Delhi District Court
Cbi vs . Mohd. Salim Ansari on 22 February, 2023
In the court of Shri Naresh Kumar Laka
Special Judge (PC Act) (CBI-20)
Rouse Avenue District Court, New Delhi
CBI No. 60/19(3/19)
RC No. DAI-2018-A-0032/ACB/CBI/NEW DELHI
(CNR No. DLCT11-000145-2019
U/s 7 of the Prevention of Corruption Act, 1988.
In the matter of:
Central Bureau of Investigation (CBI)
5B, 3rd Floor, CGO Complex,
Lodhi Road, New Delhi.
versus
Mohd. Salim Ansari
S/o Late Sh. Abdl Rehman Ansari,
R/o H.No. 7B/2, 3rd Floor, Khirki Extension,
Opposite Aakash Hospital,
Malviya Nagar, New Delhi-110017
Date of filing of final report (charge-sheet) : 28.02.2019
Final arguments concluded on : 09.02.2023
Date of judgment : 22.02.2023
Result : Convicted
Appearances
Sh. Pramod Singh, Ld. Public Prosecutor for CBI.
Sh. Kumar Sameer, Ld. Counsel for accused Mohd. Salim Ansari
JUDGMENT
Brief facts It is the case of the prosecution that one Sh. Shailesh Tomar (complainant) filed a complaint to the CBI asserting that a tender was awarded to him for some repairing/construction work at a Govt. School CBI Case No. 60/19 (3/19) Page No. 1 of 25 CBI vs. Mohd. Salim Ansari situated at Begampur, Malviya Nargar in November, 2017 and in the month of October, 2018, accused Mohd. Salim Ansari, Assistant Engineer, PWD, Sub- Division, III, Police Training School, Malviya Nagar, New Delhi, abused his official position by demanding illegal gratification of Rs. 60,000/- from him for clearing his second RA bill amounting to Rs. 20 lacs and/or for extension of time (EOT).
2. A verification proceeding of the said complaint was conducted by the CBI on 09.10.2018. Upon satisfactory verification, a trap was laid on the next day i.e. 10.10.2018 by the CBI Team along with complainant and independent witnesses. Upon receiving of bribe amount by the accused from the complainant, a raid of CBI team was made and the accused was arrested on the spot. After completion of the investigation, the final report (charge sheet) was filed before this court alleging an offence under Section 7 of the Prevention of Corruption Act, 1988 (in short 'PC Act').
Taking of cognizance, framing of charge & trial
3. Accused was released on bail during investigation. After taking cognizance of the offence, accused was summoned. He was given complete set of charge sheet and the attached documents in accordance with Section 207/208 of Cr.PC. After hearing arguments from both sides and on the basis of material placed on record by the prosecution, a charge was framed against the accused on 28.08.2019 for the offence punishable under Section 7 of the PC Act, to which he pleaded not guilty and claimed trial. Thereafter, this case was put to trial and to prove its case, the prosecution examined following witnesses:
CBI Case No. 60/19 (3/19) Page No. 2 of 25CBI vs. Mohd. Salim Ansari
1. PW-1 Sh. Shailesh Tomar, Complainant.
2. PW-2: Sh. Prabhakar Singh, Director General, CPWD, Sanctioning Authority of prosecution sanction
3. PW-3: Sh. Surender Kumar, Nodal Officer, Bharti Airtel Limited.
4. PW-4: Sh. Shekhar, Junior Assistant, Delhi Jal Board.
5. PW-5: Sh. Deepak Yadav @ Deepak Kumar
6. PW-6: Sh. Prem Pal Singh.
7. PW7: Sh. Chander Shekhar Azad, Chief Engineer (Civil) CSQ, CPWD, Nirman Bhawan, New Delhi.
8. PW-8: Sh. V.B. Remteke, Principal Scientific Officer (Chemistry), CFSL, New Delhi.
9. PW-9 : Sh. Kishori Lal, Peon, PWD.
10. PW- 10 Sh. Govind Karki, JE, CPWD.
11. PW-11: Sh. Vimal Chandra Pandey, JE, PWD.
12. PW-12 Sh. Mahesh Kumar Jain, Senior Scientific Officer (Physics).
13. PW-13 Sh. Manish, Inspector, CBI
14. PW-14 Sh. Kamal Kant
15. PW-15 Sh. N. C. Nawal, Inspector, CBI
16. PW-16 Sh. S.P. Singh, Inspector, CBI
17. PW-17 Sh. Sanjay Upadhyay, Inspector, CBI
4. After completion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C by putting all incriminating evidence to him. Accused examined one witness, namely, Sh. Ratnesh (DW-1) in his defence.
5. I have heard arguments at length from Sh. Pramod Singh, Ld. Public Prosecutor for CBI and Sh. Kumar Sameer, Ld. Counsel for accused. Record perused.
