Delhi District Court
State (Cbi) vs Shammi Kapoor on 7 September, 2012
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03 CBI NEW DELHI DISTRICT,
NEW DELHI
CC No.27/2011
RC No.47 (A)/2008/CBI/ACB/ND
In re:
STATE (CBI)
VS
1. SHAMMI KAPOOR
S/O MADAN LAL KAPOOR
R/O 1020, THIRD FLOOR,
RANI BAGH, NEW DELHI.
2. JAGDISH CHAUHAN
S/O LATE SHRI VEER BHAN
R/O 187, VIVEKANAND PURI
NEAR SARAI ROHILLA POLICE
STATION, DELHI.
Date on which charge sheet was filed -30.06.2009
Date on which charges were framed 19.03.2010
Date on which judgment was reserved 29.08.2012
Date on which judgment was Pronounced 07.09.2012
APPEARANCES:
Mr. SC Sharma, Ld.PP for CBI.
Mr. Umesh Sinha, Ld. Counsel for the accused Shammi Kapoor.
Mr.Devender Khatana, Ld. Counsel for accused Jagdish Chauhan.
State (CBI) v. Shammi Kapoor & Anr. Page No.1/31
2
07.09.2012
JUDGMENT
Accused Shammi Kapoor (hereinafter referred as A1) , s/o Madan Lal (A1)posted and functioning as Head Constable in CBI/ACB/ND alongwith coaccused Jagdish Chauhan (hereinafter referred as A2) s/o late Shri Veer Bhan have been arraigned for trial on the allegations that during November, 2008 they entered into a criminal conspiracy in order to demand and accept illegal gratification from complainant Surinder Wadhwa in order to save him from being inquired into by A1 in some pending complaint with the CBI and pursuant thereto complainant was approached and meeting took place and on 12.11.2011 a sum of Rs. 25,000/ was demanded and accepted by A1from complainant Surinder Wadhwa at 6.30 PM at Barista Restaurant, Defence Colony, New Delhi in pursuance of the criminal conspiracy.
FACTS
1. The case of the prosecution is that case was registered on 12.11.2008 by the CBI/ACB/New Delhi on the written complaint of Surinder Wadhwa (PW4) i.e. Ex.PW4/A dated 07.11.2008, whereby the complainant stated that "he was resident of C191, Defence Colony, New Delhi and running a company in the name of M/s. Sidharth Optical Disc (P) Ltd. with his wife as the other Director from C3/12 Mayapuri, PhaseII, New Delhi and that on 06.11.2008 he got a call on his mobile no.9818115524 from Jagdish of M/s. State (CBI) v. Shammi Kapoor & Anr. Page No.2/31 3 Jagdish Printers from his mobile no.9810560022 , who informed him that one CBI Officer Shammi Kapoor was inquiring into some complaint against him and wanted to meet him on some public place; that Subsequently he received 23 calls from landline number starting with "2436" digits made by Shammi Kapoor, who informed him that he was handling a complaint against some Inspector Ranbir Singh of Delhi Police, in which his name was also cropped up during investigation and accused A1 demanded money for removing his name; and on following day he received a call from A2 who insisted him to meet A1; and that he did not want to pay any bribe as he had no link with any Ranbir Singh and therefore he wanted action against the offenders."
2. The complaint was marked by the SP concerned as per endorsement at pointA on Ex.PW4/A to Inspector Navneet Krishnan and Inspector Sanjay Dhall was also associated so as to verify the allegations in the complaint. It is the case of the State (CBI) that on 1720 hours a call was received on complainant's mobile no.9818115524 from mobile no.9810560022 of A2 on whose instance call was passed over to complainant who spoke to A1 and the telephonic conversation was recorded on the mobile of the complainant, that revealed that A1 wanted the complainant to meet him at Barista Coffee Home, Defence Colony, New Delhi at 2000hrs; that efforts were made to arrange for witnesses from State (CBI) v. Shammi Kapoor & Anr. Page No.3/31 4 Nizamuddin Railway Station, but due to paucity of time, witnesses could not be secured and without wasting time the CBI led by Inspector Navneet Krishnan and Inspector Sanjay Dhall reached Barista Coffee Home, Defence Colony; that a Digital Voice Recorder (DVR) was arranged, which was given to the complainant with instructions how to switch on the same as and conversation was struck with the accused.
3. In brief, the case of the prosecution is that, both the accused persons came to the coffee home and met the complainant and during the discussion A2 called upon the complainant to pay Rs. 15,000/ to A1 on Monday at about 1330 hrs. After the accused persons went away, the recorded voice in DVR was played that confirmed the allegations in the complaint Ex.PW4/A and verification memo was prepared vide Ex.PW4/B but the voice identification memo and transcription could not be prepared, since the complainant expressed his inability to remain present due to some emergent work and next day the Inspectors came to the residence of PW4 when the recorded conversation was transferred from DVR into blank audio cassette Q2 and sealed besides were prepared transcriptioncumvoice identification memo Ex.PW4/D alongwith transcript Ex.PW4/C.
