Delhi District Court
State vs . Chandbeer Page 1 Of 17 on 19 August, 2013
1
IN THE COURT OF SH. NAROTTAM KAUSHAL, SPECIAL JUDGE
(PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution:17.09.2009
Date of reserving the order:16.08.2013
Date of pronouncing the order:19.08.2013
CC No. 18/2009
FIR No.15/2008
Case ID No.02401R0431022009
PSACB
U/sec.7/13 of the PC Act
State
Versus
Chandbeer
S/o Sh. Raghubir Singh
R/o Vill. & PO Gandhara,
P.S. Sapla, District Rohtak,
Haryana
JUDGMENT
1.1 Criminal law was set to motion on complaint dated 02.06.2008 made by Rajbir Singh Bansal S/o Captain Rajaram Bansal, addressed to Addl. Commissioner, Anti Corruption Branch of Delhi Police; seeking action against HC chandbeer.
1.2 Complainant Rajbir Singh was facing trial in a case u/sec.138 of NI Act, wherein he failed to appear on a particular date and NBWs were issued for him. HC chandbeer from Police Station Paschim Vihar came to his residence for execution of warrants. Complainant was State Vs. Chandbeer Page 1 of 17 2 out of station and thus not available. HC chandbeer spoke to the complainant from his residence, on his mobile phone. Complainant told him that he was out of station and would visit the police station on the next date. On this HC chandbeer asked him to instruct his children to hand over Rs.2,000/ to him and he will provide them particulars of warrants, so that complainant could get the warrants cancelled. Complainant told him that the amount asked for, was not available in the house and he would himself meet him. On 19.04.2008, at about 07:00 AM HC chandbeer called up the complainant asking him to reach Pusta Road, advising him to carry some money. Complainant understood that HC chandbeer was asking for bribe and he, therefore, decided to conduct a sting operation with the help of his friend Ashok. He met HC chandbeer at an agreed spot, where, he conducted videography of HC chandbeer demanding bribe and accepting the same, using a spy camera. Complainant published the aforesaid photograph with report in his newspaper 'Harna Express'. He annexed a print of newspaper with the aforesaid complaint. He also submitted a CD of video recording, a CD of audio recording and a CD containing still photographs. He also annexed a copy of the transcripts of video & audio recordings. 1.3 On the aforesaid complaint, FIR u/sec. 7/13 (i) (d) of Prevention of Corruption Act, 1988 ( hereinafter called as ' the PC Act') was registered. IO/ Inspector Dharambir Singh seized the Video & Audio State Vs. Chandbeer Page 2 of 17 3 CDs prepared the transcripts, recorded the statement of witnesses and arrested chandbeer, after seeking sanction for prosecution. He sought the voice sample of accused, which he declined. On the basis of his investigation, he submitted the charge sheet.
1.4 Cognizance of the offence was taken by the ld. Predecessor of this court, who summoned the accused. On appearance of the accused proceedings u/sec.207 Cr.P.C. were complied with. Vide order dated 10.03.2010, charge for offence punishable u/sec.7 & 13 (i) (d) of the PC Act was framed. Accused pleaded not guilty and claimed trial. 2.1 Prosecution in support of its case examined 16 witnesses. Complainant Rajbir Bansal was cited and examined to prove the demand and acceptance of bribe. He also proved the CDs containing audiography & videography and also the transcripts of the conversation therein. Ashok Kumar (PW9) was cited as a witness to support the complainant's version but the witness did not support the prosecution case. Misri Lal (PW10) was a panch witness to the seizure memo Ex.PW5/D, vide which the CDs of audio & video recording were taken into possession by IO Inspector Dharamvir Singh. Inspector Sanjeev Tomar (PW7) identified the accused in CD, containing the sting operation, wherein demand & acceptance of bribe was captured. V.P.Singh (PW1) was the panch witness before whom Inspector Sanjeev Tomar identified the accused. State Vs. Chandbeer Page 3 of 17 4 2.2 HC Vijender Singh (PW4) Incharge VB Branch of PS Paschim Vihar proved that accused was working under his control as a Constable and was assigned the duty of serving summons and warrants. The warrant in question had been marked to him, which he had returned unexecuted with his report, Ex.PW4/A. 2.3 Suresh Kumar Verma (PW11) was the Panch witness before whom constable Vijender of PSPaschim Vihar identified the voice of accused in the video and audio CD. Mukhtiar Singh (PW12) was a panch witness, to the refusal memo of the accused declining to give his voice sample. The witness did not support the prosecution case but identified his signatures on the refusal memo of the accused, which was exhibited as Ex.PW13/C. 2.4 SI K.L.Meena (PW3) was the duty officer at PSACB. He has proved registration of FIR Ex.PW3/A, on the complaint moved by Rajbeer Bansal (PW5). SI Manoj Kumar (PW8) proved the arrest and personal search of the accused. R.K.Jha (PW2) Addl. DCP accorded sanction u/sec.19 of the PC Act for prosecution of the accused. Raj Kumar (PW6) Assistant Nodal Officer, Reliance Communication Limited, proved the customer application form, call details record and the Cell ID chart with respect to mobile no.9312870946, which was subscribed in the name of State Vs. Chandbeer Page 4 of 17 5 complainant Rajbir Singh Bansal. Dr. C.P.Singh (PW14) from FSL Rohini proved that the Audio and Video CDs Ex.1 to Ex.3, were continuous in track and there was no alteration in the same. His report Ex.PW13/D was proved by him.