CBI Case No. 60/19 (3/19) Page No. 3 of 25CBI vs. Mohd. Salim Ansari Reasons for decision
6. The present case originated upon filing of a complaint on 09.10.2018 by the complainant, namely, Sh. Shailesh Tomar, a contractor to the CBI alleging therein that a tender for certain repairing work in a government school situated at Malviya Nagar was awarded to him in November, 2017 and for the work done, a second RA bill of Rs.20 lakhs was presented to the PWD. It is specifically alleged that for clearing the said bill, Sh. Mohd. Salim Ansari, AE (accused) demanded a bribe of 3% of the bill amount. It is also alleged that the time period for completion of the said tender already expired in January, 2018 and for extension of time, a bribe was also demanded.
7. As per standard procedure of CBI, the said complaint was assigned to Inspector Sh. N. C. Nawal for verification on the same day. Sh. N. C. Nawal arranged one independent witness namely, Sh. Shekar, Junior Assistant, Delhi Jal Board and a DVR for verification and recording of the conversation. On the same day, the CBI officers, complainant and the independent witness went to the office of the accused. The independent witness was accompanying the complainant but only complainant went inside the chamber/room of the accused and then certain conversations were held between them, which were recorded in the said DVR device.
8. It is a well recognized legal proposition that more credence is attached with the documentary evidence in comparison to oral testimony. As such the most important piece of evidence is the voice recording on the DVR which was allegedly held between the accused and the complainant. However, Ld. Counsel for the accused vehemently argued that the voice recording as CBI Case No. 60/19 (3/19) Page No. 4 of 25 CBI vs. Mohd. Salim Ansari relied by the prosecution is not admissible evidence being a tampered document having different date and time from the alleged date and time of the incident.
9. On the contrary, ld. PP for CBI vehemently argued that the difference in date and time of the voice recording occurred as the concerned official either did not update/feed the correct information at the time of configuration of the DVR. He also explained it by citing an example that whenever a new electronic device is used for the first time, certain settings are required to be done which include setting up of date and time and if the said information is not updated, it continues with the existing one and when a file is accessed/modified it fetches the existing date and time, until it is updated. It is further stated that there was no tampering of voice recordings and only on account of aforesaid difference of date, the entire voice recording cannot be rejected.
10. In reply, Ld. Counsel for accused further argued that the aforesaid inadvertence has not been proved on record by the prosecution and even there is nothing in the CFSL report about recording of such inadvertence and the onus to prove said fact is upon the prosecution.
11. In the considered opinion of this court, the prosecution is required to prove a fact or document as per law. The voice recordings have been proved on record, not only by the complainant but also by other CBI witnesses by specifically deposing the date of actual recording. If there is any inconsistency in the content of the said electronic record, it was required to be confronted to all the relevant witnesses of the prosecution during their cross-
CBI Case No. 60/19 (3/19) Page No. 5 of 25CBI vs. Mohd. Salim Ansari examination but it is seen that the Ld. Counsel for the accused only confronted the same to the PW17 only. The PW17 also clarified and deposed that "It may be a typographical error. At times, due to wrong setting of dates in the DVR, the difference of date may appear." The aforesaid testimony is in line with the submissions of the Ld.PP for CBI and is fully justified.
12. Moreover, the oral testimony of complainant and other important witnesses of the prosecution cannot be overlooked when they specifically stated the date and time of particular day of proceeding and in view of the these direct evidence on record, this court is of the considered opinion that the difference of date and time in the specifications of voice recording does not render the said recordings inadmissible in evidence.
13. In the CFSL report, no finding has been given with regard to tampering of the said voice recording and even transcription of the voice recordings have been placed on record which have been duly proved through relevant witnesses who have heard playing of the voice conversation and reducing them into writing in the form of transcription.
14. It is also argued by the Ld. counsel for the accused that sealing of memory card is also disputed in view of inconsistent version of the PW- 1/Complainant with other witnesses. As per record, the complainant was not the only witness who deposed on the point of sealing of memory card. There were many other direct witnesses in whose presence the sealing process was done. Moreover, the case property was produced before this court with intact seal. Therefore, minor inconsistent deposition of the complainant will not CBI Case No. 60/19 (3/19) Page No. 6 of 25 CBI vs. Mohd. Salim Ansari dilute the direct testimony of other witnesses. Therefore, said argument is rejected.
15. It is also argued that in the absence of corroborative evidence of the independent witnesses, the voice recording (electronic record) cannot be relied to convict the accused. This court is of considered opinion that various corroborative evidence has been produced on record by the prosecution by other witnesses besides complainant and as per the provisions of Indian Evidence Act, the electronic evidence (which is also a documentary evidence as per Section 3 of the IEA) is not required to be corroborated if it has been duly proved on record. Therefore, the aforesaid contention of the ld. Counsel for the accused is rejected being meritless.
