Delhi District Court
Cbi vs Pushpa Rattan on 9 May, 2013
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST) cum SPECIAL JUDGE (CBI),
KARKARDOOMA COURTS, DELHI
AC No.01/2007
Unique Case ID No.02402R0096052007
FIR No.RC DAI 2006A0034
Under Section 7 and 13(2) r/w Sec. 13(1)(d) of PC Act.
CBI Versus Pushpa Rattan
W/o Sh. Subhas Rattan
R/o 616/1A, Shastri Gali,
Vishwas Nagar, Delhi.
Also resident of 1229, Janta Flats,
Nand Nagri, Delhi.
Date of Institution : 31.01.2007
Date of reserving the order : 30.04.2013
Date of pronouncement : 09.05.2013
JUDGMENT
The accused Pushpa Rattan has been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of PC Act. 2 At the time of commission of the offence, the accused Pushpa Rattan was posted as Assistant Sub Inspector at Crime against AC No.01/2007 CBI Vs. Pushpa Rattan Page 1 of 34 Women Cell, PS Krishna Nagar, Delhi Police.
3 Briefly stating, the facts of the case are that a written complaint dated 22.08.2006, Ex.PW3/A was made by Sh. Ravi Kumr (PW3) (hereinafter shall be referred as complainant) to the CBI to the effect that he was resident of Nathu Pura, Delhi. On 15.07.2005, he was engaged with one Pooja D/o Sh. Dwarpal but after some days, the engagement was broken by the girl's side. They had taken away all the articles and the matter was settled due to intervention of village Panchas. It is further mentioned in the complaint that on 10.07.2006, he received a notice from Crime against Women Cell and then he came to know that Sh. Dwarpal had made a complaint against the complainant with Delhi Police. Said complaint was being inquired by Smt. Pushpa Rattan, Investigating Officer. Accused Pushpa Rattan had called the complainant in CAW cell 45 times. On the last date i.e. 8.8.2006, accused asked the complainant that if he wanted to close the case, he had to pay Rs. 5,000/, else whole family of the complainant would be sent to jail. Accused had taken bribe of Rs. 1,000/ on 19.08.2006 and had been harassing the complainant to pay remaining amount of Rs. 4,000/. As the complainant did not want to pay bribe, he wanted an action against the accused. AC No.01/2007 CBI Vs. Pushpa Rattan Page 2 of 34 4 The complaint Ex.PW3/A was assigned to Inspector Sanjay Dhall (PW9) for verification and for laying trap. After verification, FIR Ex.PW3/B was recorded. A trap team consisting Trap Laying Officer Inspector Sanjay Dhall (PW9), Sh. S.S.Bhullar, Sh. N.K. Jain, Sh. Som Nath Biswas, ASI Sunita Chamoli and other subordinate staff was constituted. Two independent witnesses, namely, Sh. S.S. Khinchee (PW7) and Sh. Brij Pal Singh (PW10) were arranged. Team members and independent witnesses were explained the reason for laying trap. The complainant was introduced and contents of complaint were shown to the all the members of team and independent witnesses. The complainant was asked to make a call from his mobile phone at the mobile phone of accused. A call was made and the conversation was recorded in digital recorder. During conversation, the motive and demand of bribe by accused was confirmed. The said recorded conversation was later on transferred to a cassette Ex.P10 and its cloth wrapper is Ex.P11. Transcription Ex.PW2/DB of the said conversation was later on prepared. After confirmation of demand of bribe by accused, it was decided to lay a trap.
5 In the CBI office, the complainant (PW3) produced a AC No.01/2007 CBI Vs. Pushpa Rattan Page 3 of 34 sum of Rs.3,000/ in the form of 1 GC note in the denomination of Rs. 1,000/, 3 GC notes in the denomination of Rs.500/ each and and 5 GC notes in the denomination of Rs.100/ each. Number of GC notes were recorded in Handing Over Memo Ex.PW7/A. The said GC notes were smeared with phenolphthalein powder and its reaction with colourless solution of sodium carbonate was demonstrated to all by Inspector N.K. Jain. The smeared GC notes were handed over to the complainant (PW3) with the directions to hand it over to accused on her specific demand to some other person on the directions of accused. Independent witness Sh. S.S. Khinchee (PW7) was asked to act as shadow witness, to remain close to the complainant and to watch the transaction. A digital recorder was given to the complainant for recording the conversation at the spot. The complainant (PW3) and shadow witness (PW7) were directed to give signal by scratching their head with both hands after completion of the transaction of bribe. Another independent witness Brij Pal Singh (PW10) was directed to remain with the trap party. All the proceedings which took place at CBI office were recorded in Handing over Memo Ex.PW7/A. 6 After completion of pretrap proceedings, CBI team AC No.01/2007 CBI Vs. Pushpa Rattan Page 4 of 34 along with the independent witnesses and the complainant left CBI office in Government vehicle and reached in the vicinity of CAW cell, PS Krishna Nagar at about 6.45 p.m. On the way towards, CAW cell, the complainant made a call at the mobile phone of accused at about 6.15 p.m. in order to confirm that he was on his way to the office of the accused. The said conversation was also recorded. The complainant (PW3) was handed over digital recorder with directions to switch it on before start of conversation with the accused. He was also directed to proceed towards CAW cell along with shadow witness (PW7). Another independent witness Brij Pal Singh (PW10) and CBI team members took suitable position and followed the complainant discreetly.
