even on post-complaint demand allegedly raised at the time of verification conducted on 25.09.2018.
Demand Raised at the Time of Trap
87. As per recovery memo dated 26.09.2018 Ex. PW1/F, at the time of trap, accused Mukesh Kumar was not present in the office. The shadow witness Gaurav Sharma was asked to wait outside the office of Asstt. Commissioner and only the complainant Naresh Kumar/PW-1 and co- CBI Case No. 62/2019 (1/19) Page no. 105/134 complainant i.e. his brother Rajesh Kumar/PW-2 went inside the office with the accused Shyam Sunder. After entering into the office, accused Shyam Sunder asked for bribe amount and accordingly, the bribe amount was handed over by the complainant to accused Shyam Sunder, who accepted the tainted amount of Rs. 50,000/- from his right hand and after folding it with left hand, he kept the same in his right hand.
88. Ex. PW1/F further mentions that at 1512 hours (03:12 pm), a missed call was received by TLO C.M.S.Negi from the mobile phone of Rajesh Kumar/PW-2, as pre- decided signal and immediately thereafter, CBI team with the independent witness Rahul Jaiswal rushed to the office of Asstt. Commissioner at the first floor where they found Rajesh Kumar and Gaurav Sharma standing outside the office. Upon an inquiry, Rajesh Kumar indicated towards the office room of Asstt Commissioner. Thereafter, CBI team with both the independent witnesses and the complainant Rajesh Kumar entered into the office. SI Umesh Kumar caught hold of the left hand of the accused Shyam Sunder while Sudeep Punia caught hold of his right hand wrist. The memo further mentions that TLO introduced himself and other members of team to the accused Shyam Sunder and challenged him for having accepted the bribe amount of Rs.50,000/- from complainant Naresh Kumar upon which, accused Shyam Sunder got perplexed and threw away the trap money in the room. From said narration of facts in the recovery memo Ex. PW1/F, it appears that when the CBI team reached the spot, the tainted money was found lying on the floor of the room as it is nowhere mentioned in the CBI Case No. 62/2019 (1/19) Page no. 106/134 memo that it was ever seen lying in the hands of the accused Shyam Sunder by the CBI team.
89. As regard the alleged presence of co-
complainant Rajesh Kumar/PW-2 at the time of trap is concerned, the version of PW-9 is totally contrary. As per PW-9 only complainant Naresh Kumar/PW-1 went inside the room. As per the examination-in-chief of PW-9, only complainant Naresh Kumar went into the cabin of accused Mukesh Kumar. Perusal of the record shows that as per the court observation, the witness/PW-9 had sought time to recall as to who were standing outside and who had entered into the cabin of accused Mukesh Kumar. But since, PW-9 did not come out with any different version, it appeared that he sustained his version to the effect that only complainant Naresh Kumar went inside the office with accused Shyam Sunder while his brother Rajesh Kumar and he himself (Gaurav Sharma) kept standing outside the office.
90. The above version of shadow witness is inconsistent with the version of PW1 & PW2, who consistently deposed that they both were called inside the office whereas, the shadow witness Gaurav Sharma was asked to wait outside. As per both the complainants, Shyam Sunder raised demand for bribe, pursuant to which, he was handed over Rs. 50,000/- by the complainant Naresh Kumar and said currency notes were kept in the right hand of the accused Shyam Sunder and while taking the currency notes, the notes also touched his left hand. Immediately thereafter, a missed call was given to the TLO, pursuant to which CBI team reached the spot and after seeing them, accused CBI Case No. 62/2019 (1/19) Page no. 107/134 Shyam Sunder threw the money on the floor and thereafter, SI Umesh and TLO caught hold of the hands of the accused Shyam Sunder. The tainted money was picked up by the independent witness Rahul Jaiswal, at the instance of CBI officials.
91. From the aforementioned version of the witnesses, one thing is clear that the shadow witness Gaurav Sharma was not present at the time of trap as he was standing outside the room. As already discussed above, there is serious discrepancy in the version of independent witness Gaurav Sharma as regard to the presence of PW-2/Rajesh Kumar at the time of trap. Both the complainants are real brothers and the complaint Ex. PW1/B with the CBI was also filed by them jointly. As such, in absence of any corroboration from some independent evidence, their sole version regarding demand and acceptance of bribe amount is not sufficient to record any finding against the accused. To draw corroboration in this regard, CBI has placed reliance on the audio recording of the memory card Q-3, wherein the conversation which occurred between the complainant and the accused Shyam Sunder at the time of trap, was recorded through DVR as the complainant/PW-1 was carrying it in his pocket at the time of trap.
92. I have carefully heard the recorded conversation of the files contained in Q-3. Relevant portion of the conversation is contained in 180925_1451 (from page 18 to 23 of transcript Ex. PW1/H (colly). Page no. 18 to 21 of transcript Ex. PW1/H (colly) contain some unrelated portion.
