Cbi vs . 1) Dharam Pal Singh Negi on 30 July, 2014

[Cites 28, Cited by 0]

Delhi District Court

Cbi vs . 1) Dharam Pal Singh Negi on 30 July, 2014

                                                            1

                   IN THE COURT OF SH. BRIJESH KUMAR GARG: 
             SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI


CC No. 1/10                                                                  RC  :  58(A)/99
                                                                             PS   : CBI/ACB/New Delhi
                                                                             U/s  : 120B IPC r/w sec. 7, 
                                                                             13(1) (d) & 13 (2)
                                                                             of the P.C. Act and u/s 7   
                                                                             and 13(1) (d) r/w
                                                                             sec.13(2) of the P.C. Act.
CBI  Vs. 1) Dharam Pal Singh Negi
                 S/o Late Shri R.R.Negi,
                 r/o 5D/80, S.F.S.Flats,
                 Green View Apartments,
                 Rajouri Garden, New Delhi.


                 2) M.L.Mahajan
                 S/o Shri G.M.Mahajan,
                 r/o K81/D, Sheikh Sarai PhaseII,
                 New Delhi.                  
                   


Date of Institution                                  :  06.05.2002
Judgment Reserved                                    :  25.07.2014
Judgment Delivered                                   :  30.07.2014




CBI Vs. DPS Negi etc.,                                 pg  1 of  83                  Special Judge, CBI01, Central, Delhi
                                                               2



                                                J U D G M E N T

1. In the present case, both the accused are facing trial for the offences punishable u/s. 120B IPC r/w sec. 7 & 13(1) (d) of the Prevention of Corruption Act, 1988, as well as, for the substantive offences u/s 7 and 13(1) (d) r/w sec. 13(2) of the Prevention of Corruption Act, 1988.

Facts of the case

2. It has been stated in the charge sheet that the present case was registered by the CBI, ACB, New Delhi, on 30.11.99, on the written complaint of Harbir Singh, wherein, he alleged that he had leased out his two buildings, bearing No. 104, Adhchini, Mehrauli, New Delhi, and 1, Pilli Kothi, Dera More, New Delhi, to M.T.N.L., Delhi, at a monthly rent of Rs.18,180/ and Rs. 38,138/ respectively, vide lease deeds dated 27.03.1998 and 21.12.1998 respectively, for initial periods of three years and ten years respectively and renewable after three years with enhancement of 15% rent. He further alleged that the rent for the last more than two months, for the property No. CBI Vs. DPS Negi etc., pg 2 of 83 Special Judge, CBI01, Central, Delhi 3 104, Adhchini, has not been paid to him and when he made enquiries from accused M.L.Mahajan, AGM (Administration), he asked him to pay three months' rent as bribe, otherwise, he would terminate the lease deed. It was further alleged that when the complainant Harbir Singh refused to oblige, accused M.L. Mahajan told him that he would see that the Lease Deed of 1, Pilli Kothi, Dera More, New Delhi, was also terminated. The complainant then lodged a complaint with the CMD, CGM and GM (SouthI), MTNL, on 5.11.1999 and again on 20.11.1999, but he had not received any response. In the mean time, he received a letter dated 5.11.1999 on 22.11.1999, from accused M.L. Mahajan, intimating him that the Lease of property no. 104, Adhchini, has been terminated.

3. On 29.11.1999, the complainant Harbir Singh was directed, on telephone, by accused M.L. Mahajan, to contact him in his office and when he contacted accused M.L. Mahajan, he again told the complainant to pay an amount of three months' rent, as bribe, to him, if he wanted to continue the lease of 1, Pilli Kothi, Dera More, New CBI Vs. DPS Negi etc., pg 3 of 83 Special Judge, CBI01, Central, Delhi 4 Delhi, otherwise, its lease would also be terminated. When the complainant told him that the amount was excessive, accused M.L. Mahajan told him that the amount is to be shared by him with the co accused D.P.S. Negi, DGM (Finance). On the insistence of the complainant to reduce the amount, the accused M.L. Mahajan took him to the office of coaccused D.P.S. Negi, who told him that the complainant will have to pay a sum of rupees one lakh within 23 days, otherwise, the lease would be terminated. On his further request, accused D.P.S. Negi and M.L. Mahajan agreed to accept the amount in two installments of rupees fifty thousand each. Accused D.P.S. Negi further directed the complainant to pay the first installment on 30.11.1999 at 11.00 AM.

4. It is further stated in the chargesheet that the complainant Harbir Singh never wanted to pay the bribe and, therefore, he decided to lodge a complaint with the SP, CBI and filed a written complaint on 30.11.1999 at about 12.30 p.m. On the said complaint, case FIR No. RCDAI1999A0058 was registered and was marked to Inspector CBI Vs. DPS Negi etc., pg 4 of 83 Special Judge, CBI01, Central, Delhi 5 B.K.Pardhan, for verification and investigation.

5. It is further stated in the chargesheet that Inspector B.K.Pardhan arranged for two independent witnesses and it was decided that the complainant should contact the accused persons and since he was late on that day, the trap could not be laid by the time fixed by the accused and, therefore, the arrangement for recording of the conversation, were made and the CBI team along with the witnesses and the complainant went to Shivam Car Air Conditioning, Lajpat Nagar, New Delhi and recording device was attached to the land line phone and the complainant made a phone call to accused DPS Negi and thereafter the conversation was recorded. Accused D.P.S.Negi directed the complainant to come on the next day. When the complainant asked the accused to reduce the amount, accused DPS Negi told him that he should come to his office.

6. Another call was made by the complainant to accused M.L.Mahajan, wherein, the complainant requested accused CBI Vs. DPS Negi etc., pg 5 of 83 Special Judge, CBI01, Central, Delhi 6 M.L.Mahajan, to reduce the amount, to which, the accused M.L.Mahajan told him that he cannot reduce the amount and directed the complainant to meet accused DPS Negi, in this regard. Accused M.L.Mahajan also told him to meet him on the next day. The said conversation was also recorded and was confirmed by the complainant and the independent witnesses.

7. On the next day, the complainant and the independent witnesses again reached CBI office at 9.30AM. Complainant produced a cash amount of Rs. 50,000/. A trap was arranged. Witness SS Bhardwaj was asked to act as a shadow witness, while Shri Hans Raj was directed to remain with the police party and act as a witness of recovery. On reaching the office of Shri Negi, the complainant told Inspector Shri B.K. Pardhan that it was not feasible to take the independent witness with him as the accused will be alerted on seeing some stranger. Accordingly, the complainant was directed to proceed alone. Shri SS Bhardwaj was directed to station himself near the room of Mr. Negi. The complainant went to the room CBI Vs. DPS Negi etc., pg 6 of 83 Special Judge, CBI01, Central, Delhi 7 of Shri Negi. He was given a remote transmittercummic, with the direction to switch on the same, after reaching the spot, in order to record the conversation. Shri Hans Raj and Constable Rakesh Kumar were given automatic receiver. They were directed to record the conversation of complainant with the accused and to listen the conversation by using the earphone. Complainant Harbir Singh was told to give a signal by dialing the number of the cell phone, which was with the raid officer.

8. Thereafter, the complainant entered the room of accused DPS Negi and the accused enquired about his car as the complainant had told him on the previous day that his car had broken down. The complainant told the accused about his case and requested the accused to do the needful. The accused Negi told the complainant that he was taking a guarantee that his work will be done. The complainant further enquired from accused DPS Negi that though he was giving money, but if his work was not done, what would happen. The accused DPS Negi told him that he was a man of words and CBI Vs. DPS Negi etc., pg 7 of 83 Special Judge, CBI01, Central, Delhi 8 work will be done. The accused further told the complainant that he was a Rajput and it was his responsibility to get the work done. The complainant then took out the money and handed over the same to accused D.P.S. Negi, who accepted the same in his right hand and kept the same in the drawer of his table. The complainant then gave the preappointed signal. The raiding officer and other members of the raiding party reached the office of the accused DPS Negi. The accused was challenged by Inspector Pardhan, but the accused kept mum. Witness Hans Raj was directed to recover the bribe amount from the table drawer of accused DPS Negi. The money was recovered from the upper drawer of the table of the accused. After comparing the recovered GC notes with the numbers written on the Annexure to Handing Over Memo, it was confirmed that the money was the same, which had been given by the complainant.

9. The right hand wash of accused DPS Negi showed presence of Phenolphthalein on his right hand. A file which was lying in the drawer of the accused, on which, the currency notes had been kept CBI Vs. DPS Negi etc., pg 8 of 83 Special Judge, CBI01, Central, Delhi 9 was also tested by washing its cover and it also showed presence of Phenolphthalein on the file cover. The accused Negi was arrested. The tape recorded conversation confirmed the talks which had taken place between the complainant and the accused.

10. During investigations, the IO sent the sealed hand wash solutions, along with the recorded conversations to the CFSL, for expert opinion. The statements of the witnesses were also recorded. During the investigation, the IO also obtained the sanction for prosecution of both the accused persons, u/s 19 of the P.C.Act, 1988, from the competent authorities. He also obtained the CFSL reports and after the completion of the investigations, the chargesheet was filed and both the accused persons were sent up for trial.

11. Vide order dated 17.11.2004, the charges for the offences punishable u/s 120B IPC, r/w section 7 and 13 (1) (d), punishable u/s 13 (2) of the P.C.Act and the offences u/s 7 and 13 (1) (d) punishable u/s 13 (2) of the P.C.Act, were framed, against both the accused CBI Vs. DPS Negi etc., pg 9 of 83 Special Judge, CBI01, Central, Delhi 10 persons, by the Ld. Predecessor of this Court, to which they pleaded not guilty and claimed trial.

Evidence produced by C.B.I.

12. During the course of trial, the prosecution has examined a total of 13 witnesses, as under:

(i) PW1 Sh. K.S.Chhabra, Senior Scientific Officer, who has proved his report, regarding the presence of phenolphthalein, in the solutions marked RHW & FCW, as Ex.PW1/A.

(ii) PW2 Sh. D.P.Saini, Assistant Director General (Vig.), who has proved the sanction order for prosecution of accused M.L.Mahajan, under section 19 of the Prevention of Corruption Act, 1988, as Ex.PW.2/A.

(iii) PW3 Sh. L.Marandi, Under Secretary, Government of India, who has proved the sanction order for prosecution of accused DPS Negi, under section 19 of the Prevention of Corruption Act, 1988, as Ex.PW.3/A.

(iv) PW4 Dr. Rajinder Singh, Principal Scientific Officer, CFSL, CBI Vs. DPS Negi etc., pg 10 of 83 Special Judge, CBI01, Central, Delhi 11 New Delhi, who has examined the recorded conversations between the complainant and the accused persons and has proved his report No. CFSL2000/P23 dated 30.08.2000 as Ex.PW4/C. He has also prepared the transcripts of the recorded conversations as Ex.PW4/D1 to Ex.PW4/D4.