7 The complainant and shadow witness entered the office of CAW cell. At about 7.00 p.m., the complainant, shadow witness and one lady in civil clothes along with another lady were seen talking and coming out of office. The accused informed the complainant that office had been closed and they were discussing the case. They were followed by CBI team. At about 200 meters from the office near Kanta Rani Aggarwal Dharmartha Aushdhalya, 2/1 A60, Gali No.5, East Azad Nagar, Delhi, shadow witness(PW7) gave AC No.01/2007 CBI Vs. Pushpa Rattan Page 5 of 34 the preappointed signal. On receipt of signal, CBI team rushed towards them. Identity of CBI team members was disclosed to the accused and she was asked whether she had demanded and accepted bribe of Rs.3,000/ from the complainant on which she became perplexed and denied having demanded any money from the complainant. The complainant was asked about the transaction of bribe who stated that after contacting accused, they had a conversation about the case and on the demand by accused, the complainant handed over tainted GC notes to accused which she took with her right hand and kept it in her purse by adjusting the bribe money with her left hand.
8 Since it was a public place, it was decided to conduct posttrap proceedings inside CBI vehicle. Right hand wash and left hand wash of accused were taken in colourless solution of sodium carbonate which turned into pink. Thereafter, hand washes were transferred to glass bottles marked RHW and LHW. On the directions of Inspector Sanjay Dhall (PW9), independent witness Brij Pal Singh (PW10) recovered bribe amount of Rs.3,000/ Ex.P1 from the purse of accused. Numbers of recovered GC notes were tallied with their numbers mentioned in Handing over Memo Ex.PW7/A and AC No.01/2007 CBI Vs. Pushpa Rattan Page 6 of 34 were found tallied. The inner lining of purse of accused was dipped in the colourless solution which also turned pink. The said solution was transferred to glass bottle marked PPW. The bottles marked RHW, LHW and PPW Ex.P3 to Ex.P5 were seized and their cloth wrappers are Ex.P6 to Ex.P8.
9 Further proceedings were conducted in the room of SHO. Digital recorder was taken back from the complainant and on hearing its recording, demand and acceptance of bribe by accused was established. Recorded conversation was transferred to an audio cassette Ex.P12 and its cloth wrapper is Ex.P13. Its transcription Ex.PW2/DC was prepared later on. Site plan Ex.PW7/C was prepared. The accused was arrested vide arrest cum personal search memo Ex.PW7/D. Intimation of arrest Ex.PW9/C was given to the family member of accused. Purse Ex.P9 of the accused was seized. Proceedings conducted at the spot were recorded in Recovery Memo Ex.PW7/B. 10 Vide search cum seizure memo Ex.PW9/A of almirah of accused, file Ex.PW9/B of the complaint case in CAW Cell was seized. House of accused was searched and certain documents were seized vide memoEx.PW5/A. AC No.01/2007 CBI Vs. Pushpa Rattan Page 7 of 34 11 Specimen voice of the accused was recorded vide memo Ex.PW9/D. Cassette containing specimen voice is Ex.P14, its inlay card is Ex.P15 and its cloth wrapper is Ex.P16. Washes were sent to FSL vide covering letter Ex.PW9/E, whereas questioned cassettes and specimen voice cassette were sent to FSL vide covering letter Ex.PW2/B. Washes were examined in CFSL by Sh. V.B. Ramteke (PW1) vide report Ex.PW1/A, whereas cassettes were examined by Sh. Deepak Kumar Tanwar (PW2) vide report Ex.PW2/A. Since accused had already been dismissed, sanction for her prosecution was not required.
12 After completion of the investigation, the challan was put up in the court where the accused was supplied with the copies of the chargesheet and the documents of the CBI.
13 The charges under section 7 & 13(2) and 13(1)(d) of the P.C. Act were framed against the accused which read as under: "Firstly that you being a public servant while working as Assistant SubInspector at Crime against Women Cell, PS Krishna Nagar, Delhi demanded the bribe of Rs. 5,000/ from Sh.