CBI Case No. 62/2019 (1/19) Page no. 108/134 The relevant part starts from page 22 of transcript and in the audio recording Q-3 it is between 21:57 minutes to 22:52 minutes and same is mentioned in the transcript from page no. 22 to 23. For ready reference, the relevant portion of the transcript is reproduced as under :-
नरेश चल श्याम अब सारा काम ओके और किसी से अब कोई कैस भुगतने की जरूरत नहीं और पंगा तो मेरी जान को नहीं... पचास है ऐसा नहीं कर सकते चालीस साहब को दे दे और दस एफ०एस०ओ० को दे दे नहीं मानेगा श्याम सुन्दर तुम दे दो हां चालीस नरेश दे द ू श्याम सुन्दर दे दो, देखो मैं गारंटी नहीं लेता, मेरे लिए तो तुम बहुत बड़ी चीज हो अंक्ल (दरवाजा खुलने की आवाज) वो तो हम देख लेगे कोई दिक्कत वाली बात नहीं। ऐसा कर लो कोई इश्यू नहीं है मेरे को कोई दिक्कत नहीं है ठीक है ना, देने में तो... राजकुमार बैठोगे क्या U/K कोई नहीं....
श्याम सुन्दर चल पांच मिनट बाद आना मैं कोई बात कर लू बैठ जाओ अंक्ल जी......
नरेश बैठ बैठ
नरेश मान जायेगा ना कोई दिक्कत तो नहीं
श्याम सुन्दर दे तो रहे ही है
नरेश नहीं माने फिर माना लियो और क्या
श्याम सुन्दर तब की तब देख लेगे, ये लाओ पचास है नरेश हां पचास है पचास में से चालीस रख लो दस..... unaudible मैंने फोन ना इसलिए उल्टा रख लिया लगे तुम्हें ना लगें रिकाड़िग कर रहा हूं CBI Case No. 62/2019 (1/19) Page no. 109/134
93. It is an undisputed position of law that subject to the proving of time, place, accuracy of tape recorded conversation as well as its relevancy to the case, any previous statement of the person contained in such conversation is admissible in law and can be used to corroborate the evidence given by the witness in the Court.
The tape recorded conversation are admissible in evidence subject to following conditions as laid down in the judgment Ram Singh & Ors. v. Col. Ram Singh, 1985 SCC (SUPP) 611:-
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize 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 strick proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
CBI Case No. 62/2019 (1/19) Page no. 110/134
94. The aforementioned judgment was referred by the Hon'ble Delhi High Court in the judgment 'Aashish Kumar Dubey v. State through CBI 2014(142) DRJ 396' to emphasize the point that accurate voice identification is much more difficult than visual identification because tape recordings may be altered by transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts. In this regard, Hon'ble Delhi High Court also referred to the decision of Hon'ble Apex Court in 'Nilesh Dinkar Paradkar v. State of Maharashtra (2011) 4 SCC (3)'.
95. In the transcript at page no. 22 and 23 of Ex. PW1/H (colly) as referred above, the utterance "तब की तब देख लेगे, ये लाओ पचास है" has been ascribed to accused Shyam Sunder. However, the conversation despite being repeatedly heard is found to be ambiguous and unclear, as the words mentioned as "ये लाओ" appears to have been uttered as "ये लो" and it is also not clear as to whether the same are in the voice of accused Shyam Sunder or complainant Naresh Kumar. I have also carefully gone through the expert report of voice identification available on record as Ex. PW18/A but, none of the words of said phrase/sentence "तब की तब देख लेगे, ये लाओ पचास है" were picked up by the expert for spectographic or auditory examination so as to know his opinion, if said words were in the voice of complainant Naresh Kumar or accused Shyam Sunder.
CBI Case No. 62/2019 (1/19) Page no. 111/134
96. The aforementioned conversation which has been transcribed in the transcript Ex. PW1/H (Colly) (at the bottom of page no. 22) as "तब की तब देख लेगे, ये लाओ पचास है", the conversation is unclear and indiscernible on account of background noise. Even the volume of the speech is also very low thereby, making it very difficult to understand the content of the speech or to ascertain the identity of the speaker. The words "ये लाओ पचास है/ये लो पचास है" are very unclear so as to reach to any conclusive finding as to its content or to the identity of the speakers of said phrase "ये लाओ/ये लो". Furthermore, unlike in the case of accused Mukesh Kumar, whose voice was got identified through Special Commissioner Mr. Arun Kumar Mishra/PW-11 from Food and Supply Department, Govt. of NCT of Delhi, CBI failed to get the voice of accused Shyam Sunder identified through any independent witness.