16. This court heard the said conversation while recording the evidence and its transcription has also been placed on record as Ex.PW1/I. The relevant portion of the said transcription is extracted as under:
" शशिककायतकतकार : यय 20 लकाख कका शबिल हह तत इसकय चकाललीस हजकार कल आपकत कर ददूँ।द बिकाकक ईओटली कका...... ।
सस्पयक्ट- अरय नहली 60 भहयका --- 60 शशिककायतकतकार - सकाहबि सस्पयक्ट- सकारली दशद नयका 3 दय रहली हह। आप हली ककजदसली करनय लगतय हत ---
शशिककायतकतकार - सकाहबि 3 तत दय पहलय भली सकारत मम २ परसमट शदयका हह। सस्पयक्ट- नहली नकाहली आप 3 कररयय।
शशिककायतकतकार - सकाहबि मदझ सकाहबि मदझय।CBI Case No. 60/19 (3/19) Page No. 7 of 25
CBI vs. Mohd. Salim Ansari सस्पयक्ट- मम लयकय रख लयतका हह दूँ लयशकन आप लतगत सय पदछत तत सहली थतड़का सका।
शशिककायतकतकार - तत सकाहबि शफिर ऐसका करत मयरली नका थकारली जली ..... आप सकाठ कह रहय सस्पयक्ट- ३ परसमट सबि दयतय हह आप कटटौतली करनय लगतय हत पतका नहली मयरय मम क्यय हली कटटौतली करनय लगतय हत।
शशिककायतकतकार - सकाहबि 50 हजकार दय दयतका हह दूँ। सस्पयक्ट- आप मयरय मम कटटौतली क्यय करतय हत।
शशिककायतकतकार - सकाहबि सकाहबि ममनय पहलय भली सकारय मम 2 परसमट हली शदए हह आपकत। सस्पयक्ट- कभली ढकाई शदए कभली दत शदए शशिककायतकतकार - नहह दत हली शदए हह सकाहबि। बिस उस पहलय .... सस्पयक्ट- कटटौतली मत करत। -- जत सकारली दशद नयका करकातली हह वत तत करत नका। शशिककायतकतकार - सकाहबि सकाहबि उस पहलली ईओटली कय हली तत 50000 शदए न। बिकाकक कय सकारय कय २ परसमट शदए हह।
सस्पयक्ट- अबि चलत शशिककायतकतकार - चलत ५० हजकार दय दगक द का जली। 20 लकाख बिका शबिल हह। सस्पयक्ट- चलत जहसका आप करनका चकाहत शशिककायतकतकार - 20 लकाख कका शबिल हह 60000 बिनय हह 50 दय दगक द का। 50 हजकार कल दय दगक द का आपकत।
सस्पयक्ट- चलत कतई बिकात नहह --- चलत ठलीक हह --- चलत कतई नहली।
शशिककायतकतकार - आज ममनय शनकलवका शदए मकगवकाए हकादूँ तत कल बितकाओ शकस टकाईम आओगय सस्पयक्ट- कल आ जकाऊदूँगका 11 बिजय कय आस पकास आप आ जकानका CBI Case No. 60/19 (3/19) Page No. 8 of 25 CBI vs. Mohd. Salim Ansari शशिककायतकतकार - तत 12 बिजय आ जकाउ सस्पयक्ट- 11 कय बिकाद जबि आपकका शदल करय शशिककायतकतकार - तत मम 12 कय बिकाद आ जकाऊदूँगका जली सस्पयक्ट- अगर मई कहली जकाऊदूँगका तत 15 शमनट आधय घकटय कय ललए जकाऊदूँगका।
शशिककायतकतकार - मम 12 सकाढ़य बिकारह कय शबिच मम डन आ जकातका हह दूँ 50000 रुपयय कल दय दयतका हह दूँ ईओटली कका मदझय कल हली बितका शदयत क्यका दयनका हह जली। सस्पयक्ट- आ जकानका।
शशिककायतकतकार - कल हली बितका शदयत कय दयनका हह तत मम वत उठका कय गइल करवका दगक द का वय दगक द का मम 24 तकारलीख कय बिकाद आकय। मम 24 कय बिकाद आऊकगका जली। सस्पयक्ट- ठलीक हह ठलीक हह जकाओ लजस ककाम कय हत मयरली शिदभककानकाए इसमम आप आगय बिढ़त। "
17. The aforesaid transcription/conversation has been proved on record by various witnesses of the prosecution especially the complainant (PW-1). From the reading of the said transcription, coupled with direct oral testimony of complainant, it is proved on record that certain talks were held between the complainant and the accused with regard to payment of amount as 2% or 3% of the work amount which was finally settled as Rs. 50,000 (@ 2.5 % of the bill amount of Rs. 20 lakhs) and the said amount was also agreed to be paid by the complainant to the accused on the next date. As such the essential aspect i.e. 'demand' has been duly proved on record.
18. Ld. counsel for the accused has drawn attention of the court on the following answers of PW1 as under:
CBI Case No. 60/19 (3/19) Page No. 9 of 25CBI vs. Mohd. Salim Ansari PW1( Complainant): ( Dt. 16/01/2020): I don't remember the exact date on which particular date accused has demanded for the first time 3% of the bill amount as bribe for clearing the bill. He demanded the said percentage almost on every meeting with him in his office.
