Delhi District Court
Jagdish. He Deposed Further That ... vs M. Mittal Showed Him A Complaint Of Sh. ... on 16 August, 2023
IN THE COURT OF MS. SUNENA SHARMA, SPL. JUDGE
CBI-01 (PC ACT), ROUSE AVENUE COURT, NEW
DELHI
In the matter of :-
RC no. 24(A)/2018
CC no. 394/2019
CNR no. DLCT11-001540-2019
U/s 120B IPC read with Section 7 & 7A of PC Act, 1988
CBI
v.
Jaypal Sharma,
S/o Late Sh. Bhule Ram,
R/o Flat No. 4, Plot No. 19,
Khanpur Extension,
Devli Road, New Delhi-110080.
Permanent Address:
VPO-Pakhodna, Tehsil-Khair,
District, Aligarh, Uttam Pradesh.
Vikram @ Puran,
S/o Sh. Raje Singh,
R/o Village-Deenpur,
Near Government School,
Najafgarh, New Delhi-110043.
Jagdish Chander @ Sandeep,
S/o Late Sh. Jaswant Singh,
R/o Village: Navada, Dist; Gurugram,
Haryana.
....Accused Persons
Date of Institution : 29.4.2019
Final arguments concluded on : 05.8.2023
Judgment pronounced on : 16.8.2023
Judgment
1.This case is emanating from the chargesheet of FIR/RC CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 1/110 No.DAI-2018-A-0024 dated 14.8.2018 registered under Section 120B & 7 of PC Act, 1988. The case was registered on the basis of a complaint dated 13.8.2018 filed by Sh. Jaspal Singh, S/o Sh. Amar Singh, R/o T-68, Vishwas Park, Uttam Nagar, New Delhi-110059.
Chargesheet
2. As per chargesheet, the allegation are that complainant was running a business under the name and style of J.S. Construction. He had entered into a collaboration agreement for construction of house no. A-80, Om Vihar, Uttam Nagar owned by Smt. Shakuntla Devi and already raised construction of four floors of the said house. On 26.7.2018, accused JE Jaypal Sharma demolished part of first floor of said house without giving any notice, and while going away from the premises, accused demanded bribe and also gave his mobile number to the complainant. Thereafter, complainant contacted Jaypal Sharma on his mobile number and Jaypal Sharma informed him that more complaints had been received against his house, so more money had to be paid and that his (accused Jaypal Sharma's) men would come to meet him (complainant).
2.01 Thereafter, complainant received a phone call from two persons who disclosed their names as Sandeep and Puran and they informed him that they would come to his office and subsequently, they both visited complainant's office and told him that for completing the construction, complainant had to pay Rs. 1,20,000/- to JE Saheb. By mounting pressure on the complainant, they took away Rs. 60,000/- from him and gave him 2-3 days time for making balance payment of Rs. 60,000/-. Complainant not being able to CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 2/110 reconcile with the situation reported the matter to CBI/ACB,New Delhi for legal action against the accused and filed a written complaint dated 13.08.2018, wherein, he narrated the above facts and stated further that Sandeep and Puran were perhaps not the correct names of said boys who approached him on behalf of Jaypal Sharma and their real names were Jagdish and Vikram respectively.
2.02 The above mentioned complaint was marked for verification to SI Nitin Kumar Choudhary who conducted the verification on 13.8.2018 in the presence of independent witness Rajesh Kumar. During verification, complainant made two calls from his mobile no. 9555262625 to JE Jaypal Sharma on his mobile no. 9911363000 but, the same were not picked up. At about 4:45 pm, complainant received a call from accused Jagdish @ Sandeep from his mobile number 9560789205 and complainant asked him if he had made the payment of the first installment of Rs. 60,000/- to accused J.E. Jaypal Sharma, to which, he informed him (complainant) that he had already informed Jaypal Sharma about the receipt of the first installment but he would make the entire payment to Jaypal Sharma after complainant pays him the remaining balance of Rs. 60,000/-. The complainant agreed to pay him the remaining amount on the next day subject to his getting an assurance from J.E. Jaypal Sharma that further construction on the demise property would continue unhindered.
2.03 Thereafter, at about 6.12 pm, the complainant received another call from accused Jagdish @ Sandeep who informed him that JE Jaypal Sharma would not talk to him (complainant) over phone CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 3/110 but, accused Jagdish assured him that no demolition in future would take place in his property. During verification, complainant again made a call to the mobile phone of accused Jagdish @ Sandeep and complainant was asked to come with money (saman). The aforementioned conversation was recorded in the memory card through DVR and after verification said memory card Q1 was taken out from the DVR and copy of the same was prepared in official computer by using the write blocker. Thereafter, said memory card was sealed with the brass seal of CBI and the seal was given to independent witness with direction to produce the same on 14.8.2018. The DVR used in the verification was however, kept by the verification officer in his safe custody for further use. Verification memo was prepared and the case was recommended for registration of regular case. Accordingly, on 14.8.2018, a regular case under Section 120B of IPC Act read with Section 7 of PC Act was registered against all the aforementioned three accused.
2.04 On 14.8.2018, trap team was constituted. Complainant produced Rs. 60,000/- in the form of 30 GC Notes of Rs. 2000/- denomination and there details were noted separately. Demonstration regarding use of phenolphthalein powder was given to the trap team. GC notes produced by the complainant were treated with phenolphthalein powder and then put in the right side front pocket of the wearing pant of the complainant by the independent witness Nitin Kumar Meena. Complainant was instructed not to touch the tainted amount and to hand over the same to the accused on his specific demand or on his specific direction to some other person. Independent witness Rajesh Kumar was asked to act as a shadow CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 4/110 witness to remain close with the complainant to overhear the likely conversation and see the transaction of bribe amount. Complainant was directed to give pre-decided signal by rubbing his face with both hands after the transaction was over or to make a phone call to the TLO on his mobile phone. Shadow witness was also directed to give pre-decided signal immediately after the transaction. During pre-trap proceedings, in order to ascertain the whereabouts of the accused, complainant made a call from his mobile number to the mobile number of middle man Sandeep @ Jagdish but, none of the calls matured. At about 1612 hours, complainant received a call from the mobile number of Sandeep @ Jagdish who assured the complainant that he would get him meet with JE Jaypal Sharma or make him talk with him (JE) telephonically. At about 1622 hours, complainant again received a call from Sandeep @ Jagdish who told him that they had reached near complainant's office and would be visiting him within an hour. All the pre-trap proceedings were recorded in handing over memo which was got signed from all the members of trap team.
2.05 Thereafter, trap team alongwith the complainant and independent witnesses left the CBI office at about 17 hours and on the way, two calls were received by complainant from accused Sandeep @ Jagdish to inquire about his location and complainant told him that he would call him (Sandeep @ Jagdish) after he reaches his office. All the said calls were recorded on a fresh memory card through DVR by putting the mobile phone of complainant on speaker mode. At about 1820 hours, CBI team reached near complainant's office. Instructions were repeated to the shadow witness Rajesh Kumar as well as to the complainant. Shadow witness was instructed CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 5/110 to sit in the office of the complainant so as to hear and see the likely conversation and transaction of bribe. Complainant and shadow witness entered the office and sat there. CBI team discreetly took position in and outside the office on visible distance. At about 18.28 hours, the complainant in order to inform the accused Sandeep about his having reached his office, made a call to accused Jagdish @ Sandeep but said call was not picked up.
2.06 At 1832 hours, Sandeep @ Jagdish and Puran @ Vikram arrived at the office of the complainant and sat with the complainant. The complainant was called outside and the DVR in switched on mode was put in his pocket by the TLO and thereafter, complainant went inside his office and indulged in the conversation with both the accused. Accused demanded money of Rs. 60,000/- from him on behalf of accused Jaypal Sharma and on the request of the complainant, accused Sandeep @ Jagdish made a telephonic call from his mobile to the mobile phone of accused Jaypal Sharma to make him talk to complainant. Since there was some disturbance in the line connecting the accused Jaypal Sharma, accused Jaypal Sharma himself called accused Sandeep @ Jagdish and during that conversation, the mobile phone of Sandeep @ Jagdish was on loudspeaker mode and said conversation was also heard by independent witness Rajesh Kumar. After said conversation, the tainted bribe was taken out by the complainant from his pant pocket and he gave it to accused Sandeep @ Jagdish who received the same from his right hand and after counting with both his hand, he kept the same in right side front pocket of his jeans. Thereafter, complainant came out from his room and informed the TLO that bribe CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 6/110 money had been handed over to accused Sandeep @ Jagdish. Thereafter, the trap team reached the spot and apprehended the accused Sandeep @ Jagdish red handed with the tainted amount. Complainant informed that both accused Sandeep @ Jagdish and accused Puran @ Vikram had demanded bribe from him while sitting in his office and after confirmation from the accused Jaypal Sharma, he delivered the bribe amount to accused Sandeep @ Jagdish. The shadow witness Rajesh Kumar also corroborated the complainant's version.
2.07 Thereafter, both hand wash of accused Sandeep @ Jagdish were taken and preserved in a clean glass bottles which were sealed and marked as RHW and LHW in RC No. 24(A)/2018. The paper label of both the bottles were signed by both the witnesses and the TLO. The distinctive numbers of the GC notes recovered from the possession of the accused were tallied with the distinctive numbers mentioned in the handing-over memo by both the independent witnesses who also put their signatures on the same. Similarly, wash of the inner portion of the right side front pocket of the jeans of accused Sandeep @ Jagdish was also taken in a separate glass bottle marked as RSJPW and the paper label of the said bottle was also signed by the independent witnesses and the TLO. The jeans of accused was also seized by the TLO and same was kept in yellow colour envelope marked as pant of accused Sandeep @ Jagdish in RC No. 24(A)/2018.
2.08 Accused Sandeep @ Jagdish was directed to send a whatsapp message to Jaypal Sharma that he (Sandeep @ Jagdish) CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 7/110 had collected balance amount of Rs. 60,000/- from the complainant and he would not be able to meet him (Jaypal Sharma) for next few days. Accordingly, accused Sandeep @ Jagdish sent the whatsapp message from his aforementioned mobile to the mobile of accused Jaypal Sharma. The said message was successfully delivered and was seen by Jaypal Sharma as was evident from the blue tick mark appearing on the message. Mobile phone of accused Sandeep @ Jagdish and accused Vikram @ Pooran were seized. Recorded conversation in the memory card was played in the DVR and heard in the presence of independent witnesses. A copy of recorded conversation was made for the purpose of investigation. Thereafter, said memory card was kept in a plastic cover Mark Q2 in RC No. 24(A)/2018 and then sealed in a brown colour envelope. Rough site plan was also prepared by Manoj Kumar. Accused Jagdish Chander @ Sandeep and Vikram @ Pooran were arrested vide separate arrest- cum-personal search memo. Recovery memo was also prepared. Later on, JE Jaypal Sharma was also apprehended from his residence by Inspector Anand Swaroop with his staff. Specimen voice of accused Sandeep @ Jagdish, accused Vikram @ Pooran and that of complainant were recorded in blank memory card S1, S2 and S3 in the presence of independent witnesses. However, accused Jaypal Sharma refused to give his voice sample. Accused Jaypal Sharma was arrested vide arrest-cum-personal search memo on 15.8.2018. Vide recovery memo, all the glass bottles LHW, RHW, RSJPW, bribe money, pant of accused Sandeep @ Jagdish, Q1, S1, S2, S3 and DVR were seized and taken into police possession. CBI seal was handed over to Nitin Kumar Meena for safe custody with direction to produce before competent authority as and when required.
CBI v. Jaypal Sharma & ors. (16.8.2023)
CC no. 394/2019 Page no. 8/110
2.09 Investigation revealed that JE Jaypal Sharma was posted
in Building-II Department of SDMC, Rajouri Garden, New Delhi whereas, accused Vikram was working in Maintenance-I, Najafgarh Zone as Baildar (Ad-hoc). From the file recovered from the house search of accused Jaypal Sharma, it was revealed that he had received a complaint regarding unauthorized construction at the aforementioned demise property and instead of booking the property under DMC Act, he only conducted a cosmetic demolition of a portion of the property in violation of circular D/04/Addl./CM(ENGG)/97, dated 01.01.1997 and circular no. ESC/220/2019, dated 06.3.2009 issued by MCD.
2.10 Investigation further revealed that said accused Jaypal Sharma vide entry dated 26.01.2018 at page no. 231 of demolition/sealing register, EE(BLDG.)/II,WZ,YEAR 2018 maintained at the office of Executive Engineer, had recorded the demolition proceedings in respect of demise property. The investigation also revealed that JE Jaypal Sharma did not follow the guideline/procedure regarding demolition of unauthorized constructions and demolished only portion of roof of first floor. Further, even he did not lodge any FIR against the contractor or the owner of the building as per the provision of the MCD and said acts are reflective of the malafide on his part to obtain illegal gratification.
2.11 During investigation, complainant produced CD's containing recorded call dated 08.08.2018 vide which JE Jaypal Sharma informed complainant that his men would contact him as CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 9/110 such matter could not be discussed on phone. Vide CFSL-2018/P-975 dated 13.09.2018, the specimen voices in memory cards S-1,S-2 and S-3 were sent to CFSL for their comparison with questioned voices of recorded conversation in memory cards Q-1 and Q-2. The record pertaining to phone numbers allegedly used by complainant and accused persons during relevant time, such as CAF, CDRs, location charts etc. were collected from the service providers of said mobile numbers and the statements of concerned persons were also recorded in this regard. Copy of the whatsapp message allegedly sent by accused Jagdish from his mobile number to mobile number of accused Jaypal Sharma was retrieved in the presence of independent witness and proceedings were recorded in Mobile Data Extraction dated 05.09.2018. The Identity Card of MCD recovered from the possession of accused Jagdish depicting him as driver in MCD was found to be forged. Sanction under section 19 of PC Act,1988 was obtained from competent authority.
2.12 So, in nutshell the allegations are that Jaypal Sharma, through his representative/middleman, demanded Rs. 1,20,000/- from complainant Jaspal Singh to allow him to continue with the construction in the demise property. Accordingly, on the basis of aforementioned complaint and the verification memo/report, regular case RC No. DAI-2018-A-0024 dated 14.8.2018 was registered under Section 120B and 7 & 7(A) of PC Act, 1988 against all the three accused. After completion of investigation, all the three accused were chargesheeted for having conspired with each other and pursuant to that, having demanded and accepted the bribe thereby committing an offence of Section 120B IPC r/w Section 7 and 7A of the PC CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 10/110 Act,1988.
Cognizance & Charge
3. Vide order dated 06.5.2019, the cognizance was taken and all three accused were summoned by the court. After compliance of Section 207 Cr.P.C, the arguments on charge were heard and vide dated 02.9.2019, the charge for the offences punishable under Section 120B of IPC read with Section 7 and 7A of PC Act, 1988 was framed against all the three accused. Accused Jaypal Sharma and Vikram @ Puran were additionally charged for the offence of Section 120B IPC read with Section 7 of PC Act. Against accused Jagdish @ Sandeep, charge of Section 7A of PC Act read with Section 120B IPC was additionally framed. All the accused pleaded not guilty to the charges framed against them and claimed trial.
Prosecution Evidence
4. In order to prove its case, 18 witnesses were examined by prosecution and their examination in chief is succinctly discussed herein below. All the witnesses were cross examined at length by the Ld. Defence Counsels but, relevant part of their cross-examination shall be referred in the later part of this judgment under the heading "Analysis of Material by the Court". For the sake of convenience, witnesses have been categorized in following four categories:
(i) Complainant and Independent Witnesses; (ii) CBI witnesses of verification and trap proceedings; (iii) Expert Witnesses from CFSL; and (iv) Formal Witnesses. CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 11/110 (i) Complainant and Independent Witnesses 1. Sh. Jaspal Singh Mann (Complainant) (PW15)
2. Sh. Rajesh Kumar (Independent Witness) (PW5)
3. Sh. Nitin Kumar Meena (Independent Witness) (PW10)
(ii) CBI witnesses of verification and trap proceedings
4. Sh. Nitin Kumar Chaudhary (Verification officer) (PW1)
5. Inspector Pramod Kumar Tanwar (Trap Laying Officer) (PW6)
6. Investigating Officer/Inspector Harish Chandra (PW18) Expert witnesses from CFSL
7. Dr. S.C. Chaudhary (PW8)
8. Ms. Deepti Bhargawa (PW16) Formal Witnesses
9. Sh. Surender Kumar, Nodal Officer (PW2)
10. Sh. Saurav Aggarwal, Nodal Officer (PW3)
11. Sh. Puneet Kumar Goel, IAS, Sanctioning Authority (PW4)
12. Sh. Pawan Gahlot (PW7)
13. Sh. Veer Singh (PW9)
14. Sh. Harminder Pal Singh Rehal, Retired Executive Engineer, MCD, Delhi (PW11)
15. Sh. Ashok Kumar Gupta, Assistant Engineer SDMC, New Delhi (PW12)
16. Ms. Jyoti (PW13)
17. Sh. Rajdeo Chaudhary, Assistant Engineer (PW14)
18. Sh. Ajit Singh, Safai Karamchari, MCD, Delhi (PW17) CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 12/110
(i) Complainant and Independent Witnesses
5. PW-15 Sh. Jaspal Singh Mann is the complainant. As per his deposition, in the year 2018, he was running a business of construction in the name and style of M/s J.S. Construction at Uttam Nagar, New Delhi. In the year 2018, after completion of 2 lanterns on his property A-18, Om Vihar, Uttam Nagar, New Delhi, when he was raising construction of the 3 rd lantern, 2 mates on behalf of accused J.E Jaypal Sharma came at the aforementioned site and asked him to stop the construction saying that PW15 did not have any permission for the same. After two days, team of MCD alongwith police came on the site of construction to demolish the construction and they were requested by persons present there not to do that. One of the person who was addressed as Jaypal Sharma by the other MCD staff asked as to who was builder of said property and when PW15 introduced himself then, J.E. Jaypal Sharma said "Tum Kab Baat Karoge Sab Kuch Ho Lega" to which PW15 replied said "Jab Aap Sabki Nahi Sun Rahe Tau Meri Kya Sunenge". In the meantime, team of MCD went upstair and made holes on the second floor lantern. While leaving the spot, the accused Jaypal Sharma put his hand on shoulder of PW15 and uttered that he (PW15) was lucky that only he (accused Jaipal asharma) had come otherwise, the whole column of the lantern would have been cut and in case, he wanted to carry out further construction, he (PW15) should contact him (Jaypal Sharma) on his mobile phone. Accused also shared his mobile number with PW15. After 10-15 days, PW15 made a call on the mobile phone of accused Jaypal Sharma to ask if he could start the construction but he was asked to wait saying that some more complaints had been CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 13/110 filed against him (PW15).
5.01 PW15 deposed further that after two days, he received a call from one of the aforementioned mates Vikram or Jagdish who asked him "JE Sahab ka saman kab doge". On being put a court question, as to what did they mean by 'Saman', witness replied it meant 'Bribe'. PW15 stated further that he was asked by the caller to pay Rs. 50,000/- per lantern i.e. Rs. 1.5 lakhs for all three lanterns. The next day i.e. on 13.8.2018, he made a written complaint Ex. PW1/A1 against accused Jaipal Sharma and said two boys/callers Jagdish @ Sandeep and Vikram @ Puran to ACB, CBI, New Delhi. In the evening of the same day, Jagdish @ Sandeep and Vikram @ Puran visited the office of complainant PW15 and reduced the demand of bribe to Rs. 1.2 lakhs. As per their demand, PW15 paid them Rs. 60,000/- and sought 2-3 days time for making remaining payment.