97. As as per the transcript on page no. 22 and 23 of Ex. PW1/H (colly), even at the time of trap, it is the complainant Naresh Kumar, who started the conversation regarding money by saying "चल श्याम अब सारा काम ओके और किसी से अब कोई कैस भुगतने की जरूरत नहीं और पंगा तो मेरी जान को नहीं... पचास है ऐसा नहीं कर सकते चालीस साहब को दे दे और दस एफ०एस०ओ० को दे दे नहीं मानेगा". The said part of the conversation shows that the complainant himself told the accused Shyam Sunder to have brought Rs.50,000/- and asked him if it was possible to pay Rs.40,000/- to 'sahab ko' (Asstt. Commissioner) and Rs.10,000/- to FSO. Upon which accused Shyam Sunder said that " तुम दे दो हां चालीस......... दे दो, देखो मैं गारंटी नहीं लेता, मेरे लिए तो तुम बहुत बड़ी चीज हो अंक्ल (दरवाजा खुलने की आवाज) वो तो हम देख लेगे कोई दिक्कत CBI Case No. 62/2019 (1/19) Page no. 112/134 वाली बात नहीं। ऐसा कर लो कोई इश्यू नहीं है मेरे को कोई दिक्कत नहीं है ठीक है ना, देने में तो...". As such, there is again no demand originating from the side of accused Shyam Sunder. Admittedly, said money of Rs.50,000/-, was payable to Asstt. Commissioner and FSO/FSI and not to accused Shyam Sunder. As per CBI's own case, accused Shyam Sunder (private person) was merely acting as a middlemen for accused Mukesh Kumar, who is alleged to be the kingpin of the conspiracy.
98. As per record accused Shyam Sunder has been charged for two offences, one for conspiracy with the co- accused Mukesh Kumar, punishable under Section 120B r/w 7 and 7A of PC Act and other for the substantive offence of Section 7A PC Act.
99. However, from the material on record, there is no iota of evidence to indicate that accused Shyam Sunder had demanded or accepted illegal gratification or undue advantage from the complainants as a motive or reward to induce the public servant i.e. the accused Mukesh Kumar in the instant case, by corrupt or illegal means or by exercise of his personal influence, for the purposes mentioned in Section 7A PC Act so as to attract the said provision. Indeed it is nowhere the case of CBI that accused Shyam Sunder demanded or accepted said money from complainants as a motive or reward to induce the public servant Mukesh Kumar. It is also pertinent to note that presumption as to motive and reward in Section 20 PC Act is available only for the offence of Section 7 & 11 and there is no such presumption for the purpose of Section 7A PC Act and therefore, the prosecution is required to prove the aforementioned ingredient as a matter of fact by leading CBI Case No. 62/2019 (1/19) Page no. 113/134 independent evidence.
100. As per CBI's own case, accused Shyam Sunder was merely acting as a conduit for accused Mukesh Kumar (public servant), who was allegedly the mastermind of the entire transaction. As per the projected case of the CBI, accused Shyam Sunder at the most can be said to have abetted the offence of Section 7 PC Act by aiding the accused Mukesh Kumar in the alleged transaction. But, as already noted above, CBI has miserably failed to bring on record any clinching evidence to prove the element of demand even on the part of accused Mukesh Kumar. In such a scenario, accused Shyam Sunder cannot be held liable even for the offence of abetment. Even otherwise, in the instant case no charge of abetment punishable under Section 12 PC Act has been framed against the accused Shyam Sunder.
Discrepancies in Transcript
101. During course of argument, a strong challenge has been raised by the Defence Counsels to the correctness of transcript as it is alleged that the transcripts of Q-2 and Q- 3, which are part of Ex. PW1/H (colly) are not in accordance with the actual conversation contained in Q-2 and Q-3. It was alleged that transcripts have been prepared by CBI by pick and choose method. It was argued that in the transcript of file no. 180925_1034 of Q-2, the CBI has picked up the words suiting to their case and the portion of the conversation, which is detrimental to their case has been deliberately concealed in the transcript. In this regard, the attention of the court had been specifically drawn to the conversation of file no. 180925_1034 of Q-2 starting from CBI Case No. 62/2019 (1/19) Page no. 114/134 06:50 minutes wherein, the complainant is heard to be saying"mere pass bade bhai ka phone aaya tha parveen ka mujhe 50 de de, mujhe parveen par Yakeen nahi tha"
further "Maine Kaha ki main shyam Bhai se baat karunga, parveen ne kaha main kar aaunga maine kaha tu kyo kar aayega". It is important to note that complainant/PW-1 in his cross-examination, after hearing the above portion of conversation in Q-2, not only admitted the aforementioned content of said conversation but also admitted that it was in his voice.
102. Similarly, upon careful hearing the conversation in file no. 180925_1034 of Q-2 from duration 17:30 to 17:45 minutes, the same is found containing the conversation "humein nahi kaha sahab ne-es bare mein bola bhi nahi", but no such content of the conversation is found mentioned in the transcript Ex. PW1/H (colly). During cross- examination, when the complainant/PW-1 was made to hear said part of the conversation, he gave an evasive reply by saying he was unable to hear said part of conversation. However, in the view of this court the said part of conversation is quiet discernible.