2.5 J.K.Goyal, Clerk from Record Room (PW15) and Pawan Kumar (PW16) concerned Ahalmad deposed that the NBWs issued for complainant Rajbir Singh Bansal were not available on the judicial record of complaint u/sec.138 of the NI Act.
2.6 IO ACP Dharambir Singh (PW13) proved registration of FIR, statement of witnesses and the FSL report regarding the contents of CDs. 3 Incriminating evidence that had come up against the accused was put to him and his statement u/s 313Cr. P.C. was recorded. Accused denied demand and acceptance of bribe by him. He submitted that videography and photographs have been manipulated by the complainant. The CDs were handed over by the complainant to the IO, one month after the alleged incident. Complaint was made to PSACB, one and a half month after the alleged incident. Transcripts were prepared by the complainant himself. He had declined to give his voice sample as IO was forcing him to speak in a manner prejudicial to him. FSL Report was biased and motivated. The original NBWs have not been State Vs. Chandbeer Page 5 of 17 6 produced before the court. Complainant is a blackmailer. The CDs had been fabricated and are false.
4 Accused sought opportunity to lead defence evidence and examined Sis Pal Tomar as DW1. The witness deposed that in the year 2008, complainant had filmed officials of Traffic Department, on his asking while demanding and accepting bribe. Complainant colluded with the police official and handed over the CD to them. Witness had then lodged a complaint in PSBhajanpura against the complainant. Witness came to know that complainant is a blackmailer, who indulged in extortion of money from public servants. Complainant had told him that he demanded Rs.2,00,000/ from chandbeer and on refusal of chandbeer to pay the amount, he prepared CD of videography and forwarded the same to his department.
5.1 Sh. Maqsood Ahmed, Ld. substitute PP on behalf of the State has argued that prosecution case is proved beyond reasonable doubt, on the basis of testimony of Rajbir Bansal (PW5) and CDs of audio & video recording made available by the complainant. Accused has been identified in the videography by his immediate superior Inspector Sanjeev Tomar (PW7). His voice has been identified by Mukhtiar Singh (PW12). Moreover, refusal by the accused to give his voice sample shall be read as incriminating circumstances against him. Referring to the CD State Vs. Chandbeer Page 6 of 17 7 Ex. PX1 and the transcripts Ex.PW13/B, it is submitted that the accused is covered in videography demanding and accepting the bribe. Court observation to this effect has been made during the testimony of Rajbir Bansal (PW5). It is, therefore, submitted that the prosecution has proved its case beyond reasonable doubt.