4. It is the case of the State (CBI) that on 12.11.2008, A1 rang up the complainant at 1250hrs. and asked him to bring Rs.25,000/ State (CBI) v. Shammi Kapoor & Anr. Page No.4/31 5 at Barista Restaurant at 1830hrs; that the said call was recorded by the complainant on his mobile having an inbuilt software and complainant came to the office of CBI' where voice identification memo ExPW4/F was prepared besides transcript Ex.PW4/E and as the demand of bribe by A1 was established, a case was registered vide FIR Ex.PW5/A. The recorded conversation was transferred into a CD Mark Q3 and sealed.
5. The case of the CBI is then on a usual pattern during the pre trap proceedings. Rs.25,000/ were arranged by the complainant Marked Ex.P11 (colly) in the shape of 25 GC notes of Rs.1000/ denominations and two independent witnesses Bhuvneshwar Kumar (PW5) Inspector from Service Tax Department and Anil G.Ghanekar (PW6) Inspector from Customs Preventive Commissionerate were roped in, in whose presence the numbers of the currency notes were noted down and a demo was given by applying Phenolphthalein Powder on the GC notes produced by the complainant and hand wash were taken in solution of Sodium Carbonate; that the practical aspects of trap proceedings were explained, the complainant PW4 was instructed to use the DVR and independent witnesses were directed to go to Barista Coffee Home and occupy a table near the table of complainant, where he was supposed to meet A1. The witnesses were directed to oversee the entire operation of the handing over of the money and place a State (CBI) v. Shammi Kapoor & Anr. Page No.5/31 6 missed call on the mobile of Inspectors Navneet Krishanan and Sanjay Dhall on completion of the transaction, while PW4 was instructed to remove his blazer to signal about completion of deal; and that the entire proceedings were noted down in the handing over memo Ex.PW4/G.
6. The case of the State (CBI) then is that A1 reached the spot and started having a discussion with complainant while the independent witnesses remained seated on the nearby table ; that after sometime preappointed signal was given by the complainant as well as the independent witness Anil G.Ghanekar and immediately the CBI team rushed inside and apprehended A1 and confronted him for having demanded and accepted Rs.25,000/ from the complainant; that A1 remained silent and complainant confirmed that A1 had demanded and accepted bribe from him with his left hand and transferred the amount to his left side pocket of the pant and the independent witnesses corroborated the version of the complainant ;that accused was apprehended by his wrists and hand washes were taken, which turned the solution pink, which was transferred into two neat and clean glass bottles, which were marked RHW and LHW; that during the proceedings the Manager of the Restaurant namely Dharamvir (PW12) was also associated; and that PW6 Anil G.Ghanekar recovered the bribe amount from the left side pocket of A1; that numbers of the State (CBI) v. Shammi Kapoor & Anr. Page No.6/31 7 currency notes were confirmed from the handing over memo (Ex.PW4/G) and during the proceedings the pant of the accused was removed and inner linings of the left pocket wash was taken, which turned into pink and the solution was transferred into a neat and clean glass bottle, which was marked LHPPW; that during the proceedings, the DVR was taken back from the complainant and the recorded conversation was heard and the conversation was transferred into two blank audio cassettes, one of which was marked Q1 and sealed at the spot and the accused was arrested at 21:15:00 hrs vide memo Ex.PW5/A.
7. It is the case of the prosecution that during the investigation, call records of the mobile phone of accused besides that of the complainant were obtained and examined; that expert report of the chemical examiner was obtained besides that of voice expert on the recorded conversations; and that after recording statement of the witnesses and obtaining sanction u/s. 19 of the PC Act, 1988, present charge sheet was filed against the accused persons. CHARGE
8. Both the accused were conjointly charged u/s. 120B IPC r/w Sections 7 and 13 (1) (d) r/w 13 (2) of the PC Act. A1 was separately charged for committing substantive offences u/s. 7 and 13 (1) (d) r/w 13 (2) of the PC Act. Needless to state that both the accused pleaded not guilty and claimed trial.
State (CBI) v. Shammi Kapoor & Anr. Page No.7/31 8 PROSECUTION EVIDENCE
9. The prosecution in order to prove its case examined 12 witnesses. The main witnesses for the prosecution were of course PW4 Surinder Wadhwa, PW4 Bhuvneshwar Kumar and PW6 Anil.G.Ghanekar and I shall dwell on their evidence later in the judgment. The other public witness was PW12 Dharamvir, who was the Manager of Barista Restaurant in whose presence the proceedings were conducted by the CBI officials in the restaurant.
10. Sanction for prosecution was accorded by PW1 Sumit Sharma, SP,CBI,ACB,New Delhi, who deposed order dated 30.06.2009 Ex.PW1/A.
11. The mobile records in this case were produced by PW2 RK Singh from Bharti Airtel Cellur Ltd., who deposed that he supplied the information in regard to mobile no.9818115524 in the name of Surinder Wadhwa and mobile no.98109560022 of Jagdish Chauhan(A2) to CBI vide letter dated 22.12.2008 Ex.PW2/A. The information was in the nature of call details for the period 06.11.2008 to 12.11.2008 Ex.PW2/B and Ex.PW2/C respectively alongwith certified copy of subscriber enrollment form alongwith ID proofs were also supplied , which are marked Ex.PW2/D and Ex.PW2/E (colly) respectively.