103. Similarly in File no. 180925_1451 in Q-3 the conversation between 22:44 to 22:51 minutes, the complainant can be heard saying the words "haan pachass hai, pachas aap rakh lo, possible ho to pachas mein se challis hume de do, ho sake to dus mein unko nipta do" to accused Shyam Sunder but, in the transcript Ex. PW1/H (colly), the CBI appears to have placed a distorted/incomplete version of above speech. The said part of the conversation is mentioned in the transcript in the top CBI Case No. 62/2019 (1/19) Page no. 115/134 two lines of page 23 of D-8 (Ex. PW1/H) and same reads as "नरेश :हां पचास है पचास में से चालीस रख लो दस...... unaudible मैंने फोन ना इसलिए उल्टा रख लिया लगे तुम्हें ना लगें रिकाड़िग कर रहा हूं"
104. In the light of aforementioned inconsistencies between the actual content of the questioned conversations of Q-2 and Q-3 and their transcripts placed on record, it is evidently clear that CBI has tried to mislead the court by placing distorted version of the story. Hence, no reliance can be placed on such evidence. In the light of said serious discrepancies, both the ocular testimonies of the prosecution witnesses as well as the transcript of the recorded conversation of Q-2 and Q-3 are totally untrustworthy, incredible and unreliable. In view thereof, CBI has miserably failed to prove the essential ingredient of demand both at the time of verification as well at the time of trap.
105. After careful analysis of the entire material, I am of the considered view that the material on record is neither sufficient to prove the essential ingredient of demand nor it is even otherwise credit worthy or reliable. Distorted version of the speech/conversation has been placed before the court. The transcript Ex. PW1/H (colly) is not in accordance with the actual content of the speech contained in the recorded conversation of Q-2 and Q-3.
Acceptance and Recovery of Tainted Money
106. Ld. Prosecutor has referred to the judgment in Neeraj Kumar (supra), to argue that even in absence of any demand, if any gratification or undue advantage is accepted by the public servant or any private person CBI Case No. 62/2019 (1/19) Page no. 116/134 pursuant to an offer to pay by the bribe-giver, it will still be a case of acceptance within the meaning of Section 7 or 7A of the Act. It is argued that in such a case, there is no need for prior demand by the public servant or a private person, as the case may be.
107. Ld. PP argued that even if it is believed that the offer originated from the complainant Naresh Kumar or his brother Rajesh Kumar even in that scenario, since the money was accepted by accused Shyam Sunder on behalf of accused Mukesh Kumar with the knowledge that the same has been given as a bribe to hush up the matter pertaining to inspection conducted on 14.09.2018, it will still attract the provision of Section 7 & 7A PC Act against both the accused.
108. As per CBI's case, upon the demand raised by the accused Shyam Sunder, he was handed over Rs. 50,000/- by the complainant Naresh Kumar in the presence of his brother Rajesh Kumar, who thereafter, gave a pre- decided signal to the TLO by giving him a missed call, upon which, CBI team with the independent witnesses rushed to the spot. In this regard, version of PW-1 and PW-2 is more or less on the same lines. For corroborating their version, CBI has relied upon the testimony of the TLO and the verifying officer, who reached the spot after receiving the pre-decided signal from PW-1 Rajesh Kumar.
109. As per the version of TLO C.M.S.Negi/PW-19, at 3:15 p.m, he received a missed call from co-complainant Rajesh Kumar i.e. PW-2, upon which he alerted the other team members and rushed to the office of accused Mukesh Kumar, where Rajesh Kumar and Gaurav Sharma were found CBI Case No. 62/2019 (1/19) Page no. 117/134 outside the office and when PW-19 with other team members entered into the office room of accused Mukesh Kumar, they found complainant and accused Shyam Sunder inside said room. Upon indication from the complainant Naresh Kumar, Inspector Sudip Punia and SI Umesh Kumar caught hold hands of accused Shyam Sunder, who was holding the tainted bribe money in his hands. He further deposed that accused Shyam Sunder dropped the tainted money on floor. From his version, it appears that the money was dropped on the floor by the accused Shyam Sunder after the CBI officers caught hold of his hands.
110. On the other hand, as per the version of PW-12 SI Umesh Kaushik, a missed call was received from complainant Naresh Kumar i.e. PW-1 at the mobile phone of TLO at 3:12 p.m, upon which team members were alerted and they rushed to the office of accused, where a person in white shirt and gray pant was present, who was later identified as accused Shyam Sunder. The DVR was taken from the complainant, it was switched off and accused Shyam Sunder was challenged by the TLO for taking the bribe amount. He further deposed that accused Shyam Sunder threw away the tainted money on the floor and thereafter, he PW-12 caught hold of one hand of the accused and the other hand of the accused was caught hold by Inspector Sudip Punia. Later, accused Shyam Sunder revealed that he had nothing to do with the bribe and that he had accepted it on the behest of accused Mukesh Kumar. Thereafter, upon the direction of TLO, the tainted bribe amount was recovered/picked up from the floor by the independent witness Rahul Jaiswal and the currency notes of CBI Case No. 62/2019 (1/19) Page no. 118/134 the tainted amount were found to be tallying with the GC notes mentioned in the trap memo.