PW1( Complainant): ( Page Dt. 16/01/2020): Before going to the office of CBI on 09/10/2018, I did not meet the accused and therefore, there was no question for him to demand his commission prior to going to the office of CBI on 09/10/2018. Accused Salim Ansari never called me on phone between the period I submitted the bill for clearance and 09/10/2018.
19. It is then argued that there was no demand ever raised by the accused. From the aforesaid answers, it is correct that the complainant failed to prove raising of demand of amount of the past instances. However, the demand of the instant case has been duly proved on record which related to the incident of 09.10.2018. Once a demand has been proved especially through the negotiation part which find recorded in the voice recording of 09.10.2018, the prosecution is not required to prove it for the entire past period.
20. The Ld. Counsel for the accused pointed out that in the following deposition of PW1, the word 'Tomarji le ao' has been deposed:
o PW1: ( Complainant): Page 2/6, 06/11/2019: "I again went inside the room of the accused and showed myself to the accused. Accused told me 'Tomarji le ao'. I gestured towards the other person who was still sitting in the room of the accused."
21. But in fact upon hearing the voice recording, it is observed that the said words were not said by the accused. After hearing the entire voice recording (Q2), this court finds that the word 'Tomarji' is not there but the CBI Case No. 60/19 (3/19) Page No. 10 of 25 CBI vs. Mohd. Salim Ansari words 'le ao' are there and in the context of voice conversation of 09.10.2019 (when the amount of Rs.50,000 was settled), the said words, coupled with delivery of said amount to the accused, undoubtedly proved the demand of bribe.
22. The Ld.PP for CBI submitted that the prosecution duly proved on record the essential ingredients of the offence under Section 7 of the PC Act, which includes the demand of bribe, recovery of bribe amount and other sequence of facts beyond all reasonable doubt. For a better understanding, the Section 7 of the PC Act is reproduced as under:
"Sec. 7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
(Explanations) --(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section."CBI Case No. 60/19 (3/19) Page No. 11 of 25
23. In support of his arguments, Ld. PP for the CBI relied on the following case laws:
(1) 'Madhukar Bhaskarrao Joshi vs. State of Maharashtra' Hon'ble Supreme Court of India.
(2) 'State of U.P. vs. M.K. Anthony', AIR 1985 SC 48, 1985 CriLJ 493, 1984(2) SCALE 728, (1985) 1 SCC 505, Hon'ble Supreme Court of India.
(3) 'M. Narsinga rao vs. State of AP' Supreme Court 2001 Cri. L. J. 515, Appeal (crl.) 719 1995, Hon'ble Supreme Court of India.
(4) 'Syed Ahmed vs. State of Karnatka', 2012 (8) SCC 527, Hon'ble Supreme Court of India.
(5) 'Mahesh Pal Singh vs. State of NCT of Delhi', CRL. A. No.645 of 2010, Hon'ble High Court of Delhi.
(6) 'State of UP vs. Zakaullah', dated 12.12.1997, Hon'ble Supreme Court of India.
(7) 'Gyan Singh vs. State of Punjab', 1974 SCC (Crime), AIR 1974 SC 1024, 1974 CriLJ 789, (1974) 4 SCC 305, 1974 (6) UJ 754 SC, Hon'ble Supreme Court of India.
24. Likewise, Ld. Counsel for the accused relied on the following case laws:
(1) "K.Shanthamma vs. State of Telangana", (2022) 4 SCC 74, Hon'ble Supreme Court of India.
(2) "B. Jayaraj Vs. State of Andhra Pradesh" (2014) 13 SCC 55, Hon'ble Supreme Court of India.
(3) "P. Satyanarayana Murthy vs. District Inspector of Police", State of AP & Ors. (2015) 10 SCC 152, Hon'ble Supreme Court of India.CBI Case No. 60/19 (3/19) Page No. 12 of 25
CBI vs. Mohd. Salim Ansari (4) "V. Sejappa vs. State" (2016) 12 SCC 150, Hon'ble Supreme Court of India.
(5) "State of Kerala & Anr. vs. C.P. Rao", (2011) 6 SCC 450, Hon'ble Supreme Court of India.
(6) "Ravindra Mahadeo Kothamkar vs. The State of Maharashtra" 2015 SCC OnLIne Bom 6558, Hon'ble Supreme Court of India.
(7) "Sat Paul vs. Delhi Administration", (1976) 1 SCC 727, Hon'ble Supreme Court of India.
(8) "State of Maharashtra vs. Shridhar Madharao Murti", 2020 SCC Online Bom 2047, Hon'ble Supreme Court of India.
(9) "Panalal Damodar Rathi vs. State of Maharashtra", (1979) 4SCC 526 Hon'ble Supreme Court of India.
(10) "Anil Kumar Tito" vs. NCT of Delhi" 2015 SCC Online Del 19867 Hon'ble Supreme Court of India.
(11) "Nilesh Dinkar Paradkar vs. State of Maharashtra" (2011) 4 SCC 143, Hon'ble Supreme Court of India.
