Delhi District Court
Judgment In Case State vs . Jagdeep Singh Etc.; Fir No.07/15 Page 1 ... on 30 November, 2015
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IN THE COURT OF MS. HEMANI MALHOTRA, SPECIAL JUDGE (PC
ACT)05, (ACB), (CENTRAL), TIS HAZARI COURTS, DELHI
Corruption Case No. 17/2015
FIR No. 07/2009
PS Anti Corruption Branch
U/ss 7/13 POC Act and 120B IPC
Case ID No. 02401R0117352015
STATE
Versus
1. Jagdeep Singh
S/o Sh.Ram Krishan
R/o E79, II Floor,
East of Kailash,
New Delhi
2. Kanhiya Lal
S/o Late Sh. Govind Ram
H.No.95/4B, Street No.7,
Than Singh Nagar,
Anand Parbat,
New Delhi
3. Pramod Kumar
S/o Late Sh. Rameshwar Dayal
R/o H.No.3215/16, Gali No.81, BBlock,
Apex Road, Sant Nagar,
Burari, Delhi
Date of institution : 24.02.2015
Date of receiving by this Court : 20.10.2015
Date of reservation of judgment : 28.11.2015
Date of pronouncement of judgment : 30.11.2015
Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 1 of 29
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JUDGMENT
1. Accused Jagdeep Singh (Executive Engineer), Kanhiya Lal (Cashier) and Pramod Kumar (UDC Auditor) working with PWD, Battery Lane, Rajpur Road, Delhi have been chargesheeted by PS ACB for commission of offences punishable u/sec. 7 & 13(1)(d) of the Prevention of Corruption Act (hereinafter called the PC Act) and Section 120B IPC.
FACTS OF THE CASE
2. Briefly stated, facts of the prosecution case are that the complainant Gulshan Kumar was working as a contractor for PWD under the name & style of M/s Gee Kay Enterprises. In pursuance to the tender dated 27.07.2006 worth Rs.3,36,000/, the complainant had carried out some repair/construction work at ITI Office, Jahangir Puri, which was got completed by him in March 2007. In the meantime, the area of Jahangir Puri was transferred to the jurisdiction of Executive Engineer, PWD, 1A, Battery Lane, Delhi. In August 2007, he claimed payment for the said work. On a subsequent date, when he went to Battery Lane to make enquiries regarding his payment, Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 2 of 29 3 accused Pramod Kumar/UDC Auditor, PWD met him and demanded illegal gratification from him for clearance and early payment of his bill. In October 2007, when complainant again met accused Pramod Kumar, he demanded an amount of Rs.6,000/ for himself and for accused Jagdeep Singh, Executive Engineer, PWD. Since he was in dire straits, he paid Rs.6,000/ to accused Pramod Kumar who assured him of early payment. Accused Pramod Kumar, however, kept on dilly dallying the matter on some pretext or the other and did not get the payment released to him. When the complainant came to know in the month of March 2008 that the other contractors had already received their payments, he met accused Jagdeep Singh, Executive Engineer, who further demanded Rs.2,000/ which was also paid by the complainant there and then. Since payment was still not released to him, he again in the month of September 2008, met accused Jagdeep Singh in the presence of accused Pramod Kumar. When complainant confronted both of them regarding non payment of his dues despite acceptance of bribe, accused Jagdeep Singh returned Rs.2,000/ to the complainant and also got returned Rs.6,000/ from accused Pramod Kumar. Subsequently, he made a written complaint dated Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 3 of 29 4 19.09.2008 to Superintendent Engineer. Consequently, one month later, part payment of Rs.1,32,000/ was released to the complainant which was received by him under protest. In December 2008, complainant also sought refund of performance guarantee and also release of balance payment of the bill, however, to no avail.