12. Expert witnesses were PW3 was D.K.Tanwar, Sr. Scientific Officer, GradeI (Physics), CFSL,CBI, who deposed examining the State (CBI) v. Shammi Kapoor & Anr. Page No.8/31 9 sealed documents Q1, Q2 and Q3 besides specimen audio cassettes S1 and S2 and deposed about report Ex.PW3/A thereby opining that the questioned audio cassettes contained voice of the accused persons; an another expert was PW10 was V.B.Ramteke, Senior Scientific Officer, who deposed examining the bottles Mark LHW, RHW and RSPPW that are Ex.PI, PII and PIII respectively and giving report Ex.PW10/A to the effect that the contents of the bottles contained traces of Phenolphthalein.
13. PW7 was Dy.SP Navneet Krishnan, who was the Trap Laying Officer during the relevant time. PW11 was Inspector Sanjay Dhall, who supported the broad case of the prosecution in regard to verification and allegations of the complaint and pre trap, trap proceedings and post trap proceedings. PW8 was Rohit Kumar, who was granted permission on 12.12.2008 by the Ld. Special Judge to investigate the matter as per Section 17 of the PC Act. He deposed about various steps taken by him for preparation of the transcripts of the recorded conversations, obtaining the call records of the complainant and accused persons from the mobile service providers and obtaining the chemical examination report from CFSL besides filing the charge sheet on 30.06.2009. PW9 was Inspector Pramod Kumar, who deposed that on 25.09.2000 he had taken specimen voice of A1 in the presence of PW6 Anil .G. Ghanekar in a CD already Mark P15 and prepared the Specimen State (CBI) v. Shammi Kapoor & Anr. Page No.9/31 10 Voice Recording Memo Ex.PW9/A. STATEMENT OF ACCUSED
14. On the close of the prosecution evidence, both the accused were separately examined u/s. 313 Cr.PC., and on putting the incriminating facts and circumstances brought by the prosecution on the record, both accused in chorus denied the prosecution case and stated that they have been falsely implicated in this case. DEFENCE EVIDENCE
15. In defence, A1 examined DW1 Mohd. Shajid, who deposed that on 12.11.2008 he saw somebody forcibly putting something in the shirt pocket of A1 who protested and then some people entered inside the restaurant and caught hold of A1 telling all present to go outside.
ARGUMENTS
16. I have heard Ld.Sr.PP for the State (CBI) and Ld. Defence Counsel for the Act. I have perused the record carefully and minutely.
SANCTION FOR PROSECUTION
17. At the outset, the competency of PW1 to accord sanction for prosecution vide order dated 30.06.2007 Ex.PW1/A has not been not assailed. However, it is vehemently urged that the sanction was a mechanical order in as much as in para 19 of the order, the name of some other person i.e. JP Singh is mentioned instead of accused State (CBI) v. Shammi Kapoor & Anr. Page No.10/31 11 Shammi Kapoor. This irregularity was put to PW1 in his cross examination and he gave an excuse that it was an inadvertent typographical mistake. The evidence of PW1 visavis the perusal of the sanction order Ex.PW1/A brings out that the entire material was considered by the sanctioning authority before according sanction for prosecution. That included not only the statement of the witnesses recorded u/s. 161 Cr.P.C. but also the report of the Chemical Examiner as also the call records of the accused and the complainant apart from the report of the voice expert D.K. Tanwar. The sanction order could only become non est in law in terms of Section 19 (4) of the PC Act if it has occasioned or resulted in failure of justice and in considering such issue, the court may have regard to the fact whether the objection could and should have raised at an earlier stage in the proceedings. Well, the fact is that no objection was taken at any earlier stage of the proceedings and so far as the error in mentioning the correct name of the accused Shammi Kapoor is concerned, it appears to be an oversight due to typographical error and in the succeeding para 20, the sanction for prosecution was indeed granted against the accused by his name. I, therefore, find that sanction for prosecution has been validly granted and has been proved by the prosecution. APPRECIATION OF EVIDENCE (PRE TRAP PROCEEDINGS).
State (CBI) v. Shammi Kapoor & Anr. Page No.11/31 12
18. In order to decide the instant case, it would firstly be expedient to refer to the testimony of complainant PW4. His testimony reads that he was contacted by A2 on 06.11.2008 and apprised that there was a complaint pending against him, which was being inquired by A1 a CBI Officer, who wanted to meet him and after sometime he received a call on his mobile from someone who identified himself as Shammi Kapoor and informed him that a complaint had been received in connection with the pending investigation against Inspector Ranbir Singh of Delhi Police and that he would be able to take care of his interest, if something is paid to him. His testimony goes further to the effect that on 07.11.2008 A2 called him again and told him to meet A1; that as he did not want to pay money and was worried as well, he lodged a complaint Ex.PW4/A with CBI and the SP concerned called Navneet Krishnan (PW7) and Sanjay Dhall (PW11) and the complaint was marked to them to verify the same. His testimony goes that at 5.30 PM as he was discussing the case with the CBI officials, he received a call from Jagdish , who handed over his mobile to A1; that the mobile was on 'speaker mode' and it was heard that A1 told the complainant to meet him at Barista Restaurant, Defence Colony, New Delhi at 8.00 PM later in the evening.