(v) PW5 Harbir Singh, the complainant of the present case.

(vi) PW6 Sh. Hans Raj, Junior Assistant, ITPO, Pragati Maidan, New Delhi, an independent witness, who accompanied the raiding party, during the trap proceedings & recovered the tainted GC notes from the drawer of the table of accused DPS Negi.

(vii) PW7 Ms. Neelam Kochhar, P.A. to the accused DPS Negi.

(viii) PW8 R.R.Verma, Personnel Officer, MTNL, Bhikaji Cama Place, New Delhi, who has produced the visitor's register, maintained in the office of MTNL at Bhikaji Cama Place, New Delhi, for the period, w.e.f. 29.11.1999 to 28.12.1999 and has proved the same as Ex.PW.8/1.

(ix) PW9 Smt. Darshan Devi, who was P.A. to accused M.L.Mahajan. She has proved the memo Ex.PW.9/A, vide which she CBI Vs. DPS Negi etc., pg 11 of 83 Special Judge, CBI01, Central, Delhi 12 handed over the despatch register Ex.P.1 and slip Ex.PW.9/B, to the IO.

(x) PW10 DSP B.K.Pradhan, CBI, Kolkata, the Trap Laying Officer (TLO) of the present case, to whom the complaint of complainant Harbir Singh was marked for legal action.

(xi) PW11 K.Palaniappan, Assistant Director General (Vigilance), Department of Telecommunication, who witnessed the raid proceedings.

(xii) PW12 P.C.Shama, Retired Senior Superintendent of Police, CBI, New Delhi. He is the Investigating Officer of the present case.

(xiii) PW13 Smt. Krishna, who was Chief Section Supervisor in Administration Branch, at the office of M.T.N.L. at Bhikaji Cama Place, New Delhi, in the year 1999 and used to maintain the dispatch register.

13. After completion of prosecution evidence, the statements of both the accused persons were recorded u/s. 313 Cr.P.C., on 04.04.2013. Accused DPS Negi had denied all the incriminating CBI Vs. DPS Negi etc., pg 12 of 83 Special Judge, CBI01, Central, Delhi 13 evidence against him and stated that he has been falsely implicated in this case. He has further stated that on 01.12.1999, he was present in his office and was doing the official work. The public dealing timings were from 11.00 a.m. to 12 Noon and at that time one person came inside his room on his instructions to the PA after he sought the permission. He has further stated that when he was sitting on the first chair, immediately at that time Mr. Palaniappan came there to discuss important CAG para and he had called for the tea. He had sat on the third chair. The middle chair was lying vacant. He has further stated that when they were taking tea, 56 persons entered his room and asked him to stand up. One of the persons asked who is Mr. Negi and on his pointing out that he is Negi, he directed another person to take his search and nothing was found from him. Accused has further stated that they took the search of his side table and his table but nothing was found. Thereafter that person took a round towards the chair and pointed out a file lying on the middle chair and when he picked it up, he found certain currency notes lying there and he handed over those currency notes and the CBI Vs. DPS Negi etc., pg 13 of 83 Special Judge, CBI01, Central, Delhi 14 file to the person who had directed to take his search. The persons present over there, thereafter, misbehaved with him and asked him to accompany them to the CBI office. In CBI office, he was made to sit for a long time and CBI officials wanted his signatures on some papers and he noted down that they are all disputed. The accused has further stated that he was misbehaved and abused and lateron, falsely implicated in this case. He has further stated that the whole of the proceedings, mentioned by the IO, are false and are motivated to falsely implicate him.

14. In his statement, the accused M.L.Mahajan has stated that he was posted as Assistant General Manager (Admn.) in MTNL Office at Bhikaji Cama Place, G.M. (South1) office from December 1994 to mid December 1999. He used to perform general administrative functions under the directions and supervision of D.G.M. (Administration). G.M. (S1), MTNL, used to hire private buildings on rent, generally for installation of small telephone exchanges and some other purposes. It used to be done as per prescribed guidelines, CBI Vs. DPS Negi etc., pg 14 of 83 Special Judge, CBI01, Central, Delhi 15 procedure and norms. The authority to hire buildings, was with Area General Managers and above. No officer below the rank of G.M., could do it. Building No. 104, Adhchini, Hauz Khaas, New Delhi of Shri Harbir Singh was hired w.e.f. 01.04.1998 at the monthly rent of th Rs.18,180/. The rent was payable by MTNL in advance, by 10 day of each month. Lease deed was duly executed in respect of the above property. First sanction of rent and taking of possession was approved on or about 01.04.1998 by Shri A.K.Sinha, the then G.M., (South1). Sanction of rent as granted by G.M. (South1) was for one year w.e.f. 01.04.1998. It was only communicated by him to Harbir Singh and others concerned, vide letter dated 20.04.1998 (Ex.PW. 5/D1). This sanction was upto 31.03.1999. On 22.03.1999, before the expiry of the above sanction, he had put up a note Ex.PW.11/DB, for further sanction of rent for another one year. However, the G.M. (South1), vide note also at Ex.PW.11/DB, granted sanction only for six months. It was conveyed by him to all concerned, vide letter dated 10.05.1999, Ex.PW.5/S. This sanction was valid till 30.09.1999. On 15.09.1999, again before the expiry of the six CBI Vs. DPS Negi etc., pg 15 of 83 Special Judge, CBI01, Central, Delhi 16 months, he had put up a note Ex.PW.5/D2, for extension of sanction of rent for another six months. DGM, Bhikaji Cama Place(Administration), forwarded his note, as such to DGM (Finance), who made his note Ex.PW5/D3 and said that the accommodation at 104, Adhchini, was no longer required and sent the file to G.M., who marked the file to DGM (Bhikaji Cama Place) directing him to discuss it with DGM, Chanakya Puri, New Delhi. DGM (Bhikaji Cama Place) marked the file to him for speaking. He received letter dated 05.11.1999 from DGM, (Hauz Khaas) saying that the accommodation was no longer required and lease deed may be terminated. It was conveyed to Harbir Singh and others, vide his letter dated 05.11.1999 Ex.PW.5/X. Harbir Singh, the complainant was interested to keep his 104, Adhchini Property with MTNL and had been in contact with the staff of the office of GM and contacted him also. He came to know about the termination of the lease deed on the same day i.e. 05.11.1999 and immediately started sending complaints to various authorities, carrying an impression that he was responsible for termination of the lease deed. Monthly rent for the above property CBI Vs. DPS Negi etc., pg 16 of 83 Special Judge, CBI01, Central, Delhi 17 had been cleared by MTNL. There was no dispute with regard to other building (Peeli Kothi) of Harbir Singh which was also hired by MTNL. Taking the termination of lease deed of 104, Adhchini, as his order, Harbir Singh harboured grudge against him and falsely implicated him in this case.

15. Both the accused persons preferred to lead the evidence in their defence, but, they have not examined any witness in their defence, despite ample opportunities.

16. After completion of trial, final arguments were addressed by Sh. Praneet Sharma, Ld. PP for the CBI, Sh. N.K.Sharma, Advocate, for accused M.L.Mahajan and Shri S.C.Buttan, Advocate, for accused DPS Negi.

Arguments on behalf of Prosecution

17. It has been argued by the Ld. PP for the CBI that both the accused persons have been charged for the offences punishable u/s CBI Vs. DPS Negi etc., pg 17 of 83 Special Judge, CBI01, Central, Delhi 18 120B IPC, read with section 7 and 13 (1) (d) of the P.C.Act, 1988 and also for the substantive offences u/s 7 & 13 (1) (d), punishable u/s 13 (2) of the P.C.Act, and the prosecution witnesses have established on recored that both the accused persons have connived together and have entered into a conspiracy to extract a bribe of rupees one lac, from the complainant. He has also argued that the complainant Harbir Singh had categorically stated that he met accused M.L.Mahajan on 05.11.1999 and the accused demanded three months rent as bribe, from him and also told him that co accused DPS Negi was also to share the bribe amount. He has further stated that the bribe amount was reduced to rupees one lac and was to be paid in two installments of Rs.50,000/ each and the first installment was to be paid on 30.11.1999. The complainant lodged various complaints to various authorities, prior to the lodging of the complaint dated 30.11.1999.

18. It is further argued by the Ld. PP for the CBI that the complaint dated 30.11.1999, Ex.PW.5/A, was duly verified and the CBI Vs. DPS Negi etc., pg 18 of 83 Special Judge, CBI01, Central, Delhi 19 conversations between the complainant and the accused persons, dated 30.11.1999, were also recorded. In pursuance to the said complaint, a trap was laid on 01.12.1999, in which, the complainant handed over the tainted government currency notes worth Rs. 50,000/ to accused DPS Negi and thereafter, the raid was conducted by the CBI officials, in which, the tainted currency notes worth Rs. 50,000/ were recovered from the drawer of the table of accused DPS Negi.

19. It is further argued by the Ld. PP for the CBI that the hand wash of accused DPS Negi and the wash of the file cover on which the tainted GC notes were kept, was also taken, during the raid and both the solutions as well as the recorded conversations were sent to the CFSL, for expert opinion and the CFSL reports have corroborated the prosecution case. Ld. PP for the CBI has also argued that CFSL report Ex.PW.1/A has established on record that the hand wash solution of accused DPS Negi as well as the file cover wash solution was containing the phenolphthalein powder. The CFSL report CBI Vs. DPS Negi etc., pg 19 of 83 Special Judge, CBI01, Central, Delhi 20 Ex.PW.4/C has also corroborated the fact that the recorded conversations were having the probable voices of the accused persons. He has also argued that the testimony of complainant PW5 Harbir Singh and the Trap Laying Officer, PW10, Inspector B.K.Pradhan and the corroborative CFSL reports has proved the prosecution case against both the accused persons, beyond a shadow of doubt and, therefore, both the accused persons be held guilty for the offences punishable u/s 120B IPC, read with section 7 and 13 (1) (d) of the P.C.Act, 1988 and also for the substantive offences u/s 7 & 13 (1) (d), punishable u/s 13 (2) of the P.C.Act and be convicted accordingly. The Ld. PP for the CBI has relied upon the following judgments, in support of his contentions:

(i) C.S. Krishnamurthy vs. State of Karnataka, AIR 2005 Supreme Court 2790, &

(ii) Major E.G. Barsay vs. State of Bombay, AIR 1961 Supreme Court 1762 Arguments on behalf of accused M.L. Mahajan

20. On the other hand, Shri N.K.Sharma, Ld. counsel for accused CBI Vs. DPS Negi etc., pg 20 of 83 Special Judge, CBI01, Central, Delhi 21 M.L.Mahajan has argued that there are a large number of material discrepancies and contradictions in the depositions of the complainant and other witnesses, which makes the entire prosecution case, doubtful. He has argued that there is no evidence on record to prove that accused M.L.Mahajan had accepted any bribe amount, from the complainant and, therefore, the substantive charge for the offence u/s 13 (1) (d) of the P.C.Act is not made out against him. He has also argued that there is no evidence on record to prove any conspiracy between the two accused persons. He has also argued that the accused M.L.Mahajan was not the competent officer, either to extend the lease or to terminate the lease of the properties of the complainant. He has also argued that there are a large number of material contradictions in the complaint dated 05.11.1999 and the complaint dated 30.11.1999, Ex.PW.5/A. He has further argued that the complaint dated 05.11.1999 and the second complaint dated 19.11.1999, are exactly the same complaints and have been placed on record as Ex.PW.5/HA and Ex.PW.5/HB, respectively, but the same could not be proved during the trial, in accordance with law. He CBI Vs. DPS Negi etc., pg 21 of 83 Special Judge, CBI01, Central, Delhi 22 has also argued that the allegations leveled by the complainant, in his deposition before the court as PW5, do not find mention, either in the complaint dated 05.11.1999, Ex.PW.5/HA, or the complaint, dated 30.11.1999, Ex.PW.5/A. He has also argued that the complainant has never visited the office of the accused persons, as alleged by him and he has concocted a false story, only to implicate the accused persons. The Ld. defence counsel has relied upon case titled as State ( NCT of Delhi) Vs. Devender Singh, reported as, 2013 (4) JCC 2635 (DLI) , in support of his above contentions.