5.02 PW15 gave said information to CBI officials and as instructed by CBI officials, he again visited the CBI office on the next day where he met independent witness Rajesh as well as the verification officer SI Nitin Choudhary, who introduced PW15 with said person Rajesh and also read over the complaint and futher told him that Sh. Rajesh would also help them in verification of the complaint. PW15 was shown one DVR and memory card. To check the blankness of the memory card, it was played in the presence of PW15 and Mr. Rajesh. PW15 deposed further that thereafter, while he was sitting in the CBI office, he received number of calls from Jagdish and Sandeep on his mobile number 9555262625 as they were asking him for CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 14/110 balance payment of the Rs. 60,000/- but, PW15 expressed his inability to pay on the said amount on that day upon which, PW15 was asked to to pay it on the next day. The conversation of said calls was recorded in the memory card through DVR by the IO in the presence of witness Rajesh. As per the witness, he had also made certain calls on mobile phone of Sandeep but he did not pick up his call. After verification proceedings, the memory card used for the verification purpose was taken out from the DVR by the verification officer and the same was sealed in the presence of PW15. Verification memo was prepared, upon which his signature as well as that of Sh. Rajesh were taken as token of their presence. PW15 proved the verification memo EX. PW1/A2 (colly) by identifying his signatures at point B on the same. PW15 further deposed that before preparing the verification memo, the recording contained in the memory card was played before him to check the recorded conversation of the aforementioned calls and verification proceedings completed at about 7-8 p.m. and thereafter, he was asked by the verification officer Mr. Nitin Choudhary to come on next day i.e. 14.08.2018 with Rs. 60,000/-.
5.03 PW15 further deposed that on the next day i.e. 14.08.2018, he again visited CBI office with the sum of Rs. 60,000/- in the denomination of Rs. 2000/-. In CBI office, he met the Verification Officer Mr. Nitin Choudhary, Sh. Pramod Tanwar (TLO), the witness Sh. Rajesh and one more person namely Mr. Nitin Meena from some other department who was also called to stand witness to trap proceedings. As per PW15, Pramod Tanwar (TLO) gave the demonstration about the reaction of some chemical powder as some CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 15/110 powder was put on his hand and he was asked to dip his hands in water and the colour of the water turned pink. Thereafter, he washed his hands. At about 3:00 pm, PW15 again received a call on his mobile phone from Sandeep for the payment of balance amount and PW15 asked him to come to his office at about 5 O'clock to receive the bribe amount. The said call was also recorded in the memory card through DVR. Thereafter, PW15 handed over Rs. 60,000/- to Mr. Nitin Meena, who treated said currency notes with chemical powder and ensured that PW15 did not carry anything else in his pant pocket and thereafter, Mr. Meena put the said currency notes in right side pant pocket of PW15 with the instruction to him not to touch the currency notes and to handover the same only on the asking of accused Jaypal Sharma in the presence of independent witness.
5.04 PW15 deposed that thereafter, they left the CBI office in 2-3 vehicle. PW15 (complainant) was in his own car with independent witnesses Sh. Rajesh and Sh. Nitin Meena and while they were on the way to the office of the complainant, PW15 again received a call from Sandeep and complainant told him that he would be soon reaching his office and said call was also recorded by the CBI officer who was also present with them in the car. Further that, after reaching his (complainant's) office at WZ-31, Dayal Sar Road, Uttam Nagar, Mr. Pramod (TLO) gave instructions that one witness Rajesh would remain with him (PW15) in his office. Thereafter, as per instructions of the TLO, PW15 made a call to accused Sandeep to ask him to reach complainant's office, but said call was not picked up. However, the said calls made from complainant's phone were recorded on the memory card through DVR which was kept in his (PW15's) pocket CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 16/110 while leaving CBI office. PW15 further deposed that the members of the trap team with the TLO and independent witness Sh. Nitin Meena remained present in the close vicinity of the complainant's office from where they were visible to each other. The complainant was instructed to give pre-decided signal by touching face after completion of transaction.
5.05 PW15 further testified that after some time, Sh. Sandeep @ Vikram and Jagdish @ Puran entered into his office. The witness was asked to identified the accused in the court at the time of his examination, he though identified said accused Sandeep and Jagdish in the court but, he was unable to tell who was Sandeep and who was Jagdish. He deposed further that thereafter, Sandeep and Jagdish asked him (PW15) to arrange for tea and snacks upon which the complainant in order to seek instructions from the TLO, sent him (TLO) a message to which the TLO said yes. Thereafter, PW15 asked Sandeep and Jagdish to let him talk to accused Jaypal Sharma and also asked them whether they had handed over the previous amount of Rs. 60,000/- to Jaypal Sharma to which, they said that they would hand over the entire amount of Rs. 1,20,000/- to Jaypal Sharma after receiving the balance payment from PW15. They, however, informed that Jaypal Sharma had already been informed by them about the receipt of Rs. 60,000/- from him (PW15). Thereafter, PW15 made a call to Jaypal Sharma from his mobile phone but, he (accused Jaypal Sharma) did not pick up his call and then accused Sandeep also tried few times to connect to Jaypal Sharma and after 2-3 calls, Jaypal Sharma picked up his call and Sandeep handed over his phone to PW15 to enable him to talk to accused Jaypal Sharma and during said CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 17/110 call, PW15 informed Jaypal Sharma about the visit of said boys to his office for the balance payment and also asked him if PW15 could continue with construction work. But accused Jaypal Sharma asked him (PW15) to just hand over the money to said boys and said that "itni lambi baat phone par nahi hoti".
5.06 As per deposition of PW15, consequent thereto, PW15 handed over said money to accused Sandeep, who put the same in his pant pocket. Thereafter, PW15 gave pre-decided signal and immediately thereafter, 1-2 CBI official reached the spot and overpowered the accused persons. The CBI officials inquired from independent witness Rajesh and he told them that complainant (PW15) had handed over the money to accused Sandeep, who had put the same in his right side pant pocket. Thereafter, Mr. Rajesh took out the money from the pant pocket of accused Sandeep and counted the currency notes and also tallied the number of the currency notes. Thereafter, CBI official brought some water and asked the accused Sandeep to put his hand into water and after the accused Sandeep put his hand into water, the colour of water turned pink. Thereafter, CBI official made inquiry from the accused, to which they informed that they had come there to receive the bribe amount on the instructions of Jaypal Sharma. On the instructions of CBI officials, accused Sandeep also made a call on the phone of Jaypal Sharma but Jaypal Sharma did not pick up said calls. CBI official also asked accused Sandeep to disclose the address of Jaypal Sharma but, he did not disclose the same. Further when Jaypal Sharma did not pick up the call, the accused Sandeep was asked to send him a Whatsapp message regarding receipt of balance amount of Rs. 60,000/- from CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 18/110 him (PW15) and accordingly, the message was sent to Jaypal Sharma but no response came from Jaypal Sharma to said message though Jaypal Sharma had seen the same which was evident from the blue tick appearing on said message.
5.07 Regarding pink water solution i.e the hand wash of accused, PW15 at first, deposed that the pink water solution was thrown by the CBI officials during the proceedings but later on he improved his version by saying that the pink water solution was picked up by the CBI officials though he did know what did they do with the same. PW15 further stated that the accused Sandeep was then asked to remove his pant, said pant pocket where the money was kept by the accused was also dipped in separate water and the colour of said water also turned pink and the said water solution was also retained by CBI officials. During his examination, PW15 identified his signature on the site plan already exhibited as Ex. PW1/D1. He further deposed that thereafter, DVR was taken out from his T-shirt pocket and the memory card was removed from the DVR and the same was sealed.
5.08 During examination-in-chief, PW15 identified two 8 GB Memory Card (Q-1 and Q-2) of make Sandisk taken out from two seperate brown envelopes lying in the two separate yellow envelopes Ex. PW1/A6 & Ex. PW5/A1 upon which he identified his signature and signature of independent witness Sh. Rajesh Kumar. As per PW-15, the paper work of post trap proceedings continued till next day 5.30 am and at about 6:00 am, the trap team with both the accused persons left the spot for CBI office where accused Jaypal Sharma, CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 19/110 whom PW15 correctly identified in the court, was also brought after some time by CBI officers. Some paper work regarding the trap proceedings was done before and after trap, upon which his signatures were also taken. PW-15 identified his signatures and that of independent witness Rajesh on the handing over memo (D-4) Ex. PW1/A4 (colly) and recovery memo (D-5) Ex. PW1/A5 both dated 14.08.2018.
5.09 PW-15 further deposed that the currency notes which were recovered from the pocket of accused Sandeep were kept in one envelope, which was got signed by him and the independent witness. During examination PW15 correctly identified 30 currency notes of Rs. 2000/- denomination taken out from the brown envelope Ex. PW5/A-5 (Colly) bearing his signatures and the signatures of other trap team members including the independent witnesses. PW15 also correctly identified the blue colour denim jeans taken out from the yellow envelop Ex. PW5/A6 and on inside part of the right side pocket of said jeans, he identified his signatures and that of TLO and independent witnesses.
5.10 During his examination, PW-15 correctly identified right hand wash in the cotton cloth wrapped bottle Ex. PW5/A-1, right side jeans pocket wash (RSJPW ) of accused Jagdish in cloth wrapped bottle Ex. PW5/A-2, left hand wash (LHW) of the accused contained in glass bottle Ex. PW5/A-3 and on cloth wrappers of all said bottles PW15 identified his signatures and that of TLO and independent witnesses.
CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 20/110 5.11 PW15 further deposed that on 15.08.2018, his voice
sample as well as voice sample of accused Jagdish and Vikram were taken by CBI official. Accused Jaypal Sharma was also asked to give his voice sample but, he refused to give the same. After conclusion the trap proceedings, the seal of the CBI was handed over to Sh. Nitin Kumar Meena for safe custody and they were allowed to go. Further that, on 14.09.2018, the complainant (PW15) again joined CBI investigation in the office of CBI and on that day, the audio recordings pertaining to this case were played in his presence and in said recordings, he had identified the voices of accused Jagdish, Vikram. and Jaypal Sharma. Further that, on the said date, he (PW15) had also handed over original copy of collaboration agreement executed between him and Smt. Shakuntala Devi in respect of the construction carried out in the questioned building as well as the printouts of the photographs which were taken by him from his mobile phone, to CBI officials.
5.12 PW15 proved on record the production-cum-seizure memo (D-29) dated 14.09.2018 as Ex. PW15/A vide which the aforementioned printouts Mark PW15/X as well as the original copy of the collaboration agreement Ex. PW15/B were seized by CBI. He further proved voice identification-cum-transcription memo alongwith transcription dated 14.09.2018 (D-25) as Ex. PW15/C. PW15 further deposed that on 10.10.2018, he again went to CBI office to join investigation and handed over one CD containing recording of calls between him and accused Jaypal Sharma alongwith one certificate and 04 coloured printed pages of photographs of the property in question which were seized by the IO vide production-cum-seizure CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 21/110 memo dated 10.10.2018 (D-22) Ex. PW15/D upon which he identified his signatures. PW15 also exhibited certificate under Section 65-B of Indian Evidence Act (part of D-22) as Ex. PW15/E and marked the 04 coloured printed pages of photographs as Mark PW 15/Y (Colly).
5.13 PW15 further proved one CD (part of D-22) Ex. PW15/F which was played in the court and found containing voice recording of the calls made by PW15 to accused Jaypal Sharma on 08.8.2018 and 09.8.2018. The CD was found containing the file No. Call_10- 33.39_OUT_9911363000 and after hearing the recorded conversation, the witness deposed that the said call was pertaining to 08.8.2018 and it contained his voice as well as the voice of accused Jaypal Sharma. PW15 deposed that accused Jaypal Sharma had given him his mobile number on the day when he visited the site for the purpose of demolition and PW15 had saved said number in his mobile phone though he did not remember said number on that day when he was examined in the court.
5.14 During examination of PW15, the memory card (S1)was taken out from yellow envelope Ex. PW5/A7 and the same was played on the official laptop of CBI by using forensic card reader device. In said memory card, PW15 identified introductory and concluding voice of independent witnesses Rajesh Kumar and Nitin Kumar Meena and also the specimen voice of accused Jagdish. Similarly, PW15 identified the specimen voice sample of accused Vikram as well as his own voice sample in the memory card S2 and S3 taken out from Ex. PW5/A8 and Ex. PW5/A9 respectively.
CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 22/110 5.15 Similarly, PW15 identified two more 8 GB memory cards
(Q1 & Q2) of Sandisk which was taken out from yellow colour envelope Ex. PW1/A6 and Ex. PW5/A1 (colly) respectively. PW15 identified his signatures and the signatures of other signatories. PW15 deposed that memory card Q-1 and Q-2 were respectively used during verification and pre trap and post trap proceedings for recording conversation between him and the accused persons. During examination, said memory cards Q-1 and Q-2 were also played in the laptop with the help of card reader and same was found containing 7 and 21 MP3 audio files respectively. In File No. 180813_1512 and File No. 180813_1547 of Q-1, the witness identified the mobile bell ringing and auto answering voice. As per his deposition, one of the voice in File No. 180813_1645 and 180813_1758 of Q-1 was his own (PW15) voice but the other voice in said conversation is either of accused Vikram or accused Sandeep; and in File No. 180813_1812 of Q-1, he was earlier conversing with accused Sandeep and the later voice was of accused Vikram @ Pooran; in File No. 180813_1819 of Q-1, he identified his own (PW15) voice as well as the voices of accused Sandeep, Vikram @ Puran.
5.16 In file bearing No. 180814_1512 of Q-2, PW15 was unable to identify the voice of the speaker; in file bearing No. 180814_1513, PW15 identified his own voice and the computerized voice message in the end; in file bearing No. 180814_1526, PW15 identified his voice as well as voice of accused Vikram; in file bearing No. 180814_1612, his own voice as well as voice of accused Vikram; in file bearing No. 180814_1746, his own voice as well as voice of accused Sandeep; in file bearing No. 180814_1815, his own voice as CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 23/110 well as voice of accused Sandeep; file bearing No. 180814_1828 was a blank call and having only computerized voice message; in file bearing No. 180814_1833, his own voice, voice of accused Jagdish and Vikram; in file bearing No. 180814_1833, his own voice, voice of accused Jagdish, voice of accused Vikram and voice of accused Jaypal Sharma; file bearing No. 180814_2016 was a blank call and having only computerized voice message. PW15 deposed that the said call was perhaps made by him (PW15) to accused Jaypal Sharma.
5.17 The witness also correctly identified the DVR taken out from the envelope Ex. PW1/A7, on which he identified his signature and deposed that the said DVR was used for recording the conversation between the accused persons and the complainant during verification as well as trap proceedings.
6. PW5 Rajesh Kumar is the independent witness who remained part of both the verification as well as trap proceedings. As per his version, on 13.8.2018, while he was working as as Public Relation Inspector at Lajpat Nagar Post Office, New Delhi-110024, he attended the office of ACB, CBI, where he met SI Nitin Chaudhary who introduced him with two persons namely Sh. Joginder Singh and Sh. Jaspal Singh and further told him that he (PW5) had to remain present to witness the proceedings in the instant case on that date i.e. to the telephonic conversations between Jaspal Singh and JE accused Jaspal Sharma. He deposed that he did not remember the name of J.E exactly. PW5 further deposed that in his presence, a call was made by Jaspal Singh to JE but the said call was not picked up. After waiting for a long time, a call was again made to the mobile CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 24/110 phone of Vikram and one other person, whose name he did not remember and during conversation of said call, Jaspal Singh told them that JE could not be contacted. PW5 further stated that he left the CBI office at about 8:00 PM and attended CBI office again only on the next day i.e. on 14.8.2018. The said deposition of PW5, however, shows that verification remained unsuccessful as accused persons could not be contacted to check the correctness of complaint Ex. PW1/A1 and as such, the trap was laid without any verification of the complaint.
6.01 Thereafter, on 14.08.2018, he (PW5) again attended CBI office and at about 3:30 pm, he was called by SI Nitin Choudhary and thereafter, a call was made by Jaspal Singh from his mobile phone which was picked up by above mentioned two persons and Jaspal Singh informed them that he had already paid Rs. 60,000/- to JE, again said to said two persons and since said persons were asking for Rs. 60,000/- more from him (complainant), he asked for an assurance that after balance payment, he would be able to continue with his work and he was assured by one of said two persons that no further demolition would take place and that the aforesaid amount would also be sent to J.E. PW5 further deposed that the complainant told them 3-4 times that in case further demolition takes place, his entire payment would go in vain. As per the version of PW5, complainant Jaspal Singh also gave them time of meeting at around 6:30-6:45 PM at A-80, Om Vihar, Uttam Nagar and the said conversation was recorded by CBI in some instrument and was also sealed.
CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 25/110 6.02 PW5 further deposed that one demonstration was given in
his presence at CBI office wherein, some powder was applied on the fingers of one CBI official/peon who was then asked to dip his fingers in glass tumbler and on doing so, the colourless solution turned pink, which was kept by the CBI. He deposed further that during said demonstration, the particulars/details of 30 GC notes of Rs. 2,000/- denomination each totaling to Rs. 60,000/- were noted down on some paper and he (PW5) was asked to tally the distinctive number of notes and on the instruction of CBI, he noted down the distinctive number of currency notes on the paper which was later got typed.
6.03 PW5 further deposed that after reaching near Uttam Nagar with the trap team at about 6:20 pm, Jaspal Singh took him to the basement of his office where he again made a call to said two persons and informed them that he had already reached his office. After gap of 10 minutes, both the said two persons also came to the office of Jaspal Singh. PW5 further deposed that said two persons, Jaspal Singh and he himself (PW5) sat together in the office of Jaspal Singh. He deposed further that after sometime, CBI officers also came inside the office of Jaspal Singh and they also sat together with them and thereafter, the conversations took place between Jaspal Singh and aforesaid two persons, in which Jaspal Singh told them that he was giving Rs. 60,000/- so that no further demolition would take place on his property and he was assured by said persons that there would be no further demolition. PW5 further deposed that a call was made by Jaspal Singh to the driver of JE and in the said call, Jaspal Singh asked JE "paise de du inko", to which JE replied "theek hai theek hai". PW5 further stated that thereafter, the tainted CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 26/110 currency notes of Rs. 60,000/- were taken out by Jaspal Singh from the right side of his (complainant) front pocket pant and he handed over the same to one of said two persons who received the said amount with his right hand. He further deposed that if shown he could identify said two persons. At that stage, he was asked to identify the said two persons from the persons available in the court room and he correctly identified the accused Jagdish, who was present in the court on that day and deposed that he/Jagdish was the one who took aforesaid amount of Rs. 60,000/- from Jaspal Singh. PW5 further deposed that the other person who was having beard whom he correctly identified in the court on 05.03.2020.