State (CBI) v. Shammi Kapoor & Anr. Page No.12/31 13
19. In so far as the testimony of PW4 complainant Surinder Wadhwa upto this stage is concerned, Shri Umesh Sinha, ld.counsel for A1 urged that in the call data record of mobile of complainant no. 9818115524 Ex.PW2/A and correspondingly in the CDR in respect of mobile no.9810560022 of A2 no call was recorded on 06.11.2008. The CDR Ex.PW2/B indicates that on 06.11.2008 an SMS was received from the mobile of A2 at 21:27:04 but in the corresponding CDR Ex.PW2/C I do not find such data. Confronted with this position, PW4 pointed out that in the Ex. PW2/B there are many calls that wrongly recorded as 'SMS'. Any how PW4 and I.O. PW10 in their cross examination on this issue stated that PW4 had been using more than one mobile and it could be a case of confusion. All that can be said is that mere irregularity in investigation in this regard can not obliterate the entire trial.
20. So far as 07.11.2008 is concerned, the CDR Ex.PW2/B and Ex.PW2/C tally in so far as call exchanged at 12:06:00 ; 20:18:00 and 20:29:30. It is also pertinent to mention here that PW4 stated that he received the call on 07.11.2008, which was a landline number with starting digits "2436" and it is in the cross examination of PW4 that he had spoken to A2 about demand raised by A1 and A1 conveyed that he would lodge a complaint against him. The story of 07.11.2008 is further unfolded in the testimony of PW4 to the effect that efforts were made to arrange public witnesses, which could not State (CBI) v. Shammi Kapoor & Anr. Page No.13/31 14 succeed , which is corroborated by PW7 Dy.SP Navneet Krishanan and PW12 Inspector Sanjay Dhall. The evidence led by complainant PW4 Surinder Wadhwa as corroborated by PW7 Dy.SP Navneet Krishanan bring out that when they reached Barista Restaurant; that they found A2 Jagdish Chauhan already sitting with someone, who was introduced as A1 Shammi Kapoor. PW4 deposed that during the conversation A1 assured him that everything was within his control and he would clear his name and A2 suggested that he would pay Rs.10,000/ to A1 and he would debit that amount in his account, that he said that he would himself pay the amount with his own hands and he would also hug A1; that A1 was not satisfied with Rs.10,000/ and said (retorted) to leave the issue; that he suggested to increase the amount to Rs. 15,000/ but A1 was not satisfied and told him to settle the matter around next Diwali time.
21. Well, the PW4 testified about the gist of the conversation, which is further elaborated in the recorded conversation Q2 (Ex.P5). The recorded conversation was played in the court, wherein the voices of A1 and A2 were identified by PW4 and its transcript Ex.PW4/C was found to be ditto as the recorded conversation in Q2 . I would come later to the challenge that has been raised against the questioned recorded conversation. At this stage, what I find is that recorded conversation in Q2 (Ex.P5) vis State (CBI) v. Shammi Kapoor & Anr. Page No.14/31 15 àvis transcript Ex.PW4/C would show that during the discussion A1 mentioned that he was talking unofficially to the complainant PW4; that Inspector Ranvir Singh of Delhi Police was under
investigation, who had taken bribe from PW4 earlier and there was a suspicion that PW4 was holding some share for Inspector Ranbir Singh. The discussion reveals that some case was being investigating against Inspector Ranbir Singh of Delhi Polce about disproportionate assets and A1 hinted that he would have visited the factory of PW4 to inquire and examine the financial records to find out if PW4 was holding any money and share for Inspector Ranbir Singh.
22. During the discussion, A1 appears to have given a subtle threat that if the complaint is not taken care of or if he is displeased, PW4 would be in trouble; that it was during the discussion that A2 suggested to pay Rs.10,000/ on which A1 got little agitated for having been offered such a meager amount, and it seems that PW4 complainant tried to pacify him agreeing to pay Rs. 15,000/ and there were uttered some taunting words by A1 discarding any friendship with A2 or for that matter with PW4 and suggesting that they would rather meet at next Diwali. Any how, it appears from Q2 and Ex.PW4/C that the discussion ended when A2 and complainant PW4 requested A1 not to mind their words and they decided to meet on Monday.
State (CBI) v. Shammi Kapoor & Anr. Page No.15/31 16
23. The very fact that A1 met PW4 at Barista Restaurant, while there was no prior acquaintance as such between A1 and the complainant coupled with the recorded conversation as coming out in the transcript Ex.PW4/C clearly lay down a circumstantial foundation of mens rea on the part of A1 in seeking illegal gratification from the complainant in order to get his name cleared from the pending investigation or else he did give a veiled threat to harass him. It is in evidence without any challenge that verification memo was later on prepared at the spot, which is Ex.PW4/A signed by PW4 besides PW7 and PW12. I do not find substance in the plea of ld defence counsel that PW4 knew A1 as the entire conversation demonstrates that A2 told him that A1 had done some work for one Vinod a year back and PW4 had knowledge of work done but not acquainted with A1 as such.