21. Ld. defence counsel for accused M.L. Mahajan, has also argued that the shadow witness PW6, Hans Raj, had turned hostile and has not supported the prosecution case and the other independent witness, namely, S.S.Bhardwaj, could not be examined, during the trial, as he was reported to have already expired. Therefore, there was no other independent eye witness, to corroborate or support the testimony of the complainant PW5 Harbir Singh.

CBI Vs. DPS Negi etc., pg 22 of 83 Special Judge, CBI01, Central, Delhi 23

22. Ld. defence counsel has further argued that the alleged demand of bribe was raised by the accused persons, either on 02.11.1999 or on 03.11.1999 and the complainant had allegedly visited the office of the accused persons either on 02.11.1999 or on 03.11.1999. But, all these facts have not been mentioned by him in his complaint dated 05.11.1999, Ex.PW.5/HA. He has further argued that the complainant had slept over his allegations, as stated by him, in his complaint dated 05.11.1999, Ex.PW.5/HA, till 30.11.1999, when he met the CBI officials and lodged the complaint Ex.PW.5/A. The delay on the part of the complainant in lodging the complaint with the CBI, also castes a doubt on the truthfulness of the allegations of the complainant and are, therefore, fatal to the prosecution case.

23. Ld. defence counsel has further argued that there are a large number of contradictions in the deposition of the witnesses regarding the recording of the telephonic conversations between the complainant and the accused persons and there are also material CBI Vs. DPS Negi etc., pg 23 of 83 Special Judge, CBI01, Central, Delhi 24 discrepancies on record, regarding the preparation of the cassettes of the recorded conversations and the sending of the sealed cassettes to the CFSL, for examination and expert opinion. He has also argued that the different audio cassettes were sent to CFSL, for examination.

24. Ld. defence counsel has further argued that the CBI officials have verified the complaint of the complainant from the office of Mr. Gulati, a friend of the complainant, at Shivam Car Air Conditioning, at Lajpat Nagar, New Delhi and the conversation was allegedly recorded from his land line telephone number 6846538. But no independent witness from the office of Mr. Gulati, has been examined to corroborate these facts. Even Mr. Gulati has not been produced or examined as a witness, during the trial. Ld. defence counsel has further argued that the complaint of the complainant was verified by the CBI officials from Shivam Car Air Conditioning, by making telephonic calls from land line No. 6846538 to phone numbers 6542161 and 6162332. But the IO has failed to collect the C.D.Rs of any of the three land line phone numbers and the same have not CBI Vs. DPS Negi etc., pg 24 of 83 Special Judge, CBI01, Central, Delhi 25 been placed on record, during the trial, to corroborate the contentions of the prosecution witnesses, in this regard.

25. Ld. defence counsel has further argued that all the alleged conversations were recorded on 01.12.1999, but the same were sent to CFSL, only on 17.01.2000, after a lapse of more than 2 ½ months and no witness has been examined by the prosecution, regarding the custody of the hand wash solutions and the recorded conversation cassettes. He has also argued that the prosecution has failed to lead any link evidence, regarding the safe custody of the cassettes and the hand wash solutions, which is fatal to the prosecution case. The Ld. defence counsel has relied upon the following judgments in support of his above contentions:

(i) Ukha Kolhe Vs. State of Maharashtra 1963 (2) Cri. L.J. 418 (Constitution Bench of 5 Judges, SC)

(ii) The State of Rajasthan Vs. Maniram & Ors. 1980 Cri. L.J. NOC 173 (RAJ)

(iii) Hannan Vs. State of NCT of Delhi 2013 (3) JCC (Nancotics) 94 (DLI) CBI Vs. DPS Negi etc., pg 25 of 83 Special Judge, CBI01, Central, Delhi 26

26. Ld. defence counsel has further argued that Inspector D.K.Singh, who prepared the transcript of the conversation and Const. Ram Kumar, who accompanied the CBI team, during the alleged raid and recorded the conversation, have not been examined, during the trial.

27. Ld. defence counsel has also argued that the recorded conversations are also not reliable as the cassettes of the recorded conversations, were not audible and, therefore, the possibility of tempering of the cassettes, cannot be ruled out. The Ld. defence counsel has relied upon the following judgments in support of his above contentions:

(i) R.M. Malkani Vs. State of Maharashtra 1973 Cri.L.J. 228

(ii) Ram Singh & Ors. Vs. Col. Ram Singh AIR 1986 SC 3 (SC)

(iii) Savita Alias Babbal Vs. State of Delhi 2011 (3) JCC 1687 (DB DLI)

(iv) Nilesh Dinkar Paradkar Vs. State of Maharashtra 2011 STPL (Web) 291 (SC) CBI Vs. DPS Negi etc., pg 26 of 83 Special Judge, CBI01, Central, Delhi 27

28. Ld. defence counsel has also argued that the CBI has not followed the mandatory provisions of Section 157 Cr.PC and the copy of the FIR was never sent to the concerned Metropolitan Magistrate and there is no evidence on record to prove that the CBI had sent the copy of the FIR to the concerned Metropolitan Magistrate, immediately after its registration. He has argued that the non compliance of section 157 Cr.P.C. is also fatal to the prosecution case. Ld. defence counsel has relied upon the following Judgments in support of his above contentions :

(i) Devender @ Kallu Vs. State, 2011 (2) JCC 1453 DLI DB

(ii) Rajesh Kumar Vs. State , 2011(4) JCC 2522 DEL DB

(iii) Rattiram & Ors. Vs. State of M.P. Tr. Inspector of Police 2013 (3) JCC 1572 S.C

29. Ld. defence counsel has further argued that the sanction for prosecution, granted vide order Ex.PW.2/A, is also faulty as no documents were sent to the competent authority, for his perusal, before granting the sanction for prosecution of accused M.L.Mahajan. He has also argued that no details of any documents or the material CBI Vs. DPS Negi etc., pg 27 of 83 Special Judge, CBI01, Central, Delhi 28 evidence, which were placed before the competent authority, for his perusal, before granting sanction for prosecution of accused M.L.Mahajan, has been mentioned in the report Ex.PW.2/A and, therefore, there is no application of mind, while granting sanction u/s 19 of the P.C.Act and, therefore, the sanction granted by the competent authority, is illegal and invalid and cannot be relied upon. The Ld. defence counsel has relied upon the following judgments in support of his above contentions:

(i) Om Prakash Vs. State & Ors. (CBI), 2009 (2) JCC 1210 (DLI).

(ii) C.B.I. Vs. Ashok Kumar Aggarwal, 2014 Crl. L.J. 930(SC) Arguments on behalf of accused D.P.S. Negi

30. It has been argued by Sh. S.C. Buttan, Ld. Counsel for accused DPS Negi that the statement of complainant PW5 Harbir Singh, is full of material contradictions and is not corroborated by the documentary evidence and, therefore, his testimony does not inspire any confidence and, therefore, it has to be discarded. He has also argued that none of the complaints mentions the name of accused DPS Negi and there is no evidence, on record, which indicates that CBI Vs. DPS Negi etc., pg 28 of 83 Special Judge, CBI01, Central, Delhi 29 accused DPS Negi had met with complainant Harbir Singh or raised any demand, as alleged by him. He has also argued that even the entry pass, allegedly placed on record by the prosecution, does not mention the name or designation of accused DPS Negi.

31. The Ld. defence counsel has also argued that the accused DPS Negi was not the competent authority to extend the lease or to terminate the same and after his recommendation dated 22.09.1999, the file has never come back to him for any recommendation or approval or passing of any order, regarding termination of the lease of the property of the complainant.

32. The Ld. defence counsel has also argued that no procedure was followed by the CBI officials for verification of the complaint of complainant Harbir Singh and no procedure was followed even for recording of the conversations between the complainant and the accused persons. He has also argued that even in the alleged conversation, there is no specific demand of any bribe money by CBI Vs. DPS Negi etc., pg 29 of 83 Special Judge, CBI01, Central, Delhi 30 accused DPS Negi. Furthermore, the audio cassettes were not clear and no precautions were taken by the CBI official to prepare the authentic copies of the recorded conversations and therefore, the same cannot be relied by the prosecution to corroborate the testimony of the complainant.

33. The Ld. defence counsel has also argued that the prosecution has failed to produce any witness regarding the preparation of the copies of the alleged conversations and sealing of the cassettes and keeping of the sealed cassettes at the Malkhana of the CBI, till the time, the same were sent to CFSL for expert opinion. He has also argued that no link evidence has been produced by the prosecution regarding the safe custody of the alleged cassettes., or the hand wash solutions.

34. The Ld. defence counsel has also argued that the prosecution has not examined the PA/PS of accused DPS Negi, who was present in the office at the time of the alleged raid and no other official, from CBI Vs. DPS Negi etc., pg 30 of 83 Special Judge, CBI01, Central, Delhi 31 the office of accused DPS Negi, was examined during the trial, except PW11 Sh. K. Palaniappan, who had turned hostile.

35. The Ld. defence counsel has also argued that the CBI Officials have also washed the files of MTNL, on which the tainted bribe money was allegedly kept by the accused and the file which was allegedly washed by the CBI officials, during the raid does not indicate even a trace of washing or the phenolphthalein powder and this file was never sent to CFSL, for examination.

36. The Ld. defence counsel has also argued that sanction granted by PW3 Sh. L. Marandi, for prosecution of accused DPS Negi, is not a valid sanction under the provisions of Section 19 of the P. C. Act, as no document or case file was submitted to him for his perusal before granting the sanction for prosecution of accused DPS Negi.