6.04 As per the version of PW5, after receiving said amount, accused Jagdish had also counted said notes with his both hands and thereafter, he kept said amount in right side front pocket of his jeans pant. As per PW5, the CBI officials were sitting at some distance at the back side of the aforementioned two persons (accused), so that they could not be seen by said two persons. After the complainant gave pre-decided signal, said CBI official sitting at some distance came inside the cabin of Jaspal Singh. Thereafter, CBI officers challenged Jagdish that he had demanded and accepted the amount of Rs. 60,000/- which he was directed to take out. PW5 further deposed that thereafter, Jagdish took out the tainted money of Rs. 60,000/- from his right side front pocket of the jeans and put the same on the table. PW5 and the other independent witness tallied the distinctive numbers of said recovered GC notes with distinctive numbers mentioned in the document of CBI and they found them to be the same numbers and they both signed on the relevant portion of CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 27/110 the document where the details of said GC notes were mentioned. Thereafter, tainted bribe amount of Rs. 60,000/- was kept in an envelope and sealed with the CBI brass seal and his signature and signatures of other independent witnesses were also taken.
6.05 During his examination, PW5 correctly identified the bribe money of Rs. 60,000/- (30 GC notes of Rs. 2000/-) taken out from the envelope Ex. PW5/A5 sealed with the seal of CBI and deposed that the number of said currency notes were tallied with the description of notes given in Ex. PW1/A5. The rest of the deposition of PW5 with regard to hand wash, pant wash, seizure of jeans pant, recording of the conversations, recording the sample voice of accused Jagdish, Vikram and the complainant Jaspal Singh is more or less on the same lines as deposed by complainant PW15. As per his version, sample voices of accused Jagdish, Vikram and that of complainant Jaspal Singh were recorded by CBI and before recording of their sample voices, his introductory voice as well as of other independent witness were also taken. PW5 further deposed that the instrument in which the questioned conversations and sample voice were recorded, was sealed by CBI.
6.06 PW5 correctly identified voices of respective speakers contained in files of Q1 & Q2 as per the identification of voices recorded in respective voice-cum-transcription memo Ex. PW1/A6 (colly) and Ex. PW5/A1 (colly). PW5 also identified correctly his own voice, voices of Sh. Nitin Kumar Meena, complainant Jaspal Singh, accused Vikram and Jagdish contained in respective files of S1, S2 and S3 taken out from Ex. PW5/A7, Ex. PW5/A8 and Ex. PW5/A9 as CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 28/110 per respective voice-cum-transcription memo. PW5 also proved on record the arrest memo of accused Jagdish and Vikram as Ex.PW5/A10 and Ex.PW5/A11. The witness also correctly identified the DVR Ex. PW1/A7 (colly) and deposed the same was used on 15.8.2018 and he had signed said DVR on the same date. As per record, PW5 was declared hostile on 05.03,2020 and during his cross-examination by Ld Prosecutor on 11.07.2022 he identified his signature on transcription of the voice recording annexed with Ex.PW7/A4 on each page. After hearing the conversation in file no. 180814_1526 of Q-2 taken out from Ex.PW5/A1, PW5 admitted that in said conversation one of the voices was that of complainant but he could not identify the other voice in said conversation.
7. PW10 Sh. Nitin Kumar Meena is also an independent witness who remained part of only the trap proceedings. In his examination-in-chief, he has also deposed more or less on similar lines as deposed by the complainant Sh. Jaspal Singh Mann/PW15 and the independent witness Sh. Rajesh Kumar/PW5. As per his version, on 14.8.2018, on the instructions of his seniors, he had attended the CBI office where he met two persons namely Sh. Jaspal Singh Mann and Sh. Rajesh Kumar. Their introductory voices were recorded in an audio recording instrument. Thereafter, they were made to listen telephonic conversation between Jaspal Singh and one another person whose name was later revealed as Jaypal Sharma. Further, as per his version, Jaspal Singh made certain calls to one person Puran but, the same were not picked. Lastly, one call was picked up and during conversation of said call, the complainant asked said person Puran about the place where he was required to make CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 29/110 the payment as per their demand to which he replied that they would meet the complainant in his office within 1.5 hours. The said conversation was recorded in the audio recording instrument by CBI.
7.01 PW10 stated further that CBI had made them understand the purpose of laying trap and asked them to stand as a witness to said proceedings. The deposition of PW15 with regard to demonstration of phenolphthalein powder given by CBI officials, noting down the distinctive numbers of the currency notes brought by the complainant by the CBI in his presence, placing tainted money in the front pocket of the wearing pant of the complainant, instructions given to the complainant and the independent witness Sh. Rajesh Kumar regarding pre-decided signal is more or less on the lines of complainant's version.
7.02 As per deposition of PW10, two teams were formed by CBI, one was consisting of complainant and independent witness Sh. Rajesh Kumar (PW5), who sat in the personal vehicle of the complainant and in other team were PW10 and the other CBI officials who reached the spot in CBI vehicles. All the vehicles left the CBI office at about 4:30 to 4:45 pm and within 1½ hours, they reached near the office of complainant in Uttam Nagar Area.
7.03 As per PW10, he was asked to witness the proceedings of arrest, if any after receiving of the signal from the complainant Jaspal Singh and independent witness Rajesh Kumar. Independent witness Rajesh Kumar was asked to remain present with the complainant and to witness the likely transaction of bribe. The complainant the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 30/110 independent witness went to the office of the complainant while PW10 remained with the other members of CBI team. As per the witness, the half of the door of the complainant's office was of wood while the other half was of glass through which one can have the inside view of the office. PW10 alongwith CBI officials sat on the sofa which was lying outside of the office of the complainant. At about 6:30 pm, two persons came inside the office of the complainant, sat there and had some discussions which was not audible to them (other trap them members). After half an hour, independent witness Rajesh gave pre-decided signal and on seeing it, PW10 with CBI officers of the trap team entered inside the office of the complainant and independent witness Rajesh was asked as to whom the bribe amount was handed over and he (Rajesh) pointed towards one accused whose name was either Puran or Vikram. He said, he did not recall the exact name of the said accused but, he could identify the same. Upon being asked, the witness correctly identified accused Jagdish in the court and deposed that he was the one to whom the bribe amount was handed over by the complainant. He also correctly identified the other accused namely Vikram and deposed that he was the one who had been accompanying Jagdish at the time of trap on 14.8.2018.
7.04 As per his version, complainant informed the trap team that accused persons had demanded Rs. 1.2 lakhs as bribe from him and the bribe amount of Rs. 60,000/- was paid by him to them as part payment. Thereafter, the accused was caught hold by two CBI officials with his right and left hand separately and some liquid was poured into a glass tumbler and accused Jagdish was asked to dip his CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 31/110 right and left hand fingers in the said glass tumbler and on doing so, the colour of the solution turned pink. The pink colour solutions were put into separate bottles and marking was given to the bottles containing both hand washes and was sealed with seal Ex. PW10/A1. Rest of the deposition with regard to whatsapp message allegedly sent by complainant on mobile phone of accused Jaypal Sharma is more or less on same lines of version of complainant. PW10 proved seizure memo Ex. PW10/A2 (colly) vide which the CBI seized mobile phones and articles from the house of accused Jaypal Sharma during the search conducted at his house in Devli at 1:00 am on 15.8.2018. He also proved the file containing several documents as Ex. PW10/A3 vide which CBI officials took into their possession certain documents in his presence. He further deposed that after completion of search on 15.8.2018 at around 5-5:30 am, they alongwith accused Jaypal Sharma reached CBI office.
7.05 At the time of his examination in the court, PW10 also brought the CBI brass seal Ex. PW10-A1 and he deposed that the same was handed over to him by CBI after completion of proceedings with direction to produce it before competent authority. During his examination-in-chief, PW10 correctly identified the bottles containing hand washes of the accused Jagdish i.e Ex PW5/A4 & Ex.PW5/A3, pant wash of accused RSJPW as Ex. PW5/A2, the pant of accused as Ex. PW5/A-6 as well as the the bribe money contained in envelope Ex. PW5/A5, the Handing Over Memorandum Ex.PW1/A4 and also the list at page 3 of the same carrying distinctive numbers of GC notes which were tallied by him and the other witness Rajesh with the distinctive numbers of GC notes recovered from the possession of CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 32/110 accused Jagdish. Rest of his version regarding identification of sample voices and introductory voices and concluding voices contained in S1, S2 and S3 is same as deposed by complainant PW15.
(ii) CBI witnesses of verification and trap proceedings
8. SI Nitin Kumar Choudhary, PW-1 is the Verification Officer. As per his version, in the year 2018, he was posted as SI in CBI, ACB, Delhi and on 13.08.2018 at about 1415 hours, the then SP Sh. V. M. Mittal showed him a complaint of Sh. Jaspal Singh and handed over the same to him for verification. He further deposed that document D2 was the same complaint Ex. PW1/A1 which was marked to him for verification by the then SP Sh. V. M. Mittal. After receiving said complainant, PW1 secured presence of independent witness through Duty Officer. He introduced the independent witness to the complainant Jaspal Singh Mann and read over to him the contents of said complaint. Thereafter, PW1 arranged a blank Digital Voice Recorder and 8GB memory card of make Sandisk, opened it and put it in the DVR and recorded introductory voice of independent witness in it. As per his version, complainant had informed him that accused Jaypal Sharma had provided him (Complainant) his (Jaypal Sharma) mobile number. In order to verify the allegations, PW1 directed him to make a call from his mobile phone to the mobile phone of said accused. Accordingly, at around 3:12 PM, complainant made a call, but the said call was not answered.
8.01 As per version of PW1, the calls made during verification were recorded in the memory card through DVR by keeping the mobile phone of complainant on loudspeaker mode. At around 3:47 CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 33/110 PM, another call was made by the complainant from his mobile number to mobile number of accused Jaypal Sharma, but said call got disconnected. After about a gap of one hour, the complainant received a call from some mobile number belonging to co-accused Jagdish @ Sandeep, against whom also complainant had made allegations in his complaint. He deposed that said call was picked up by the complainant and during conversation of said call, the complainant asked co-accused Jagdish @ Sandeep about the bribe amount of Rs. 60,000/-, which was supposed to be handed over to accused Jaypal Sharma but Jagdish @ Sandeep informed complainant that the said amount was not given to Jaypal Sharma and once complainant pays another sum of Rs. 60,000/-, he would pay the entire amount of Rs. 1,20,000/- to accused Jaypal Sharma. The accused Jagdish @ Sandeep further asked the complainant to pay the balance of Rs. 60,000/- on that day itself i.e. on 13.08.2018, but complainant told him that he would pay the balance sum on the next day i.e. 14.08.2018.
8.02 As per his version, before making further payment, complainant asked co-accused Jagdish @ Sandeep to first confirm from accused Jaypal Sharma that there would be no further demolition and no obstacle in further construction of the property at A-80, Uttam Nagar, New Delhi, upon which co-accused Jagdish @ Sandeep assured him that he was going to the zonal office and would make him speak to accused Jaypal Sharma in that regard. After about a gap of one hour, complainant again received a call on his mobile number from the mobile number of co-accused Jagdish @ Sandeep and during this call, co-accused Jagdish @ Sandeep CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 34/110 informed the complainant that accused Jaypal Sharma could not talk over the phone but he (Jagdish) assured the complainant that there would be no further demolition in his property and during this call, one other person i.e. co-accused Sh. Puran @ Vikram also spoke to the complainant and assured that there would not be any further demolition at said property.
8.03 He deposed further that after sometime, the complainant again received a call and in that call, it was assured by co-accused Jagdish @ Sandeep that he would arrange a meeting between accused Jaypal Sharma and the complainant on the next day. He further deposed that the complainant also made a call to the mobile phone of co-accused Jagdish @ Sandeep to inquire about the time of next day meeting and he was informed that the time of meeting would be confirmed on the next day itself i.e. on 14.08.2018 and the complainant was further asked to bring the "samaan". The conversations of said verification calls were recorded in the memory card through DVR while keeping the phone of the complainant on loudspeaker.
8.04 He further deposed that after the completion of aforesaid conversation, memory card was taken out from the DVR and a copy/image of the same was prepared by using a write blocker device in the official laptop before sealing the memory card and thereafter, said memory card was kept in its original cover, which was signed by PW1, independent witness and the complainant and was marked as Q1, then the cover containing the memory card was kept in brown colour envelope, the said envelope was marked as Q1 and was signed CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 35/110 by all of them, the said envelope was sealed with the brass seal of CBI, the impression of the said seal was also taken on two blank sheets in lac and ink, the said sheets were also signed by all of them. Said seal was handed over to independent witness with direction to produce it on the next date i.e. on 14.08.2018.
8.05 He further deposed that during aforesaid proceedings/verification, PW1 found that accused Jaypal Sharma was demanding a bribe of Rs. 1,20,000/- through middle men Jagdish @ Sandeep and Puran @ Vikram from the complainant for not carrying out further demolition on his property. He also prepared a verification memo of the aforesaid proceedings vide verification memo dated 13.08.2018 Ex. PW1/A2-colly bearing his signature at point A as well as the signature of complainant Jaspal Singh and independent witness at point B and C. He deposed that on the basis of aforesaid verification memo, PW1 recommended for registration of FIR/RC in the present matter and on his recommendation, FIR/RC Ex. PW1/A3 was registered on 14.08.2018 U/s 120B IPC r/w Section 7 of PC Act 1988 and same was marked to TLO Pramod Kumar Tanwar for laying a trap and to do further proceedings.
8.06 PW1 further deposed that on 14.08.2018 at around 11:30 AM, TLO/Insp. Pramod Tanwar alongwith other CBI officials namely Insp. Anand Sarup, Insp. Shitanshu Sharma, Insp. Manoj Kumar etc. and independent witness namely Sh. Rajesh Kumar and Sh. Nitin Kumar assembled in CBI office and the purpose of the assembly was informed by TLO to all the persons present there. The FIR was read over to all of them and in that meeting, PW1 handed over the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 36/110 verification memo to the TLO and the complainant also handed over a sum of Rs. 60,000/-. The denomination of said currency was noted in the handing over memo dated 14.8.2018 Ex. PW1/A4. He further deposed that during the aforesaid meeting, a demonstration was also given of the trap proceedings by Insp. Manoj Kumar, in which the purpose and significance of phenolphthalein powder and its chemical reaction with sodium carbonate and water was explained to all the present members.
8.07 He deposed further that thereafter, personal search of complainant Sh. Jaspal Singh was conducted by independent witness Sh. Rajesh Kumar and he was not allowed to keep anything incriminating except the mobile phone. As per his version, recovery memo dated 15.8.2018 Ex. PW1/A5 (colly) was prepared in his presence by Inspector Pramod Kumar Tanwar. He proved the yellow colour envelope Q1 containing 8 GB memory card as Ex. PW1/A6 (colly). PW1 also identified the introductory voice of independent witness in file no. 180813_1507 contained in Ex. PW1/A6 (colly). He also proved the recordings contained in Q1 and also identified the voices of the speakers of the conversation in the files contained therein in similar manner as deposed by PW15 Sh. Jaspal Singh Mann (complainant). He also proved the yellow colour envelope containing the DVR in brown colour envelope as Ex. PW1/A7 (colly). Rest of his deposition regarding pre-trap proceedings and post trap proceedings is largely on same lines as deposed by the PW15 complainant Jaspal Singh Mann and independent witness PW5 Rajesh Kumar and PW10 Nitin Kumar Meena whose testimonies have already been reproduced above. The inconsistencies/contradictions in their testimonies if any, CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 37/110 shall be discussed in later part of this judgment.
9. PW6 Inspector Pramod Kumar Tanwar is the trap laying officer (TLO). As per his version, on 14.8.2018, at about 11:15 A.M, while he was working as Inspector in ACB Branch of CBI, he was handed over the FIR of instant case Ex. PW1/A3 (colly) by Sh. S.P. Mittal, SP, ACB, CBI. On perusal of the FIR file, it was found that FIR was registered on the complaint Ex. PW1/A of the complainant Sh. Jaspal Singh Mann and the verification of the complaint was conducted by Sub-Inspector Nitin Chaudhary vide verification memo Ex. PW1/B. He further deposed that a trap team comprising of he himself, Inspector Anand Swaroop, Inspector Shitanshu Sharma, Inspector Harnam Singh, Inspector Manoj, SI Nitin Kumar Chaudhary and SI Dinesh and two independent witnesses namely Sh. Rajesh Kumar and Sh. Nitin Kumar Meena was constituted.
9.01 Further that, all the members were acquainted with the contents of aforementioned complaint and verification memo and they were introduced to each other. He further deposed that during verification, SI Nitin Kumar Chaudhary had recorded the conversation between the complainant and the accused persons in a memory card Q1 through DVR and after completion of proceedings memory card was sealed and the seal as well as the DVR were handed over to him by SI Nitin Kumar Chaudhary.
9.02 PW6 proved the document D-17 as Ex. PW6/A1 and Ex. PW6/A2 which are printouts of whatsapp messages of the mobile phone of accused Jagdish Chander sent on the mobile number of CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 38/110 accused Jaypal Sharma. He further proved the arrest-cum-personal search memo Ex. PW6/A3 vide which accused Jaypal Sharma was arrested, two mobile phone of accused Jagdish Chander recovered from his possession as Ex. P-1 and Ex. P-2 respectively, mobile phone of accused Jaypal Sharma as Ex. P-4, wallet of accused Jaypal Sharma containing one ID card, copy of aadhar card, some cash as Ex. P-5, three wrappers alongwith yellow envelope containing RHW, LHW and RSJPW of accused Jagdish as Ex. P-6 collectively.
9.03 The rest of the narration of story by PW6 is more or less same as given by the complainant Jaspal Singh Mann (PW15) and independent witnesses Rajesh Kumar (PW5) & Nitin Kumar Meena (PW10) as they all were part of trap team. Hence, said part of his examination-in-chief is not discussed here however, if required, the details shall be discussed at later part of this judgment under the heading 'Analysis of material by Court'.
10. PW18 is Inspector Harish Chander. As per his version, he had done the investigation of the present case after the same was marked to him vide order dated 24.8.2018. He deposed that vide production-cum-seizure Ex. PW18/A, he had seized one demolition/sealing register, one personal file, service book, joining report of accused Jaypal Sharma and certified copy of office order dated 11.6.2018. He exhibited the transfer and posting order dated 11.6.2018 as Ex. PW18/B vide which accused Jaypal Sharma alongwith other staff was transferred. He deposed that memo dated 05.9.2018 Ex. PW18/C regarding extraction of mobile data of seized mobile of the accused persons was prepared for analysis of the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 39/110 mobile phone with the help of Programmer. He also exhibited the Technical Report Ex. PW18/D pertaining to two printouts of the screen shot of mobile phone of accused Jagdish Chander.
10.01 The witness further deposed that during investigation, he found that accused Jagdish Chander had saved the contact number 9911363000 of accused Jaypal Sharma by the name of Jai Baba Mohan Ram in his mobile and the same was revealed when accused Jagdish Chander sent a whatapp message to accused Jaypal Sharma confirming the receipt of the bribe amount from the complainant and it was also revealed that accused Jaypal Sharma read all the messages as apparent from blue tick marks appearing on the whatsapp messages.