(12) "P. Parasurami Reddy vs. State of Andhra Pradesh" (2011) 12 SCC 294, Hon'ble Supreme Court of India.
(13) "Mukhtiar Singh vs. State of Punjab", (2017) 8 SCC 136, Hon'ble Supreme Court of India.
(14) "CBI vs. Ashok Kumar Aggarwal" (2014) 14 SCC 295, Hon'ble Supreme Court of India.
(15) "Shubhash Chandra Chauhan vs. CBI" 2005 (79) DRJ 644, Hon'ble High Court of Delhi.
(16) "State of Maharshtra vs. Kundlik Sugandhrao Aaravade", 2017 SCC Online Bom 756, Hon'ble High Court of Bombay.
CBI Case No. 60/19 (3/19) Page No. 13 of 2525. Ld. Counsel for the accused argued that the prosecution has failed to prove the complaint and its content as there are contradictions in the deposition of the complainant and, therefore, the said complaint cannot be relied at all. In this regard, he pointed out that the timing of filing of complaint is in dispute as some witnesses stated that it was filed by the complainant at his instance, whereas, the other witnesses stated that it was filed after giving brief by the CBI official. It is also alleged that CBI influenced the complainant to write the complaint without there being any actual substance in the allegations. The allegation in the complaint with regard to demand of bribe amount for passing of second RA bill and for grant of EOT was also contradictory in view of the admission of the complainant that the RA bill was already passed by the accused five days before the filing of the complaint and there was no application pending with regard to grant of EOT. He drawn attention of the court to the following depositions:
"PW-1 (Complainant): (Page 1/5, 27/09/2019): I had taken my written complaint with me.
PW-1 (complainant): (Page 1/5, 27/09/2019): The recording in the DVR were heard and thereafter a complaint was prepared based on the recording in the DVR.
PW1 (complainant): (page 3/4 , 16/01/2020): I wrote a complaint on 09.10.2018 in the room of SI N.C. Nawal. I wrote the complaint at about 12:30 PM to 1.00 PM on 09.10.2019. When I was writing the complaint SI NC Nawal and Manish Sabbarwal were present in the room. Shekhar was summoned even before I wrote the complaint and he arrived within 15.30 mnts thereof.
PW4 (Shekhar, Independent witness): (Page 1/13, 05/03/2020):
Shailesh Tomar told that a sum of Rs. 60,000/- was being asked as a bribe. Thereafter, Shailesh Tomar gave his complaint in CBI Case No. 60/19 (3/19) Page No. 14 of 25 CBI vs. Mohd. Salim Ansari writing.
PW4 (Shekhar, Independent Witness): Page 2/6, 06.03.2020: Vol: On 09.10.2018, when I had visited the CBI office, the duty officer had introduced me to Sub-Inspector N.C. Naval, thereafter a written complaint was taken from Shailesh Tomar.
PW15 (NC Nawal, IO): Page 1/4, 15/07/2022: I cannot say whether there is a overwriting on the left side margin of the complaint Ex.PW1/A. Vol: it was not written by me.
PW-17 (Sanjay Upadhaya, IO): Page 1/5, 15/12/2022: It is correct that there is overwriting in the date at point B encircled now on the complaint Ex.PW1/A. I did not take any clarification for the said over writing as another date was also mentioned on the top of the complaint."
26. The Ld. Counsel for the accused gave great stress on the overwriting at the left side margin of the complaint (Ex.PW1/A) but from the cross-examination of the PW17 Insp. Sanjay Upadhyay, it is seen that the said witness has given a convincing answer by saying that there was another date on the top of the complaint. Therefore, this court is of the opinion that there was no ambiguity on the date of complaint so as to seek any clarification of the said slight overwriting. Moreover, the author of the complaint also testified that the said complaint was given by him to CBI on 09.10.2018 leaving no doubt about the authenticity of the date of said complaint.
27. This court is of the considered view that a criminal charge is not required to be proved only on the basis of a complaint of the complainant and rather the substantial testimony of the complainant and other witnesses which is made on oath before a court is of great importance. The aforesaid contentions mainly pertain to the purpose of demand of money i.e. for the CBI Case No. 60/19 (3/19) Page No. 15 of 25 CBI vs. Mohd. Salim Ansari purpose of passing of RA bill or seeking EOT. It is proved on record by the prosecution that the 2nd RA bill of the complainant was pending before the office of accused and as per Ld. Counsel for the accused the said bill was already passed by the AE, 5 days before filing of complaint. But no evidence has come on record to show that the complainant was aware of passing of his bill. He also did not receive any payment in pursuance to passing of said bill till the date of filing of complaint. Therefore, it cannot be said that passing of bill by the accused will absolve him of his subsequent conduct. Moreover, as per Explanation (i) of Section 7 of the PC Act, taking of amount for doing any legitimate thing is also covered within the definition of the said offence.