111. Admittedly, the tainted amount was not recovered from the conscious possession of the accused Shyam Sunder. As per CBI's own case, the money was picked up from the floor as it was dropped by the accused Shyam Sunder after he was challenged by the CBI team for having accepted the bribe amount. Even as per the complainant/PW-1, after the CBI team came to the room, the accused Shyam Sunder threw the money on the floor but his hands were caught hold of by the CBI team and the money was picked up by independent witness Rahul Jaiswal at the instance of CBI officials. Thereafter, hand washes were prepared by the CBI team and the solutions in the bottle turned pink. Thereafter, bottles were sealed.
112. Similar is the version of complainant's brother Rajesh, who also deposed that after the CBI team entered the room, accused Shyam Sunder threw the currency notes on the floor out of nervousness and same were picked up by independent witness Rahul Jaiswal tallied it the distinctive number mentioned in the memo.
113. The defence counsel for the accused Shyam Sunder has vehemently argued that since the money was recovered from the floor and not from the possession of the accused Shyam Sunder, therefore, CBI has miserably failed to prove the recovery of the tainted amount from the accused Shyam Sunder. However, as far as the recovery of tainted amount is concerned, except the minor discrepancy regarding the time when it was thrown on the floor by the CBI Case No. 62/2019 (1/19) Page no. 119/134 accused Shyam Sunder i.e. whether it was done before his hands were caught hold by the CBI team or it was done thereafter, the evidence of all the prosecution witnesses is in consonance with each other.
114. But, as already noted above, mere acceptance without any proof of demand is not sufficient to attract any of the alleged offences of Section 7 or 7A of PC Act. Even in post trap conversation in Q-3 between accused Shyam Sunder and Mukesh Kumar, which took place after accused Shyam Sunder was directed to make a call on the phone number of accused Mukesh Kumar, there is no mention of the source of Rs.50,000/- i.e from where said money had been received by accused Shyam Sunder. In absence of source of said money being disclosed to accused Mukesh Kumar, the conduct of said accused Mukesh Kumar in responding to said call by saying "theek hai", cannot lead to an inference that said money was accepted by accused Shyam Sunder from the complainant Naresh Kumar on the behest of accused Mukesh Kumar. The version of prosecution witnesses PW-1, PW-2 and PW-12 regarding accused Shyam Sunder having conveyed to accused Mukesh Kumar that he had received Rs. 50,000/- from Naresh Kumar is contrary to the contents of the recorded conversation in file no. 180925_1553 of Q-3 as well as its transcript available on page no. 24 of Ex. PW1/H (colly), as it nowhere shows that anything was told by accused Shyam Sunder to accused Mukesh Kumar to disclose him as to from where he had received said money.
115. When the prosecution has miserably failed to establish any of the essential ingredients of demand or CBI Case No. 62/2019 (1/19) Page no. 120/134 acceptance on the part of accused Mukesh Kumar, who is alleged to be the kingpin of the conspiracy, no offence of conspiracy is made out even against the accused Shyam Sunder, who only acted as a conduit on his (Mukesh Kumar's) behalf. As already observed in preceding paras, no presumption of Section 20 PC Act is available for the purpose of proving the ingredient of motive or reward for Section 7A PC Act and same is required to be proved as an independent fact by leading cogent evidence. Although there is sufficient material on record to show that accused Shyam Sunder was conscious of the fact that the money was given by complainant Naresh Kumar to avoid cancellation of the licence of his Fair Price Shop but, it was never accepted by him (accused Shyam Sunder) with the motive or intention to induce accused Mukesh Kumar (public servant) to save complainants from their prosecution or cancellation of licence of their shop. Hence, in my considered view, the ingredients of Section 7A of PC Act are not established on record to record any finding even against accused Shyam Sunder.
116. Although it is not necessary that the person who received the gratification should have succeeded in inducing the public servant. It is also not necessary, that the recipient of the gratification should, in fact, have attempted to induce the public servant. But it is necessary that the accused should have had the animus or intent, at the time when he receives gratification that it is received as a motive or reward for inducing a public servant by corrupt or illegal means. Hence, mere acceptance of money by the accused Shyam Sunder without any intention on his part to receive it CBI Case No. 62/2019 (1/19) Page no. 121/134 as a motive or reward to induce any public servant, is not sufficient to prove the charge of Section 7A PC Act.
Validity of Sanction under Section 19 of PC Act
117. It was vehemently argued on behalf of accused Mukesh Kumar (public servant) that no valid sanction was obtained by CBI for prosecution of said accused. It was argued that the sanction order dated Ex. PW14/A is apparently defective as the same was accorded by the competent authority without application of mind and same is also evident from the fact that a draft sanction Ex.PW14/D2 was sent to PW-14 alongwith the request letter of CBI Ex. PW14/D1. Ld. Counsel submitted that at the time of examination of PW-14, the official noting file of the sanction accorded in this case for the prosecution of accused Mukesh Kumar was summoned by the court and PW-14 was shown the aforementioned letter Ex. PW14/D1 and the accompanying draft sanction order Ex. PW14/D2 and he admitted that said draft sanction order was received by him alongwith the letter Es. PW14/D1.