The Ld. defence counsel has relied upon the following judgments, in support of his contentions:

(i) Om Prakash & Anr. vs. State of Delhi, 2013(9) LRC 137, Delhi High Court.

CBI Vs. DPS Negi etc., pg 31 of 83 Special Judge, CBI01, Central, Delhi 32

(ii) Maru Ram vs. State of Haryana, 2013(9) LRC 235, Punjab And Haryana High Court

(iii) Juja Ram vs. Union of India, IV (2010) CCR 92, Rajasthan High Court.

(iv) Ramkesh Meena & Anr. vs. State, 2014 IV AD (Delhi) 221

37. I have carefully perused the case file and I have also gone through the various judgments cited by the Ld. PP for the CBI and the Ld. defence counsels, in support of their contentions. I have also given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. defence counsels.

Demand of bribe money

38. Perusal of the record shows that the prosecution has examined the complainant Harbir Singh as PW5. Perusal of his testimony shows that this witness has categorically stated in the court that he had leased out his two buildings bearing No. 104 Adhchini, Aurobindo Marg, Mehrauli, New Delhi, and 1, Peeli Kothi, Dera More, Fatehpur Beri, New Delhi, in the year 1998, to MTNL for a period of 3 years and 10 years, respectively, at a monthly rent of Rs.18,180/ and Rs. CBI Vs. DPS Negi etc., pg 32 of 83 Special Judge, CBI01, Central, Delhi 33 38,138/, respectively. This witness has further stated that about 05.11.99 the rent for two months, pertaining to the property No. 104, Adhcnini Aurobindo Marg, Mehrauli, New Delhi, was stopped and accused M.L. Mahajan, AGM (Administration) called him on phone, nd rd near about 2 or 3 Nov. for meeting him in his office and when he went to his office, accused M.L. Mahajan asked the money, equivalent to rent of three months of both the buildings, from him and told him that the lease of the buildings shall not be continued. This witness has further deposed that he told the accused that he was unable to pay this much amount as he had reconstructed his house after demolition of the same, for the purposed of telephone exchange, on which, the accused told him that, in case, the complainant failed to pay the money, he will terminate the lease deed of his building. Thereafter, the accused M.L. Mahajan told him that coaccused DPS Negi, DGM (Finance), will also share the money. This witness has further deposed that both the accused persons had a telephonic talk on intercom and thereafter, accused M.L. Mahajan took him to the room of accused DPS Negi, where they told him to pay a sum of Rs.1 CBI Vs. DPS Negi etc., pg 33 of 83 Special Judge, CBI01, Central, Delhi 34 Lac for extending the lease deeds. They also told him to pay the amount in two installments of Rs.50,000/ each and accused M.L. Mahajan asked him to pay the first installment on 30.11.99. This witness has further deposed that all these negotiations had taken place prior to 05.11.99, when he lodged his first written complaint. This witness has further deposed that he lodged the complaints to GM, CGM and DGM (Vigilance) and lodged a second complaint to Minister of Communications, Vigilance Department and CGM etc. He has further deposed that the second complaint was made either on 19.11.99 or 21.11.99. He has further stated that these two complaint were made by him prior to the settlement of the above bribe amount. He has further deposed that the payment of first installment of Rs. 50,000/ was to be made to Mr. Mahajan and Mr. Negi, as per negotiation on 30.11.1999 and therefore, he made a written complaint to SP, CBI, in this regard. This witness has proved his complaint as Ex.PW5/A. He has further stated that this complaint was given by him to SP Mr. Diwedi, who asked the TLO Inspector Pradhan to hear his complaint. Thereafter, Inspector Pradhan called two independent CBI Vs. DPS Negi etc., pg 34 of 83 Special Judge, CBI01, Central, Delhi 35 witnesses Mr. S.S. Bhardwaj and Mr. Hans Raj from ITPO Department.

39. In case titled as "State (NCT of Delhi) Vs. Devender Singh, reported as 2013(4) JCC 2635 (DLI)", it was held as under : "4. The prosecution witnesses have given divergent version as to when and by whom the bribe amount was demanded. The complainant allegedly executed the work awarded to him in February, 2000 for which work order was issued to him on 04.01.2001. The complaint was lodged on 29.03.2001. The delay in claiming the payment and lodging the report has remained unexplained complainant's statement could not be corroborated by any independent public witness as PW13 (Ram Swaroop Chopra) joined as panch witness expired before he could be crossexamined by the appellant. Even if examinationinchief recorded on 03.07.2007 is considered, it does not substantiate the complainants version regarding demand of bribe prior to the lodging of the complaint on 29.03.2001. PW13 did not depose if the complainant had named the appellant Devender to have demanded bribe. He was not categorical as to which of the accused Devender Singh and Harpal Singh had demanded illegal gratification in the office, on scrutnising his testimony, it appears that the demand was raised for the first time on the day of incident. Both panch witnesses and the complainant have given inconsistent version about the arrival of Harpal Singh at the spot, in the absence of demand of bribe which the prosecution could not establish beyond reasonable doubt, there was no cogent material CBI Vs. DPS Negi etc., pg 35 of 83 Special Judge, CBI01, Central, Delhi 36 to base conviction under Section 7/13 POC Act. The demand and acceptance of the money for doing a favour in discharge of official duties is sine qua non to the conviction. Mere recovery of tainted money from the accused by itself is not enough in the absence of substantive evidence of the demand and acceptance. It is also settled in law that statutory presumption under Section 20 of the Act can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that the money was accepted other than the motive or reward as 'stipulated under Section 7 of the Act.

(emphasis supplied by me)

40. In the present case, the complaint dated 05.11.99 has been placed on record as Ex.PW5/HA and the subsequent complaint dated 19.11.99 has been placed on record as Ex.PW5/HB. Perusal of these two complaints indicates that the subsequent complaint dated 19.11.99, is a copy of the earlier complaint dated 05.11.1999. The formal complaint lodged by the complainant with the CBI on 30.11.99, is proved on record as Ex.PW5/A. Perusal of these three complaints i.e., Ex.PW5/HA, PW5/HB and Ex.PW5/A indicates that there are a large number of material contradictions in these complaints. There are a large number of material improvements in the complaint CBI Vs. DPS Negi etc., pg 36 of 83 Special Judge, CBI01, Central, Delhi 37 Ex.PW5/A from the earlier complaints Ex.PW5/HA and Ex.PW5/B. When these three complaints are examined in the light of the deposition of PW5 complainant Harbir Singh, in the court, it is observed that a large number of material contradictions are there and the complainant has deliberately made a large number of material improvements in his deposition before the court.

41. In the complaint Ex.PW5/HA, dated 05.11.99, the complainant had alleged that some of the officials of the MTNL have taken arbitrary decisions by abusing their powers and were indulged in deep corruption. He has further alleged that accused M.L. Mahajan, AGM (Administration), is on the verge of cancelling/ terminating the lease deed in respect of his property bearing House No. 104, Adhchini, Aurobindo Marg, Mehrauli, New Delhi. His complaint has not mentioned anything about leasing of his second property to the MTNL and he has also failed to allege anything about coaccused DPS Negi. In this complaint, he has alleged that accused M.L. Mahajan has demanded a hand full amount with threatening that not only the lease CBI Vs. DPS Negi etc., pg 37 of 83 Special Judge, CBI01, Central, Delhi 38 deed dated 27.3.1998 will be terminated, but, another lease deed dated 21.12.1998, made for hiring accommodation at 1, Peeli Kothi, Dera More, Fatehpur Beri, New Delhi, will either be terminated or will be used for office only or will be terminated shortly. The complaint Ex.PW5/HB dated 19.11.1999, is a copy of the earlier complaint Ex.PW5/HA, with the difference that the second complaint Ex.PW. 5/HB was addressed to the Hon'ble Minister of Telecommunication, Govt. of India, New Delhi. In both these complaints, the complainant has failed to disclose the name of coaccused DPS Negi and has also failed to disclose the amount of bribe, which was demanded by accused M.L. Mahajan. Furthermore, the complainant has alleged in his deposition before the court that accused M.L. Mahajan had called him on phone, either on 02.11.99 or 03.11.99, to his office and demanded the money equivalent to rent of three months of both the buildings and he also had a talk with coaccused DPS Negi and he met both the accused persons in the room of coaccused DPS Negi where the demand of Rs.1 Lac was made by both the accused persons and both the accused had asked him to pay Rs. 1 Lac in two CBI Vs. DPS Negi etc., pg 38 of 83 Special Judge, CBI01, Central, Delhi 39 installments of Rs.50,000/ each and the first installment of Rs. 50,000/ was to be paid on 30.11.99. All these facts are missing from the complaints Ex.PW5/HA and Ex.PW5/HB. When the complaint dated 05.11.99 Ex.PW5/HA and complaint dated 19.11.99 Ex.PW5./HB were lodged by the complainant with the various authorities, he should have narrated all these facts in these two complaints.

42. Perusal of the record further shows that the complainant had alleged in complaints Ex.PW5/HA and Ex.PW5/HB that the lease deed in respect of property bearing H.No. 104, Adhchini, Aurobindo Marg, Mehrauli, New Delhi, shall be cancelled and in case he failed to grease his palms the lease deed of another property bearing No. 1, Peeli Kothi, Dera More, Fatehpur Beri, New Delhi, shall also be terminated shortly. But, perusal of the record shows that accused M.L. Mahajan was having no authority to pass any order for termination of the aforesaid lease deeds. However, he was competent only to prepare the notes regarding the modalities for CBI Vs. DPS Negi etc., pg 39 of 83 Special Judge, CBI01, Central, Delhi 40 hiring of the properties by the MTNL on lease. Perusal of the record further shows that during investigations the two case files pertaining to the two properties of the complainant were seized by the investigating officer and the same have been duly placed on record with the charge sheet. Perusal of the case file pertaining to the property bearing No. 104, Adhchini, Aurobindo Marg, Mehrauli, New Delhi, indicates that on 15.09.99, accused M.L Mahajan had prepared the note Ex.PW5/D2, that the premises No. 104, Adhchini, Aurobindo Marg, Mehrauli, New Delhi, was hired for a period of three years w.e.f. 01.4.98 and the sanction for payment of monthly rent @Rs.18180/ was issued after its approval for six months and the same was expiring on 30.09.99 and therefore, sanction for payment of monthly rent can be issued for another six months w.e.f. 01.10.99. The said note was marked to DGM at Bhikaji Cama Place office of the MTNL and DGM (Finance), i.e., coaccused DPS Negi, made a note that the accommodation under reference was no more required as the concerned office can be shifted to some unutilized place and therefore, a notice of three months may be served to the landlord to CBI Vs. DPS Negi etc., pg 40 of 83 Special Judge, CBI01, Central, Delhi 41 avoid legal problem. This note was prepared on 22.09.99. Thereafter, the case file has gone to different channels and had never returned back to accused DPS Negi, who was DGM (Finance), at the relevant time. Perusal of this file further indicates that after discussions with DGM, Bhikaji Cama Place, and after discussion with DGM (Administration), accused M.L. Mahajan prepared a note, on the basis of the previous note dated 22.09.99, prepared by DGM (Finance) i.e., coaccused DPS Negi, that the property bearing No. 104, Adhchini, Aurobindo Marg, Mehrauli, New Delhi, was no longer required and the lease agreement may be terminated by giving prior written notice of three months, to the lessor. This note was prepared for perusal and further orders of the DGM at Bhikaji Cama Place. The note of accused M.L. Mahajan is on record as Ex.PW11/D3. The letter dated 05.11.99 issued to the complainant, regarding the termination of lease in respect of his property bearing No. 104, Adhchini, Aurobindo Marg, Mehrauli, New Delhi, is also on record as Ex.PW5/X. Another copy of the same has been placed on record as Ex.PW5/R. All these noting clearly indicate that the case file had come to accused DPS Negi for CBI Vs. DPS Negi etc., pg 41 of 83 Special Judge, CBI01, Central, Delhi 42 his comments only on 22.09.99 and the approval for termination of the lease deed was to be made, only by the DGM at Bhikaji Cama Place. Even coaccused M.L. Mahajan, who was only AGM (Administration), was not competent to terminate the lease deed regarding the properties of the complainant. However, he was only competent to convey the decisions of the higher authorities, to the complainant.