28. As regards issue of EOT, it is true that no application was filed by the accused seeking EOT but it is evident that the time schedule of the performance of the work was already running very late. Therefore, the circumstances were existing to show that the EOT was also an important step which was required to be taken in the case of tender work of the accused. There are conversion recordings on record which find mentioned the issue of EOT. As such the aforesaid inconsistencies are not sufficient to doubt the entire case of the prosecution.
29. It is mainly claimed by the Ld. Counsel for the accused that the complainant did not perform his part of the contract within the stipulated time and when the accused was intending to withhold certain percentage of the bill amount, the complainant filed a false complaint to falsely implicate the accused by having a grudge. From the record produced on record by both the sides, this court holds that there were hindrances in performing the work caused by the school authority but at the same time the complainant also did CBI Case No. 60/19 (3/19) Page No. 16 of 25 CBI vs. Mohd. Salim Ansari not perform his part of the contract diligently and caused substantial delay. The delay was the contributory act of complainant as well as school authority. From the voice recordings placed on record, this court does not find any evidence to show that the accused took the amount for any other reason or that the complainant has falsely implicated the accused. There are negotiations on the point of percentage of commission amount from 2% to 3% which show that there was sufficient cause for the complainant to approach CBI.
30. The Ld Counsel for the accused repeatedly emphasized that onus to prove the essential ingredients of Section 7 PC Act is on the prosecution and the accused is entitled for giving of benefit of doubt. On the contrary, Ld. PP for CBI specifically argued that there is a presumption under Section 20 of the PC Act to the effect that when recovery of amount is proved on record, the onus is upon the accused to explain the reasons for receiving the amount and the accused failed to rebut the said presumption. First, it is important to see whether any presumption of law or fact exists in favour of prosecution or accused. Generally primary onus to prove a fact in criminal cases is upon the prosecution but when some exception is made in statutory provision, said burden to prove a fact can be shifted upon accused. Let us examine Section 20 of PC Act as under:
"Section 20 in The Prevention of Corruption Act, 1988 (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to CBI Case No. 60/19 (3/19) Page No. 17 of 25 CBI vs. Mohd. Salim Ansari accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate."
31. From the aforesaid Section 20 of PC Act, it is seen that a presumption of existence of motive or reward (as mentioned in Section 7 of PC Act) arises if the prosecution proves acceptance of gratification by the accused and the said presumption is only for the said purpose. In the instance case, the prosecution duly proved on record the acceptance of bribe amount by the accused which has been recovered from him at the time of trap of CBI Team at accused's office. Therefore, prosecution is not required to prove the existence of 'motive or reward'. The accused has failed to prove as to why he has received the amount of Rs.50,000 thus failed to rebut the said presumption.
32. Ld. Counsel for the accused also argued that the PW Sh. Mahesh Kumar Jain, CFSL expert has given his opinion as "probable voice of accused" and this indicates that there was guess/speculation which cannot be said to be a proved fact. The report of CFSL expert not only indicated the final result but also gave detailed analysis to arrive at a decision. The same forms part of the final finding. In the said analysis, it is specifically mentioned as under:
"7. Laboratory Procedure, Experiment & Analysis The voice recorded in micro SD cards marked exhibit 'Q- 1', 'Q-2' & 'S-1' were copied to Speech Science Laboratory (SSL Professional Edition ver. 4.1).CBI Case No. 60/19 (3/19) Page No. 18 of 25
CBI vs. Mohd. Salim Ansari
(i) The utterances/sentences of questioned speaker whose voices are marked exhibits Q-1 (1) (S) & Q-2 (1) (S) segregated from micro SD card marked exhibits 'Q-1' & 'Q-2 respectively.
The auditory features in the utterances of the speaker in questioned voice were observed from their segregated voice and consolidated effects of the prominent auditory features of the questioned speaker were noted. Similar process was adopted for auditory analysis of the specimen voice of Mohd. Salim Ansari marked exhibit S-1 (1) (S). The phonetic and linguistic features of questioned voice marked exhibits Q-1 (1) (S) & Q-2 (1) (S) were found similar to the specimen voice sample marked exhibit S-1 (1)(S) and documented in a work sheet. The utterances from questioned and specimen voices marked exhibits Q-1 (1) (S) (1) to Q-1 (1) (S) (7) & Q-2 (1) (S) (1) to Q-2 (1) (S) (7) and S-1 (1) (S) (1) to S-1 (1) (S) (14) were further subjected to spectrographic analysis on computer voice spectrograph for their voice grams. The acoustic features, namely formant frequency distribution, intention pattern, no. of formants and other visual features of questioned voice samples marked exhibits Q-1 (1) (S) (1) to Q-1 (1) (S) (7) & Q-2 (1) (S) (1) to Q-2 (1) (S) (7) correspond with their respective features in the specimen utterances marked exhibits S-1 (1) (S) (1) to S-1 (1) (S) (14) respectively.
(ii) Waveform, spectrographic and critical auditory examination of the audio recordings contained in micro SD cards marked exhibits 'Q-1' 'Q-2' & 'S-1' were carried out for tampering examination.