5.2 Sh. Yogesh Verma, ld. defence counsel has argued that prosecution case suffers from major lacunae. The videography Ex. P1 does not cover the face of the person, who had demanded and accepted the money. The alleged bribe giver is also not identifiable in the videography. The main witness cited by prosecution to corroborate the testimony of complainant has not supported the prosecution case. Ashok (PW9) has deposed that some currency notes, which accused was handling, fell down and some person nearby collected the same and handed over the same to accused. The witness has, thus, created doubt on the complainant's version. Referring to the properties of CD Ex. PX1 it is argued that the video file was modified on 24.04.2008, whereas, it is the case of the prosecution that videography was done on 19.04.2008. Rajbir Singh Bansal ( PW5) is a man of doubtful integrity; in his cross examination, initially he denied his involvement in other criminal cases, but on the pointed queries by the ld defence counsel, he admitted his involvement in several criminal cases. Prosecution has also not proved the alleged purpose for which the illegal gratification was demanded. State Vs. Chandbeer Page 7 of 17 8 PW5 has deposed that money was demanded by the accused for cancellation of warrants; complainant who was involved in several litigations could not be fooled by the accused, as he had no power for cancellation of warrants. IO has not cited complainant's wife as a witness, though she was the first person before whom the alleged demand was made. Call Details Record of the complainant's mobile phone Ex.PW6/B can not be read in evidence, as it is not accompanied by certificate u/sec.65/B of the Indian Evidence Act. Moreover, the original recording device/ camera has not been seized by the IO. CDs are, thus, only secondary evidence, which can not be looked into unless the non availability of primary evidence is justified. There is an unexplained delay of almost one and a half month in lodging the complaint of the incidnet. Referring to the testimony of Sis Pal Tomar (DW1), it is argued that complainant is a blackmailer, who habitually creates videography of public servants and black mails them. Only when the public servant does not bow to his pressure, he files the complaint or informs the police. In the present case also, accused did not bow to his pressure as he was innocent; the complainant thus filed the present false complaint. FSL report can also not be read as the laboratory was not notified u/sec. 79A of the IT Act. For the aforesaid reasons, it is submitted that prosecution has failed to establish its case beyond reasonable doubt. Accused is entitled to honourable acquittal.
State Vs. Chandbeer Page 8 of 17 9 6.1 I have heard the ld. counsels and with their assistance perused the entire record. The sequence of events relied upon by the prosecution are very short and crisp. Complainant Rajbir Bansal is the sole protagonist of the entire story. He is the story teller, the actor and the prime mover in the drama which led to arrest of the accused. He is thus the prime witness. Though, some part of his evidence, especially with respect to the telephonic conversation are not established beyond reasonable doubt; yet, the demand and acceptance of bribe covered in videography is proved beyond reasonable doubt and is sufficient to hold the accused guilty. Remaining evidence and witness have been cited and examined only to support and bolster the testimony of Rajbir Bansal ( PW5 ). I shall thus discuss the testimony of Rajbir Bansal ( PW5) in detail. He has deposed that he was facing trial in a complaint u/s 138 of Negotiable Instrument Act in the court of Ld. MM, Rohini, Delhi. On his non appearance on a particular date, NBW had been issued for his arrest. The certified copy of the warrants has been proved by prosecution as Ex. PW13/G. Though the original warrant was not available in the judicial record of complaint u/s 138 Negotiable Instrument Act, yet the issuance of NBW is not in dispute. It is further deposed by PW5 that accused was working in the VB branch of PS Paschim Vihar as Head Constable and was entrusted the NBW for execution upon the complainant. This fact is corroborated in the testimony of Inspector Sanjeev Tomar ( PW7). I/C VB Branch who State Vs. Chandbeer Page 9 of 17 10 deposed that accused was working under his control as Constable. Moreover accused is also not disputing this aspect of the testimony of PW5 as he has admitted in statement u/s 313 Cr. P.C. that warrants had been issued for the complainant and he went to his residence to execute the same.
6.2 Rajbir Bansal ( PW5) has further deposed that he was out of station and accused spoke to him from his residence itself on complainant's mobile phone, raising the demand of Rs. 2000/ as bribe for furnishing particulars of warrants to facilitate cancellation thereof. This part of complainant's testimony is not corroborated by the call details record or by the testimony of his family members, before whome the demand of Rs. 2000/ was allegedly made. Rajbir Bansal ( PW5 ) has further deposed that on 19.04.2008 at about 7.00 AM he received a call from Chandbeer on his cell phone No. 9312870946, asking him to reach Pusta Road and bring Rs. 1500/ to Rs. 2,000/. To corroborate this part of his testimony, prosecution examined Raj Kumar, Nodal Officer, Reliance who brought the customer application form and call details record of complainant's phone. However, the evidence of Raj Kumar, Nodal Officer ( PW10) is of no value, as the evidence of cell phone number of accused was not brought on record by the prosecution. Moreover the call details record suffers from the lacuna of lack of certification u/s 65B of Indian Evidence Act. Thus prosecution case that State Vs. Chandbeer Page 10 of 17 11 accused invited the complainant to reach Pusta Road with some money is not corroborated by call details record. Rajbir Bansal ( PW5) has next deposed that he reached the area of Yamuna pusta to meet chandbeer, with his friend Ashok. Though Ashok ( PW9) turned hostile; yet, he has not disputed that he was present with the complaint and the accused in the area of Yamuna Pusta on the day of incident.