24. Before we proceed further, role of A2 hardly appears to be blameworthy. The entire conversation does not lead to an inference that he had anything to gain in the process. The bulk of the talking was as between PW4 and A1. PW 4 has not attributed any motive or ill will to A2 and at the cost of repetition, the scene ended when A1 was annoyed with A2 as well as PW4.
25. The next chapter in the saga occurred on 12.11.2008. The testimony of PW4 reveals that A1 did not call him on 10.11.2008, which was Monday but A1 called him on 12.11.2008 at 1.00 PM but State (CBI) v. Shammi Kapoor & Anr. Page No.16/31 17 on getting connected he told him that he would call again and disconnected the call; that later at 3.30 PM, when he was going to Noida for some work, A1 called him and this time during the discussion, he asked him to give him Rs.25,000/ and they decided to meet later in the evening in the same Barista Restaurant at 6.30 PM. PW4 deposed that he recorded the said conversation in his mobile, which had an inbuilt software and he reached the office of CBI at 4.00 PM after taking Rs.25,000/ from his house and met the CBI officials. The evidence of complainant PW4 Surinder Wadhwa corroborated by PW7 Dy.SP Navneet Krishanan would show that the recorded conversation in Q3 (Ex.P10) was heard, which clearly brought out that A1 was seeking illegal gratification of Rs.25,000/ and the recorded conversation was played during the evidence of PW4 who identified the voice of A1. This court on hearing the recorded conversation in Q3 (Ex.P10) visàvis on perusal of transcript Ex.PW4/E find that A1 had called the complainant who told him that after waiting for call of A1, he had left for Noida and they decided to meet him in the evening and during the conversation accused commented "THORA JAYADA AUR KAR DIYO, THORA AUR KAR DIYO"(demanding more). On that complainant replied "SIR THIK HAI - TWANU 15 TE KAR DITA HAI". Then the discussion followed where the A1 revised the demand to Rs.25,000/ which was accepted by PW4 who wanted State (CBI) v. Shammi Kapoor & Anr. Page No.17/31 18 an assurance that there would be no harm to him and on that A1 reminded him that even Vinod, whose work he had done a year earlier, had had no trouble. The conversation indicates the 'A1' asked for "25" that in the contextual setting raises a conclusive inference that he demanded Rs.25,000/. So far as role of A2 is concerned, he had no participation in the demand becoming final for rupees twenty five thousand.
26. Suffice to state that the evidence brought on the record bring out that thereafter the services of two independent witnesses PW5 Bhuvneshwar Kumar and PW6 Anil G.Ghanekar were requisitioned and during the pre trap proceedings they were apprised about complaint Ex.PW4/A and they were apprised about the recorded conversation contained in Q2 and Q3. The 25 GC notes were produced by the complainant in the denomination of Rs.1000/ Ex.PV (Colly), the numbers of which were noted down in the handing over memo Ex.PW4/G, a demo was conducted with Phenolphthalein Powder and its reaction with Sodium Carbonate and the entire proceedings were recorded in the handing over memo Ex.PW4/G. There is no challenge in so far as the pre trap proceedings reflected in the said memo is concerned and the evidence of PW4 Surinder Wadhwa is fully corroborated by PW5 Bhuvneshwar Kumar and PW6 Anil G.Ghanekar besides PW7 Dy.SP Navneet Krishanan. So much so, that the CBI team washed State (CBI) v. Shammi Kapoor & Anr. Page No.18/31 19 their hands and left the office of CBI at 6.00 PM , while PW4 reached the designated spot alone in his own car at 6.15 PM. TRAP AND POST TRAP PROCEEDINGS
27. Testimony of PW4 reads that on reaching the Barista Restaurant, he occupied a table and soon thereafter the witnesses occupied the adjoining table; that at 7.15 PM, A1 entered the restaurant and occupied a chair in front of him; that they ordered a coffee and started having a conversation, which was simultaneously being recorded in DVR kept inside blazer of PW4; that during the conversation A1 made a gesture with his fingers asking for money, to which PW4 complainant took out the money from his blazer and handed it over to A1 , who accepted the same in his left hand and put it in the left side pocket of his trousers. PW4 complainant deposed that soon thereafter he took off the blazer in order to give signal to the raiding party and immediately the CBI officials came inside the restaurant and A1 was caught hold by his wrists by the CBI officials.
28. Much challenge was sought to be taken by ld.counsel for A1 urging that in the recorded conversation contained in Q1 which is reflected in the transcript Ex.PW4/DX there is nothing to suggest that any "demand" was made by A1 for bribe or illegal gratification. It was also urged that PW4 made a significant improvement in his testimony about A1 demanding money by State (CBI) v. Shammi Kapoor & Anr. Page No.19/31 20 gesture of fingers which vital fact was not disclosed by him in his statement u/s. 161 Cr.PC. Ex.PW4/DA. I do not find any merit in such objections. Although the version about gesture of hands or fingers is not reflected in the statement Ex.PW4/DA, the whole background setting in which tainted money was given/delivered assumes significance. What for A1 was having a meeting with the complainant at the restaurant, which is a very grave incriminating circumstance ruling out his innocence. The fact that tainted money was handed over by complainant PW4 to A1 was corroborated by PW5 Bhuvneshwar Kumar. PW5 categorically testified that he saw PW4 Surinder Wadhwa transferring the bribe money to A1 Shammi Kapoor. Here a Court observation was made that "witness stated that Mr. Wadhwa handed over money to A1, who kept the said money in his pant pocket probably left pocket of the pant". Although PW6 Anil G.Ghanekar did not say anything about complainant handing over the money to A1 but he did say that as the complainant was having discussion with accused A1, complainant took off his blazer as directed by CBI officials to him earlier and he immediately placed missed call from his mobile to the CBI officials.