43. Perusal of the record further indicates that on 05.11.99, DGM (Hauz Khas Exchange of MTNL), has written a letter to AGM (Administration) conveying him about the decision of the meeting of GM (S1) BCP, that the office of the MTNL working at 104, Adhchini, New Delhi17, was to be shifted to Mehrauli and therefore, the process for terminating the lease deed of the building may be started. It is after issuance of this letter, Ex.PW5/D4 by DGM, Hauz Khas, that the letter dated 05.11.99 Ex.PW5/X, was issued by accused M.L. Mahajan.

CBI Vs. DPS Negi etc., pg 42 of 83 Special Judge, CBI01, Central, Delhi 43

44. Perusal of the complaint Ex.PW5/A dated 30.11.99 also indicates that the complainant has alleged in this complaint that the rent for the last more than two months for his property bearing No. 104, Adhchini, Mehrauli, New Delhi, was not paid to him and when he enquired from accused M.L. Mahajan, AGM (Administration), he asked him to pay three months rent as bribe, otherwise, he will terminate the lease deed. These contents are in contradiction to the notings Ex.PW5/D2, Ex.PW5/D3, Ex.PW11/DC and Ex.PW11/DD, as the process for initiating the termination of the lease in respect of property No. 104, Adhchini, Aurobindo Marg, Mehrauli, New Delhi, had already been started by the recommendation of DGM (Finance) on 22.09.99 and GM (S1), BCP, had already taken a decision in this regard, even prior to 05.11.99. It is pertinent to mention here that the Lease Deed of property No. 104, Adhchini, Mehrauli, New Delhi, had already been terminated on 05.11.1999, when the complainant lodged his complaint Ex.PW.5/HA. He had also received the communication in this regard, prior to lodging of complaints Ex.PW. 5/HB and Ex.PW.5/A. But, he has not mentioned these facts, in CBI Vs. DPS Negi etc., pg 43 of 83 Special Judge, CBI01, Central, Delhi 44 complaint Ex.PW.5/HB. It is also to be noted that the monthly rent of th this property was payable by the 7 day of the subsequent month and therefore, after the termination of the Lease Deed on 05.11.99, it cannot be said that the rent for two months was due or payable by the MTNL. Furthermore, this complaint is again not mentioning the name of coaccused DPS Negi, regarding any demand. However, the complainant has alleged that he lodged his complaint regarding the demand by accused M.L. Mahajan, to the various authorities on 05.11.99 and again on 20.11.99. But, there is no complaint dated 20.11.99, on record. In complaint Ex.PW5/A dated 30.11.99, the complainant had again alleged that yesterday, i.e., on 29.11.99, he was directed by accused M.L. Mahajan on phone to contact him in his office immediately and when he visited his office, he again told him to pay an amount of three months' rent as bribe to him to continue with the lease of the other property also. This complaint indicates that he visited the office of the MTNL, to meet the accused persons on 29.11.99, when the demand of Rs. 1 Lac was raised by the accused persons to him. This complaint further states that the accused CBI Vs. DPS Negi etc., pg 44 of 83 Special Judge, CBI01, Central, Delhi 45 persons agreed to accept the amount of Rs. 1 Lac in two installments of Rs.50,000/ each and accused DPS Negi directed to pay the first installment to him today, i.e., on 30.11.99 by 11.00 a.m.

45. Perusal of the record further indicates that during investigations the IO had seized the visitors' register and the same has been placed on record as Ex.PW8/1. Perusal of the same indicates that the visitors' register Ex.PW8/1 is having no entry of the visit of complainant Harbir Singh on 29.11.99. The register pertaining to his alleged previous visits to the office of the accused persons either on 02.11.99 or 03.11.99, has not been seized by the IO, during the investigations, for the reasons best known to him. Furthermore, the visitors' register Ex.PW8/1, indicates that the same is having an entry regarding visit of complainant Harbir Singh, only on 01.12.99 and the entry is mentioned at serial No. 37 & 38. The said entry has been proved on record as Ex.PW5/U. Perusal of the same indicates that the complainant had visited the office of the MTNL on 01.12.99 at 11.25 a.m., to meet coaccused DPS Negi, DGM (Finance) and not CBI Vs. DPS Negi etc., pg 45 of 83 Special Judge, CBI01, Central, Delhi 46 the accused M.L. Mahajan, AGM (Administration).

46. Perusal of the record further shows that a visitor's pass bearing No. 083434 dated 0.12.99, has been placed on record as Ex.PW5/V. It mentions the name of the complainant as the visitor and designation of accused M.L. Mahajan as the person to whom intends to visit, i.e., AGM (A). However, this visitor's pass could not be proved during the trial, in accordance with law, as the person who prepared this visitor's pass has not been examined during the trial. Furthermore, this visitor's pass was not attached by the investigating officer with the charge sheet and the same has been placed on record, by the IO, only during the trial of the case. Even in his cross examination, the complainant has admitted that no visitor's pass was handed over to the IO by him.

47. All the above circumstances, casts a serious doubt on the allegations of the complainant and also raises a serious doubt, even about the alleged visits of the complainant, at the office of the CBI Vs. DPS Negi etc., pg 46 of 83 Special Judge, CBI01, Central, Delhi 47 accused persons, on various dates.

48. Perusal of the record further shows that during the trap proceedings, the alleged conversation between the complainant and the accused M.L. Mahajan and DPS Negi, were allegedly recorded on 30.11.99 to corroborate the complaint of the complainant regarding the demand of bribe money by accused persons. The transcripts of the alleged conversation recordings have been placed on record as Ex.PW5/G.1 and Ex.PW5/G.2 respectively. Perusal of the same indicates that there are a large number of blank spaces against the voice of accused persons and the alleged transcript does not indicate that a sum of Rs. 1 Lac was demanded by the accused persons as bribe money. The blank spaces against the voice of accused persons makes the transcripts unreliable for corroborating the complaints of the complainant and his deposition in the court. Even the transcript of the alleged recorded conversation between accused DPS Negi and the complainant does not indicate that accused DPS Negi had raised any demand of a sum of Rs. 1 Lac as bribe money from the CBI Vs. DPS Negi etc., pg 47 of 83 Special Judge, CBI01, Central, Delhi 48 complainant, for continuing or extending the lease of his properties.

49. Perusal of the record further shows that the complainant, Harbir Singh had alleged that he firstly met accused M.L. Mahajan either on 02.11.99 or 03.11.99, when the demand of bribe money were raised by the accused persons. But, he lodged the complaint Ex.PW5/HA and Ex.PW5/HB, only on 05.11.99 and 19.11.99 respectively. Furthermore, the entire alleged settlement regarding the payment of the bribe money had already been done on 02.11.99 or 03.11.99, but still he waited till 30.11.99, for lodging the formal complaint with the CBI, only on 30.11.99. This delay of about 28 days, in lodging a formal complaint with the CBI, also casts a doubt on the conduct of the complainant. No explanation has been given by the complainant regarding the delay, either in his complaint Ex.PW5/HA or complaint Ex.PW5/HB or complaint Ex.PW5/A or in his deposition before the court as PW5.

Verification of complaint.

CBI Vs. DPS Negi etc., pg 48 of 83 Special Judge, CBI01, Central, Delhi 49

50. It has been stated by the complainant Harbir Singh, PW5 that on 30.11.1999, the payment of the first installment of Rs.50,000/ was to be made to the accused persons, as per negotiations and he lodged a written complaint Ex.PW5/A, to S.P., C.B.I., in this regard. He has further deposed that he gave his complaint to S.P., C.B.I., who heard him and asked Inspector Pardhan to hear him and thereafter Inspector Pardhan heard him in his office room and inquired about his complaint and called two independent witnesses Shri S.S.Bhardwaj and Hans Raj, who also inquired from him, regarding his complaint. He has further deposed that it was decided to confirm his complaint and they told him that they will hear his talks on telephone, for which arrangements were made. On which, he suggested that accused are senior officers of Telephone department and, therefore, they might have a caller ID facility and, therefore, he suggested that the conversation may be recorded from the shop of Mr. Gulati of M/s. Shivam Car Scan Centre, CBlock, Lajpat Nagar, New Delhi. Thereafter a blank sealed cassette was requisitioned by the CBI and introductory voices of both the independent witnesses CBI Vs. DPS Negi etc., pg 49 of 83 Special Judge, CBI01, Central, Delhi 50 were recorded. Thereafter, they reached M/s. Shivam Car Scan Centre, CBlock, Lajpat Nagar, New Delhi, and requested his friend Mr. Gulati, for using his office for recording the telephonic conversation. Thereafter Mr. Gulati left his office. It is further deposed by this witness that the recorder was connected with the telephone line and he called accused DPS Negi and the said conversation was recorded. It is further stated by this witness that accused DPS Negi asked him to meet at 11.00 O'clock, on the next day. This witness has further stated that the conversation was heard by the witnesses, after recording and a copy of the cassette was also prepared. Thereafter the cassette was got signed and sealed in a cloth wrapper. This witness has further stated that another cassette was taken out from a new cover and introductory voice of both the witnesses were recorded and thereafter he dialed the phone number of accused M.L.Mahajan and had conversation with him, in which he requested accused M.L.Mahajan, to reduce the amount, but accused M.L.Mahajan asked him to come tomorrow i.e. on 01.12.1999 and talk to DPS Negi. This conversation was also recorded. A copy of the CBI Vs. DPS Negi etc., pg 50 of 83 Special Judge, CBI01, Central, Delhi 51 cassette was also prepared. A memo regarding the proceedings was also prepared. The telephonic conversation memo has been proved on record as Ex.PW.5/B.