10.02 PW18 identified his signatures on the seizure memo dated 12.9.2018 Ex. PW3/A, vide which he had seized the CAF, CDRs and location chart of mobile no. 9911363000 and 9899360090 alongwith certificate under Section 65B of Indian Evidence Act. As per his version, investigation revealed that mobile no. 9717499178 was used by accused Jagdish Chander which he got issued through his friend Jyoti. He further deposed that vide production-cum-seizure memo Ex. PW2/A1, he had seized the e-copy of CAF and CDRs of mobile no. 9560789205 and vide seizure memo Ex. PW7/A1, one letter dated 13.9.2018 and one contingent bill alongwith muster roll for the period 15.7.2018 to 14.8.2018 were seized. Further he deposed that letter dated 31.10.2018 Ex. PW18/E was received from the Executive Engineer Harminder Singh alongwith the ID card purportedly issued by MCD in the name of accused Jagdish Chander CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 40/110 and information was given that no such person in the name of Jagdish Chander driver was working as driver in Building Department, West Zone and the identity card annexed with said letter was never issued by their office. The production-cum-seizure memo dated 24.10.2018 was proved by PW18 as Ex. PW18/F vide which he had seized copy of GST number and visiting card of complainant's firm M/s J.S.Constructions. He further deposed that he had obtained sanction for prosecution against accused Jaypal Sharma and Vikram, recorded statements of witnesses and filed the chargesheet Ex. PW18/G. He further deposed that he had recorded statement of Jyoti Mehra under Section 161 Cr.P.C, which he exhibited as Ex. PW18/H.
(iii) Expert Witnesses from CFSL
11. PW8 Dr. Subrat Kumar Choudhury is the Senior Scientific Officer. As per his version, while working as Senior Scientific Officer, the exhibits Q1, Q2, S1, S2, S3 and DVR of present case were received from SP, CBI, ACB, New Delhi on 31.9.2018 vide letter No. RC-DAI-2018-A0024/10828 dated 13.9.2018 for voice examination. At the time of receipt of the same, the parcels were intact and tallied with the specimen seal provided. PW8 deposed further that he examined the aforementioned questioned and specimen voices contained in Q-1, Q-2, S-1, S-2 and S-3 and gave his report dated 19.7.2019 Ex. PW8/A and forwarded the same through forwarding letter dated 13.9.2018 Ex. PW8/B. Further as per said report Ex. PW8/A, the specimen voices contained in S-1, S-2 and S-3 were found tallying with respective questioned voices contained in Q-1 and Q-2. During his evidence, PW8 correctly identified the exhibits Ex. PW1/A6 (colly), Ex. PW5/A1 (colly), Ex. PW5/A7 (colly), Ex. PW5/A8 CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 41/110 (colly), Ex. PW5/A9 (colly) and Ex. PW1/A7 (colly) which were found containing the parcels i.e. Q1, Q2, S1, S2, S3, and the DVR which were examined by him and on which he gave his opinion vide his report Ex. PW8/A.
12. PW16 Ms. Deepti Bhargava is the Senior Scientific Officer (Chemistry) in CFSL, New Delhi. As per her version, she had given his opinion vide her report Ex. PW16/A in reference to the present case. She further deposed that vide letter no. RC-DAI-2018-A- 0024/10167 dated 28.8.2018 Ex. PW16/B, Superintendent of Police, CBI, ACB, New Delhi had forwarded three sealed glass bottles for Director, CFSL, New Delhi. She further deposed that she had carried out the chemical examination of the contents of the bottles marked as Ex. RHW, LHW and RSJPW and all the exhibits gave positive test for the presence of phenolphthalein and she prepared her detailed chemical examination report dated 07.9.2018 Ex. PW16/A.
(iv) Formal Witnesses
13. PW-2 Sh. Surender Kumar is the Nodal Officer from Bharti Airtel Ltd., who brought the record pertaining to certain mobile numbers allegedly used by the complainant and accused persons during verification and trap proceedings. As per his version, pursuant to notice served upon him by CBI, he handed over the requisite documents to the CBI officials at the office of CBI. He proved on record the seizure memo dated 08.10.2018 (D-21) as Ex. PW2/A1 and deposed that vide said document, he handed over the documents mentioned therein to Inspector Harish Chander. He identified the Customer Application Form (CAF) of mobile no. 9560789205 in the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 42/110 name of the subscriber Md. Safeala Khan, his certificate under Section 65B of Indian Evidence Act in respect of the aforementioned documents, Call Detail Record (CDR) and location chart of said mobile phone and deposed that all said documents were supplied by him vide aforementioned seizure memo Ex. PW2/A1. He also identified his signature on the above documents. PW2 deposed further that vide letter dated 15.10.2018 addressed to Inspector Harish Chander, he had also provided the similar set of documents i.e CAF, CDR, location chart, certificate under Section 65B of Indian Evidence Act, in respect of another mobile number 9717499178 subscribed in the name of Ms. Jyoti and he identified his signature and seal of the company on said documents and the letter dated 15.10.2018, which he collectively proved as Ex. PW2/A2 (colly.).
14. PW-3 Sh. Saurabh Aggarwal is a Nodal officer from Vodafone India Ltd. Perusal of his examination-in-chief shows that he had also handed over certain documents pertaining to mobile no. 9911363000 subscribed in the name of Jaypal Sharma. He proved on record the production-cum-seizure memo dated 12.9.2018 as Ex. PW3/A1 vide which he handed over CAF, CDR, location chart pertaining to aforementioned mobile number subscribed in the name of Jaypal Sharma and also identified his signature on certificate under Section 65B of Indian Evidence Act issued by him in respect of aforementioned documents. He proved on record another production- cum-seizure memo dated 26.9.2018 as Ex. PW3/A2 and deposed that vide said seizure memo, he handed over to Inspector Harish Chander the original CAF in respect of mobile no. 9899360090 subscribed in the name of accused Vikram and CAF pertaining to mobile no.
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9671721710 subscribed in the name of Sh. Veer Singh. As per his version, he also handed over the CDR as well as the location chart of both the said numbers and also issued certificate under Section 65B of Indian Evidence Act in respect of the aforementioned documents and provided the same to Inspector Harish Chander.
15. PW-4 Sh. Puneet Kumar Goel is the Commissioner, South MCD who had accorded sanction for the prosecution of accused Jaypal Sharma and accused Vikram in the instant case. As per his version, in January, 2019, he was posted as Commissioner, South MCD and received a communication for grant of sanction for prosecution of accused Vikram and accused Jaypal Sharma who were working in MCD as Baildar and JE respectively. As per his version, he had been sent various documents such as FIR, complaint, verification memo, voice identification memo cum transcript, recovery memo, handing over memo, statement of witnesses etc., by SP, CBI and after going through all said documents, he applied his mind and found it to be a fit case for according sanction for the prosecution of said two accused and accordingly, he accorded sanction for the same and same was sent to SP, CBI by Sh. A.K. Jain, Assistant Law Officer (Vigilance) vide forwarding letter dated 24.12.2018 Ex. PW4/A1 on which P4 identified signature of A.K. Jain and deposed that he had seen him writing and signing during the course of his official duties. He also proved on record sanction order dated 24.12.2018 accorded against accused Jaypal Sharma as Ex. PW4/A2 as well as sanction order dated 24.01.2019 in respect of accused Vikram as Ex. PW4/A4. The witness deposed that sanction of accused Vikram was forwarded vide another forwarding letter dated 28.01.2019 Ex. PW4/A3.
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16. PW7 Sh. Pawan Gahlot is the JE (Civil) from MCD. As per his version, accused Vikram had joined MCD as Baildar in the year 2004 and worked there on contract basis till he was terminated from services on 06.8.2018. He deposed that accused Vikram had worked with him for 2 years and he identified accused Vikram correctly in the court at the time of his examination. PW7 further deposed that he was called at CBI office for furnishing certain documents in respect of accused Vikram. Accordingly, documents furnished by him were seized by CBI vide seizure memo dated 13.9.2018 Ex. PW7/A1. He also proved on record letters dated 13.9.2018 and 06.9.2018 as Ex. PW7/A2 and Ex. PW7/A3 respectively. The witness also identified the signature of AE Anil Dabas and EE Deepak Gahlot on 2 contingent bills for the period 15.7.2018 to 14.8.2018. As per his version, on 13.9.2018, when he attended CBI office, AE and 3 other persons from different departments were also present and on that day, some recordings were played before them on the computer and they all were given some transcripts and were asked to compare it with recording played. They were also asked to encircle the portion in case of any anomaly. PW7 proved on record the voice identification-cum- transcription memo dated 13.9.2018 as Ex. PW7/A4 upon which he identified his signature as well as the signature of Sh. R.D. Chaudhary at point A and B respectively. He also identified his signature on another voice identification-cum transcription memo dated 13.9.2018 as Ex. PW7/A5 (colly.).
16.01 However, on the identification of the voice of accused Vikram @ Puran, PW7 turned hostile. On being shown D-24 Ex.
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PW7/A4 which is the voice identification-cum-transcription memo dated 13.9.2018, he deposed that he had not read the contents of said exhibit to the effect that 'Sh. Pawan Gahlot, J.E. identified voice of accused Vikram on the relevant voice as mentioned against his name'. Even during his cross-examination by Ld. Public Prosecutor for CBI, the witness failed to support the prosecution case qua identification of the voice of said accused. Upon being confronted with his statement recorded under Section 161 Cr.P.C Ex. PW7/AX where he is shown to have identified voice of said accused, PW7 deposed that he was not read over said statement by CBI. He categorically denied to have identified the voice of said accused at the time of making his statement Ex. PW7/AX or having made any such statement to CBI officers in this regard. He denied the suggestion that he was deliberately not accepting the fact regarding his having identified the voice of accused Vikram before CBI officer on 13.9.2018.
17. PW9 Sh. Veer Singh is the subscriber of mobile phone no. 9671721710. As per his version, said mobile number was got issued in his name. He proved on record the CAF pertaining to said mobile number as Ex. PW9/A by identifying his photograph on the same. He deposed that said mobile number was never used by him as the same was got issued by him at the request of Ved Prakash who had arranged him a job for in the hospital of Dr. Sanjay Sharma in Civil Hospital, Palwal. He deposed further that since Ved Prakash was not having any ID proof, therefore, he requested him (PW9) to get the SIM card issued for his (Ved Prakash's) personal use.
CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 46/110 18. PW11 is Sh. Harminder Pal Singh Rehal. As per his
version, in the year 2018, he was posted as Executive Engineer (Building-I), West Zone, Rajouri Garden SDMC, New Delhi. He deposed that area of Uttam Nagar was falling within the jurisdiction of SDMC and was looked after by AE of area of Om Vihar, West Zone. PW11 further deposes that the action against unauthorized construction is taken as per the provisions of Delhi Municipal Corporation Act, 1957 and it's Rules and Regulations. As per his version, unauthorized construction is when any building is constructed without valid sanction of the building plan or when there is any deviation or excess coverage. As per his version, he knew accused Jaypal Sharma who was working as JE with him. He deposed that he would be able to identify signature, writing and voice of accused Jaypal Sharma as he had worked with him and had seen him writing and signing during the course of official duties.
18.01 During his examination, he was confronted with page no. 231 of document Ex. PW11/C (D-13), which was
demolition/sealing register, EE (Bldg.)-II/WZ/Year 2018. The witness after going through the contents of said page deposed that it was in the handwriting of JE Jaypal Sharma but the same was not signed by him. He deposed that said noting was in respect of the action taken by Jaypal Sharma on property A-80, Om Vihar, Uttam Nagar, New Delhi. The said noting on page no. 231 was exhibited as Ex. PW11/D (D-13). PW11 also exhibited certain circulars i.e. D/04/ADDL. CM (Engg.)/1997 dated 01.02.1997 issued by the Additional Commissioner, MCD and circular/office order PSC/220/2009 dated 06.3.2009 under the signature of Sh. K.S. Mehra, Commissioner, CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 47/110 MCD as Ex. PW11/A and Ex. PW11/B respectively. The witness also exhibited the office order no. D-873/EE (Bldg.)/SZ dated 12.6.2018 in respect of relieving of JE Jaypal Sharma from the office of EE (Building-I), South Zone as Ex. PW11/E and the joining report of said accused submitted to Executive Engineer (Building-II) of SDMC, West Zone as Ex. PW11/F. 18.02 As per PW11, word 'booked' denotes initiating action against unauthorized construction in the property as per plan and its rules. The word 'unbooked' denotes that action not required against unauthorized construction as per the DMC Act, 1957 and it's Rules. Upon being confronting with the document D-11, the witness deposed that due to passage of time, he could not say with certainty upon the handwriting on the action notes of said document at page no. 59-71 but, he stood by his statement given to CBI where he had identified said running notes as being prepared by accused Jaypal Sharma. He further deposed that as per page no. 61 of D-11, word 'booked' was not mentioned in respect of property A-80, Om Vihar, Uttam Nagar which reflected that the unauthorized construction was under
action/knowledge of JE Jaypal Sharma. Further, as per his version, if Jaypal Sharma had observed any unauthorized construction in his area, he was expected to taken necessary action as per the DMC Act, 1957 such as booking, demolition, sealing, prosecution etc. and he was also supposed to make entry in the booking register when the property was booked by registering FIR under Section 343 and 344 of DMC Act for unauthorized construction. He further deposed that accused Jaypal was also supposed to make entry in the demolition register after demolition action was taken. Further, he (Jaypal CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 48/110 Sharma)was supposed to make complete demolition and not cosmetic demolition. He further deposed that on 30.10.2018, he alongwith Sh. Ashok Kumar Gupta had visited CBI office where IO of the case had played recording/conversation of voice of Jaypal Sharma and they both had identified his voice. The witness proved on record the voice identification-cum-transcription memo dated 30.10.2018 as Ex. PW11/G. He also correctly identified the voice of Jaypal Sharma in the file 180814_1833 which was played from the memory card Q2 taken out from envelope Ex. PW5/A1. He correctly identified the voice of said accused in CD Ex. PW15/F after the same was played on the official laptop brought by MHC(M) at the time of his examination.
19. PW12 Sh. Ashok Kumar Gupta was also JE from West Zone of SDMC. As per his version, he was knowing Jaypal Sharma. Perusal of his testimony shows that witness turned hostile as he failed to identify voice of Jaypal Sharma in file no. 180814_1833 contained in memory card Q2 after the same was played in the court at the time of his examination. He further deposed that he could not say if the conversation transcription mentioned at page no. 24 of Ex. PW7/A4 contained voice of accused Jaypal Sharma as one of the speakers. He also failed to identify the voice of accused Jaypal Sharma in the conversation of the call no. Call_10-33- 39_Out_9911363000-Copy.Amr. He was declared hostile on account of his failure to identify the voice of Jaypal Sharma but even during his cross-examination, despite being confronted with his statement under Section 161 Cr.PC, he categorically denied to have failed identify the voice of accused Jaypal Sharma and did not support the prosecution case. He denied the suggestion that he had been won CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 49/110 over by said accused being his colleague.
20. PW13 Ms. Jyoti is the alleged subscriber of mobile no. 9717499178. She identified her photograph on the CAF of said mobile number D-20 but, she deposed that she had never filled up any such form nor she applied for any such SIM or mobile number. As she also turned hostile, Ld. Senior PP for CBI cross-examined her also but in vain, as even in her cross-examination, she failed to support the prosecution case. She deposed that Jagdish had never asked her to get mobile number in her name nor she at his request ever got any SIM Card issued for him (Jagdish) in her name on her ID. She further deposed that her mobile no. was 9811806936 but she did not know if the mobile no. 9560789205 belonged to Jagdish.
20.01 On being shown page no. 4 of D-21 at point X to X on the call detail dated 02.8.2018, PW13 deposed that on her mobile, a call was received from the mobile no. 9560789205. She voluntarily deposed that she used to talk to wife of accused Jagdish on said mobile but she had never talked to Jagdish on said mobile number. The witness on being confronted with her statement recorded under Section 161 Cr.P.C categorically denied to have made any such statement Mark PW13/X. She denied the suggestion that at the request of Jagdish, she had given her Aadhar Card for issuance of mobile no. 9717499178. She denied the suggestion that photograph depicted on CAF was given by her to Jagdish for issuance of SIM card in her name. She denied the suggestion that she was deposing falsely in order to save accused Jagdish.
CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 50/110 21. PW14 is Sh. Rajdeo Chaudhary. As per his version, he
remained posted in Executive Engineering Building-II, Rajouri Garden from the year 2016 till 20.8.2019. Further that, the action against the unauthorized construction in any building under the jurisdiction of MCD is taken by MCD as per the DMC Act and its Rules and unauthorized construction is the one which is raised by any person without seeking requisite permission from the MCD. Further that, even the construction raised in violation of sanctioned site plan/map is also considered as unauthorized construction. PW14 identified signature of Sh. S.Rama Varriar on the production-cum-seizure dated 04.9.2018 Ex. PW14/A as well as on its enclosures ExPW11/A and PW11/B saying that he had worked with S.Rama Varriar and seen him writing and signing. He also proved identification-cum-transcription memo dated 23.10.2018 as Ex. PW14/B and deposed said transcription was compared by him in CBI office with the conversation played in his presence and there were 5 more persons present there besides him who were also asked to compare the same.
21.01 He also identified signature of accused JE Jaypal Sharma on Ex. PW11/D saying that said JE had worked under him. As per his version, in the aforementioned demolition carried out by said JE, only RCC panel were demolished and no complete demolition took place. As per his version, normally the JEs visit the area under their jurisdiction in order to check if any unauthorized construction is existing in that area and if the JE finds any on going unauthorized construction, he serves notice upon the owner/builder of the property and if the owner fails to respond to the notice, the matter is reported to the Senior Officers and in consultation with the seniors, the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 51/110 unauthorized construction is either sealed or demolished and in some cases, FIRs are also registered under DMC Act against the owner of such property.
21.02 He further deposes that as a normal practice, in cases of demolition of unauthorized construction, RCC panel/roof is demolished and thereafter, the columns are demolished/removed. Further that, in the present case, accused Jaypal Sharma demolished only RCC panel on 26.7.2018 and no complete demolition took place. As per deposition of PW14, during investigation of the case, he visited CBI office where he was asked to hear the telephonic conversation and to compare the printed transcription with the voice file but, he was not asked to identify the voice of the speakers.
22. PW17 is Sh. Ajit Singh, who was working as Safai Karamchari in Sanitary Department of MCD since 2008 where accused Vikram, whom he was knowing since his childhood days, was also working as Baildar. Therefore, he (PW17) was conversant with acussed Vikram's voice. As per his version, CBI had called him to identify the voice of accused Viram. He proved voice identification- cum-transcription memo as Ex. PW17/A. During his examination in chief Q2 Ex. PW5/A (colly) was played and the witness was asked to identify the voices of speakers in files 180814_1526 and 180814_1833, but he failed to identify the same. He also denied his acquaintance with accused Jagdish and consequent thereto, he was declared hostile and was cross examined by Ld. Sr. PP. But he failed to support the prosecution on both the aforementioned points despite his vigrous cross examination by Ld. Sr. PP. Though he admitted that CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 52/110 the contents of his statement dated 15.10.2018 Mark PW17/1 pertaining to accused Vikram and Kirti Pal were correct but he denied the suggestions that he had identified the voices of accused Jagdish and accused Vikram in the presence of Sh. Nand Kumar or that his statement dated 31.10.2018 Mark PW17/2 was correctly recorded as referred at point B to B-1.