29. To my mind, it was very natural that probably due to seating position in the restaurant since PW6 was not facing the table of PW4 as suggested by the site plan Ex. PW5/A and A1 , PW6 Anil State (CBI) v. Shammi Kapoor & Anr. Page No.20/31 21 G.Ghanekar could not see the actual delivery of money. It must be understood that independent witnesses were supposed to act very natural, conduct themselves like any other customer in the restaurant and ensure that there being there did not arouse any suspicion in the mind of A1. The defence did suggest to PW5 and PW6 that the tainted money was forcibly thrusted inside the pant pocket of A1 which was denied by them. Infact an altogether new suggestion was given to PW6 in the cross examination that money was thrusted into the pocket of accused, who took it out immediately and threw on the ground/floor, which money was picked up by CBI officials. This suggestion was of course denied by PW6 but at the cost of repetition, similar suggestion was not given to PW4 or PW5 or even to PW7. That shows that the defence plea that money was forcibly thrusted upon A1 is by way of an after thought to cloud the entire episode but it goes in vain. It is very categorical in the evidence of PW6 Anil G.Ghanekar that he had recovered the tainted GC notes from the left side pocket of pant worn by the accused A1 and this fact was corroborated by PW5 and also PW4 and PW7.
30. In so far as the proceedings after apprehending A1 is concerned, the testimony of PW4, PW5 and PW6 supported by TLO PW7 is one coherent story that the hand washes were taken besides wash of the left side pocket of grey cotton pant (Ex.PIV). The State (CBI) v. Shammi Kapoor & Anr. Page No.21/31 22 aforesaid washes were put into clean glass bottles Marked RHW, LHW and LSPPW that are Ex.P1, Ex.PII and Ex.PIII respectively. It is also in evidence that numbers of the currency notes were tallied with details recorded in the handing over memo Ex.PW4/G and found correct and the entire proceedings were recorded in the recovery memo Ex.PW4/H signed by the witnesses at the spot. It is also in evidence that site plan Ex.PW5/B was prepared and signed by the witnesses PW5 and PW6 at the spot and the accused was arrested vide arrestcumpersonal search memo Ex.PW5/A.
31. Mr. Umesh Sinha, Ld. Counsel for A1 vehemently urged that A1 was merely a Head Constable and as admitted by PW1 the sanctioning authority and PW11 he could not have been entrusted with any enquiry in the CBI and therefore A1 was not in a position to promise or provide any favour or benefit to the complainant. Ld Defence counsel questioned the approach of the CBI that when the contents of the complaint had been verified on 07.11.2008, why is it that the State (CBI) did not take any action on the following day and chose to react on 12.11.2008 and it was urged that it shows that CBI officials had been planning to lay a false trap and implicate A1 in this case.
32. The pleas raised by defence do not cut much ice. Of course, A1 being Head Constable in the Summons Section of CBI, and was not carrying any investigation as such. It is pertinent to refer to State (CBI) v. Shammi Kapoor & Anr. Page No.22/31 23 explanation (d) & (e) of Section 7 of the PC Act that provides as under :
(d) "a motive or reward for doing". a person who receive a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression;
(e) Where a public servant induces a person erroneously to believe that his influence within the Government has obtained a title for that person and, thus, induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
33. Simple grammatical interpretation of such explanation, squarely brings home the case of the prosecution within the ambit of section 7 of the PC Act. In so far as the plea that why action was not taken on 07.11.2008 and deferred till 12.11.2008, it must be seen by way of judicial cognizance that 07.11.2008 was Friday and the following days were Saturday and Sunday, which were holidays or off days for CBI. Moreover, the version of PW4 is that they had agreed to meet on Monday i.e. 10.11.2008 but it appears that they did not contact each other and obviously the CBI officials were waiting in the wings and naturally the trap was planned on 12.11.2008 when the demand crystallized into a fixed sum. Not much can be read into the plea that no specific amount was indicated in the complaint Ex.PW4/A and there is a plausible explanation that bribe of Rs.25,000/ was agreed to be paid as Rs. 15,000/ offered on 07.11.2008 was not acceptable to A1. State (CBI) v. Shammi Kapoor & Anr. Page No.23/31 24
34. At the cost of repetition, the conversation as between A1 and complainant on 07.11.2008 reflected in Q2 (Ex.P5) visàvis Ex.PW4/C shows that A1 was not satisfied with the quantum of bribe, on which he became annoyed when less amount was offered and the demand became Rs.25,000/ when the complainant and A1 had a discussion reflected not only in the testimony of PW4 but also in the recorded conversation Q3 (Ex.P10) visàvis transcript Ex.PW4/E. In the entire saga, there is nothing to indicate that PW4 complainant Surinder Wadhwa had any ulterior motives to falsely implicate A1. Despite long searching cross examination, PW4 stood his ground and so is the case PW5 and PW6 who had no motives to falsely implicate A1. The plea taken by ld. Defence counsel that PW4 and A1 knew each other even prior to the incident has no substance as the conversations in Q2 and Q3 bring out that it was in the meeting on 07.11.2008 that A2 reminded PW4 that A1 had earlier helped them in the case of one Vinod. There is nothing to indicate that PW4 and A1 had him met earlier or knew him by face. Infact in the recorded conversation on 12.11.2008 contained in Q3 on 12.11.2008 contained in Q3 it was A1 who reminded again PW4 that no further trouble would come to him as earlier also in the case of Vinod he did not face any problem.