Ravi Kumar as illegal gratification for closing the case against him and for not arresting him and his family members and thereafter in pursuance of the above, demanded and accepted AC No.01/2007 CBI Vs. Pushpa Rattan Page 8 of 34 the amount of Rs.3,000/ from Sh. Ravi Kumar, PS Krishna Nagar Complex, Delhi and thereby committed an offence under section 7 of the Prevention of Corruption Act, 1988.
Secondly that you Pushpa Rattan W/o Sh.
Subhas Rattan, while working in the abovesaid capacity on the abovesaid date and place, by corrupt or illegal means or by otherwise abusing your position as public servant obtained the pecuniary advantage to the tune of Rs.3,000/ from Sh. Ravi Kumar and thereby committed an offence specified in section 13(1)
(d) punishable under section 13(2) of P.C.Act 1988."
14 Accused pleaded not guilty to the charges framed against her and claimed trial.
15 The prosecution has examined eleven witnesses in support of its case. Out of those witnesses, PW3 Sh. Ravi Kumar is the complainant. Sh. Praveen Sharma (PW4) was the then ACP, CAW Cell, Krishna Nagar. PW5 Sh. Anil Jain and PW6 Sh. Raj Pal Singh were the independent witnesses of the house search of accused. PW7 Sh. S.S. Khinchee and Sh.Brij Pal Singh (PW10) were the independent witnesses who remained with the trap party. PW8 Sh. Madhu Kumar Tiwari was the then DCP (East) who proved the AC No.01/2007 CBI Vs. Pushpa Rattan Page 9 of 34 dismissal order of accused. PW9 Inspector Sanjay Dhall and PW11 Inspector Shehnaz Khan are the Investigating Officers. PW1 Sh. V.B.Ramteke examined washes in CFSL, whereas PW2 Sh. Deepak Kumar Tanwar examined cassettes.
16 The statement of the accused was recorded under Section 313 Cr.PC. Accused has stated that the complainant asked her to get the matter settled with other party to whom the complainant was ready to pay the money. There was no occasion to pay money to the accused. On the day of trap at about 6.30/7.00 p.m., the complainant came to her and talked to her while she was at staircase after closing the office. Her colleague Smt. Geeta Sharma was with her. She denied that she accepted any money from the complainant. The currency notes were forcibly put in her purse by Ravi. She immediately threw the same on road saying that the complainant should give the money to the other party when they meet. Her dismissal order was illegal and has been set aside by the Appellate Authority. Accused further stated that she was trying to mediate between Ravi against whom his fatherinlaw and exwife had lodged a complaint of harassment. Many dates were given for settlement and Ravi had a feeling that she was delaying the matter, that is why he AC No.01/2007 CBI Vs. Pushpa Rattan Page 10 of 34 levelled false allegations against her. Accused opted to lead evidence in her defence. Despite availing opportunity, no defence evidence was adduced by the accused.
17 I have heard Shri S. Krishna Kumar, learned PP for the CBI as well as Shri N.K. Sharma, Advocate, learned defence counsel for accused. I have also carefully gone through their submissions and the record of the case.
18 Our own Hon'ble High Court in case titled Ram Chander Versus State (Reported in 2009 Cri. L.J. 4058) has framed the guidelines in trap cases. In the said judgment, it was observed that to succeed in trap cases, the prosecution is obliged to prove the previous demand of bribe, its acceptance and the recovery of tainted money. It was further observed that the demand can be proved by the testimony of complainant as well from the complaint made by him. In Banarsi Dass Vs. State of Haryana, AIR 2010 SC 1589 it was similarly held that demand and acceptance of bribe is must in trap cases.
Demand of bribe at initial stage 19 The case of the prosecution is that accused demanded bribe of Rs.5,000/ from the complainant (PW3) for not arresting him AC No.01/2007 CBI Vs. Pushpa Rattan Page 11 of 34 and his family members in a complaint filed against him by his fatherinlaw in CAW Cell. It is also case of the prosecution that prior to laying of trap, the complainant by way of his written complaint had approached the CBI that accused had demanded bribe from him. It is also case of the prosecution that during pretrap conversation, the factum of demand of bribe by accused was confirmed. 20 On the other hand, ld. Defence counsel has argued that the complainant has not stated anything in his testimony that demand of bribe was made by accused. He has argued that the complainant admitted that he himself was ready to pay the money to the accused and that is too for giving it to the other side for settling the case of CAW cell. He has further argued that there is no corroboration of contents of complaint. Even the complaint was not made voluntarily by the complainant. It is further argued that apart from the testimony of the complainant, there is no other witness to the demand of bribe.