Statement of Accused
23. After conclusion of prosecution evidence, statement of all the three accused were recorded under Section 313 CrPC wherein all the incriminating evidence was put to them but as expected, the same was denied by the accused persons as wrong and incorrect. The accused persons pleaded their innocence and came up with the plea that they have been falsely implicated in the present case by the CBI at the behest of the complainant. They further came up with the plea that a false complaint was lodged against them by the complainant. Accused persons stated further that false and manipulated documents have been created by the complainant in connivance with CBI officers and the witnesses joined by CBI in the alleged verification and trap proceedings are also stock witnesses. The accused persons categorically denied that the voice attributed to them by the prosecution witnesses in Q1 and Q2 were their voices. As regards specimen voice, accused Jagdish and Vikram came with the plea that their specimen voices were taken under duress by CBI officer. Accused Jagdish and Vikram also denied the voice identification expert report Ex. PW8/A stating that the opinion contained in said report regarding their alleged voices in Q1 and Q2 is incorrect and manipulated. They also categorically denied the alleged CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 53/110 recovery of any tainted money from them. Accused Jagdish also stated that he did not know accused Jaypal Sharma nor he ever worked for him or with him. All the accused categorically denied to have raised any demand of bribe from complainant or having accepted any bribe amount from him. None of the accused preferred to lead any evidence in defence.
23.01 Accused Jaypal Sharma has taken a plea that the complainant was carrying out illegal construction at A-80, Om Vihar and since he (Jaypal Sharma) had demolished the unauthorized construction of the complainant, the complainant laid false trap with the help of CBI on him to implicate him in the present case and and after his trap, the complainant succeeded in his motive of completing unauthorized construction and no further action was taken by MCD officials on his site due to registration of present case.
24. Arguments were advanced at length by Ld. Counsels Sh. Amit Khanna, Advocate for accused Jaypal Sharma; Sh. Hitendra Kapur, Advocate for accused Vikram and Sh. S.P.M.Tripathi, Advocate for accused Jagdish Chander. Ld. Senior PP, Sh. Hari Mohan also advanced arguments on behalf of CBI. Written submissions were also filed on behalf of CBI and the accused persons. I have given my thoughtful consideration to the rival contentions raised from both the sides and also carefully perused the entire record including the written arguments and the supporting judgments filed on record by the parties.
Prosecution Arguments CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 54/110
25. Ld. Senior PP for CBI has argued that prosecution has successfully proved the charges against all the accused by leading clinching evidence in the form of direct and circumstantial/link evidence and in this regard, he has relied upon the testimony of the complainant Sh. Jaspal Singh Mann (PW15), the shadow witness Rajesh Kumar (PW5), who remained part of both verification and trap, Nitin Kumar Meena (PW10), the other independent witness who was joined in the trap proceedings as well as the Verification Officer Inspector Nitin Kumar Chaudhary (PW1) and Trap Laying Officer Inspector Promod Kumar Tanwar (PW6). The alleged incriminatory testimonies of said witnesses as well as that of link witnesses have been referred in detail in the written submissions filed on behalf of CBI. However, in order to avoid the repetition, the same shall be discussed in the later part of this judgment. It was further argued that with regard to demand of bribe and its part payment, barring few minor discrepancies, the complainant has more or less deposed on the lines of his complaint dated 13.8.2018 Ex. PW1/A1. It was argued that on account of the long gap between the alleged incident and the examination of the complainant in the court, there occurred a small discrepancy with regard to the date of payment of the first installment of Rs. 60,000/-, which is not very significant in the light of other corroborative evidence in the form of audio recording of telephonic conversation of verification proceedings, which clearly shows that part payment of Rs. 60,000/- was made on last Friday which if referred to date of verification came out to be on 10.08.2018 which is the date mentioned in the complaint.
25.01 Ld Sr. PP submitted that the complainant in his CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 55/110
examination-in-chief has deposed that he had made the complaint on 13.8.2018 and in the evening of the very same date, accused Jagdish @ Sandeep and Vikram @ Puran visited his office at about 5:00-6:00 pm to whom he paid them Rs. 60,000/- as per their demand and after that he informed CBI about said payment and he was asked to come to CBI office on the next date. On the next date, when he visited the CBI office, he met the trap laying officer Nitin Chaudhary and one independent witness Rajesh Kumar and while sitting in the CBI office, he received a call from the mobile phone of Jagdish and Sandeep who were asking for the balance payment of Rs. 60,000/- and the complainant agreed to pay the same to them on the next date. As per complainant, said call was recorded by the IO in the blank memory card through DVR. As per his version, verification proceedings completed at 7-8 pm and thereafter, he was asked to come on the next day i.e. 14.8.2018 with Rs. 60,000/-. As per the complainant's version, the trap was laid on 14.8.2018 and the accused Jagdish @ Sandeep and accused Vikram @ Puran were caught red handed in his office with the bribe money.
25.02 It was further argued that as per the complaint Ex. PW1/A1, the amount of Rs. 60,000/- was paid by the complainant on 10.8.2018 but, as per his version, said payment of Rs. 60,000/- was made in the evening of 13.8.2018 after he had already filed his complaint with the CBI in the morning of said date. Ld. Senior PP for CBI has argued that in any case, the verification was done by the verifying officer with regard to the alleged demand of remaining balance payment raised by the accused Jagdish @ Sandeep and accused Vikram @ Puran on behalf of accused JE Jaypal Sharma CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 56/110 which was duly recorded through DVR in the memory card Q1 and the alleged voices of said accused in the conversation of 13.8.2018 contained in said memory card Q1 have been duly examined and compared with the specimen voices of said accused by the Forensic Expert who has given a positive opinion with regard to their voices in his report Ex. PW8/A. 25.03 It was argued further that the discrepancy regarding the payment of first installment has occurred on account of the long gap as the accused was examined on 15.10.2022 whereas, the alleged incident occurred in August, 2018 and, therefore, not much weight can be attached to said discrepancy especially when the prosecution has adduced various other corroborative evidence in the form of testimony of other members of the trap team as well as the audio recordings of the conversations which occurred between the accused persons and the complainant prior to filing of the complaint as well as after the filing of complaint i.e. on the dates of verification (13.8.2018) and trap (14.8.2018). It was argued apart from the version of complainant regarding the alleged demand of bribe raised by accused Jaypal Sharma on the date of demolition i.e on 26.07.2018 and by accused Jagdish and Vikram on the date of verification as well as on trap, there is corroborative evidence of shadow witness Rajesh as well as the audio recordings of alleged conversation in this regard. Besides that, the whatapp message sent from the phone of accused Jagdish to the mobile phone of accused Jaypal Sharma regarding his having received the balance amount from complainant was seen by said accused as is evident from the blue tick mark appearing on the the message and the conduct of CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 57/110 accused Jaypal Sharma remaining silent and not making any inquiry as to why said amount was received by accused Jagdish leads to an inference that money was accepted as per the instruction of Jaypal Sharma who was the master mind of entire conspiracy.
25.04 Ld. Senior PP submitted that the conversation which took place between the accused Jaypal Sharma and the complainant on 08.08.2018 was got recorded and saved in the mobile phone of the complainant and said conversation was taken on the CD by the complainant which alongwith the certificate of complainant under section 65B of Indian Evidence Act was handed over to the IO during the course of investigation. Ld. Senior PP has further relied upon the technical evidence in the form of audio recordings of verification proceedings and the trap proceedings and finally the recovery of the tainted money as well as the supportive forensic evidence with regard to chemical examination report dated 07.9.2018 Ex. PW16/A in respect of hand wash and pant wash and voice identification report dated 19.7.2019 Ex. PW8/A. While relying upon the above evidence, Ld. Senior PP for CBI asserted that the prosecution has successfully proved that accused JE Jaypal Sharma (public servant) through his middlemen accused Jagdish @ Sandeep (private person) and accused Baildar Vikram @ Puran (public servant), raised the demand of bribe for allowing the complainant to continue with the illegal construction on the demise property and also accepted said demanded money from the complainant through said middlemen who were caught red handed by the trap team while accepting said money.
25.05 It was further argued that the audio recordings of the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 58/110
conversation between the accused and the complainant before the date of complaint and after the date of complaint i.e. at the time of verification and trap are ample proof of what all transpired between the complainant and the accused with regard to alleged transaction of bribe. Further, the recovery of money from the possession of the accused immediately after the raid by the trap team leaves no scope for any other inference except that the accused persons had conspired together and committed the alleged offences under PC Act and IPC, in the manner and sequence as deposed by the prosecution witnesses. It is further argued that the audio recording of the verification and trap proceedings are well admissible in evidence and have been duly proved on record in accordance with law and the credibility of such evidence is above board.
25.06 It was further argued that by clinching evidence, the prosecution has been able to prove all the foundational facts which are necessary to raise the presumption of Section 20 of PC Act i.e. demand, acceptance and recovery of tainted money and in the background of said circumstances, the burden shifted on the public servants i.e the accused Jaypal Sharma and Jagdish @ Sandeep to rebut said presumption regarding existence of requisite motive or reward as per section 7 of PC Act by leading direct or indirect evidence which the accused has miserably failed and thus, the material on record is sufficient to fasten the guilt of the alleged offences upon the accused persons. In the written submissions, Ld Sr. Public Prosecutor has also relied upon the various case law in support of his arguments which shall be referred in later part of this judgment.
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26. Per-contra Ld. Defence Counsels for the accused assailed the case of the prosecution primarily on the ground that the deposition of the complainant is full of material discrepancies and even the testimonies of the independent witnesses suffer from serious infirmities and contradictions making them completely unreliable and untrustworthy. Broadly, following arguments have been raised on behalf of accused by the Ld. Defence Counsels:-
i) That the prosecution has failed to prove affirmatively that the accused public servants by corrupt or illegal means or by abusing their positions obtained any pecuniary advantage either for themselves or for any other person. The allegations against accused are contradicted by the statements of the witnesses and the documents brought on record thereby, leaving the prosecution case completely insufficient to raise the presumption of Section 20 of PC Act, 1988.
ii) That the facts deposed by the complainant Jaspal Singh Mann (PW15) in his examination-in-chief are altogether different from the facts alleged in his complaint dated 13.8.2018 and they do not find any reference even in the verification memo dated 13.8.2018 Ex. PW1/A2 (colly).
iii) That as per the complaint Ex. PW1/A1 (D-2), an amount of Rs. 60,000/- was taken from the complainant by the accused Sandeep and accused Puran on 10.8.2018 whereas, as per the examination-in-chief of the complainant (PW15), said money was taken by said accused in the evening of 13.8.2018 after the complainant returned back to his office after lodging the complaint with the CBI.
CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 60/110 iv) That as per the complaint Ex. PW1/A1, on 26.7.2018,
accused JE Jaypal Sharma visited the demise property at A-80, Om Vihar, Uttam Nagar, New Delhi and demolished the first floor of said building. Whereas, in his examination-in-chief complainant/PW15 deposed that the team of MCD including accused JE Jaypal Sharma had demolished the lantern of second floor of said building. Further, the said claim of alleged demolition was neither verified by the verification officer nor by the TLO during investigation of this case.
v) That the deposition of complainant/PW15 where he deposes that he received a call from one of the aforementioned mates Vikram or Jagdish who asked him "JE Sahab Ka Saman Kab Dogey", is not in consonance of the facts narrated in the complaint dated 13.8.2018 Ex. PW1/A1, as there is no mention of any such alleged call of said accused persons.
vi) That as per the examination-in-chief of verification officer/PW1, initially a demand of Rs 1.5 lakh was made when the caller boy (middleman) asked the complainant that he would come to his (complainant's office) office tomorrow. From this deposition of complainant, it appears that said call for raising demand of Rs. 1.5 lakh was made on 12.8.2018. Because, as per the complainant, he made the complaint to ACB, CBI on the very next date i.e on 13.8.2018. As per the deposition of PW1, when the complainant returned back to his office on 13.8.2018 after lodging of his complaint with CBI, said boys Jagdish @ Sandeep and Vikram @ Puran visited his office and reduced the demand from Rs. 1.5 lakh to Rs. 1.2 lakh and on their demand, complainant paid them Rs.
60,000/- and sought 2-3 days time for making remaining payment. Whereas, in his complaint Ex. PW1/A1, there is no mention of the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 61/110 alleged initial demand of Rs. 1.5 lakh or it's reduction to Rs. 1.2 lakh nor there is any mention of said call of 12.08.2018. Further more, as per the complaint Ex. PW1/A1, the first installment of Rs. 60,000/- was paid on 10.8.2018 and not on 13.8.2018 as alleged by complainant in his deposition before the court.
vii) That the alleged fact regarding payment of Rs. 60,000/- in the evening of 13.8.2018 neither finds mention in the verification memo Ex. PW1/A2 nor in any other alleged proceedings carried out from 13.8.2018 to 15.8.2018.
viii) That on account of aforementioned material contradictions, the complainant is not a trustworthy witness and his deposition cannot be relied upon for any purposes. Further the complainant's version in his examination-in-chief recorded on 17.11.2022 with regard to the time of conclusion of verification proceedings reflects that the same were concluded at 7:00-8:00 pm of 13.8.2018 which is completely contrary to his own version recorded on the previous date of 15.10.2022, where he had deposed that on 13.8.2018, he had returned back to his office at 5:00-6:00 pm after filing the complaint to CBI office.
ix) That the complainant has falsely identified the voice of accused Vikram @ Puran which is apparent from the fact that complainant failed to identify him in the court. When a person was not able to physically identify a person in the court, it was highly improbable that he would be able to identify the voice of such person.
x) That in the cross-examination dated 21.02.2023, complainant deposed that he had mentioned the phone number of accused Sandeep in his complaint Ex. PW1/A1 whereas, no such number is mentioned in said complaint and when complainant was CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 62/110 confronted with his complaint, he also admitted that it was not mentioned in his complaint.
xi) That PW5 Rajesh Kumar in his cross-examination testified that he had put his signatures on verification memo Ex. PW1/A2 and Ex. PW6/A3 arrest-cum-search memo of Jaypal Sharma at the behest of CBI officials as neither the recording referred to in Ex. PW1/A2 was played before him nor accused Jaypal Sharma was searched in his presence as alleged in Ex. PW6/A3. He also denied to have gone through the contents of handing over memo Ex. PW1/A4 and rather in cross-examination, he deposed that he had not gone through the contents of any of the documents which were got signed from him by CBI officials from 13.8.2018 to 15.8.2018 and, therefore, he could not say whether the contents of said documents were or were not true.
xii) That as per CBI's own case, PW10 Nitin Kumar Meena had not witnessed the alleged transaction of demand or the acceptance of bribe on 14.8.2018 because, the alleged transaction took place in the complainant's office whereas, PW10 was sitting outside said office. As per version of PW10, CBI team after getting the pre-decided signal entered into the office of the complainant and asked Rajesh Kumar (Shadow Witness) as to whom the bribe amount had been handed over by the complainant to which Rajesh Kumar pointed out towards accused Vikram @ Puran. Whereas, as per the prosecution case, on the date of trap, the bribe amount was accepted by accused Sandeep @ Jagdish and not by accused Vikram @ Puran as deposed by PW10.
xiii) That PW10, having already stood a witness for CBI in one another case was a stalk witness. Further there is no mention to the alleged call made by complainant to accused Vikram on his mobile CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 63/110 phone in the CBI office on 14.8.2018 as referred by PW10 in his cross-examination dated 07.3.2023, either in the recovery memo or handing over memo prepared on that day or even in the transcription cum voice identification memo. Further the version of said witness where he claimed to have heard accused Vikram demanding bribe from the complainant in the CBI office, is totally false as no such case has been put forward by the CBI in the chargesheet and even the said witness himself admitted that no such fact was recorded in handing over memo Ex. PW1/A4.
xiv) That from various contradictions in the deposition of complainant and the independent witnesses, it is apparently clear that the verification report Ex. PW1/A2 prepared by the verification officer PW1 is a fabricated document. PW1, being the verification officer, is an interested witness and therefore, his testimony cannot be relied upon without any corroboration from the independent source especially in the light of the fact that the complaint Ex. PW1/A1, which was allegedly marked to him for verification does not contain any complaint number nor it bears any diary number or stamp of competent authority.
xv) That the site plan Ex. PW1/D1 does not depict the positions of the complainant, independent witnesses or the other members of the trap team or that of the accused persons at the time of alleged transaction. Even the deposition of verification officer/PW1 regarding the dots on the site plan denoting the positions of trap team is also based on his own assumptions.
xvi) That the verification officer i.e. PW1, in his cross- examination dated 19.02.2020 deposed that during verification proceedings, he was not able to verify as to who was Puran, Vikram, CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 64/110 Sandeep or Jagdish nor he was able to find out whether Puran and Vikram were names of same person and Sandeep and Jagdish were the names of same person. As per his deposition, he had not seen any accused persons receiving bribe nor he heard them demanding the bribe.
xvii) That TLO, PW6 Pramod Kumar Tanwar also made inconsistent statement in his cross-examination. As per his version, in the site plan the positions of accused persons, complainant, shadow witness and other members of the trap team were depicted by him but, after going through the site plan, he admitted that no such positions have been shown in the site plan Ex. PW1/D1. He also admitted that during trap proceedings, no phone call was made by the complainant to accused Vikram nor any conversation showing the accused Jaypal Sharma asking the complainant to give bribe money to accused Vikram was recorded nor there was any conversation to show accused Vikram had visited the complainant to collect bribe from him on behalf of accused Jaypal Sharma.
xviii) On behalf of accused JE Jaypal Sharma, it was vehemently argued that except the version of the complainant, there is absolutely no other evidence to support the prosecution case qua said accused for having raised the alleged demand for bribe or having allegedly sent the other co-accused to demand and receive payment of bribe amount on his behalf. The voices allegedly attributed to accused Jaypal Sharma in the questioned conversation Q-2 recorded from the mobile phone of accused Jagdish @ Sandeep (through DVR) on the date of trap or that of 08.08.2018 recorded on CD from the conversation allegedly stored in the mobile phone of complainant, were not identified by any of the the witnesses examined by the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 65/110 prosecution and for lack of sample voice of accused Jaypal Sharma, there is no voice identification report of the Forensic Expert qua his alleged voice. Even otherwise, none of the said conversations are reflective of any iota of material to show that any demand of money was ever raised by accused JE Jaypal Sharma.
xix) That the verification made by the CBI on 13.8.2018 was not successful as it was JE Jaypal Sharma, who allegedly was raising demand for moneny and it was he whom the CBI wanted to trap but the alleged calls made by complainant on the mobile phone of accused Jaypal Sharma were not picked up by him and as such, no conversation took place between the complainant and accused Jaypal Sharma on 13.8.2018 during verification and in this regard the verification officer/PW1 has also admitted in his cross-examination dated 30.01.2020.
xx) That the CBI has miserably failed to establish the authenticity and veracity of the verification proceedings and trap proceedings. The testimonies of the witnesses examined by the prosecution in this regard, are not in consonance with the factual content narrated in the verification memo Ex. PW1/A2, handing over memo Ex. PW 1/A4 and recovery memo Ex. PW1/A5. As per the version of independent witness Sh. Rajesh Kumar/PW5 dated 11.7.2022, he had signed the verification memo dated 13.8.2018 merely on the asking of CBI officials without going through its contents and without hearing the recorded conversation of verification.
xxi) That during entire trial, CBI has miserably failed to establish any demand of bribe direct or indirect which can be attributed to JE Jaypal Sharma and the same is evident from the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 66/110 perusal of the transcription memos of the conversation Q1, Q2 or the alleged conversation dated 08.8.2018 of CD allegedly handed over by the complainant to the IO during investigation, which nowhere reflect that any such demand of illegal gratification was ever raised by accused JE Jaypal Sharma.
xxii) As per CBI case, both the complainant and the independent witness Rajesh Kumar witnessed the arrest and personal search memo Ex. PW6/A3 of the accused Jaypal Sharma vide which said accused was arrested and two mobile phones were allegedly recovered from his possession. Whereas, the complainant in his cross-examination dated 22.02.2023 admitted the suggestion that no recovery was affected from accused Jaypal Sharma after his arrest in his (complainant's) presence. Whereas, PW5 Independent Witness Rajesh Kumar in his cross-examination dated 11.7.2022 deposed that accused Jaypal Sharma was not searched in his presence and he had signed the search memo of accused Jaypal Sharma merely on the asking of CBI officials.
xxiii) That admittedly, none of the two mobile phones allegedly recovered from the possession of accused Jagdish were registered in his name. As per chargesheet, mobile phones allegedly used by accused Jagdish @ Sandeep during verification and trap proceedings are mobile no. 9717499178 and 9560789205 and after his arrest, same were recovered from his possession. During investigation said two mobile phones were found to be registered in the name of Ms. Jyoti Mehra (9717499178) and Md. Safila Khan (9560789205). During course of trial, prosecution examined only Ms. Jyoti Mehra, the alleged subscriber of mobile no. 9717499178 as PW13 but, she turned hostile and failed to support the prosecution case even in her CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 67/110 cross-examination by Ld. Senior PP. Whereas, the alleged subscriber of the other phone no. 9560789205 was not examined by CBI for reasons best known to them nor his name was even cited as a witness in the list of witnesses.
xxiv) That the other mobile phone i.e. mobile no. 9671721710 subscribed in the name of Veer Singh has been falsely planted on the accused Jaypal Sharma because no such mobile was recovered during search of his house as recorded in the arrest memo. As per PW10 Nitin Kumar Meena, who is one of the witness to said arrest memo, only one mobile phone was recovered from the house of accused JE Jaypal Sharma and the mobile phone referred by the said witness is the official mobile phone of accused Jaypal Sharma having SIM no. 9911363000.