6.3 The most significant part of prosecution case is further deposed by Rajbir Bansal (PW5) that on reaching the agreed spot he met the accused, confirmed his identity and then inquired from him about the course of action, on the warrants issued by court. It was then that the accused demanded KARCHA PANI and told him that he would report non availability of the complainant on the warrants. Accused then accepted Rs. 1000/ as bribe from the complainant. Complainant published this report in his newspaper 'Harna Express' along with the photographs taken at the spot. He also deposed that he had prepared videography of the transaction. Ashok Kumar ( PW9 ) was main witness cited and examined to corroborate demand and acceptance of bribe. This witness has not supported the prosecution case and is apparently lying. His presence at the spot is covered in videography Ex. PX1. Sequence of events deposed by Ashok Kumar ( PW9 ) is apparently contrary to the videography Ex. P1. He has deposed that Rajbir Bansal was giving money to some persons, which fell down on State Vs. Chandbeer Page 11 of 17 12 the ground and was picked up and returned to Rajbir Bansal, who kept the same in his pocket. This part of his testimony is far from truth. Videography Ex. P1 does not show any person picking up currency notes from the ground. Currency notes are clearly seen exchanging hands and then being put in pocket by accused and not the complainant. The witness is, therefore, not worthy of credence. On the contrary testimony of PW Rajbir Bansal ( PW5 ) is corroborated by videography contained in CD Ex. PX1. The excerpts of videography as observed by the ld. Predecessor of this court during the testimony of Rajbir Bansal (PW5) are reproduced herein below: "In CD it is seen that accused Chandbeer is wearing a black pant and a check shirt and when complainant meets him he inquired from Chandbeer and Chandbeer informed him his name. Thereafter Chandbeer took out a warrant from his pocket. Complainant inquired from Chandbeer about date of hearing and Chandbeer informed him date of hearing as 1st of May and further informed him that there is sufficient time to go get the warrants cancelled and further tell the complainant that it is better to get the warrants cancelled. Thereafter, complainant asked about Sewa Pani and thereafter complainant took out two GC notes of Rs. 100/ each and extended towards accused Chandbeer and accused declined to taking the amount by saying that that much amount he did not accept for summons. Thereafter, complainant took out three more GC notes of Rs. 100/ each and extended five GC notes of Rs. 100/ each towards the accused. Accused again declined. Thereafter, complainant took out five more GC notes of Rs. 100/ each from his State Vs. Chandbeer Page 12 of 17 13 pocket and gave Rs. 1000/ to the accused i.e. 10 GC notes of Rs.100/ each which the accused accepted and kept in left pocket of his shirt. Thereafter complainant again inquired from the accused the details of warrant and accused told the complainant the name of court i.e. Shri Puran Chand ld. MM as well as date of hearing".
7. 1 Reliance upon the contents of videography has been strongly contested by the ld. defence counsel on the ground that recording device was not seized by the IO. It is correct that in the absence of original recording, as contained in the memory of recording device or micro chip, the same has to be accepted with caution. The Hon'ble Delhi High in Court of its own motion Vs State reported as 151 (2008) DLT 685 DB has deprecated the practice of sting operation by private persons or agencies. It has further been held that in the absence of original digital recording, the authenticity cannot be easily verified. However the sting operation in the cited case was accepted by the Hon'ble High Court in evidence, after minutely observing the contents and conversations recorded in videography. In the cited case conduct and behaviour of characters in videography, who were senior members of the bar and prosecution witness, was found to be natural by the Hon'ble High Court. The contents of videography in the present case when tested against touch stone exercised by the Hon'ble High Court; I find no discrepancies in the videography of the present case, as well. In this case one of the characters i.e. accused is a public person and the State Vs. Chandbeer Page 13 of 17 14 other i.e. the complaint is editor of small time newspaper. Conversation between the two as covered in the videography, does not reflect any artificiality or awkwardness . After satisfying and verifying the identity of the accused, complainant had asked him about the course of action to be taken on the warrants. Accused informed him that there was sufficient time to get the warrants cancelled and he asked for 'Sewa Pani' to furnish details of the warrants, so as to facilitate the complainant to seek cancellation of the same. Complainant offered him Rs. 200/ which was declined by the accused saying that the amount was insufficient. Complainant then offered Rs. 500/ which was also declined. Subsequently complainant is seen offering him Rs. 1000/, the 10 GC notes of Rs. 100/ each, are counted before the camera which is accepted by the accused and kept in left pocket of his shirt. It is only thereafter that accused furnished the details of the case and advised the complainant to get the warrants cancelled. Though, in the entire videography the face of accused and complainant are not covered; yet, in initial portion thereof the faces are also covered which fix the identity of accused and complainant. Continuity of track of videography is proved by CFSL report Ex. PW13/DX. Dr. C.P. Singh ( PW14) deposed that there was no tampering in track continuity in video shots as well as the audio recording.