21 To prove the initial demand of bribe by accused before laying trap, prosecution has examined the complainant (PW3). The complainant Ravi Kumar (PW3) has deposed that on 15.07.2005, he was engaged with one Pooja and same was broken later on due to AC No.01/2007 CBI Vs. Pushpa Rattan Page 12 of 34 some reason. Mr. Dwarpal, father of Pooja, filed a complaint against him in PS Krishna Nagar alleging that he was demanding dowry and that is why he had broken the engagement. The said complaint was filed in Women Cell at PS Krishna Nagar. He had received summons from PS Krishna Nagar and then he came to know that a complaint was lodged against him. After sometimes, he went to PS Krishna Nagar and met Pushpa Rattan, IO of the case. He was called at PS Krishna Nagar 23 times and an attempt was made to settle down the matter but it could not materialise. The complainant further deposed that he requested the accused so many times to get the matter settled and said to her that he was ready to pay some money, if it was settled. He did not remember as to what talks had taken place between him and accused. On 19.08.2006, he paid Rs.1,000/ to accused to settle down the case and she accepted the said amount. Total Rs.5,000/ was to be paid to the accused. On 22.08.2006, he had gone to CBI office on the asking of one Advocate where he submitted his complaint Ex.PW3/A. 22 The complainant (PW3) was declared hostile and was cross examined by Ld. PP for the CBI. During cross examination by Ld. PP, though this witness admitted that the complaint Ex.PW3/A AC No.01/2007 CBI Vs. Pushpa Rattan Page 13 of 34 was written by him but he voluntarily stated that it was got written from him and that is too after the apprehension of accused by CBI. He denied that accused demanded money from him. He further denied that he voluntarily wrote in complaint Ex.PW3/A that accused demanded bribe from him. He further denied that complaint Ex.PW3/A was given by him to CBI before the trap proceedings. He further denied that his grievance against the accused was that she had demanded Rs.5,000/ for closing case against him. The complainant was confronted with his complaint Ex.PW3/A and he stated that he was made to write the contents thereof. Specific question was asked from the complainant as to what was his grievance from accused on 22.08.2006 when he attended CBI office and in answer thereto, the complainant stated that due to broken engagement and lodging of complaint against him, he attended CAW cell 23 times before accused. One Advocate suggested him that case against him would not be closed unless he complained to CBI against accused. 23 In his entire testimony, the complainant has not stated anything against the accused that she had demanded any bribe from him. He has stated that he himself was ready to pay the money to accused for settling the matter with the opposite party who had made AC No.01/2007 CBI Vs. Pushpa Rattan Page 14 of 34 a complaint against him in CAW Cell. He has also stated that he paid Rs.1,000/ to the accused for settling down the case. He has nowhere stated that any demand of bribe was made by accused. He has not corroborated the contents of his complaint Ex.PW3/A that any demand of bribe was made by accused prior to his making complaint to CBI.
24 As per testimony of the complainant, a doubt is cast about the complaint Ex.PW3/A inasmuch as he has stated that he was made to write the complaint. He also stated that the said complaint was got written from him and that is too after apprehension of accused by CBI. He has also stated that complaint against accused was made by him just to pressurize her for getting the matter settled in CAW Cell. This testimony of the complainant casts a serious doubt about the genuineness of the complaint which was the basis for registration of the FIR of the present case. When it has been deposed by the complainant that the complaint had not been made voluntarily by him, the very basis for registration of FIR goes. 25 It is not the case of prosecution itself and recording of the conversation between the complainant and the accused was done with regard to conversation dated 8.8.2006 when the alleged AC No.01/2007 CBI Vs. Pushpa Rattan Page 15 of 34 demand of bribe was made by the accused. Admittedly, there is no other evidence on record with regard to said conversation. The witnesses apart from complainant are either of pretrap or posttrap proceedings and they were not the witnesses to corroborate the contents of complaint Ex.PW3/A. In the absence of deposition of the complainant with regard to demand of bribe by accused prior to lodging of complaint, in my considered view, the prosecution has failed to establish the demand of bribe by accused at initial stage i.e. prior to making of complaint to the CBI.
26 So far as conversation recorded in cassette Ex.P10 between the complainant and the accused prior to laying of trap is concerned, first of all, the complainant in his entire testimony has not stated anything against the accused in this regard. The recorded conversation in cassette Ex.P10 was played in the Court and the complainant identified his voice as well as voice of accused therein. Though the complainant identified voice of accused but during his cross examination, he stated that accused did not ask any money for herself but whatever amount was asked to pay, that was to be paid to other party. In view of this clarification of the complainant in his cross examination, conversation recorded in cassette Ex.P10 is of no AC No.01/2007 CBI Vs. Pushpa Rattan Page 16 of 34 help to the prosecution to establish that accused demanded any bribe from the complainant as it has been explained that whatever money was asked for, it was for the other party.