Analysis of the material by the Court
27. Before referring to the respective contentions raised at Bar, I may first refer to the judgment of Hon'ble Apex Court in P. Sathyanarayana Murthy v. District Inspector of Police, State AP and another 2015 10 SCC 152 wherein, the Hon'ble Apex Court referred to its previous decision in Sujit Biswas v. State of Assam [(2013) 12 SCC 406 :(2014) wherein, it was observed that "suspicion, however, grave cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be"
true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise of conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
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28. Indisputably, for constituting an offence under Section 7/7A of the PC Act, 1988, the demand of illegal gratification is a sine qua non and for arriving at the conclusion as to whether all the ingredients of the offence viz. demand, acceptance and recovery of amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Further while invoking the provision of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is to call upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case, the court may look for independent corroboration before convicting the accused persons. Reliance in this regard is placed on Mukut Bihari & ors. v. State of Rajasthan (2012)11 SCC 642.
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29. It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused 'may have committed the offence' and 'must have committed the offence' which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognized as a human right which cannot be washed away. Thus the prosecution has to establish all essential of charge framed to allay this presumption of innocence. Reliance in this regard has been placed on the judgment in Kailash Gour v. State of Assam 2012 (1) LR C (SC).
30. In the same very judgment in Kailash Gour v. State of Assam (Supra), Hon'ble Apex Court also referred to Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble (2003) 7 SCC 749 wherein, the Hon'ble Apex Court discussed as to what all should be taken into consideration and what should be the approach of trial court in criminal trial and the court observed as under:
"The Courts exist for doing justice to the persons who are affected. The trial/first appellate courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth, and oblivious to the active role to be played for which there is not only ample scope but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice in a case where the role of the prosecuting agency itself is put in issue.'
31. Evidence is the only way to prove or disprove anything and oral testimony apart from the documentary evidence are the ways through which evidence is brought on record. Where oral CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 70/110 testimony is relied upon, then the credibility of the witnesses becomes very important. It is to be seen whether the witnesses are trustworthy, reliable, narrate factual position in a proper way, truthful and that he or she is not irresponsible or reckless or that he or she has no mala fides, ulterior motive in deposing a particular fact for or against a particular person or a particular act or incident. Thus, the oral evidence has to undergo this acid test.
32. In the instant case, one of the foremost contention raised by the Ld. Defence Counsels to challenge the credibility of the prosecution case is the contradictions in the version of the complainant in his complaint dated 13.08.2018 and in his deposition recorded during trial. Besides that, it is vehemently contended on behalf of accused JE Jaypal Sharma that CBI has miserably failed to prove any iota of evidence against said accused to show that he ever raised any demand for illegal gratification or accepted it from the complainant either himself or through any other person. It was argued that admittedly, no tainted amount was recovered from the possession of accused JE Jaypal Sharma nor any link has been established between said accused and the co-accused Jagdish or Vikram from whom the tainted amount was allegedly recovered or who allegedly acted on his behalf as middlemen to demand and accept bribe money from complainant.
33. On behalf of accused Jaypal Sharma, it has been argued that the testimony of complainant suffers from serious contradictions and hence, cannot be relied upon. Even the phone/telephonic conversation of 08.8.2018 in CD (D-22 i.e ExPW15/F), and Q2 (Ex CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 71/110 PW5/A1) which allegedly occurred between the complainant and said accused Jaypal Sharma or even the transcriptions of the said conversations nowhere reflect any demand of bribe on the part of said accused JE Jaypal Sharma nor it even indicates that he ever introduced the other two co-accused to the complainant either by telling the complainant their names or sharing their phone numbers with him. It was further argued that demand and acceptance of the bribe is the sine-qua-non for attracting the provisions of Section 7 or 7A of PC Act whereas, both the said ingredients are completely lacking qua said accused JE Jaypal Sharma or for that matter against any of the accused. It was further argued that no presumption of Section 20 of PC Act, 1988 can arise against accused public servants namely Jaypal Sharma or Vikram in absence of the foundational facts of demand and acceptance which CBI has miserably failed to prove against said accused.
34. In order to correctly appreciate the above contentions, I may refer to Section 7, 7A and 20 of PC Act, 1988 which reads as under:
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.
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(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.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
7A. Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence.--Whoever accepts or obtains or attempts to obtain from another person for himself or for any other person any undue advantage as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant, shall be punishable with imprisonment for a term which shall no be less than three years but which may extend to seven years and shall also be liable to fine.
20. Presumption where public servant accepts any undue advantage.--Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11.
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35. It is pertinent to note that prior to Amendment Act 16 of 2018, vide which a new provision of Section 7A has been inserted in PC Act, the criminality was attached only to the act of demanding and accepting illegal gratification. However, after said amendments which came into force w.e.f 26.7.2018, the act of even giving bribe to a public servant, has been made punishable by amending section 8 & 9 of PC Act. Since the alleged offences in this case are pertaining to the period subsequent to 26.07.2018, therefore, the provisions of amended Act would apply.
36. In the instant case, accused Jagdish @ Sandeep is a private person while accused Vikram is a public servant and as per CBI's own case, they both were acting only as a middleman on behalf of accused JE Jaypal Sharma, a public servant. As per the complaint Ex. PW1/A1, the accused Jagdish @ Sandeep and Vikram @ Puran were acting only on behalf of accused Jaypal Sharma who allegedly sent them to complainant for striking the deal of bribe and for receiving the bribe amount on his behalf. As per CBI's case, it was the accused Jaypal Sharma, who had first visited complainant's construction site at A-80, Om Vihar, Uttam Nagar, New Delhi on 26.7.2018 and and on that day, he partially demolished the structure and while leaving the property, he allegedly raised the demand of bribe from the complainant and also shared his phone number with the complainant and also said that his person would meet him (complainant). It is only thereafter, said two accused namely Jagdish @ Sandeep and Vikram @ Puran called up the complainant and also visited him on 10.08.2018 at his office and conveyed him that JE Jaypal Sharma had demanded Rs. 1.2 lakhs for allowing him to CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 74/110 complete the construction at the above site and by mounting pressure upon the complainant, they took way Rs. 60,000/- from the complainant and gave him 2-3 days time to make the remaining payment.
37. Even as per the examination-in-chief of complainant, it was JE Jaypal Sharma who demolished the 2nd floor of the lantern of complainant's building and further said him that in case he wanted to carry out further construction, then he should contact him on his mobile phone and also shared with the complainant his phone number upon which, the complainant later contacted him after few days (i.e on 08.8.2018 as per D-27 transcription of said conversation which is part of Ex. PW11/G) to ask him if he (complainant) could start with the construction but, complainant was asked to wait for sometime. After two days, complainant received a call from said mates accused Jagdish and Vikram who asked him to pay Rs. 50,000/- per lantern and further told him that he would visit complainant's office tomorrow. However, on the next date i.e. on 13.8.2018, complainant made a complaint Ex. PW1/A1 to CBI and when he came back to his office, in the evening of same day, he was visited by said boys Jagdish and Vikram and they reduced the demand of Rs. 1.5 lakhs to Rs. 1.2 lakhs and on their demand, complainant paid them Rs. 60,000/- and sought 2-3 days time for making remaining payment.
38. In view of aforementioned position on record, the alleged demand of bribe was raised by accused Jagdish and Puran only on behalf of accused Jaypal Sharma who was the JE of the concerned area as it was he (JE Jaypal Sharma) who had got the complainant's CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 75/110 aforementioned property demolished. Even from the transcriptions of conversation of verification day i.e. Q1 i.e. identification cum transcription memo dated 13.9.2018 Ex. PW7/A5 (colly) and conversation of trap day i.e. Q2 part of Ex. PW7/A4 (colly), it is quite apparent that accused Jagdish @ Sandeep as well as Vikram @ Puran were purportedly acting on behalf of accused Jaypal Sharma and as per his instructions, they allegedly collected part payment of Rs. 60,000/- before the trap and Rs. 60,000/- on the date of trap when they were allegedly caught red handed by CBI team.
39. In the above background of the case, Section 7A of PC Act, 1988 cannot be invoked against accused Jagdish @ Sandeep (private person) especially when presumption of section 20 PC Act is not available for Section 7A of PC Act. The circumstances of the case nowhere reflect that accused Jagdish @ Sandeep ever had any intent or animus to receive the bribe amount as a motive or reward for inducing a public servant as is the requirement of Section 7A of PC Act, 1988 nor it is even the case of CBI. Rather, both the said accused namely Jagdish @ Sandeep (private person) and Vikram @ Puran (Public servant) were acting on behalf of accused Jaypal Sharma (Public servant) to facilitate said deal/transaction of bribe between the complainant and accused Jaypal Sharma. Therefore, at the most, they can be alleged to have either conspired with accused Jaypal Sharma or aided/abetted him in obtaining bribe from the complainant.
40. For the very same reason, even the separate charge of Section 7 of PC Act, 1988 framed against accused Vikram @ Puran is CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 76/110 not sustainable especially in the light of the circumstances that neither he (accused Vikram) was part of demolition team of MCD who visited the site on 26.7.2018 nor he was posted in the office where Jaypal Sharma was posted as JE nor the demise property was situated in the jurisdiction of his (accused Vikram's) office. As per the chargesheet, accused Vikram was posted as Baildar in Najafgarh Zone whereas, the demise property was situated in West Zone, where only accused Jaypal Sharma was posted at the relevant time.
41. The other charges framed in this case are the charges of Section 120B IPC read with Section 7 of PC Act, 1988 framed against all the three accused namely Jaypal Sharma, Jagdish @ Sandeep and Vikram @ Puran and the charge of substantive offence of Section 7 of PC Act read with Section 120B IPC framed against accused Jaypal Sharma. In this regard, complainant Jaspal Singh, independent witnesses Rajesh Kumar and Nitin Kumar Meena, verification officer Inspector Nitin Kumar Chaudhary and trap laying officer Inspector Pramod Kumar Tanwar are the important witnesses of the prosecution case as for proving the alleged charges prosecution has mainly relied upon their testimonies. Besides that, prosecution has also placed strong reliance on the forensic reports i.e. the chemical examination report Ex. PW16/A in respect of hand wash and pant wash of the accused Jagdish @ Sandeep and voice identification report Ex. PW8/A (colly) in respect of CD, Q1 and Q2 qua accused Jagdish @ Sandeep and Vikram @ Puran, where the experts, who have been examined in the case as PW16 and PW8 respectively have given their positive opinion.
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42. As complainant is the star witness of the prosecution case, it is deemed appropriate to first scrutinize his testimony in the light of the other material on record viz. his complaint, the verification memo, recovery memo and handing over memo etc.. Before adverting to the examination of the complainant, it is pertinent to mention here that it is not every contradiction or discrepancy which may create a doubt on the prosecution case so as to give benefit to the accused but, it is only those contradictions which go to the root of the matter, can be fatal to the prosecution case and tilt the benefit of doubt in favour of the accused. In this regard, I may refer to the judgment of Hon'ble Apex Court in Krishne Gowda & ors. v. State of Karanatka MANU/SC/0321/2017 decided on 28.3.2017 wherein, it was observed that:
"Generally in criminal cases, discrepancies in evidence of witness is bound to happen because there would be considerable gap between date of incident and time of deposing evidence before Court, but if these contradictions create such serious doubt in mind of Court about truthfulness of witnesses and it appears to Court that there is clear improvement, then it is not safe to rely on such evidence.".
43. In the aforementioned judgment, it was further held that it is the duty of the court to consider the trustworthy evidence on record. Further that, minor variations and contradictions in the evidence will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases accused gets the benefit of doubt.
44. As already noted above, the CBI swung into action on the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 78/110 complaint dated 13.8.2018 Ex. PW1/A1 filed by the complainant. As per said complaint, complainant was a Contractor who used to raise construction of the houses and at the relevant time, he was raising construction at the site A-80, Om Vihar, Uttam Nagar, New Delhi- 110059, belonging to one Smt. Shakuntala Devi. On 26.7.2018, when the construction upto 4th floor was already complete, JE Jaypal Sharma without any prior notice, visited the site and demolished the first floor of said building site and while leaving the site after demolition, he demanded bribe from the complainant and also shared his mobile phone number with the complainant. Later on, when the complainant called Jaypal Sharma on the said number, he was informed that some more complaints had been received against the complainant's construction site and he had to pay some more amount. Complainant was also informed that persons of Jaypal Sharma's would visit him soon. Thereafter, two persons who revealed their name as Sandeep or Puran made a phone call to the complainant and informed him that "Aapko JE Jaypal Sharma Ji Yaad Kar Rahe Hain" and they (the callers) would visit him soon. Thereafter, on 10.8.2018, both the said persons came to the office of the complainant and told him that "Agar Makaan Pura Banana Hai, Tau JE Sahab 1,20,000/- Rupaye Maang Rahe Hai Aur Aaj Abhi Dene Padenge". Thereafter, they mounted pressure on the complainant and took away Rs. 60,000/- from him and gave him 2-3 days time to arrange the remaining amount. In the complaint, complainant further mentioned that perhaps Sandeep or Puran were not their real name and their real names were Jagdish or Vikram respectively.
45. However, the story put forward by the complainant/PW15 CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 79/110 in his examination-in-chief recorded before the court is entirely different from what he had narrated in the aforementioned complaint. In his examination-in-chief, PW15 deposes that in the year 2018, he was raising construction on his property A-80, Om Vihar, Uttar Nagar, New Delhi and 2 lanterns were already complete and construction of 3rd lantern was going on. In the meantime, two mates on behalf of accused Jaypal Sharma who was the JE in that area came to the site and asked him to stop the construction saying that he (complainant) did not have any permission for the same. Upon this, the complainant asked them to allow him to meet JE and they assured him that they would tell him about the same in a day or two. However, after two days, the team of MCD alongwith police came to the site and demolished the construction of his property.
46. The aforementioned deposition of the complainant shows that before the visit of JE on the complainant's site, the two mates who were allegedly the representative of JE had already visited the site and met the complainant. Whereas, as per the complaint Ex. PW1/A1, there is no mention of any such visit of the two mates from MCD on the construction site before the alleged demolition carried out by JE Jaypal Sharma on 26.7.2018. It appears that only for the reason that the said two mates had already met the complainant before the aforementioned visit of JE, he (complainant) was able to know their real names which he had also disclosed in his complaint Ex. PW1/A1. Otherwise, there was no occasion for the complainant to say in his said complaint that the names disclosed by the said two persons were not their correct names. Furthermore, as per deposition of complainant/PW15, at the time of alleged visit of said CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 80/110 two mates on behalf of JE, the construction of 2 lanterns was complete while the construction of 3rd lantern was going on. However, there is a variation even with regard to the status of construction. Because, as per the complaint Ex. PW1/A1, on 26.7.2018, when JE visited the construction site and demolished the structure at the first floor, all the 4 floors in the building were already complete.
47. There is one more major contradiction in the prosecution case with regard to the date of payment of the first installment of Rs. 60,000/-. As per the complaint, it was paid on 10.8.2018 by the complainant to the said two persons on 10.8.2018 when they visited his office and for remaining payment, complainant was given 2-3 days time. Perusal of the verification memo Ex. PW1/A2 shows that it is on receipt of the aforementioned complaint dated 13.8.2018 from the complainant, the verification was done on the very same day i.e. on 13.8.2018 and in order to verify the allegations of the complaint, complainant was asked to make call on the phone number of JE Jaypal Sharma, though said calls were not picked up by him. At around 4:45 pm, complainant received a phone call from middleman Jagdish @ Sandeep from his mobile phone no. 9560789205 and the said call was picked up by the complainant as per the instruction of CBI by putting his mobile phone on loudspeaker mode.
48. During said conversation, complainant asked Jagdish @ Sandeep about the bribe amount of Rs. 60,000/- which the complainant gave to him on Friday (i.e. on 10.8.2018) for delivering the same to Jaypal Sharma to which, Jagdish told him that he had CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 81/110 already informed Jaypal Sharma about receipt of the first installment of Rs. 60,000/- but he would deliver the entire payment of Rs. 1.2 lakh to Jaypal Sharma after receiving the remaining amount of Rs. 60,000/- from the complainant on that day (i.e. on 13.8.2018). However, since the complainant expressed his inability to make the remaining payment on that day, he was asked to pay it on the next date i.e. on 14.8.2018. The verification memo further mentions that during said conversation, complainant told Jagdish that he would deliver the remaining amount only after the assurance from Jaypal Sharma that complainant could continue with the further construction at his site. On the said assurance sought by the complainant, Jagdish told him that he would let him talk to Jaypal Sharma after sometime. At 6:12 pm, complainant again received the call on his mobile from the aforementioned mobile phone of accused Jagdish and during said call, he told the complainant that Jaypal Sharma could not talk over phone but, Jagdish @ Sandeep himself assured the complainant that no demolition would take place in future on his property. In between, the middleman Puran @ Vikram also assured the complainant that they would arrange him (complainant) a meeting with Jaypal Sharma.