118. It is further argued that another letter of same date of 04.12.2018 sent by SP, CBI to Director (Vigilance), Govt. of NCT was also admitted to have been received by PW-14 and vide said letter, CBI had requested Director (Vigilance) to place before the competent authority the CBI report and the supporting material for its perusal and application of mind before giving sanction for prosecution in respect of the named official. It was argued that admittedly, none of the documents mentioned at serial no. (i) to (xvii) on page 1 of the sanction order were available in the sanction file, which clearly shows that no such documents were ever CBI Case No. 62/2019 (1/19) Page no. 122/134 placed before competent authority for application of mind.
119. I have carefully perused the testimony of PW-14 and also given thoughtful consideration to the rival contentions on the point of sanction. During his cross- examination, PW-14 admitted that at the time when the sanction was granted for prosecution of accused Mukesh Kumar, the copy of questioned recordings were not received nor there is any mention of said copies even in the sanction order. He admitted that as per document (iv) mentioned in the sanction order, only transcripts of the questioned telephonic conversations were received.
120. It is trite law that grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.
121. In 'CBI v. Ashok Kumar Aggarwal (2014) 14 SCC 295' the Hon'ble Apex Court observed that the order of sanction must exfacie disclose that the sanctioning authority had considered the evidence and other material placed before it. While referring to the previous case law on the point of sanction under section 19 PC Act, Hon'ble Apex summarised the legal position and the relevant para of the judgment is reproduced as under :-
8. In view of the above, the legal propositions can be summarised as under:
(a) The prosecution must send the entire relevant record to the sanctioning authority CBI Case No. 62/2019 (1/19) Page no. 123/134 including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.
122. The aforementioned judgment in Ashok Kumar Aggarwal (Supra) was referred by Hon'ble Delhi High Court in a recent judgment of 'Joginder Singh Malik v. CBI in Crl. A No. 1302/2010' decided on 08.12.2022, where it was observed that "....the order of sanction should speak for itself and make it evident that the sanctioning authority had gone through the entire set of record, relevant for the purposes of determining as to whether a prima facie case is made out against an accused, and then accorded sanction under Section 19 of P.C. Act, 1988. The sanctioning authority CBI Case No. 62/2019 (1/19) Page no. 124/134 is required to peruse the entire record produced by the prosecution without any bias and then either provide the sanction or reject the request for sanction."
123. Even in the aforementioned case Joginder Singh Malik (Supra), the Hon'ble High Court rejected the trial court view regarding due application of mind by the competent authority on the ground that the sanctioning authority did not go through the recordings prepared by CBI qua the demand of bribe. The relevant para of the judgment is referred as under : -
"26. However, it is noteworthy that PW-1, in his cross-examination, has admitted that he did not go through the recordings prepared by the CBI qua the demand of bribe by appellant. This shows that either the sanctioning authority did not deem it appropriate to hear the recordings which were allegedly going to prove or disprove the demand of bribe by the appellant, or that the said recordings were not even placed before the sanctioning authority. These circumstances highlight that there has been a lack on the part of sanctioning authority (PW-1) in application of mind while according sanction against the appellant. This Court, thus, cannot accept the view of the learned Trial Court that a bare perusal of the sanction order, along with the statement of PW-1 that he had applied his mind, reflects that the sanctioning authority has passed this order after due application of his mind."
124. Even in the instant case, there is no mention about receipt of copies of questioned recordings in the sanction order. As per sanction order only transcripts of telephonic conversation were sent to the competent authority. Even PW-18 admitted in his cross-examination that only the transcript of questioned conversation were sent with the letter of request and copy of recorded CBI Case No. 62/2019 (1/19) Page no. 125/134 conversation was never sent for consideration of sanctioning authority. Admittedly, by the time, the sanction was accorded for the prosecution of the accused Mukesh Kumar, the CFSL report regarding voice identification was yet not ready and the original recordings contained in Q-1, Q-2 and Q-3 were still lying in the CFSL. However, nothing stopped the IO to prepare the copies of said recordings from his own investigation copies from which he had prepared the transcripts on 08.10.2019. Even the competent authority did not make any effort to obtain the copies of recorded conversation, which were allegedly carrying the incriminatory material to verify the contents of the transcripts placed before it for its consideration.
125. For said flaw on the part of the IO in not sending the copies of the recorded conversation Q-1, Q-2 and Q-3 to the sanctioning authority, the sanction accorded becomes defective as there can be no application of mind in absence of such material evidence, which left to be placed before the sanctioning authority. After analyzing aforementioned facts in the light of the judgment in Joginder Singh Malik (supra), I am of the considered view that the sanction under Section 19 of PC Act accorded for prosecution of accused Mukesh Kumar was defective as the competent authority was provided with only the transcript of the recorded conversation and the recordings Q1,Q2 and Q3 were never made available to the sanctioning authority for verifying the content of transcript qua the demand of bribe allegedly raised by said public servant Mukesh Kumar. This clearly shows lack of application of mind on the part of sanctioning authority while according sanction against said CBI Case No. 62/2019 (1/19) Page no. 126/134 accused. In view thereof, accused Mukesh Kumar deserves to be acquitted also for lack of valid sanction under section 19 PC Act.