27 I have gone through the ratio of judgment in case of Panalal Damodar Rathi Vs. State of Maharashtra, 1980 SCC (Cri) 121 in which it was observed that the demand of bribe needs corroboration. I have also gone through the judgment in case of Ram Chander Vs. State (Govt. of NCT of Delhi), 2009 (4) RCR (Criminal) 880 in which it was held that the prosecution has to prove the demand by accused twice, firstly before the trap and secondly at the time of trap. There is only the evidence of complainant in order to establish the demand of bribe at the initial stage, who has turned hostile and has not supported the case of prosecution. He has not stated in his testimony that accused ever demanded any money as bribe from him. There is no other corroboration to the contents of complaint Ex.PW3/A to establish the demand of bribe. 28 In view of above discussion, the prosecution has failed to establish the demand of bribe by accused at the initial stage i.e. prior to making of complaint to CBI as well as prior to laying of trap.
AC No.01/2007 CBI Vs. Pushpa Rattan Page 17 of 34 Demand of bribe at the spot 29 To prove the demand of bribe by accused at the crucial stage i.e. at the spot, prosecution has examined the complainant (PW3) who deposed that after making complaint Ex.PW3/A, he had given Rs. 3,000 to Sh. Sanjay Garg. Two witnesses Sh. S.S.Khinchu and Brij Pal Singh were present there. He did not know what proceedings were held inside CBI office as he came outside. He had no talks with accused on 22.08.2006. The whole team had gone to PS Krishna Nagar. We reached there at about 6.30/7.00 p.m. and at that time, office was closed and accused was coming out. One lady was also with the accused. He was walking along with accused and two witnesses who came from CBI office. When they were going through the market talking each other, he gave money to the accused. He categorically stated that he had given money for which accused had not asked. One pen type micro recorder was put in his shirt's pocket in which conversation was recorded. He has also stated that he had heard the conversation subsequently when it was played in the office of CBI but it was not fully audible.
30 This witness was declared hostile by the prosecution AC No.01/2007 CBI Vs. Pushpa Rattan Page 18 of 34 and was cross examined by Ld. PP for the CBI. In his cross examination by Ld. PP for the CBI, he has stated that Rs.3,000/ given to the CBI were coated with powder and he accompanied CBI team to PS Krishna Nagar. However, he failed to identify the GC notes when same were shown to him in his cross examination. He admitted that he was told that tainted notes were to be handed over to accused on her demand. He admitted that one independent witness was asked to act as shadow witness. However, he did not remember whether the said witness was Sh. S.S.Khinchee. He stated that accused met them outside PS Krishna Nagar Complex. One person was with the complainant at that time but he did not remember his name. He voluntarily stated that another person with him was his relative. He further stated that digital recorder was in his pocket at that time but he did not remember whether it was lying on and whether conversation was recorded. On inquiry, accused told him that other side i.e. Sh. Dwarpal, father of the girl, had already left. The complainant stated that he did not remember that full conversation.
31 During cross examination by ld. PP, cassette Ex.P12 allegedly containing conversation of the spot was played in the Court AC No.01/2007 CBI Vs. Pushpa Rattan Page 19 of 34 and after hearing its recording, the complainant identified his voice as well as voice of accused. With regard to played conversation, the complainant has stated that Rs.25,000/ mentioned therein was to be given as a settlement to Sh. Dwarpal. He also identified voice of accused by saying that he would pay five to her. He further stated that the audio cassette operated in the Court was not prepared from the digital recorder in his presence. He admitted that accused had not demanded any money for herself and whatever money demanded, that was for making payment to other party.
32 As per above testimony of the complainant, the prosecution has failed to establish the demand of bribe by accused at the spot at the time of laying trap. The complainant nowhere stated that accused demanded bribe from him when he met the accused outside her office. He has controverted the case of prosecution and made material contradictions. As per recovery memo Ex.PW7/B, the complainant was accompanied with shadow witness S.S. Khinchee (PW7) when he met the accused outside her office. The complainant controverted the recovery memo by saying that he had gone there along with one of his relatives. He also stated that at that time he was accompanied by two witnesses who had come from CBI office. With AC No.01/2007 CBI Vs. Pushpa Rattan Page 20 of 34 regard to Sh. S.S. Khinchee, the complainant specifically stated that he did not remember whether Sh. S.S. Khinchee was with him at that time or not. So, there is nothing in the testimony of the complainant (PW3) from which the prosecution can get any support to establish the demand of bribe by accused at the spot.