8. Result of Examination:
Regarding query No.1
(i) The auditory examination of questioned voices marked exhibits Q-1 (1) (S) & Q-2 (1) (S) and specimen voice of Mohd.
Salim Ansari marked exhibit S-1 (1) (S) reveal that questioned voices marked exhibits Q-1 (1) (S) & Q-2 (1) (S) are similar to the specimen voice marked exhibit S-1 (1) (S) in respect of their linguistic and phonetic features.
(ii) The voice spectrographic examination of questioned voice samples marked exhibits Q-1 (1) (S) (1) to Q-1 (1) (S) (7) & Q-2 CBI Case No. 60/19 (3/19) Page No. 19 of 25 CBI vs. Mohd. Salim Ansari (1) (S) (1) to Q-2 (1) (S) (7) and specimen voice samples marked exhibits S-1 (1) (S) (1) to S-1 (1) (S) (14) reveal that the questioned voice samples marked exhibits Q-1 (1) (S) (1) to Q-1 (1) (S) (7) & Q-2 (1) (S) (1) to Q-2 (1)(S) (7) are similar to specimen voice samples marked exhibits S-1 (1)(S) (1) to S-1 (1) (S) (14) respectively in respect of number of formants, formant frequencies distribution, intonation pattern and other general visual features in voice grams."
33. It is a settled preposition of law that the expert opinion is only a corroborative piece of evidence and not the sole basis to decide a fact/case. In the instant case, apart from the said report, abundant oral testimonies are on record especially, the statement of the complainant, voice sample of the accused which was given voluntarily for identification, identification of the voice of the accused by other witnesses and in the overall assessments of the aforesaid documentary as well as oral evidence, this court has no hesitation to hold that the aforesaid findings of the CFSL expert to the effect that the voice conversation of the accused as shown in Q1 and Q2 belongs to accused only, wherever it is shown to be related to him.
34. It is submitted by Ld. Counsel for the accused that PW Sh. Manoj Kumar Jain has admitted that he is not aware of the date and time of the voice recordings which were submitted to him for examination and, therefore, it is asserted that the possibility of tampering of the said voice recording cannot be ruled out. From the cross-examination of the said witness, it is seen that he has given expert opinion only on the identification of the voice of the accused and no query/request was made by the CBI to examine the date and time of the voice recordings. Therefore, no analysis of the said fact was done by the said expert witness. He also disclosed that the said fact can be got examined by the computer forensic expert. If the accused has any doubt about tampering CBI Case No. 60/19 (3/19) Page No. 20 of 25 CBI vs. Mohd. Salim Ansari of the voice recording, the onus was upon him to get the said fact checked/proved by seeking examination of the expert witness of the said field but no such step has been taken.
35. It is a settled proposition of law that testimony of the Forensic Expert is to be presumed to be correct unless the said presumption is rebutted by the accused by examination of another expert, which has not been sought or done.
36. The Ld. Counsel for the accused next argued that there are evidences on record suggesting that the PPL powder was carried along with the trap kit. In this regard, he pointed out the following dispositions:
PW 1 (Complainant) Page 1/6, 06/11/2019).: A black bag containing bottles, Powder, glass etc. was taken. PW1 ( Complainant) Page 3/7, 07/02/2020: I did not notice if the entire powder was spent on applying on the notes or some powder was left behind. I don't know what was kept in the trap kit taken by the CBI official. Vol: That might be powder which turns pink in liquid.
PW 4: ( Shekhar): Page 4/8, 15/02/2021: The Powder was brought in a packet. I don't remember whether all the powder was used during demonstration process.
PW14 (Kamalkant, Independent Witness): page 8/11, 02/06/2022: What were the 'all other articles which were collected', as you deposed in your examination-in-chief at page no. 2 dated 10/05/2011? These were the currency note of Rs 1000, PPL Powder and other material which I do not know now.
37. The aforesaid statements of the witnesses are not showing any certainty in their depositions. Moreover, the aforesaid witnesses were not the CBI Case No. 60/19 (3/19) Page No. 21 of 25 CBI vs. Mohd. Salim Ansari CBI officers who were the actual persons dealing with PPL powder. None of the witnesses of the CBI deposed that the PPL power was taken at the spot at the time of trap proceedings. Moreover, even if it is presumed that the PPL powder was taken at the spot, this fact alone is not sufficient to arrive at a conclusion that the PPL powder was applied by the CBI officers on the hands and shirt of the accused at the spot since no such suggestion was given nor any of the witnesses of the prosecution deposed like that. As such, this argument is rejected being meritless.
38. The counsel for the accused argued that as admitted by the IO (PW 17) and as per Forensic Manual, the hand wash and the currency notes, both should be sent for forensic examination seeking report regarding presence of PPL powder. However in the present matter, only hand wash was sent for forensic examination. Furthermore, as per Forensic Manual, forensic report should also spell presence of PPL power as well as Sodium Carbonate in the Hand wash. However in the present case, only report regarding presence of PPL powder was sought by the IO.