State Vs. Chandbeer Page 14 of 17 15 7.2 The accused has been identified in video CD Ex. PX1 by his immediate superior Inspector Sanjeev Tomar (PW7) and his voice has been identified by his colleague Head Ct. Bijender as recorded in memo Ex. PW11/A. 7.3 The arguments of Shri Yogesh Verma that CD of videography/audiography cannot be relied upon does not impress this court. As discussed in paras 7.1 above the continuity in track is established. The behaviour and conduct of characters in videography is normal. The same is corroborative of the complainant's eye witness account. I, therefore, find no reason to doubt the authenticity of videography as contained in CD Ex. PX1.
7.4. It was next argued by Shri Yogesh Verma, ld. defence counsel that there is an unexplained delay in filing of the complaint, on 2.6.2008 of the occurrence dated 19.04.2008. It is submitted that the complainant is blackmailer, who has filmed various public servants accepting bribe but has not filed cases against all of them. Prima facie the argument looks impressive, but study of cross examination of the witness reveals that he has explained the delay. He explained that he had published the report along with the photographs in the weekly edition of his newspaper 'Harna Express' for the period 19.04.2008 to 27.04.2008. He State Vs. Chandbeer Page 15 of 17 16 had also submitted a copy of publication in Anti Corruption Branch office and on receipt of telephone call from Anti Corruption Branch, he went to the branch and made a complaint in writing and also submitted audio/video clips. The fact that complainant had published the news with photographs in his newspaper within a week of the incident indicates that he was not trying to hush up the matter. In case he wanted to blackmail the accused and extract money from him, he would not have published the same in newspaper. In any case delay, if any, cannot be fatal in the light of sufficient evidence on record. The ld. defence counsel has also challenged the conduct of complainant on the ground that he is involved in several criminal cases. In my opinion the same would not wash away the effect of his oral testimony, corroborated by videography. The testimony of defence witness Sis Pal Tomar (DW1 is of no evidenciary value, as he has not deposed from personal knowledge that accused was a blackmailer or extortionist. He has attributed this knowledge about the conduct of complainant on the basis of information allegedly furnished by complainant himself. His evidence is, therefore, hearsay, in nature.
8. Accused is public servant who was working as Constable in Delhi Police. Inspector Sanjeev Tomar ( PW7) and HC Vijender (PW4) have deposed to this effect. R.K. Jha, Addl. DCP ( PW2 ) had accorded sanction u/s 19 of PC Act for prosecution of the accused. There is no State Vs. Chandbeer Page 16 of 17 17 dispute by the defence, as regards the accused being a public servant and grant sanction for his prosecution.
9. For the aforesaid reasons I hold that the prosecution has established its case beyond reasonable doubt. The demand and acceptance of bribe by accused Chandbeer is proved beyond reasonable doubt. He is thus held guilty for offence punishable u/s 7 of the PC Act for demand and acceptance of Rs. 1000/ as bribe in consideration of non execution of NBW issued against the complainant. By the same act of the accused, he also abused his position as such being a public servant and I thus hold him guilty for criminal misconduct as specified u/s 13(1) (d) and punishable u/s 13(2) of the PC Act. He is accordingly convicted for the aforesaid offences.
Announced in the open Court (NAROTTAM KAUSHAL)
on 19.08.2013. SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
DELHI
State Vs. Chandbeer Page 17 of 17