33 So far as recording of cassette Ex.P12 allegedly containing conversation of the spot and its transcription Ex.PW2/DB are concerned, the complainant has specifically stated that he did not know whether the digital recorder was lying switched on when he was talking with accused or whether any recording had taken place in it or not. The report Ex.PW2/A of CFSL Expert (PW2) who examined voices in CFSL and transcription Ex.PW2/DB can not be relied upon to establish the demand of bribe in view of the fact that the complainant has not stated anything in his testimony that accused ever demanded bribe from him. Rather, he categorically stated that whatever money demanded, that was meant to be delivered to the opposite party who had filed a complaint against him in CAW cell. So, the report of voice Expert and transcription are of no help to the prosecution.
34 Sh. S.S. Khinchee (PW7) who was allegedly acting as AC No.01/2007 CBI Vs. Pushpa Rattan Page 21 of 34 shadow witness has stated that after reaching at the spot i.e. Women Cell, Krishna Nagar, he along with the complainant went to the room of the accused and rest of the team members remained below. At that time, accused was getting down after closing her room. Accused said that office was closed and that she was leaving and asked the complainant to come next day. The complainant insisted that he had brought the money and she might accept the same. They came downstairs and reached outside. This witness further stated that accused asked the complainant whether he had brought the full money to which the complainant replied that he could bring only Rs. 3,000/. On this, accused stated that first the complainant should bring full amount. After some distance, the complainant again asked the accused whether he could hand over money to her to which accused said OK if he had brought the money.
35 Apart from above testimony of witness (PW7), there is nothing in his statement from which it could be inferred that accused demanded bribe or illegal gratification from the complainant for doing any favour to him in the case. As per his testimony, accused never asked for any bribe from the complainant, rather it was the complainant who was insisting the accused to accept the money AC No.01/2007 CBI Vs. Pushpa Rattan Page 22 of 34 he had brought. It was only after the insistence of the complainant, accused agreed to accept the money brought by him. It has not been stated by witness (PW7) what for the money was given by the complainant and for what it was accepted. It is pertinent to mention here that the complainant in his testimony has categorically stated that accused never demanded any bribe from him and whatever money demanded, it was meant to be given to the opposite side of the case of CAW Cell towards settlement.
36 So, the testimony of PW7, alleged shadow witness, is also of no help to the prosecution to establish the demand of bribe by accused at the spot.
37 I have gone through the ratio of judgment in case of T.Subramanian vs. State of T.N. (2006)1 SCC 401 in which it was held that in the absence of proof of demand and acceptance of money as illegal gratification, mere proof of receipt of money by accused is not sufficient to establish his guilt. In case of Bhagwan Singh vs. State of NCT of Delhi 2010 (4) LRC 73 (Delhi), it was further observed that when the complainant has not categorically stated that accused demanded bribe from him, story of demand by illegal gratification by accused not found to be substantiated. AC No.01/2007 CBI Vs. Pushpa Rattan Page 23 of 34 38 The ratio of above mentioned judgments is squarely applicable to the facts and circumstances of the present case inasmuch as the complainant has not stated in his testimony that the complainant demanded the bribe from the complainant (PW3) at the time of laying trap. The testimony of shadow witness is also of no help to the prosecution, as discussed above.
39 In view of above discussion, the prosecution has failed to establish convincingly that accused demanded any bribe from the complainant at the spot at the time of laying trap. Acceptance and recovery of bribe.
40 Case of the prosecution is that accused accepted the bribe money from the complainant (PW3) and its recovery was effected from her purse.
41 The complainant(PW3) in his examination in chief has stated that after having talks with accused outside her office, during the talks, he gave money to the accused. He categorically stated that he himself gave money to accused saying that she might keep the same and rest of the things, they would talk later. He also stated that he had given money for which accused never asked. During cross examination by Ld. PP for CBI, he stuck to his stand AC No.01/2007 CBI Vs. Pushpa Rattan Page 24 of 34 and stated that accused was not accepting the amount, he put the amount in her purse, she took out the amount and threw it on the ground. He denied that accepted the sum of Rs. 3,000/. He also denied that accused accepted bribe from her with her right hand, put it inside her purse after adjusting the same with left hand and closed the zip of purse. He categorically admitted that he had put Rs.3,000/ in the purse of accused.
42 In view of above testimony of the complainant(PW3), it was he who himself had given money to the accused and that is too without any asking for it by the accused. His testimony further shows that the accused was reluctant to accept the money from the complainant and then only the complainant thrust it in the purse of accused. As per his testimony, accused threw away money after taking it out from her purse.