49. I have also perused the transcription of recorded conversation of verification proceedings i.e. Ex. PW7/A5 which contains the transcriptions of the aforementioned conversations mentioned in the verification memo Ex. PW1/A2 i.e. the call recorded in File No. 180813_1645 which also confirms the correctness of the facts recorded in the verification memo especially the fact that the complainant had asked Jagdish @ Sandeep to confirm if he (Sandeep CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 82/110 @ Jagdish) had paid the first installment which complainant had given to him (Jagdish @ Sandeep) on Friday, to Jaypal Sharma. The said content of verification memo clearly shows that on the date of complaint or the date of verification i.e. on 13.8.2018, the alleged first installment of Rs. 60,000/- stood already paid by the complainant to Jagdish @ Sandeep, otherwise, there was no occasion for him to ask Jagdish @ Sandeep as to whether he had paid said amount to Jaypal Sharma. The conversation also shows that said payment was made on Friday i.e. on 10.8.2018 which was the last Friday. Even as per the complaint Ex. PW1/A1, the part payment of Rs. 60,000/- was paid on 10.8.2018. Considering the said scenario, it appears that with regard to date of payment of first installment, either the contents of the complaint Ex. PW1/A1 are false or the deposition of the complainant made in the court is untrue. As per deposition of the complainant, the first installment was paid in the evening of 13.8.2018 after the complainant returned back to his office after filing the complaint with the CBI. In the light of said deposition, it appears that as on the date of complaint, no payment was made by the complainant towards bribe to any of the accused. That being the situation, it is difficult to believe the contents of the verification memo Ex. PW1/A2 or the contents of its transcription Ex. PW7/A5 as per which, complainant had sought confirmation from accused Jagdish regarding delivery of said payment of Rs. 60,000/- allegedly paid to him by the complainant on 10.8.2018, to accused Jaypal Sharma.
50. The aforementioned discrepancy in the prosecution case, is tried to be been explained by Ld. Senior Public Prosecutor by saying CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 83/110 that said discrepancy has occurred on account of long gap between the date of alleged incident (13/14.8.2018) and the date when the complainant was first examined in the court i.e. on 15.10.2022. It was argued that with the passage of time memory fades and therefore, the complainant made such mistake in disclosing the correct date of the payment as he was examined after a long gap of time.
51. But after close scrutiny of entire deposition of PW15, it does not appear to be just a mistake on account of gap of time. Had it been so, then what stopped the CBI from cross-examining the witness/PW15 to seek clarification about said discrepancy in the date of payment of first installment. But surprisingly, the witness was neither cross-examined nor declared hostile by the Public Prosecutor. Rather in his cross-examination conducted by defence cousel on 21.02.2023, the complainant reiterated his stand by deposing that he had informed CBI about this fact of the accused Jagdish @ Sandeep and Vikram @ Puran having visited his office in the evening of 13.8.2018 and reducing the bribe amount from 1.5 lakh to 1.2 lakh and regarding his (complainant) having paid them Rs. 60,000/- in the evening of that day. He further deposed that he did not remember if said fact was mentioned in the verification memo Ex. PW1/A2. He again in his cross-examination deposed that he had informed CBI during investigation of the present case about having paid Rs. 60,000/- to Vikram and Jagdish on 13.8.2018. From the said reiteration of facts in his cross-examination, the complainant seems to be quite sure that he had made the payment of first installment only on 13.8.2018 and it does not seem to be a case of any mistake CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 84/110 or fading memory due to long gap of time. In the opinion of this court, said improvement in the version complainant is certainly a major discrepancy which is bound to create a serious doubt on the truthfulness and credibility of the prosecution story.
52. The complainant version also suffers from various other discrepancies and contradictions. Here, I may refer to the cross- examination of PW15 wherein, he stated that he had talked to accused Vikram and Jagdish on one single mobile phone but he did not know to whom said mobile phone actually belonged. Complainant/PW15 also deposed that he had given the phone number of accused Sandeep (accused Jagdish) to CBI in his complaint, but after perusing the complaint Ex. PW1/A1, he admitted that there was no mention of any phone number of Sandeep, Puran, Vikram or Jagdish in said complaint. He deposed further that the phone number which was being provided to him was being used by Puran or Jagdish and said number was given 2-3 days prior to the demolition of the property. Here, I may mention that as per the complaint Ex. PW1/A1, the demolition on the property took place on 26.7.2018 and in the entire complaint, there is absolutely no mention about any visit of said two accused namely Jagdish and Vikram to the construction site of the complainant on any day prior to said date of 26.7.2018. Even the complainant in his cross-examination admitted that he did not inform CBI about said visit of accused Jagdish and Vikram. However, there is no explanation coming forward from the CBI or from the complainant as to why the said important fact was not disclosed by the complainant in his complaint dated 13.8.2018 Ex. PW1/A1.
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53. Further more, the complaint does not disclose about the demand of Rs. 1.5 lakhs as deposed by the complainant. In his examination-in-chief, complainant deposed that after 10-15 days of the demolition on his property he had made a call on the mobile phone of Jaypal Sharma to know from him as to whether he could start with the construction to which, he was asked to wait. After 2 days of said call to Jaypal Sharma, complainant received a call from accused Vikram or Jagdish who asked him "JE Sahab Ka Samaan Kab Dogey". Complainant further deposed that during said call, the caller boy asked him to pay Rs. 50,000/- per lantern i.e. 1.5 lakh for all three lanterns. Further as per the examination of the complainant, said demand of Rs. 1.5 lakh was reduced to 1.2 lakh by said accused Vikram and Jagdish when they visited the complainant at his office in the evening of 13.8.2018 and on the very same day, complainant paid them Rs. 60,000/-. There is absolutely no utterance of any such demand of Rs. 1.5 lakh initially made by the accused, in the entire complaint Ex. PW1/A1. Even the verification memo, nowhere talks about any such demand of Rs. 1.5 lakh. Further more, as already noted above, if aforementioned deposition of the complainant is believed, then there was no occasion for the complainant to seek confirmation from Jagdish @ Sandeep as to whether he had paid to Jaypal Sharma, the amount of Rs. 60,000/- which he (Jagdish @ Sandeep) had received from the complainant on Friday.
54. There are discrepancies in the version of complainant even with regard to the identity of accused Jagdish @ Sandeep and accused Vikram @ Puran. As per prosecution case, Sandeep and CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 86/110 Jagdish are the name of the same person and Vikram and Puran are the name of the same very person who was accompanying accused Jagdish @ Sandeep at the time of trap. However, in the examination- in-chief complainant deposed that Sandeep and Jagdish were also known by other names Vikram and Puran but he was unable to tell who was Sandeep and who was Jagdish. The said deposition of the complainant shows that Sandeep and Jagdish are the names of two different persons which is contrary to the case of CBI.
55. It is vehemently argued on behalf of accused Jaypal Sharma that the complainant had grudges against said accused Jaypal Sharma because, just a few days prior to the date of trap i.e on 26.07.2018, he had got the illegal construction over the complainant's property demolished and after getting said accused falsely arrested in this case, the complainant succeeded in completing the construction of his property without any further intervention from MCD despite the fact that even after the alleged demolition, the complainant did not apply or get the plan of his property sanctioned from MCD. In this regard, the attention of this court was drawn to the cross-examination of the complainant i.e. PW15 wherein, he had admitted that after the registration of this case, he had completed the construction on the demise property without the sanction plan. It was further argued that the allegation raised by CBI that only a cosmetic demolition was done by the accused Jaypal Sharma so as to later demand bribe from the complainant to allow him to complete the construction, is totally false. It was argued that had that been the intention of accused Jaypal Sharma to do only cosmetic demolition in the demise property, there was no need for him to call for more CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 87/110 security force from the local police station Binda Pur and more staff from the MCD.
56. In this regard, I have gone through the cross-examination of the complainant/PW5 dated 22.02.2023 wherein, he deposed that he was aware that he did not have the sanctioned plan from MCD for raising the construction on the demise property nor he applied for the sanctioned plan even after starting the construction on the demise property. He admitted the suggestion that he had completed the construction without any sanction plan even after the demolition carried out by the MCD on the demise property. He however, denied the suggestion that he was able to complete the construction in connivance with Executive Engineer Sh. Harminder Pal Singh Rehal/PW11. In the above background of circumstances, the defence argument of false implication seems plausible and cannot be rejected outrightly. In view thereof, this court ought to be extra cautious in scrutinizing the version of the complainant and should definitely look for corroboration from some independent source before recording any conviction on that basis.
57. After having noted the above discrepancies and the contradictions which are common and would be equally affecting the case of the prosecution qua all the accused persons, I may now discuss the material accused specific, in order to know what case has been alleged against each accused individually and to what extent the prosecution has been able to establish it on record.
CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 88/110 Analysis of material qua accused Jaypal Sharma
58. As per the case of CBI, JE Jaypal Sharma had raised the demand for bribe and sent his middlemen i.e. co-accused Jagdish @ Sandeep and Vikram @ Puran to strike the deal for bribe with the complainant and to collect the bribe amount from him on his (Jaypal Sharma) behalf. In this regard, besides the deposition of complainant, the CBI has also put reliance on the telephonic conversations which allegedly took place between the complainant and accused Jaypal Sharma 08.8.2018 and on the date of trap i.e. on 14.8.2018.
59. As per the chargesheet, during investigation complainant had produced said CD containing recorded call of 08.08.2018 of his mobile phone and same was seized by the TLO. Vide voice identification cum transcription memo dated 30.10.2018, which is available on record as Ex. PW11/G (D-27), the voice allegedly attributed to accused Jaypal Sharma in said conversation of CD was got identified through PW11 Harminder Pal Singh Rehal, the Executive Engineer and PW12 Ashok Kumar Gupta, Assistant Engineer, as they both had worked with Jaypal Sharma in MCD and were acquainted with his voice. They also compared the transcription of said conversation already prepared by the TLO with the recorded conversation of said CD for verifying the correctness of said transcription. Although PW11 Harminder Pal Singh Rehal, Executive Engineer, MCD has identified the voice of accused Jaypal Sharma but, the other two witnesses namely PW12 Ashok Kumar Gupta, the Executive Engineer, MCD and PW14 Rajdeo Chaudhary, Assistant Engineer, MCD did not support the prosecution case as they both CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 89/110 failed to identify the voice attributed to accused Jaypal Sharma in the questioned conversation of 08.8.2018 and 14.8.2018. They failed to support the prosecution case even in their cross-examination by Ld. Senior Public Prosecutor.
60. Perusal of aforementioned voice-cum-transcription memo Ex. PW11/G (D-27) shows that in said telephonic conversation of 08.8.2018, there is absolutely no mention of any demand of money from accused Jaypal Sharma nor there is any reference to the names or phone numbers of co-accused Jagdish @ Sandeep and Vikram @ Puran so as to show that said co-accused were introduced to the complainant by the accused Jaypal Sharma. The said conversation of 08.08.2018, which took place on the call allegedly made by the complainant to accused Jaypal Sharma on his phone no. 9911363000, was recorded in the complainant's mobile phone but admittedly, said mobile phone was never seized by the CBI nor the recorded conversation allegedly saved in said phone was extracted through CFSL. Even the alleged CD which was handed over to TLO by the complainant vide production-cum-seizure Ex. PW15/D was handed over on 10.10.2018 i.e. after a gap of about 2 months from the alleged incident. In said circumstances, the veracity of even said evidence is not above board.
61. Even otherwise, as already noted above, no incriminatory material is found available in said conversation of 08.8.2018 in as much as it only reflects that complainant wanted to meet Jaypal Sharma who conveyed to him that some complaints had been received against him. During entire conversation, there is absolutely CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 90/110 no utterance from the accused about any demand of illegal gratification from the complainant. The complainant in his deposition before the court alleged that when he made a call to accused Jaypal Sharma after few days of the demolition on his property (here, the complainant appears to be referring to the call of dated 08.8.2018), Jaypal Sharma told him that since some more complaints had been received against him, therefore, he had to pay some more money. However, the said version of complainant does not find any corroboration from the transcription of said conversation placed on record. In the transcription Ex. PW11/G (D-27), although there is a reference to the complaints allegedly received against the complainant but, there is no mention that Jaypal Sharma had asked complainant to pay him more money as alleged by the complainant.
62. I have also carefully perused the voice identification-cum- transcription memo dated 31.10.2018 Ex. PW17/A (colly) (D-28) which contains the entire transcription of the conversation which was recorded in the DVR on the date of trap i.e. on 14.8.2018. On page 24 of said document D-28, there is the transcription of the 2 nd conversation which the complainant allegedly had with accused Jaypal Sharma on 14.08.2018 on the mobile phone of co-accused Jagdish @ Sandeep, who after connecting the call from his phone to the phone of accused Jaypal Sharma (subscribed in the name of Veer Singh), handed over his phone to the complainant to enable him to talk to Jaypal Sharma. The said conversation reads as under:
Jaspal Hello
Jaypal Haan ji
Jaspal Haan ji namaste sahab
CBI v. Jaypal Sharma & ors. (16.8.2023)
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Jaypal Namaskar ji
Jaspal Sahab ye aaye huye hai sahab log. Sandeep ji aaye hai
tau kya karwa doon inko kaam?
Jaypal Theek hai theek hai....theek hai....theek hai
Jaspal Haan ji
Jaypal Theek Hai
Jaspal Acha maine kaha agar koi dikat hau jaaye
Jaypal Theek Hai
63. After the aforementioned conversation, the said call was disconnected and thereafter, the complainant requested the co- accused who were present in his office at that time for reducing the amount by Rs. 10,000/- which the co-accused did not accede by saying that for reduction of amount, complainant himself had to talk to Jaypal Sharma. The transcription shows that thereafter, complainant made several calls from his mobile phone to mobile phone of accused Jaypal Sharma but Jaypal Sharma did not pick up his calls. In the aforementioned small conversation which allegedly took place between the complainant and the accused on the mobile phone of Jagdish @ Sandeep on the date of trap, it is not clear as to for which work Jagdish @ Sandeep had visited the office of the complainant or for doing which work of said accused Jagdish @ Sandeep, the complainant was seeking permission from accused Jaypal Sharma by saying "Sandeep ji aaye hai tau kya karwa doon inko kaam?" From the conversation mentioned above, there appears to be no element of any demand for illegal gratification on the part of accused Jaypal Sharma.
64. Except the aforementioned two telephonic conversations CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 92/110 which allegedly took place between the complainant and accused Jaypal Sharma, prosecution has failed to adduce any other evidence to show the alleged demand on the part of accused Jaypal Sharma. Admittedly, the tainted money was received by accused Jagdish @ Sandeep and not by Jaypal Sharma. In absence of any connection between Jaypal Sharma and said two co-accused, no constructive acceptance of tainted amount can be attributed on the part of accused Jaypal Sharma.
65. Even otherwise, CBI has miserably failed to prove that the mobile phone allegedly used by accused Jagdish @ Sandeep for making the aforemention calls to accused Jaypal Sharma, belonged to Jagdish @ Sandeep or used by him at the relevant time. As per prosecution case, during the alleged transaction, accused Jagdish @ Sandeep used two mobile phone nos. 9560789205 and 9717499178 which were recovered from his possession after his arrest. During investigation, said two mobile phone numbers were found to be registered in the name of Ms. Jyoti Mehra and Md. Safila Khan respectively. However, only Jyoti Mehra was examined during trial but she turned hostile and failed to support the prosecution case. While the other alleged subscriber of the second mobile phone no. 9560789205 namely Md. Safila, was not even examined by CBI nor his name was even cited as a witness.
66. It was argued on behalf of CBI that the said two mobile phones were recovered from the possession of accused Jagdish @ Sandeep after his arrest in this case and that itself is sufficient to show that accused Jagdish was using said mobile phones at the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 93/110 relevant time. Ld. Senior PP further argued that the recovery of said mobile phones from the possession of said accused has been duly proved on record as the attesting witnesses of the arrest-cum- personal search memo have duly identified their signatures on the arrest-cum-personal search memo Ex. PW5/A10 (D-7) vide which, accused Jagdish @ Sandeep was arrested and recovery of aforementioned two mobile phones was affected on his personal search.
67. I have carefully perused the arrest-cum-personal search memo Ex. PW5/A10 of accused Jagdish @ Sandeep, which shows that the same was prepared on 14.8.2018 at 2215 hours at the office of the complainant in Uttam Nagar, New Delhi. Vide said document, accused Jagdish @ Sandeep was arrested by the TLO Pramod Kumar Tanwar in the presence of the independent witnesses Nitin Kumar Meena and Rajesh Kumar. The document Ex. PW5/A10 has been proved through witness Rajesh Kumar who identified his signature on at point A on the same. However, in his cross-examination dated 03.01.2023, PW5 deposed that he had not gone through the contents of any of the documents which were got signed from him by CBI from 13.8.2018 to 15.8.2018 and therefore, he could not say whether the contents of said documents were or were not true. The said deposition of PW5 has put the correctness of even the arrest memo Ex.PW5/A10 dated 14.8.2018 into a serious doubt. Not only the witness has made this general statement regarding his having no knowledge of the contents of the documents which were got signed from him by CBI on the date of verification or at the time of pre-trap or post-trap proceedings but, he has also specifically deposed that he CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 94/110 had not gone through the contents of verification memo Ex. PW1/A2 (D-3). Similarly, he deposed even about the site plan Ex. PW1/D1 (D-6).
68. In this regard, even the testimony of other independent witness PW10 Nitin Kumar Meena can not be relied upon as the same also suffers from various discrepancies. In his cross-examination, PW10 deposed that on 14.8.2018, Jaspal called up Vikram @ Puran from his mobile phone by putting the same on speaker mode in the CBI office and he had heard accused Vikram demanding bribe from Jaspal Singh in CBI office. Whereas, there is absolutely no mention of any such call made by complainant to accused Vikram nor the handing-over memo Ex. PW1/A4 (D-4) anywhere mentions that the accused Vikram had demanded any bribe from Jaspal Singh on 14.8.2018. Even PW10 in his cross-examination admitted that said fact as deposed by him regarding accused Vikram being called up by complainant or he (Vikram) having demanded the bribe amount from the complainant on 14.8.2018 is nowhere mentioned in the handing- over memo Ex. PW1/A4.
69. As per Ex. PW1/A4, on 14.8.2018 before leaving the CBI office for the purpose of trap, the complainant had made all the alleged calls on the mobile phone no. 9560789205 of accused Jagdish @ Sandeep, none of said calls were though picked up by him and later on, complainant received two telephonic call from the aforementioned mobile phone of accused Jagdish @ Sandeep first at about 1612 hours and second at 1622 hours. Thus, it is nowhere the CBI case that any such call was made by the complainant to the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 95/110 mobile phone of accused Vikram @ Puran or accused Vikram had raised any demand of bribe from the complainant either on the date of verification or on the date of trap.