51. The testimony of this witness indicates that the complaint Ex.PW.5/A was got verified by the CBI officials, in the presence of independent witnesses at the office of Mr. Gulati at M/s. Shivam Car Scan Centre, CBlock, Lajpat Nagar, New Delhi. But, it is surprising to note that none of the employees present in the office of Mr. Gulati at M/s. Shivam Car Scan Centre, CBlock, Lajpat Nagar, New Delhi, was asked to join the verification proceedings. Even Mr. Gulati was not requested to join the proceedings. No other independent public witness from the nearby vicinity of M/s. Shivam Car Scan Centre, C Block, Lajpat Nagar, New Delhi, was asked to join and witness the proceedings. Furthermore, it has been deposed by this witness that copies of the recorded conversations were made at the office of M/s. Shivam Car Scan Centre, CBlock, Lajpat Nagar, New Delhi. But, nothing has been explained by any of the witness, in this regard, as to CBI Vs. DPS Negi etc., pg 51 of 83 Special Judge, CBI01, Central, Delhi 52 how the copies of the recorded conversations were prepared. Nothing has been deposed by any of the witness about the fate of the copies of the cassette. Nothing has been deposed by any of the witness, regarding the depositing of the sealed recorded cassettes at the mal khana. No witness has been examined by the CBI, in this regard, to corroborate the fact that the cassettes conversation, which were sealed in cloth wrappers, were deposited by the IO, at the mal khana of the CBI. The entire link evidence in this regard has remained missing.

52. Furthermore, the recordings of the alleged conversation were done from the landline telephone installed in the office of M/s. Shivam Car Scan Centre, CBlock, Lajpat Nagar, New Delhi, to the landline telephone numbers of the accused persons bearing phone No. 6542161 and 6162332. No call details of the telephone numbers installed at M/s. Shivam Car Scan Centre, CBlock, Lajpat Nagar, New Delhi, have been placed on record. Even the call details of the official phone numbers of the accused persons, bearing phone CBI Vs. DPS Negi etc., pg 52 of 83 Special Judge, CBI01, Central, Delhi 53 numbers 6542161 and 6162332 have not been collected during the investigations and, therefore, the same have not been placed on record. The call details of the three aforesaid landline telephone numbers could have very well corroborated the testimony of the complainant Harbir Singh and other CBI officials, regarding the proper verification of the complaint Ex.PW.5/A, from the office of Mr. Gulati at M/s. Shivam Car Scan Centre, CBlock, Lajpat Nagar, New Delhi. Absence of Mr. Gulati or any his employees, during the aforesaid proceedings also raises a doubt about the verification of the complaint Ex.PW.5/A, from his office. PW6 Hans Raj, who accompanied the complainant and the CBI team to Lajpat Nagar, New Delhi, during the verification proceedings, is also not supporting the prosecution case. He has deposed that he accompanied Inspector Pardhan to Lajpat Nagar, New Delhi at M/s. Shivam Car Scan Centre, CBlock, Lajpat Nagar, New Delhi, but he was not introduced to any other person, in the CBI office. This witness has further deposed that Mr. S.S.Bhardwaj and the complainant Harbir Singh with 45 other persons, were inside the shop when the complainant had telephonic CBI Vs. DPS Negi etc., pg 53 of 83 Special Judge, CBI01, Central, Delhi 54 talks with the accused persons. He had categorically stated that the telephone calls were not heard by him as he was standing outside, as the shop was crowded and he had come out of the shop. Furthermore, the second independent witness S.S.Bhardwaj could not be examined, during the trial as he was reported to have already expired.

53. PW6 Hans Raj has not supported the prosecution case and this witness was cross examined by Shri Praneet Sharma, Ld. PP for the CBI and he was confronted with his statement recorded u/s 161 Cr.PC, during his cross examination. But, even in his cross examination, this witness has denied all the suggestions of the Ld. PP for the CBI.

Acceptance and recovery of bribe money.

54. It has been deposed by PW5 Harbir Singh that on 01.12.1999, he reported to the CBI office, where independent witnesses CBI Vs. DPS Negi etc., pg 54 of 83 Special Judge, CBI01, Central, Delhi 55 S.S.Bhardwaj and Hans Raj were also present, with the CBI officials and he produced the amount of Rs.50,000/, consisting of 78 GC notes of Rs.500/ denomination each and 110 GC notes of Rs.100/ denomination each. The numbers of the GC notes were noted down vide memo Ex.PW.5/C. This witness has further deposed that some solution was applied on the GC notes and the independent witness Hans Raj was directed to touch the same and thereafter his fingers were washed in a colorless solution, which turned pink. Thereafter, the significance of the chemical reaction was explained and the solution was thrown away. The complainant has further deposed that the powder treated GC notes were kept in the right side inner pocket of his coat and he was directed to hand over the tainted money, on specific demand and not otherwise. He was also instructed to flash the signal to the CBI team by dialing the CBI number from his mobile after the transaction of the bribe. Thereafter he was given Miccum transmitter and receivercumrecorder had remained with Hans Raj and Const. Rakesh Kumar. He was also instructed to switch on the Miccumtransmitter before going inside the room of the accused CBI Vs. DPS Negi etc., pg 55 of 83 Special Judge, CBI01, Central, Delhi 56 persons. This witness has proved the handing over memo as Ex.PW. 5/D. This witness has further deposed that on reaching the MTNL office at Bhikaji Cama Place, PW6 Hans Raj and Const. Rakesh th Kumar had remained at the ground floor, while he went at 6 floor along with PW S.S.Bhardwaj and one of the officers and the other staff members took suitable positions. Thereafter he contacted the Receptionist to report to accused DPS Negi, for his arrival and after sometime, he alone went inside the room of accused DPS Negi. PW S.S.Bhardwaj had remained outside the room. This witness has further stated that on demand of accused DPS Negi, he took out the money from his pocket and handed over the same to him and the accused kept the money in his right hand and placed the same on his two files, which were lying on his table and thereafter, he placed the money along with the file, inside the drawer of his table. The complainant has further stated that thereafter, he had flashed the signal from his mobile phone to the phone number given to him, by the CBI. Thereafter, the CBI team reached there and challenged the accused DPS Negi, on which the accused DPS Negi became CBI Vs. DPS Negi etc., pg 56 of 83 Special Judge, CBI01, Central, Delhi 57 perplexed and thereafter, PW6 Hans Raj took out the bribe money from the drawer of the table of accused DPS Negi and the numbers of GC notes were tallied by the witness S.S.Bhardwaj and Hans Raj, with the annexure attached with the handing over memo and the same were found to be correct.

55. Perusal of the record further shows that the complainant Harbir Singh or TLO Inspector B.K.Pardhan have not recovered the bribe money from the drawer of the accused and it was only PW6 Hans Raj, who took out the money from the drawer of the table of the accused DPS Negi. PW6 Hans Raj has deposed in his statement before the court on 19.07.2008 that he along with Const. Rakesh Kumar were standing at the ground floor of the building at Bhikaji Cama Place, New Delhi, while S.S.Bhardwaj and another person went upstairs and after about ten minutes, Constable who was having the wireless, asked to go upstairs and thereafter he along with CBI officials entered the room of accused DPS Negi and Inspector B.K.Pardhan asked him to check the accused and when he checked CBI Vs. DPS Negi etc., pg 57 of 83 Special Judge, CBI01, Central, Delhi 58 the pocket of the accused DPS Negi, no money could be found in his pocket. This witness has further deposed that he opened the drawer of the table of the accused DPS Negi but the money was not found even in the drawer. He had further deposed that he took the turn as 34 chairs were lying there and two persons were sitting on the chairs and thereafter he took up the files from the chair and found the bundle of currency notes underneath the said files. This witness has further deposed that the currency notes worth amount of Rs.50,000/, out of which, 110 currency notes were of Rs.500/ denomination each and some notes were of 100 denominations. He has further stated that the numbers of the recovered GC notes were noted down by him on a plain paper in the room of the accused and the same was handed over to the CBI. This witness had never deposed that the serial number of the GC currency notes were tallied by him with the annexure, attached with the handing over memo. This witness has further deposed that some papers were also recovered from the table drawer of accused DPS Negi, which were signed by him and thereafter, the same were seized by the CBI. It is again relevant to CBI Vs. DPS Negi etc., pg 58 of 83 Special Judge, CBI01, Central, Delhi 59 mention here that the second independent witness, namely, S.S.Bhardwaj, who allegedly accompanied the complainant, could not be examined during the trial, as he was reported to have already expired.

56. PW10 Inspector B.K.Pardhan, TLO, has deposed that on receiving the presignal, he along with the raiding team including independent witness S.S.Bhardwaj, rushed inside the office chamber of accused DPS Negi, where the complainant was found sitting in his room. He had further stated that Const. Raj Kumar along with PW Hans Raj had also arrived in the office chamber of accused DPS Negi. On enquiry from the complainant, the complainant informed that accused DPS Negi had demanded and accepted Rs.50,000/ from his right hand and kept the same on the side upper drawer of his office table. But this fact has not been deposed either by the complainant Harbir Singh, PW5 or by PW6 Hans Raj. PW10 Inspector B.K.Pardhan, TLO, has stated that PW6 Hans Raj was asked to recover the money from the right hand upper drawer of the CBI Vs. DPS Negi etc., pg 59 of 83 Special Judge, CBI01, Central, Delhi 60 office table of accused DPS Negi and after opening the drawer, the currency notes were found kept on a file inside the table drawer. But, PW6 Hans Raj has categorically denied this fact. The testimony of PW10 Inspector B.K.Pardhan is further demolished by the deposition of PW11 Sh. K.Palaniappan, who has deposed that on 01.12.1999, he had gone to the office of DPS Negi at about 11.00 a.m., and at that time, one stranger was sitting on the chair and a file was lying on another chair and therefore, he sat on the third chair, to discuss some important CAG, Audit paras, with accused DPS Negi. This witness has deposed that he remained in his room till 12.30 p.m. But, suddenly 56 persons entered the room and search of accused DPS Negi was conducted, but nothing was recovered from his person. Thereafter, one of the officials picked up the file, which was lying on the chair and handed it over to another official, which was also the part of the group, which had entered the room of DPS Negi. This witness has further stated that the said file was containing some GC notes.

CBI Vs. DPS Negi etc., pg 60 of 83 Special Judge, CBI01, Central, Delhi 61

57. During the entire trial, no evidence has come on record that the complainant had handed over the bribe money to accused DPS Negi, in the presence of coaccused M.L.Mahajan. There is no evidence on record that accused M.L.Mahajan had also accompanied the complainant to the room of accused DPS Negi when the alleged transaction of handing over of the bribe money was completed on 01.12.1999. There is nothing on record, which indicate that accused M.L.Mahajan or DPS Negi had connived together for extracting or accepting the bribe amount from the complainant Harbir Singh.