43 In view of above testimony of the complainant, bribe was neither demanded by accused nor accepted by her, rather it was thrust by the complainant in her purse. The case of the prosecution is that hand washes and purse wash of accused proved its case that bribe was accepted by accused and its recovery was effected from her purse. The hand and purse washes of accused which allegedly turned AC No.01/2007 CBI Vs. Pushpa Rattan Page 25 of 34 into pink does not in any way prove the acceptance of bribe and its recovery, in view of testimony of the complainant, firstly being no bribe was ever demanded by accused. Secondly, whatever money was given to the accused, was with regard to settlement amount to be handed over to the opposite side. Thirdly, bribe money was thrust by the complainant in the purse of accused. Fourthly, accused took out money from the purse and threw it away. The reason for having smeared the hands of accused and her purse with phenolphthalein powder was that the money was thrust in her purse by the complainant and accused took it out from her purse and threw it away. It is a settled law that accused is not required to prove her defence by leading defence evidence, rather she can prove her case through the testimony of prosecution witnesses. In the present case, defence of accused that she neither demanded bribe, nor accepted it has duly been proved from the testimony of the complainant, as discussed above.
44 I have gone through the ratio of judgment in case of Prem Singh Yadav vs. Central Bureau of Investigation 2011 (2) JCC 1059 in which it has been held that recovery of tainted money alone is not sufficient to record conviction in the absence of any instance to AC No.01/2007 CBI Vs. Pushpa Rattan Page 26 of 34 prove the payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. I have also gone through the judgment in case of State (Govt. of NCT of Delhi) vs. Girdhari Lal Verma 2011 ( 3) JCC 1744 in which also it has been held that demand of money is a sine qua non for the conviction of accused in bribery cases.
45 As discussed above, since the demand and acceptance of bribe by accused has not been convincingly proved by the prosecution, its recovery from her purse is immaterial in the absence of demand and acceptance of bribe which are essential ingredients of the trap cases. Therefore, the report of wash Expert Ex.PW1/A is of no consequence.
46 So far as independent witnesses S.S. Khinchee (PW7) and recovery witness Brij Pal Singh (PW10) are concerned, their testimony can not be made basis for conviction in view of above discussed testimony of the complainant and the fact that the prosecution has failed to establish the demand and acceptance of bribe by accused. Remaining witnesses are formal in nature being official witnesses or witnesses to the house search of accused which in no way go to connect accused with demand and acceptance of AC No.01/2007 CBI Vs. Pushpa Rattan Page 27 of 34 bribe.
47 It has been argued by ld. Defence counsel that the original digital recorder in which the alleged conversation between the accused and the complainant was recorded has not been produced in the Court. He has argued that the prosecution has produced the cassettes containing alleged conversations which is secondary evidence and in the absence of primary evidence i.e. digital recorder, the same can not be relied upon. In support of his contention he has relied upon a judgment in case of Shakuntala Vs. State 2011(2) JCC 1001. In para 53 of the said judgment, it has been held that if the original evidence is not produced on account of failure of the party to file the same and it is not proved to be valid, the same party is not entitled to introduce secondary evidence of its contents. He has further relied upon judgment in case U.Sree vs. U.Srinivas ( 2013) 2 SCC 114 in which it was observed that in a case where original documents are not produced at any time or has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. 48 In the present case, objections with regard to cassettes containing recorded conversation have been raised by the AC No.01/2007 CBI Vs. Pushpa Rattan Page 28 of 34 defence during the course of evidence as well as at the time of final arguments to the effect that same amounts to secondary evidence under section 65 of the Evidence Act which can not be relied upon in the absence of its original one i.e. digital recorder. The explanation offered by the prosecution is that digital recorders available with the CBI are in limited number and it is not possible to retain the original recording therein till disposal of a particular case. Even otherwise, it is not practical to retain each and every digital recorder, rather it would be more appropriate to transfer the recording to some other device which has been done in the present case. So, there is no force in the contention of Ld. Defence counsel and thus authorities relied upon above are distinguishable to the facts of the present case. 49 Ld. Defence counsel has further argued that the prosecution is duty bound to lead evidence to show that the recorded conversation was not tampered with till it was examined by the Expert. He has further argued that the prosecution has not produced any evidence to show that the recorded conversation remained in whose possession to rule out any tampering. In support of his contention, judgments in case of R.M. Malkani vs. State of Maharastra AIR 1973 SC 157 and Savita alias Babbal vs. State of AC No.01/2007 CBI Vs. Pushpa Rattan Page 29 of 34 Delhi 2011 (3) JCC 1687 have been relied upon in which it has been held that the tape recorded conversation is admissible provided that the conversation is relevant to matter in issue, there is identification of the voice and that the accuracy of the conversation is proved by eliminating the possibility of erasing the tape record. 