70. In the light of aforementioned discrepancies in the prosecution case, the CBI has completely failed to prove that the mobile phones no. 9560789205 and 9717499178, which were allegedly used at the time of verification and trap belonged to accused Jagdish @ Sandeep or were used by him at the relevant time. As a consequence, even the evidence of the call detail records (CDRs) for showing the alleged exchange of calls between accused Jagdish @ Sandeep and Jaypal Sharma from aforementioned two mobile phone numbers, is of no help to the prosecution. Apart from alleged exchange of said calls, CBI has failed to place any other evidence to show any link/connection/relation of accused Jaypal Sharma with the other two co-accused namely Jagdish @ Sandeep or accused Vikram @ Puran. In this regard, even the witness Ajit Singh/PW17 has also turned hostile and failed to support the prosecution case. In his examination-in-chief, he deposed that he did not know any person with the name Jaypal Sharma. Thereafter, he was declared hostile by Ld. Senior Public Prosecutor and with the permission of the court, Ld. Senior Public Prosecutor cross-examined him but in vain.
71. As per the examination-in-chief of the complainant dated 17.11.2022, on the date of trap i.e. on 14.8.2018, after Jaypal Sharma picked the phone call of accused Jagdish @ Sandeep, he (complainant) talked to Jaypal Sharma and during said conversation, CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 96/110 he told him (Jaypal Sharma) that the co-accused Jagdish and Sandeep had come to his office to receive remaining balance of Rs. 60,000/- and he further asked him if he could continue with the construction work but the accused just asked him to handover the money to his persons. However, there is absolutely no mention of any such conversation in the transcript memo of the trap proceedings relevant portion of which has been reproduced herein above in Para 62 of this judgment. On the contrary, as per PW5 Rajesh Kumar, said phone call on which complainant had talked to accused Jaypal Sharama, was made by complainant Jaspal Singh to the driver of JE Jaypal Sharma and during said conversation, complainant asked Jaypal Sharma "Paise Dey Doon Inko" to which JE told him "Theek Hai, Theek Hai, Theek Hai".
72. As such, the depositions of PW5 and PW15 are also not in consonance with each other nor they are corresponding with the content of said conversation at point X to X at page 23 (41:39) of voice identification-cum-transcription memo Ex.PW7/A4 (D-24). Here, it is also interesting to note that as per the CDR of the mobile phone number 9671721710 subscribed in the name of Veer Singh, the said call of 14.8.2018 was made from the mobile phone of Veer Singh to the mobile phone of accused Jagdish @ Sandeep which is again contrary to the version of complainant as well as the contents of recovery memo Ex. PW1/A5 which records that the alleged call on which the complainant was made to talk to Jaypal Sharma was made by accused Jagdish @ Sandeep at the mobile phone subscribed in the name of Veer Singh which was allegedly used by JE Jaypal Sharma at the relevant time.
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73. CBI has claimed that on the date of trap before handing over the alleged tainted amount to the accused Jagdish @ Sandeep and accused Vikram @ Puran, complainant had tried to contact JE Jaypal Sharma on his official mobile number 9911363000, said calls were though not picked up. However, it appears that no such effort was actually made by the complainant to reach out to JE Jaypal Sharma on the date of trap otherwise, the CBI could have easily placed on record the screen shot of call history of either the complainant's mobile phone or of the mobile phone of accused Jaypal Sharma to show if any such call was actually made by the complainant or received/missed by said accused Jaypal Sharma on the date of trap. But, except the CDRs of mobile phone of complainant and said accused, no other evidence has been collected by the CBI to show that on the date of trap, complainant had tried to reach out to accused Jaypal Sharma on his mobile phone. Whereas, CDR is of no use because such calls which remained unconnected or which are not picked up or missed calls are not reflected in CDR.
74. The mobile phone no. 9671721710 upon which, the co- accused Jagdish @ Sandeep allegedly made a call to enable the complainant to talk to JE Jaypal Sharma on the date of trap, is subscribed in the name of PW9 Veer Singh but as per the version of said witness, the said mobile number was got issued by him for personal use of one Ved Prakash but, said person Ved Prakash was never examined by CBI for reasons best known to it. Whereas, Veer Singh did not utter a word that he or said Ved Prakash ever handed over said SIM/mobile number to accused Jaypal Sharma or he had CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 98/110 ever seen him (Jaypal Sharma) using said phone number subscribed in his (PW9/Veer Singh) name.
75. Even the independent witnesses examined by CBI failed to support the prosecution case with regard to the allegations raised against accused JE Jaypal Sharma. The shadow witness Rajesh Kumar/PW5, who remained present both at the time of verification and trap, in his deposition dated 11.7.2022 testified that there occurred no conversation either between complainant and accused Jaypal Sharma or between the two co-accused and JE Jaypal Sharma with regard the demand of bribe in his presence. Even PW10 Nitin Kumar Meena in his cross-examination dated 11.4.2023 specifically deposed that in his presence, complainant did not speak to JE Jaypal Sharma in connection with any money transaction.
76. Furthermore, CBI has miserably failed to establish any relation between Jaypal Sharma and other two accused persons namely Jagdish and Vikram who allegedly received the bribe amount. There is no iota of evidence to show that the said two accused were either related to Jaypal Sharma or had worked with him at any point of time. As already noted above, the witness Ajit Singh (PW17), who was examined by CBI to establish the alleged relation between accused Jaypal Sharma and accused Jagdish has turned completely hostile and did not support the prosecution case despite his lengthy cross-examination by Ld. Senior Public Prosecutor. On the other hand, PW14 Rajdeo Chaudhary who is the Assistant Engineer in MCD deposed that he had lodged a complaint dated 01.8.2018 against accused Jagdish at the instance of JE Jaypal Sharma for representing CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 99/110 himself as MCD Official. In the light of said deposition of PW14, it is hard to believe that Jaypal Sharma would ask accused Jagdish, against whom he had got a complaint lodged a few day ago, to approach the complainant on his behalf for alleged transaction of bribe.
77. As per CBI case, the whatsapp message allegedly sent from the mobile phone of accused Sandeep @ Jagdish on the mobile phone of accused Jaypal Sharma i.e. phone no. 9911363000 after the trap, was found to have been already deleted from the mobile phone of Jaypal Sharma before the same was recovered from his possession. However, said case of CBI has been falsified by the independent witness Nitin Kumar Meena i.e. PW10, who in his examination-in-chief dated 21.9.2021 deposed that said whatsapp message was available in the mobile phone of accused Jaypal Sharma which the CBI officials took into their possession after his apprehension on the intervening night of 14-15.8.2018. It clearly shows that the alleged blue tick on the whatsapp message on the phone of accused Jagdish @ Sandeep appeared only after it was seen by the CBI on said phone of accused Jaypal Sharma after its alleged recovery from his possession and not after it was seen by accused Jaypal Sharma as alleged by CBI. The said manipulation of record on the part of CBI is evident from the fact that as per the screen shot of said whatsapp message which has been filed on record as Ex. PW6/A1, the time of said screen shot is 1517 hours i.e. 3:17 pm of 15.8.2018. If the blue tick had appeared immediately after the dispatch of message which as per CBI was dispatched immediately after apprehension of accused Jagdish, then why the screen shot was CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 100/110 not taken immediately and why it was taken after such long gap. There is no explanation furnished by CBI for said delay.
78. Moreover, CBI did not make any effort to take the screen shot of the column called info in the whatsapp which could have actually shown the actual time of delivery as well as the time when the same was actually seen by the recipient. The failure on the part of CBI to collect such important information appears to be deliberate as CBI wanted to manipulate the record later. In the said background of circumstances, it is clear that IO Harish Chander/PW18 had also made a false statement that no such whatapp message could be found on the mobile phone of accused Jaypal Sharma during the post trap proceedings. IO's deposition in this regard has been completely falsified by PW10 Nitin Kumar Meena who in his examination-in-chief dated 21.9.2021 at page no. 7 claimed to have seen said message in the mobile of Jaypal Sharma on the intervening night of 14- 15.8.2018.
79. Moreover, admittedly, Jaypal Sharma did not send any response to the whatsapp message allegedly sent to him by accused Jagdish @ Sandeep after his (Jagdish) apprehension in this case. On behalf of CBI, it has been argued that vide said message, Jaypal Sharma was informed about receipt of balance amount of Rs. 60,000/- from the complainant and the conduct of Jaypal Sharma in not raising any protest or query from Jagdish @ Sandeep about said money mentioned in the message, goes to show that Jaypal Sharma was also the accomplice in the alleged crime and other accused were simply acting as per his instructions. However, in my considered view, CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 101/110 the said conduct of Jaypal Sharma in not reverting back to accused Jagdish after receipt of said whatsapp message is rather indicative of his non-involvement in the alleged offence. Otherwise, after knowing about receipt of said money, accused Jaypal Sharma would have immediately asked accused Jagdish to handover said amount to him especially when accused Jagdish had to remain unavailable for next fews days as mentioned by him in said message. Furthermore, the prosecution case that blue tick had appeared after accused Jaypal Sharma had seen said message on his mobile phone is also shrouded with serious doubt in the light of the version of independent witness Nitin Kumar Meena i.e. PW10 as already noted in the preceding para.
Analysis of material qua accused Jagdish @ Sandeep and accused Vikram @ Puran
80. As per the case of prosecution both the aforementioned accused persons had acted as a middleman for accused Jaypal Sharma for affecting the alleged deal and to accept the bribe amount from the complainant on his behalf. As per CBI's case, both the said accused persons were together when the complainant received the alleged call from them on the date of verification i.e. 13.8.2018 and they also came together to the complainant's office even on the date of trap i.e. on 14.8.2018. As per the complaint Ex. PW1/A1, both the said accused had visited together to the office of the complainant even on 10.8.2018 when the complainant allegedly made the part payment of Rs. 60,000/- to them.
81. Accused Jagdish @ Sandeep is a private person whereas, accused Vikram @ Puran was working as Baildar in MCD at the CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 102/110 relevant time. Against accused Jagdish @ Sandeep, a separate charge of Section 7A of PC Act was although framed but, as already discussed above in Para no. 39, no such charge is made out against him as it is nowhere the case of CBI that the said accused demanded or accepted undue advantage i.e the bribe amount as a motive or reward to induce a public servant. Rather as per prosecution case, complainant was first approached by the public servant accused JE Jaypal Sharma who allegedly demanded bribe from him on the date of demolition i.e on 26.7.2018 and subsequently, he sent the two boys i.e. the said two co-accused to complainant to receive money on his behalf. In such a scenario, there was no intent or animus on the part of accused Jagdish @ Sandeep to demand or receive gratification as a motive or reward for inducing the public servant.
82. Let us now analyze the evidence adduced on record qua the other charges i.e. the charge of Section 120B IPC read with Section 7 of PC Act, 1988 framed against all the three accused namely Jaypal Sharma, Jagdish @ Sandeep and Vikram @ Puran and the charge of Substantive offence of Section 7 of PC Act read with Section 120B IPC framed against two accused namely Jaypal Sharma and Vikram @ Puran.
83. As regard the charge of offence of Section 7 PC Act read with section 120B IPC framed against accused Vikram @ Puran is concerned, complainant nowhere in his entire deposition raised any allegation against accused Vikram that he ever demanded or accepted the bribe amount from him nor even the voice identification-cum-transcription memo Ex PW7/A4 (Q-1) and CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 103/110 Verification Conversation Transcription Ex PW7/A5 (Q-2) reflect any iota of material to show any demand of gratification on the part of said accused. Complainant indeed in his cross-examination, deposed that he had never stated to accused JE Jaypal Sharma that accused Vikram @ Puran had ever sought money on his (Jaypal Sharma) behalf from him.
84. Even otherwise, as per CBI's own case, both the said accused namely Jagdish @ Sandeep (private person) and Vikram @ Puran (Public servant) were acting on behalf of accused Jaypal Sharma (Public servant) to facilitate said deal/transaction of bribe between the complainant and accused Jaypal Sharma. Furthermore, as already noted above, neither accused Vikram was part of demolition team of MCD who visited the site on 26.7.2018 nor he was posted in the office where Jaypal Sharma was posted as JE nor the demise property was situated in the jurisdiction of his (accused Vikram's) office. As per the chargesheet, accused Vikram was posted as Baildar in Najafgarh Zone whereas, the demise property was situated in West Zone, where only accused Jaypal Sharma was posted at the relevant time. In such background of circumstances, no charge of section 7 PC Act is substantiated against accused no charge of section 7 PC Act is substantiated against accused Vikram @ Puran and at the most, he can be alleged to have either conspired with accused Jaypal Sharma or aided/abetted him in obtaining bribe from the complainant.
85. Even the TLO PW6 in his cross-examination admitted that the complainant had not received any phone call from the mobile CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 104/110 phone of accused Vikram after they left the CBI office and till they reached the office of complainant on the date of trap. He further admitted that during trap proceedings, neither the complainant made any call on the mobile phone of accused Vikram nor any other member of the trap team. As per his version, no hand wash or pant wash of accused Vikram were taken during trap proceedings.
86. PW6 further admitted the suggestion that accused Vikram throughout the proceedings never introduced himself as Puran. He also admitted that accused Vikram had neither talked to Jaypal Sharma from his mobile phone during trap proceedings nor he got the complainant talk to Jaypal Sharma from his (Vikram) phone. He further admitted that during trap proceedings, no conversation showing that accused Jaypal Sharma had asked complainant to give bribe money to accused Vikram, was recorded. He also admitted the suggestion that during trap proceedings, no conversation between the complainant and Jaypal Sharma was recorded to show that accused Vikram had come to collect money on behalf of Jaypal Sharma. TLO although claimed to have heard accused Vikram demanding money from the complainant on behalf of accused Jaypal Sharma in the recording of DVR of trap proceedings but his said deposition does not find any support from the transcription of the conversation of the trap proceedings i.e. Ex. PW7/A4 as there is nothing in said conversation to reflect that accused Vikram had demanded money from the complainant.
87. Both the witnesses joined by CBI for identification of questioned voice of accused Vikram turned hostile. PW17 Ajit Singh CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 105/110 who was joined in investigation for the identification of voice of said accused did not support the prosecution case qua the voice identification of said accused and even in his cross-examination by Ld. Senior PP for CBI, the witness was unable to identify any of the voices contained in file no. 180814_1526 and file no. 180814_1833 in Q2. Even PW7 Pawan Gahlot, who was examined for identification of voice of said accused also failed to support the prosecution case and he also remained firm on his stand even in his cross-examination by Ld. Senior Public Prosecutor for CBI.
88. As already noted above, even the versions of the independent witnesses are not consistent and suffer from serious infirmities and contradictions and some of them have already been discussed above in the preceding paras. As per cross-examination of PW5 dated 03.01.2023, complainant Jaspal Singh had never talked to Vikram during the period he remained with CBI team from 13.08.2018 to 15.08.2018. As per his version, he had signed the verification memo Ex.PW1/A-2 (D-3) or recovery memo Ex.PW1/A-4 (D-4) without going through the contents of said documents.
89. In his examination-in-chief, PW5 had deposed that on the date of trap i.e. on 14.8.2018, the complainant took him to basement of his office and after sometime CBI officers also came inside the office of the complainant and they also sat together with them (PW5 and PW15). Whereas, as per the chargesheet as well as the version of other prosecution witnesses, the CBI officers were sitting outside the cabin of the complainant whereas, the complainant and the independent witness Rajesh Kumar were sitting inside the cabin.
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Even PW5 in his subsequent version said that after the transaction of bribe was over and pre-decided signal was given to CBI team, the CBI officers who were earlier sitting outside the cabin of Jaspal Singh also came inside and challenged accused Jagdish for having demanded and accepted the bribe. In this regard, I may also point out that even in the site plan Ex PW1/D1 placed on record, positions of trap team who were allegedly present inside and outside complainant's cabin have not been shown by the TLO and TLO in his cross-examination dated 28.05.2019 admitted that the position of trap team members and the independent witnesses was not depicted in the site plan. Even the deposition of verification officer/PW1 regarding dots on said site plan denoting the positions of trap team also seems to be based on his own assumptions.
90. Although PW5 identified the voices of all the accused in all the recorded questioned conversation played in the court but, in his cross-examination dated 11.7.2022, he deposed that he had signed the verification memo dated 13.8.2018 without going through its contents and upon being confronted with his previous statement in examination-in-chief dated 05.3.2020, where he claimed to have identified the voices of accused persons including accused Vikram, the witness stated that his statement made on 11.7.2022 was the correct statement which apparently shows that the witness was not trustworthy as he kept changing his stand at different stages of his examination in the court and his version is also not in consonance with the proceedings recorded in the verification memo. In the light of said discrepancies in the version of independent witness Rajesh Kumar, it is highly unsafe to look for any corroboration from such CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 107/110 witness, whose own testimony is topsy turvy.
91. It is worthwhile to mention here that the need for the court to look at the evidence to ascertain its sufficiency for establishing the essential ingredients of the alleged offence arises only when the material brought on record by way of oral or documentary evidence is first found to be credible, trustworthy and reliable. But here, in the instant case, on account of the material discrepancies and contradictions in the version of the prosecution witnesses and the documentary evidence brought on record, which have been already discussed in detail in preceding paras of this judgment, the CBI case has not crossed that threshold to reach to the next stage so as to make it necessary for this court to adjudge and weigh the material on the scale of legal parameters for ascertaining its sufficiency and strength for bringing home the charge against the accused.
92. Assuming for the sake of argument that the witnesses are trustworthy and documentary evidence adduced on record is credible and proved beyond reproach, in that eventuality also, the material on record is absolutely lacking for showing any demand or acceptance of bribe on the part of accused public servants namely Jaypal Sharma and Vikram @ Puran as per the requirement of section 7 of PC Act. There is no material even to show any intent or animus on the part of accused Jagdish @ Sandeep, who is a private person, to receive the bribe amount as a motive or reward for inducing a public servant as is the requirement of Section 7A of PC Act, 1988, for which he has been charged in this case.
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93. Both the said accused namely Jagdish @ Sandeep (private person) and Vikram @ Puran (Public servant) were allegedly acting on behalf of accused Jaypal Sharma (Public servant) to facilitate the alleged deal of bribe between the complainant and accused Jaypal Sharma. The prosecution has miserably failed to bring anything on record to show any meeting of mind on the part of accused persons to establish the charge of conspiracy for the purpose of demanding, obtaining or accepting the bribe amount. As discussed above, no clinching evidence has been adduced by the prosecution to show any relation or connection between the accused Jaypal Sharma and the other two accused namely Jagdish and Vikram who were allegedly working as middlemen on his behalf.
Conclusion:
94. In the light of aforementioned facts and circumstances of the case, I am of the considered view that the case of CBI is full of serious infirmities, inconsistencies and contradictions rendering the case unbelievable. Both the substantive and corroborative evidences are shaky and unclinching leaving it totally incredible and untrustworthy. In view thereof, I do not find the material sufficient to prove the case beyond reasonable doubt so as to record any finding of guilt against any of the accused. Accordingly, all the accused namely Jaypal Sharma, Jagdish @ Sandeep and Vikram @ Puran are acquitted of all the charges framed against them.
95. Bail Bonds in compliance to Section 437A Cr.P.C be furnished by the accused.
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96. File be consigned to record room after due compliance.
Announced in the open court today i.e. 16.8.2023 (SUNENA SHARMA) Special Judge (PC Act) CBI-01 RADC/Delhi CBI v. Jaypal Sharma & ors. (16.8.2023) CC no. 394/2019 Page no. 110/110