58. During the trap proceedings, it has been alleged that the file cover of the file, on which the alleged tainted GC notes were kept by accused DPS Negi, was also washed with freshly prepared solution of sodium carbonate. It has been categorically stated by PW5 Harbir Singh that the wash of the file cover had also turned pink. PW10 Inspector B.K.Pardhan, TLO, has also deposed that the wash of the file, on which the tainted bribe money was kept, was also taken and on doing so, the colorless solutions had turned pink in color. But, CBI Vs. DPS Negi etc., pg 61 of 83 Special Judge, CBI01, Central, Delhi 62 neither PW6 Hans Raj nor PW11 K. Palaniappan have deposed anything in this regard. Furthermore, the file cover, was never sent to CFSL for chemical examination.

Recording of telephonic conversations, preparation of Audio Cassettes, seizure of bribe money, hand wash solutions and deposition of exhibits at CFSL, for expert opinion.

59. Perusal of the record shows that the alleged telephonic conversations between the complainant PW5 Harbir Singh and the accused persons, were allegedly recorded at two stages. The first stage was prior to the trap, for the purposes of verification of the complaint Ex.PW.5/A and the second stage was during the trap proceedings. The discrepancies in the recording of the alleged conversations between the complainant and the accused persons, at the pretrap stage, have already been discussed by this court, under the heading "demand of bribe money" at para54 of this Judgment above and in the discussion under the heading "Verification of complaint", in paras56, 57 & 58 above.

CBI Vs. DPS Negi etc., pg 62 of 83 Special Judge, CBI01, Central, Delhi 63

60. Perusal of the record further shows that the subsequent conversations of the complainant with the accused persons, on 01.12.1999, during the alleged trap proceedings, were also recorded. It has been deposed by the complainant PW5 Harbir Singh that a miccumtransmitter was given to him and he was instructed to switch on the miccumtransmitter, before going inside the room of the accused persons. He has further stated that the receivercum recorder had remained with PW6 Hans Raj and Const. Rakesh Kumar. It is pertinent to note here that during the trap, Const. Rakesh Kumar has not been produced by the prosecution and has not been examined, to corroborate the testimony of the complainant, in this regard.

61. Perusal of the record further shows that the conversations which were allegedly recorded during the trap proceedings on 01.12.1999, are not clear and the words spoken by the accused DPS Negi, during the said conversation, are not audible and therefore, this CBI Vs. DPS Negi etc., pg 63 of 83 Special Judge, CBI01, Central, Delhi 64 fact has been mentioned in the transcript Ex.PW5/N also.

62. Perusal of the record further shows that PW4 Dr. Rajender Singh, Principal Scientific Officer of CFSL, New Delhi, has also stated in his deposition before the court that he also transcribed only the clearly audible recorded conversation. The said transcriptions have been placed on record as Ex.PW4/D1 to Ex.PW4/D4. Perusal of these transcripts clearly indicate that the words spoken by the accused persons were not clear and therefore, the same have not been mentioned in these transcripts. The transcripts Ex.PW4/D3 and Ex.PW4/D4, are having only the words spoken by the complainant Harbir Singh and no words have been attributed to the accused persons and therefore, the dotted lines/blank spaces, have been left in these transcripts, against the words allegedly spoken by the accused persons.

63. It has been held in case titled as, "Nilesh Dinkar Paradkar Vs. State of Maharashtra, reported as, 2011 STPL (Web) 291 CBI Vs. DPS Negi etc., pg 64 of 83 Special Judge, CBI01, Central, Delhi 65 (SC)", as under: "30. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification. In the case of Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors. (1976) 2 SCC 17, this Court made following observations : "We think that the High Court was quite right in holding that the taperecords of speeches were "documen ts", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions : "(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subjectmatter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."


CBI Vs. DPS Negi etc.,                                 pg  65 of  83                  Special Judge, CBI01, Central, Delhi
                                                            66

                   In   the   case   of  Ram   Singh   &   Ors.     Vs.     Col.   Ram

Singh 1985 (Supp) SCC 611, again this Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows : "(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker, it will require very strict proof to determine whether or not it was really the voice of the speaker.

(2) The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.

(3) Every possibility of tampering, with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."

In Ram Singh's case (supra), this Court also notices with approval the observations made by the Court of Appeal in England in the case of R. Vs. Maqsud Ali (1965) 2 AER 464. In the aforesaid case, Marshall, J. observed thus : "We can see no difference in principle between a tape recoding and a photograph. In saying this we must not be taken as CBI Vs. DPS Negi etc., pg 66 of 83 Special Judge, CBI01, Central, Delhi 67 saying that such recordings are admissible whatever the circumstances, but it does not appear to this Court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a taperecording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged."

To the same effect is the judgment in the case of R. Vs. Robson (1972) 2 AER 699, which has also been approved by this Court in Ram Singh's case (supra). In this judgment, Shaw, J. delivering the judgment of the Central Criminal Court observed as follows : "The determination of the question is rendered more difficult because taperecordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts".

(emphasis supplied by me)

64. In the present case, after the alleged trap proceedings, the copies of the recorded conversations were prepared in the room of the accused itsel. But, none of the witnesses have deposed as to how the copies of the cassettes were prepared at the office of the CBI Vs. DPS Negi etc., pg 67 of 83 Special Judge, CBI01, Central, Delhi 68 accused. Furthermore, PW5 complainant Harbir Singh, had deposed that after preparation of the copies of the cassettes, the cassettes were duly sealed with the seal of the CBI and the seal was handed over to PW6 Hans Raj. But, PW6 has not deposed anything about the use of the seal of the CBI and handing over of the same to him. Furthermore, it has been deposed by PW5 Harbir Singh that the original cassette mark Q1 was cassette of make "Phillips". But, in his crossexamination, this witness has deposed that he was not remembering the make of the cassette and perhaps the cassette was of make "Sony". But, PW4 Dr. Rajender Singh has deposed about different cassettes. According to him, seven parcels were received by him, from CBI on 17.01.2000 and parcel 'A' contained one cassette 'Meltrack Cobalt DR C60', parcel 'B' contained one cassette of 'TDK', parcel 'Q1' contained another cassette of 'Meltrack Cobalt DR C60', parcel DPS1 contained one micro cassette make 'Sony', parcel DPS2 contained one cassette of 'Meltrack Cobalt DR C60', parcel 'Q2' contained one micro cassette of 'Sony' and parcel 'S1' contained one cassette of 'Meltrack Cobalt DR C60'. Cassette mark CBI Vs. DPS Negi etc., pg 68 of 83 Special Judge, CBI01, Central, Delhi 69 'Q1' (Ex.P5) and mark 'Q2' (Ex.P11) are the alleged cassettes, in which the conversations were allegedly recorded. But, cassette 'Q1', Ex.P5, is the cassette, neither of make 'Phillips' nor of make 'Sony'. This witness was having no information whether any copy of the recorded conversation was made or not, at the office of the accused. He was also having no knowledge about the preparation of any site plan of the spot, by the CBI officials. Furthermore, PW10 Inspector B.K. Pradhan, the Trap Laying Officer, has given a different version of the preparation of the copies of the audio cassettes and has categorically stated that PW6 Hans Raj was given the audio cassette, after putting the same in its cover and was sent along with Ct. Rakesh Kumar to make a copy of the audio cassette and after some time he returned back and handed over the original cassette as well as the copy of the audio cassette, which he got prepared in a shop in Sarojini Nagar. Nobody knows the fate of the copies of the audio cassettes.

65. Perusal of the record further shows that after preparation of the CBI Vs. DPS Negi etc., pg 69 of 83 Special Judge, CBI01, Central, Delhi 70 alleged copies of the recorded conversations and sealing of the original cassettes, the same were deposited at the Malkhana of the CBI, but, no evidence has come on record in this regard. None of the witnesses have deposed anything about the custody of the cassettes of the recorded conversations. No witness from the Malkhana of the CBI has been examined to corroborate these facts. No evidence has come on record as to when the case property was deposited in the Malkhana and as to when the same was sent to CFSL, Lodhi Road, for its examination and expert opinion.

66. Perusal of the record further shows that after the trap proceedings, the hand wash of the accused and the wash of the file cover, was also taken at the office of accused DPS Negi, in a transparent solution of sodium carbonate, which had allegedly turned pink, due to its chemical reaction with the phenolphthalein powder. After the trap proceedings, the said pink colored solutions were kept in two separate glass bottles and were marked as RHW and FCW, respectively, and were duly sealed with the seal of the CBI. PW10 CBI Vs. DPS Negi etc., pg 70 of 83 Special Judge, CBI01, Central, Delhi 71 Inspector B.K. Pradhan, the Trap Laying Officer, has categorically deposed these facts in his deposition, before the court. But, PW6 Hans Raj, has again not supported the prosecution case, in this regard. However, he has identified his signatures on the paper slips pasted on the bottles containing solutions mark RHW & FCW. This witness has volunteered that paper slips were given to him and he was asked to sign the same. He has even failed to identify his signatures on the cloth wrappers of the bottles mark RHW & FCW. It is pertinent to mention here that complainant PW5 Harbir Singh has not deposed anything about the seizure of the pink solutions mark RHW & FCW and his signatures were not obtained on any of the sealed bottles or the cloth wrappers. The signatures of PW Sh. S.S. Bhardwaj were obtained on these two bottles containing solutions mark RHW & FCW. But, PW S.S. Bhardwaj could not be examined during the trial as he was reported to have already expired.

67. Perusal of the record shows that PW10 Inspector B.K.Pardhan has categorically deposed that both the bottles containing pink CBI Vs. DPS Negi etc., pg 71 of 83 Special Judge, CBI01, Central, Delhi 72 solutions mark RHW & FCW along with the audio cassettes were wrapped in cloth wrappers and were duly sealed with the seal of the CBI and all these exhibits were duly seized by him. He has also deposed that after use, the CBI seal was handed over to Sh. S.S. Bhardwaj, for retention in safe custody. But, complainant PW5 Harbir Singh has deposed that the seal was handed over to PW6 Hans Raj. But, PW6 Hans Raj has not deposed anything about the seal.