50 Ld. Defence counsel has also relied upon judgment in case of Ukha Kolhe vs. State of Maharastra AIR 1967 SC 1531 in which it observed that there was no evidence about the person in whose custody the phial remained till it was handed over to the Sub Inspector. There was also no evidence about the precautions taken to ensure against tampering with the contents of the phial when it was in the Civil Hospital and later in the custody of the police. 51 The contention of ld. Defence counsel is that no evidence has been produced to rule out any tampering in the recorded conversation which was sent to the Expert for obtaining opinion. It is pertinent to mention that in the handing over memo Ex.PW7/A, it is mentioned that the cassette Ex.P10 was sealed with seal of CBI. The recovery memo Ex.PW7/B also shows that the conversation which took place at the spot was transferred to audio cassette and was sealed with seal of CBI. Letter Ex.PW2/B vide which the questioned AC No.01/2007 CBI Vs. Pushpa Rattan Page 30 of 34 cassette as well as cassette specimen voice were sent to CFSL shows that the same were sent in sealed condition. Sh. Deepak Kumar Tanwar (PW2), CFSL Expert, has also stated that he received 3 parcels in sealed condition containing abovementioned cassettes. IO of the case inspector Sanjay Dhall (PW9) has also stated that the cassettes were sealed after getting the date transferred from the digital recorder. The abovementioned circumstances show that till the cassettes were sent to CFSL, they remained in the custody of IO (PW9) which rules out possibility of any tampering in the recorded conversation. So, the contention of ld. Defence counsel is not tenable and the judgments referred to above render no assistance to the defence.
52 As discussed above, the prosecution has failed to establish the acceptance of bribe by accused. The mere recovery of money is of no consequence as the prosecution has failed to establish that the accused voluntarily accepted the money knowing it to be bribe.
Conclusion 53 The prosecution has further failed to establish the initial demand of bribe by accused. It was alleged against accused AC No.01/2007 CBI Vs. Pushpa Rattan Page 31 of 34 that when the complainant contacted her in CAW Cell, demand of bribe of Rs.5,000/ was made from him. But the complainant (PW3) has not supported the case of prosecution. He has stated that accused never demanded any bribe from him for herself. He has stated that whatever money was demanded, it was for payment to the opposite side who had made complaint against the complainant in CAW Cell. The contents of the complaint Ex.PW3/A made to the CBI has not been corroborated by any evidence or material. Thus, the prosecution has failed to prove the demand of bribe by accused at the initial stage i.e. before making complaint to the CBI.
54 The prosecution has further failed to prove the demand of bribe by accused at the crucial stage i.e. at the time of laying of trap. The complainant (PW3) has stated that no demand of bribe was ever made by accused. He also stated that he had not made any complaint against the accused voluntarily, rather it was obtained from him and that is too after apprehension of accused by the CBI. He has also stated that he had a grievance against accused and he wanted to pressurize her by making complaint against her as the accused was the Investigating Officer of the complaint against him in CAW Cell. In his entire testimony, the complainant has never stated AC No.01/2007 CBI Vs. Pushpa Rattan Page 32 of 34 that outside her office, accused demanded bribe from him. Even the shadow witness(PW7) has not stated anything that any conversation between accused and the complainant regarding demand of bribe had taken place. Thus the prosecution has failed to establish the demand of bribe by accused at the spot.
55 Prosecution has further failed to establish the acceptance of bribe money. Although, the prosecution has established the recovery of money from the purse of accused, but it has miserably failed to establish that it was the bribe money, rather it has been established on record that the money given by complainant (PW3) to accused was the settlement amount to be paid to other party of the case in CAW cell. It has also been established that accused never accepted the money, rather it was thrust in her purse by the complainant forcibly and that is why her hands came to be smeared with phenolphthalein powder in the process of taking it out from the purse and throwing it away. So, the prosecution has miserably failed to establish the acceptance of bribe by accused, therefore, its recovery is of no consequence.
56 Consequently, in view of above discussion, I am of the considered opinion that the prosecution has failed to prove its case AC No.01/2007 CBI Vs. Pushpa Rattan Page 33 of 34 against the accused. Therefore, the accused Pushpa Rattan is hereby acquitted of the charge framed against her under Section 7 & 13(2) and 13(1)(d) of the P.C. Act.
57 Accused is directed to comply with the provisions of Section 437A of Cr.P.C.
Announced in the open Court ( P.S. TEJI )
Dated: 09.05.2013 District & Sessions Judge(East)
Special Judge (CBI)
Karkardooma Courts : Delhi
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