State (CBI) v. Shammi Kapoor & Anr. Page No.24/31 25
35. I also do not find any merit in the defence plea that there is a material contradiction as regards who reached first at Barista Restaurant. It was urged that PW11 testified that when he reached Barista Restaurant. He found that A1 already sitting their and complainant arrived later on. This is total misreading of the evidence. PW4, PW5 and PW6 categorically deposed that they occupied the table first and A1 came later. PW7 in this regard testified that when he reached the restaurant, he found PW4 already sitting with A1. Not much weight could be attached that PW12 was not actively joined in the proceedings since the benefit to the prosecution is marginal to the effect that proceedings were conducted at the restaurant itself. The evidence of DW1 examined by A1 in his defence is evidence is totally untrustworthy. He was a chance witness and was not able to assign any plausible reason as to how come he was present at the spot. Further, nonjoining of other customers in the restaurant is not fatal to the prosecution case. It is the quality of the evidence that mattes and not quantity. Not much can be read either in regard to call records on 12.11.2008. But may I just point out that it does indicate that there were calls from landline starting from "2436' digits at 12:40:57, 12:46:10, 15:05:02 and 15:25:23. One cannot expect witness to remember each and every minute detail. The evidence of PW3 read as a whole inspire evidence and it is fully corroborated by PW6 and PW7 State (CBI) v. Shammi Kapoor & Anr. Page No.25/31 26 besides the recorded conversation Q2 and Q3. The prosecution case does not suffer form any serious crack in the case and the very fact that the recovery of the tainted money was made from A1, invites a presumption in the whole contextual setting that he demanded and accepted illegal gratification. APPRECIATION OF EVIDENCE ON TAPE RECORDED CONVERSATION
36. The recorded conversations were assailed by Mr. Umesh Sinha, ld.counsel for A1 tongs and hammer on pleas to the effect that the original DVR/Mobile Phones in respect of cassettes Q1, Q2 and Q3 were not preserved, which was the primary evidence in terms of Section 62 of the Indian Evidence Act nor the same were sent to CFSL. It was also urged that while sending the questioned cassettes Q1, Q2 and Q3 , the voice expert PW3 D.K.Tanwar was also sent the transcripts, which was not in consonance with the observations of the Supreme Court in the case of Nilesh Dinakar v. State of Maharashtra 2011 4 SSC 143.
37. In the case of Ram Singh & Ors. v. Col. Ram Singh, 1985 (Supp) SCC 611, the conditions necessary for admissibility for tape recorded statements were laid down as under :
(i) The voice of the speaker must be duly identified by the mak er 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 strict proof to determine whether or not it was really the voice of the speaker.
State (CBI) v. Shammi Kapoor & Anr. Page No.26/31 27
(ii) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - di rect or circumstantial.
(iii) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inad missible.
(iv) The statement must be relevant according to the rules of Ev idence Act.
(v) The recorded cassette must be carefully sealed and kept in safe or official custody.
(vi) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
38. Keeping the said observations at the back of our mind, I am afraid not much mileage can be given to the defence in regard to recorded conversation. I do not find any substance that the transcript had been supplied to PW3 Mr. D. K. Tanwar prior to the examination of the questioned audio recordings. Indeed the original DVR/Mobile Phone used for verification of contents of complaint Ex.PW4/A, pre trap proceedings as well as trap proceedings were the primary piece of evidence and the rigors of Section 65B of Indian Evidence Act have not been complied with. All the same, the issue about relevancy of recorded conversation in Q1, Q2 and Q3 has already been answered by this court herein above and so also about the identification of voices. Of course, the foremost requirement would be whether or not recorded conversation could be said to be authentically procured and whether it can be said to be free from any distortion, manipulation, interpolation or editing having "continuity of State (CBI) v. Shammi Kapoor & Anr. Page No.27/31 28 process" and must be clearly audible .