68. It has been held by the Hon'ble High Court of Rajasthan in case titled as, "The State of Rajasthan & Ors. vs. Mani Ram & Ors., reported as 1980 Cri. L.J. NOC 173 (RAJ)", as under: " All those witnesses should be examined in whose custody the sealed packets remained, though none of them would depose that the seals were in any way tampered with, but negatively it has to be established that the seals were not tampered with and an opportunity is to be given to the accused persons for cross examination. This evidence is, no doubt, formal, but still the prosecution is required to lead this evidence. Although looking to the facts and circumstances of the case the bona fides of the investigating agency cannot be doubted with regard to the tampering of the seals or in late sending of the packets for expert's CBI Vs. DPS Negi etc., pg 72 of 83 Special Judge, CBI01, Central, Delhi 73 examination, still the corroborative evidence cannot be pressed into service on behalf of the prosecution without such examination. 1963(2) Cri. L.J. 418 (SC); ILR (1953) 3 Raj 655; ILR (1959) 9 Raj 107 and 1955 Cri. L.J. 930 (SC).

(emphasis supplied by me)

69. Perusal of the record has indicated that no connecting evidence has been produced on record regarding the deposition of the sealed exhibits at the Malkahana of the CBI and no evidence in the form of Malkhana registers have been produced, for perusal of the court. The MHC(M) of CBI Malkhana has not been examined during the trial and even the person, who took the sealed exhibits from the Malkhana to CFSL, Lodhi Road, for depositing the same, had not been produced or examined, during the trial. It is very relevant to note that the exhibits were deposited at CFSL, Lodhi Road, only on 17.01.2000, after a delay of about 1 ½ month. There is no explanation of this inordinate delay. The entire link evidence regarding the safe custody of various exhibits has remained missing. CBI Vs. DPS Negi etc., pg 73 of 83 Special Judge, CBI01, Central, Delhi 74 Sanction for prosecution

70. It has been held in case titled as " C.B.I. Vs. Ashok Kumar Aggarwal, reported as, 2014 Crl. L.J., 930", as under : "7. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.

Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the CBI Vs. DPS Negi etc., pg 74 of 83 Special Judge, CBI01, Central, Delhi 75 sanctioning authority had considered the evidence and other material placed before it. In every individual case, the probability has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge sheet and other materials on record, were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non application of mind."

(emphasis supplied by me)

71. In the present case, accused DPS Negi was working as DGM (Finance), whereas, coaccused Mohan Lal Mahajan was working as AGM (Administration), at the relevant time, in the year 1999. PW2 Sh. D.P. Saini, Asstt. Director General (Vigilance), Department of Telecommunication, Ministry of Communication & Information Technology, Govt. of India, has authenticated the sanction order Ex.PW2/A, for grant of sanction of prosecution against accused M.L. Mahajan, AGM (Administration). But, he is not the competent CBI Vs. DPS Negi etc., pg 75 of 83 Special Judge, CBI01, Central, Delhi 76 authority to remove the accused M.L. Mahajan from service. In his deposition before the court, he has stated that the President of India was the competent authority to remove M.L. Mahajan from the service. He has further stated that the file was processed in the department and all the material including the statement of witnesses and the documents received from the CBI, were placed before the Hon'ble Minister of Communication, who granted the sanction in the name of President of India. But, this witness has not produced the case file pertaining to the grant of sanction of prosecution against accused M.L. Mahajan, which was processed in the department of telecommunication and was sent to the Hon'ble Minister of Communication, for his perusal and approval. Even in the case of accused DPS Negi, the prosecution has examined PW3 Sh. L. Marandi, Under Secretary, Govt. of India, who has again authenticated the sanction order Ex.PW3/A regarding grant of sanction for prosecution of accused DPS Negi. This witness has also stated that the sanction for prosecution of accused DPS Negi was granted by the Hon'ble Minister of Finance in the name of the CBI Vs. DPS Negi etc., pg 76 of 83 Special Judge, CBI01, Central, Delhi 77 President of India. This witness has also admitted that no document was perused by him at the time of authentication of the sanction order Ex.PW3/A. During his crossexamination, PW3 Sh. L.Marandi, has admitted that there was no other documents on the file, except the draft sent by the CBI.

72. Perusal of the testimonies of PW2 Sh. D.P. Saini and PW3 Sh. L. Marandi, clearly indicates that these two persons are not the competent persons / authority to grant the sanction for prosecution of accused DPS Negi and M.L. Mahajan, respectively. Therefore, the question of applying their minds to the documents submitted by the CBI, does not arise. Only the concerned Ministers were the competent authority for grant of sanction for prosecution of these accused persons on behalf of the President of India. Therefore, the judgments cited by the Ld. PP for the CBI, in this regard are not applicable to the facts of the present case. The prosecution has failed to place on record any file pertaining to the grant of sanction for prosecution, against these two accused persons, whereby, it could be CBI Vs. DPS Negi etc., pg 77 of 83 Special Judge, CBI01, Central, Delhi 78 inferred that the entire case file of the CBI along with its annexures and documents, were perused by the concerned Hon'ble Minister, before granting sanction for prosecution of these two accused persons. The link evidence in this regard is again missing. Furthermore, The accused M.L. Mahajan as well as the accused DPS Negi were working in senior posts and PW2 Sh. D P Saini and PW3 Sh.L. Marandi, are the officers much below their ranks, in designation, and were therefore, not competent to grant sanction for prosecution of the accused persons, who were much senior to them. None of these officers have perused the case file, when they authenticated the sanction order Ex.PW2/A and Ex.PW3/A. They are only the officers who have authenticated and communicated the sanction for prosecution of the accused persons, by the concerned Ministers, in the name of the President of India. These two officers have only acted as a post office. These two officers have only processed the case file and have forwarded the same to their senior officers, who in turn, referred the matter to the concerned Ministers for their approval, for grant of sanction for prosecution of the accused CBI Vs. DPS Negi etc., pg 78 of 83 Special Judge, CBI01, Central, Delhi 79 persons. All these circumstances indicate that the sanction orders Ex.PW2/A and Ex.PW3/A, authenticated by PW2 Sh. D.P. Saini and PW3 Sh. L. Marandi respectively, are not the valid sanction orders. Noncompliance of Section 157 Cr.P.C.

73. Perusal of the record further shows that the FIR Ex.PW9/A could not be proved in accordance with law, during the trial, as only carbon copy of the FIR was filed on record. Furthermore, there is no evidence on record to prove that the copy of the FIR was sent to the concerned court, immediately, after its registration, in compliance of the provisions of Sec. 157 Cr.P.C.

74. It has been held by the Hon'ble High Court of Delhi, in case titled as Devender @ Kallu vs. State, reported as 2011 (2) JCC 1453, as under : "26. This court is also of the opinion that the prosecution had an obligation to explain if, and when the report under Section 157 Cr.P.C. had been sent to the magistrate. This obligation is positive one, in order to eliminate any suspicion of false implication of an accused in a criminal case, and the authorities have CBI Vs. DPS Negi etc., pg 79 of 83 Special Judge, CBI01, Central, Delhi 80 underscored the mandatory character to prove this as a fact. The prosecution's lapse is telling on its case. Equally, this court notices that the Death report (Ex. PW19/A); the brief facts and the request for post mortem of the dead body (Ex. PW19/B and Ex. PW19/C) are all dated 1091999. The death occurred in the early hours of 09091999, in this case. Yet the prosecution has not furnished any explanation why the postmortem of the body was sought late.

(emphasis supplied by me)

75. It was again held by the Hon'ble High Court of Delhi in case titled as Rajesh Kumar vs. State, reported as 2011 (4) JCC 2522, as under : "9. Similarly, with respect to the argument concerning the delay in lodging the FIR, the Court does not find the same to be substantial. The FIR, in this case, was lodged almost simultaneously with the receipt of the information through DD No. 13A. The police moved in and took steps to secure the spot and carried on the investigation. The appellant's arrest took place on 14.6.1990, it matches PW14's statement that after the attack he threw down the chhuri (knife) and fled the spot. No doubt, the prosecution did not establish by positive evidence that the report which the police was to, mandatorily furnish to the concerned Magistrate in terms of Section157, had indeed been done. However, the Trial Court noticed that the endorsement in this regard by the Magistrate was timed at 8:00 AM on 12.6.1990. We are of the opinion that too much cannot be made out having regard CBI Vs. DPS Negi etc., pg 80 of 83 Special Judge, CBI01, Central, Delhi 81 to the circumstances in this case. However, this would not, in our opinion, absolve the police of the obligation to furnish such report which have been emphasized time and again by several judgments of the Supreme Court as well as this Court. We have, of late, noticed the tendency, in the cases that have been considered by this Court, of the police, not to send these reports except in a case of Section302 IPC. We emphasized that the mandate of Section157 is clear and unequivocal, a report must necessarily be sent in compliance of this provision to the concerned Magistrate in all classes of offences mentioned in the provision. We direct the Commissioner of Police to take appropriate steps in this regard and issue necessary instructions for immediate compliance.

(emphasis supplied by me)

76. In the present case also, the FIR Ex.PW9/A was allegedly registered on 30.11.99, at about 12.30 p.m. but only a carbon copy of the same has been placed on record during the trial. Neither the Superintendent of Police, who got the FIR registered, nor the concerned duty officer, who actually recorded the FIR, has been examined. Even the original FIR register has not been produced, before the court, during the trial. Therefore, the FIR Ex.PW9/A, could not be proved during the trial, in accordance with law. Furthermore, CBI Vs. DPS Negi etc., pg 81 of 83 Special Judge, CBI01, Central, Delhi 82 there is no evidence on record to show that the copy of the FIR was sent to the concerned court, immediately, after its registration. As Provisions of Sec. 157 Cr.P.C. are mandatory in nature, as held by the Hon'ble Supreme Court in Ratti Ram's case (supra), the non compliance of the same in the present case, is also fatal to the prosecution case.

77. In view of the large number of material contradictions, in the deposition of the prosecution witnesses, from the documentary evidence on record, as discussed above, this court is of the considered opinion that the prosecution has failed to prove its case, against the accused persons, beyond a shadow of doubt and accordingly, benefit of doubt is extended to both the accused persons and both of them are hereby acquitted, for the offences u/s. 120B IPC r/w sec. 7 and 13(1) (d) punishable u/s 13(2) of the P.C. Act and the offences u/s. 7 & 13(1) (d) punishable u/s. 13(2) of the P.C. Act.

78. The bail bond submitted by the accused DPS Negi on CBI Vs. DPS Negi etc., pg 82 of 83 Special Judge, CBI01, Central, Delhi 83 03.12.1999 and by accused M.L. Mahajan on 21.02.2003 are extended for a period of six months from today, as per the provisions of Section 437(A) of the Cr.PC. The accused persons are further directed to appear before the Appellate Court, as and when, any notice is issued to them by the Appellate Court, in any appeal, if preferred by the prosecution/ CBI, against their acquittals.

It is ordered accordingly.

File be consigned to Record Room after due compliance. Announced in open Court on this 30 day of July, 2014 th BRIJESH KUMAR GARG Special Judge:CBI01 Central District. Delhi CBI Vs. DPS Negi etc., pg 83 of 83 Special Judge, CBI01, Central, Delhi

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Delhi District Court

Cbi vs . 1) Dharam Pal Singh Negi on 30 July, 2014