Admissibility of Voice Recordings
126. Ld. Defence Counsel Sh. Sanjay Gupta for accused Mukesh Kumar, has raised a strong objection on the admissibility of the CFSL report Ex.PW18/A. First objection is for lack of notification of CFSL under Section 79A IT Act and second is regarding competency of the expert witness/PW-18 to give any opinion on the voice identification.
127. The above contention regarding lack of notification of CFSL by the Central Government u/s 79A of the Information Technology Act, has been refuted by Ld. PP by submitting that the word 'may' used under Section 79A of IT Act, makes it clear that the provision is not mandatory as it provides that the Central Government may authorize or notify any department, body or agency to examine the electronic evidence. The provision would not mean that unless an agency/laboratory is notified by the Central Government, it would not be competent to examine the electronic evidence. She further submitted that CFSL is duly certified from National Accreditation Board of Testing and Calibration Laboratories and therefore, it is competent to examine any electronic record and give its report.
128. I have considered the above submissions raised from both the sides and also perused the relevant provision of Section 45A of Indian Evidence Act and Section 79A of the Information Technology Act, which read as under:-
CBI Case No. 62/2019 (1/19) Page no. 127/134 Section 45A Evidence Act :- When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer recourse or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.
Section 79A I.T. Act :- Central Government to Notify Examiner of Electronic Evidence The Central Government may, for the purposes of providing expert opinion on Electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence."
129. Perusal of the aforementioned provisions however, shows that they nowhere provide that in absence of such notification, opinion based on scientific examination given by a person well versed or skilled in such science, would not be admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of section 79A of I.T. Act that the report given by any other authority/lab would be inadmissible in evidence. In this regard, I draw support from the judgment of Hon'ble Madras High Court in the case of K. Ramajayam Vs Inspector of Police, Chennai 2016 Cr.LJ 1542, on the issue of Section 79A of I.T. Act, wherein it was observed that "It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW 23) and CBI Case No. 62/2019 (1/19) Page no. 128/134 Pushparani (PW24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."
130. As far as the 2nd objection relating to competency of expert witness PW-18 is concerned, the attention of the court was drawn to his testimony wherein, he deposed that he was B.Sc (PCM), B.Ed (physics and Maths) and had also done Certificate course of Forensic Science from Delhi University. But in his cross-examination, PW-18 admitted that certificate course of Forensic Science was done by him from Delhi University but voice identification examination was not the part of said certificate course. He further admitted that he did not possess any specialized educational qualification in the field of voice examination including acoustic, linguistic and phonetics. Further that linguistic was not a subject of science.
131. It is settled law that voice of the person alleged to be speaking can be identified either by the maker of the record or by the person conversant and familiar with the voice of alleged speaker or through testimony of voice identification expert, who is qualified and competent to make a comparison of the disputed voice and the admitted/specimen voice on a scientific basis. For proving the voice of accused Shyam Sunder, the prosecution has taken recourse of the third mode by relying on the opinion of the expert PW-18, who proved his report as Ex. PW18/A. For proving the voice of accused Mukesh Kumar, the prosecution has relied upon both, second and third mode as beside CBI Case No. 62/2019 (1/19) Page no. 129/134 examining the expert, the prosecution has also got his voice identified through Mr. Arun Kumar Mishra, who has been examined as PW-11. However, no independent witness was examined by the prosecution for the voice identification of the accused Shyam Sunder.
132. Undoubtedly, on account of imperfect nature of science of voice identification and vulnerability of the voice recording to tampering and distortion, the courts have been slow in placing reliance on such evidence based on expert opinion especially, when there is no independent substantive evidence led in this regard. Normally, the expert opinion regarding handwriting or voice identification are not regarded as conclusive and it is considered dangerous to base a conviction solely on the basis of expert report. As a rule of prudence, courts always look for corroboration before acting on such evidence. Because of the imperfect and frail nature of such evidence, the courts are cautioned to exercise extra care and caution before acting on any such opinion. Before relying upon any expert report, the court has to first satisfy itself about the competency of the expert.
133. However, as per deposition of PW-18, he was B.Sc, B.Ed with certificate course in Forensic Science, which he had done from Anthropology Department of Delhi University. As per his own admission voice identification was not part of said certificate course nor did he possess any specialized qualification in the field of voice examination including acoustic, phonetic and linguistic. There is no material on record to show that PW-18 had any expertise in the field of voice identification as neither he has any CBI Case No. 62/2019 (1/19) Page no. 130/134 specialized educational qualification for said purpose nor he had sufficient experience in that field. Though as per his testimony, he had the experience of 21 years in voice/speech identification but, without studying the subject and having any necessary educational qualification in said field, a person cannot become an expert merely by publishing some research paper.
134. Furthermore, in his cross-examination PW-18 admitted that his report Ex. PW18/A, was merely a probable report. But in a criminal trial, no finding of guilt can be recorded on the basis of probabilities. Reliance in this regard has been placed on the judgment of Hon'ble Delhi High Court in 'Ajay Gupta v. State (CBI) Crl. Appeal no. 469/2003 decided on 28.10.2022'.