39. Not much can be read into the plea that the recorded conversation contained in Q2 was heard on the following day i.e. 08.11.2008. It is in evidence of PW4 complainant Surinder Wadhwa corroborated by PW7 Dy.SP Navneet Krishnan that it was late evening and PW4 wanted to leave for some emergent task and therefore after preparing the verification memo Ex.PW4/B, the complainant was allowed to leave. It is further in evidence of PW4 and supported by PW7 that it was the following day the recorded conversation was heard and transcriptioncumvoice identification memo Ex.PW4/D was prepared and so also the transcript which is Ex.PW4/C. No one can expect the police agency to do an act which is impossible in itself or for variety of compelling circumstances many times due to human problems and exigencies of one kind or the other. It was very categorical in the evidence of PW4 supported by PW7 that recorded conversation from the DVR was transferred into two blank audio cassettes in his presence, one of which was marked Q2 and sealed at the spot. The cassette Q2 (Ex.P5) was played in the court and the conversation contained therein was clearly audible free from any kind of background noise or distortion. PW3 DK Tanwar in his report Ex.PW2/A without any challenge brought out that there was nothing wrong in the continuity of recording. Meaning thereby, there was no question of State (CBI) v. Shammi Kapoor & Anr. Page No.28/31 29 any editing, addition or subtraction of any conversation and conversation as a whole in Q2 appears to be very natural in the entire contextual setting of the case.
40. Similar is my view when it comes to the recorded conversation on 12.11.2008. There is not much merit that the mobile instruments of the complainant should have been seized or should have been sent to the CFSL. The fact of the matter is that recorded conversation contained in Q2 (Ex.P10) is clearly audible without any disturbance and the continuity of which was vouched by PW3 DK Tanwar in his report without any challenge by the defence. PW4 and Pw7 categorically deposed that the recorded voice in the mobile was transferred on to audio cassette in a very transparent manner and there is nothing to suggest that there was any possibility of tampering or editing of the recorded conversation. I do not see as to how the transcription or the voice identification memo Ex.PW4/F signed by the witnesses could be assailed.
41. Suffice to state that I hold the same opinion when judging the authenticity of the recorded conversation in Q1 in regard to the conversation that happened at the time of actual trap. The said conversation was heard at the spot as is detailed in recovery memo Ex.PW4/H and in the testimony of the witnesses. It is in evidence that the transcriptioncumvoice identification memo was State (CBI) v. Shammi Kapoor & Anr. Page No.29/31 30 prepared later on 19.03.2009 Ex.PW6/A and on the same day the transcription Ex.PW4/DX was prepared. But all said and done, I do not rely on the recorded conversation in Q1 as the audio quality is not very good and many dialogues are not clear which fact is reflective in the transcript as well. Any how, the diminished quality of Q1 does not cause any dent in the prosecution case in the light of oral evidence of the main witnesses discussed herein above. Role of accused Jagdish Chauhan
42. At the cost of repetition, the role of accused Jagdish Chauhan appears to be very insignificant. The meeting on 07.11.2008 and the entire conversation that ensued does not suggest that A2 was acting in concert or criminal conspiracy with A1. He had no pecuniary advantage or benefit to derive out of the process except helping PW4 in his cause being a friend. There is nothing to indicate that A2 forced PW4 to make any payment immediately to A1 and rather as a friend he offered his services to settle the matter. PW4 did not attribute any wrongful act on the part of A2. During the conversation A2 clearly suggested that he had nothing to do in the matter. Anyhow, so far as rendezvous that settled between A1 and PW4 on 12.11.2008, that was without the knowledge of A2.
FINAL ORDER:
43. In the said view of the discussion, I find that the prosecution State (CBI) v. Shammi Kapoor & Anr. Page No.30/31 31 has miserably failed to prove its case against the accused Jagdish Chauhan. He is acquitted. His personal bond and surety bonds are cancelled surety is discharged.
44. However, the prosecution has been able to prove beyond reasonable doubt that accused Shammi Kapoor demanded illegal gratification of Rs. 25,000/ from the complainant and committed criminal misconduct in accepting such sum that were found from his possession. He is convicted u/s 7 r/w section 13 (1) (d) of P. C. Act.
45. Let accused Shammi Kapoor be heard on the point of sentence on 10.09.2012.
ANNOUNCED IN THE OPEN COURT TODAY: ON 07.09.2012 (DHARMESH SHARMA) SPECIAL JUDGE 03 (CBI) NEW DELHI DISCTRICT xxx State (CBI) v. Shammi Kapoor & Anr. Page No.31/31 32 CC NO. 27/2011 CBI v. Shammi Kapoor & Ors.
07.09.2012 Present : Mr. SC Sharma, Ld.PP for CBI.
Mr. Umesh Sinha, Ld. Counsel for the accused Shammi Kapoor.
Mr.Devender Khatana, Ld. Counsel for accused Jagdish Chauhan.
Vide separate judgment of even date, I find that the prosecution has miserably failed to prove its case against the accused Jagdish Chauhan. He is acquitted. His personal bond and surety bonds are cancelled surety is discharged.
However, the prosecution has been able to prove beyond reasonable doubt that accused Shammi Kapoor demanded illegal gratification of Rs. 25,000/ from the complainant and committed criminal misconduct in accepting such sum that were found from his possession. He is convicted u/s 7 r/w section 13 (1) (d) of P. C. Act.
Let accused Shammi Kapoor be heard on the point of sentence on 10.09.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03 (CBI) NEW DELHI DISCTRICT State (CBI) v. Shammi Kapoor & Anr. Page No.32/31