39. On the other hand, the Ld. PP for CBI argued that the Forensic Manual is not the statutory law and it is only for the guidance of the investigating agency. This court finds the said argument of the Ld. PP to be logical since the internal Manual of the Forensic Department is only for guidance and it does not override the established procedure of law for proving a fact/document as per the provisions of the Indian Evidence Act. There may be a case when no PPL power is used at all in some corruption cases, then also receiving of bribe amount and its recovery can be proved through the oral testimonies of the witnesses and matching of serial numbers of the currency CBI Case No. 60/19 (3/19) Page No. 22 of 25 CBI vs. Mohd. Salim Ansari notes, if any. The aforesaid process has been duly proved on record in the instant case, coupled with electronic evidence of voice recordings and their respective transcriptions.
40. The counsel for the accused further argued that there are contradictory statements qua the fact that how and where the alleged currency notes were carried by the complainant or even at all any currency notes were treated with PPL power or not. He pointed out them as under:
PW1 (Complainant): Page 5/5, 27/09/2019): After my search, Shekhar again said Praveen again said I don't remember but it was one of the CBI officials who put the currency notes in the pocket of shirt which I was wearing.
PW1 ( Complainant): Page 1/6, 06/11/2019 : I recall now that the currency notes were kept in the pocket of my shirt by Kamal Kant.
PW4 ( Shekhar, Independent Witness): Page 4/13, 05/03/2020: Thereafter, the currency notes amounting to Rs 50,000/- was kept in the pocket of kurta in the left chest. PW4( Shekhar, Independent Witness): Page 5/8, 15/02/2021: The notes were kept in the right side pocket of kurta which complainant was wearing at that time.
PW: 13 ( Manish, CBI): Page 5/7, 07/04/2022: Thereafter, independent witness Sh. Kamal Kant on direction of TLO put the currency notes into the left side pocket of kurta of the complainant.
PW-14 ( Kamalkant): Page 2/5, 10/05/2022: I put all the 25 notes in the left side pocket of kurta of the complainant.
PW-15 (N.C.Nawal,Verification Officer) : Page 5/12, 14/07/2022: As per instructions, Sh. Shekhar, independent witness kept the treated GC notes in the left side pocket of wearing kurta of the complainant.
CBI Case No. 60/19 (3/19) Page No. 23 of 25CBI vs. Mohd. Salim Ansari PW-16 ( S.P. Singh, TLO), Page: 2/6, 03/08/2022: Sh. Shekhar put the tainted amount in the right-side pocket of kurta of the complainant.
Handing Over Memo( D-4, Ex. PW1/C), page 3, para 2:
....The tainted bribe amount of Rs 50,000/- was then put in the right side pocket of the kurta of the complainant by Shri Shekhar.
41. The aforesaid facts can be said to be the minor inconsistencies in the statement of the complainant and other witnesses but they do not go to the root of the matter and are not sufficient to disbelieve the entire case of the prosecution which otherwise stands proved. The other submissions of the Ld. Counsel for the accused on the point of contradictions are only minor inconsistencies in the testimonies of various witnesses, which may occur due to gap of time, capacity of memorization of fact of each individual and the fact that human beings are not machine (like tape recorder) who could narrate the past instances in the same words like a tape recorder. The case-laws as relied by the Ld. Counsel for the accused are also distinguishable on the factual aspects of the present case.
42. The Ld. Counsel for the accused lastly argued that the independent witness who was allegedly instructed by the CBI to witness the alleged transaction did not accompany the complainant when the alleged transaction of bribe amount took place. In my considered opinion, the CBI officers and the independent witnesses proved the other sequence of events forming part of the entire chain of circumstances and since the conversation of demanding the amount and delivery of amount took place in the closed room of accused, they were not even supposed to be present there otherwise the accused might get alerted. The criminal offences of illegal gratification are CBI Case No. 60/19 (3/19) Page No. 24 of 25 CBI vs. Mohd. Salim Ansari generally committed in secrecy and not in open view. As such, this court does not find this argument as a ground to give benefit of doubt to the accused. The prosecution has duly proved on record the prosecution sanction and all other essential material facts.
Conclusion
43. In the light of aforesaid facts and circumstances, this court holds that the prosecution succeeded in proving the essential ingredients of Section 7 of the PC Act for demanding and accepting illegal gratification of Rs.50,000 from the accused for clearing his payment of 2nd RA bill of Rs.20 lakh @ 2.5% commission amount of the said bill. Consequently accused is convicted for the offence under Section 7 of the PC Act.
44. Put up for arguments on the point of sentence on 04.03.2023 at 11.00 am. Copy of the judgment be supplied, free of cost, to the accused and prosecution, if desired.
NARESH Digitally signed
Announced in the open court by NARESH
on 22.02.2023
KUMAR KUMAR LAKA
Date: 2023.02.23
LAKA 11:24:06 +0530
(Naresh Kumar Laka)
Special Judge (PC Act), CBI-20
Rouse Avenue Courts, New Delhi.
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CBI vs. Mohd. Salim Ansari