135. The third argument raised by the Ld. Defence Counsel is that the transcripts of the questioned conversation Q-1, Q-2 and Q-3 were already provided to the expert, which PW-18 had admitted in his cross-examination. It was further argued that the IO however, did not mention about the sending of copies of the transcripts in the forwarding letters Ex. PW18/DA and Ex. PW18/DB nor there is any reference about receipt of any such copies in the acknowledgment of receipt given on said forwarding letters. The defence counsels argued that availability of the transcript of the conversation with the names of the speaker to whom said conversation has been ascribed, tends to create a prejudice in the mind of the expert. To buttress his arguments. Ld. Counsel has placed reliance on the judgment in Nilesh Dinkar(supra), wherein, Hon'ble Apex Court CBI Case No. 62/2019 (1/19) Page no. 131/134 referred to certain foreign case law/jurisprudence for emphasizing the need for minimum safeguards required to be observed before placing reliance on voice identification evidence. The relevant paras of the judgment reads as under :
37. The Court of Appeal in England in R v.
Chenia and R. v Flynn has reiterated the minimum safeguards which are required to be observed before a Court can place any reliance on the voice identification evidence, as follows:-
"(a) the voice recognition exercise should be carried out by someone other than the officer investigating the offence;
(b) proper records should be kept of the amount of time spent in contact with the suspect by any officer giving voice recognition evidence, of the date and time spent by any such officer in compiling any transcript of a covert recording, and of any annotations on a transcript made by a listening officer as to his views as to the identify of a speaker; and
(c) any officer attempting a voice recognition exercise should not be provided with a transcript bearing the annotations of any other officer."
38. In America, similar safeguards have been evolved through a series of judgments of different Courts. The principles evolved have been summed up in American Jurisprudence 2d (Vol. 29) in regard to the admissibility of tape recorded statements, which are stated as under:
"The cases are in general agreement as to what constitutes a proper foundation for the admission of a sound recording, and indicate a reasonably strict adherence to the rules prescribed for testing the admissibility of recordings, which have been outlined as follows:
(1) a showing that the recording device was capable of taking testimony;
(2) a showing that the operator of the device CBI Case No. 62/2019 (1/19) Page no. 132/134 was competent;
(3) establishment of the authenticity and correctness of the recording;
(4) a showing that changes, additions, or deletions have not been made;
(5) a showing of the manner of the preservation of the recording;
(6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.
... However, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said."
136. In the instant case, both the expert witness for voice identification i.e. PW-18 as well as the witness who was allegedly familiar with the voice of the accused Mukesh Kumar i.e. PW-11, were having prior knowledge about the identification of the person to whom the voice was attributed by the CBI. As already noted above, PW-18 in his cross-examination admitted that he was handed over the transcripts of all the questioned conversation and the names of the person to whom the voices were ascribed were mentioned in the transcription.
137. In view of said circumstances, the expert opinion on the identification of voice is also not free from doubts and suffers from so many infirmities. The voice identification done by the witness PW-11 on 08.10.2018, is also not reliable as no attempt was made by the IO to mix the questioned voice of the accused Mukesh Kumar with some other unidentified voices before getting the same identified through PW-11. Moreover, there is a discrepancy in the CBI Case No. 62/2019 (1/19) Page no. 133/134 version of complainant Naresh Kumar/PW-1 regarding the presence of his brother Rajesh Kumar/PW-2 at the time of preparation of the voice identification memo dated 08.10.2018 Ex. PW1/G. The said version of PW-1 is contrary to the testimony of PW-2, who denied to have visited CBI office for the purpose of voice identification on 08.10.2018 and even the voice identification memo dated 08.10.2018 Ex. PW1/G is not in conformity with the version of PW-1 as it also does not bear the signatures of PW-2. In view thereof, no conclusive evidence has been adduced by the prosecution for identification of the alleged voices of the accused persons in the recorded conversation Q-1, Q-2 and Q-3 prepared by the CBI qua the demand of bribe.
Conclusion
138. In the light of the foregoing discussion, I am of the considered view that prosecution case is shrouded with serious infirmities, discrepancies and contradictions. CBI has miserably failed to bring any cogent and clinching evidence so as to record the finding of guilt against any of the accused persons for any of the alleged offences. The essential ingredients of 'demand', 'acceptance' and 'motive or reward' for the purpose of Section 7 & 7A PC Act have remained unproved and as a consequence, prosecution miserably failed to prove its case beyond reasonable doubt against both the accused. As a consequence, both the accused Mukesh Kumar (public servant) and Shyam Sunder Digitally signed (private person) are acquitted in this case. by SUNENA SUNENA SHARMA Date:
SHARMA 2025.01.30 Announced in the open court 16:41:43 +0530 on 30th January, 2025 (Sunena Sharma) Special Judge (PC Act), CBI-20 Rouse Avenue Court Complex New Delhi.
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