3. It is further the case of the prosecution that on 20.02.2009, complainant Gulshan Kumar received a phone call from accused Pramod Kumar asking him to collect his cheque for the balance payment and to once again pay Rs.6,000/ and Rs.2,000/ which were earlier returned to the complainant. Hence, on 25.02.2009, complainant Gulshan Kumar came to PS Anti Corruption Branch and narrated his grievance. Pursuant to which, Inspector Binod Kumar along with complainant and audiovideo recording device went to PWD office to record the conversation between the accused persons and the complainant. When they reached PWD Office, Battery Lane, Insp. Binod Kumar stood outside, whereas the complainant went inside the office and recorded the entire conversation of accused Kanhiya Lal, Pramod Kumar and Jagdeep Singh with him regarding the payment of balance amount and the Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 4 of 29 5 illegal gratification demanded by them. As per the alleged conversation, accused Kanhiya Lal asked him to hand over the amount demanded by accused Pramod to him (accused Kanhiya Lal). However, in the meantime, accused Pramod Kumar came there and demanded Rs.6,000/ and Rs.2,000/ as per the original demand. The complainant then handed over Rs.3,000/ to accused Pramod Kumar. Accused Jagdeep Singh also asked him to hand over his share of Rs.2,000/ to accused Pramod Kumar. Thereafter, the complainant handed over the said audiovideo recording to Insp. Binod Kumar. Thereafter, on subsequent dates, he again made several attempts to record the conversations of the accused persons but he could not succeed.
4. On the basis of the aforesaid complaint and CDs containing the audiovideo recording dated 25.02.2009 witnessed by Shyam Sunder Sharma, 'the Panch Witness', FIR of this case was registered U/s 7/13 POC Act and Section 120B IPC by PS ACB on 17.03.2009.
5. After registration of the case FIR, further investigation was conducted by Inspector Dilip Kaushik, who after conclusion of Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 5 of 29 6 investigation, filed the chargesheet in the court on 20.04.2015, whereafter cognizance was taken and accused were summoned to face trial.
6. After hearing the accused persons on charge, Shri Narottam Kaushal, Spl.Judge(ACB), the Learned Predecessor of this Court framed charges for offences punishable u/ss 120B IPC, Sec.7 POC Act r/w Sec.120B IPC; Sec. 13(1)(d) and 13(2) POC Act r/w Sec. 120 B IPC against all the accused persons to which they pleaded not guilty and claimed trial. The learned Predecessor of this Court while ordering framing of charge, vide order dated 09.07.2015 held that evidence containing audiovideo recording was hit by Section 65B of Indian Evidence Act and was therefore ignored as inadmissible. PROSECUTION EVIDENCE
7. To prove its case, prosecution has examined as many as 11 witnesses who can be categorised as following:
Material witness - the complainant Gulshan Kumar was examined as PW3. Formal witnesses - SI K.L. Meena who recorded the case FIR (Ex.PW1/A) was examined as PW1; Const.Ashutosh who proved Inventory Memo (Ex. PW2/A) of house search of accused Jagdeep Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 6 of 29 7 Singh was examined as PW2; N.K. Bansal, the then Superintending Engineer who accorded sanction u/s 19 of POC Act against accused Pramod Kumar and Kanhiya Lal was examined as PW4; John Mathew, retired Dy. Secretary to Govt. of India who proved sanction accorded by Ministry of Urban Development u/s 19 of POC Act against accused Jagdeep Singh was examined as PW5; Const. Ravinder Singh who deposited exhibits in FSL Rohini and had also accompanied the IO during house search of accused Pramod Kumar was examined as PW6; Panch witness Raj Kumar, who had accompanied the IO to PWD office to seize documents and files from PWD office was examined as PW8 and HC Krishan Dasan, who accompanied the IO during arrest of accused Pramod Kumar was examined as PW9. Witnesses of investigation: Insp. B.K. Singh, who was the first Investigating officer was examined as PW11, Insp. Dalip Kaushik, who was the second IO was examined as PW7 and ACP Dharambir Singh who was the third IO was examined as PW10. PWs Harvinder Singh, Karan Singh, Bijender Singh, Surender Kumar, Ranbir Singh, Shiv Kumar, Mahavir Prasad, Rajan Sharma, Virender Upadhyay, Const. Dinesh, W/ASI Nirmala, Insp. Megh Raj, Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 7 of 29 8 ACP Santosh and Dr. C.P. Singh were dropped by the learned Addl.PP for the State as they were the witnesses regarding the audio video recording which was held to be inadmissible vide order dated 09.07.2015.
MATERIAL WITNESS
8. In his testimony PW3/complainant Gulshan Kumar deposed that he was a registered contractor with PWD under the name & style of M/s Gee Kay Enterprises. In the year 2006, he was awarded a contract for Rs.3,36,000/ for carrying out repairs in ITI office, Jahangir Puri, Delhi by the office of Executive Engineer/PWD, Old Secretariat, Kashmere Gate. He completed the said work in 2007 and submitted his bill in March 2007. Meanwhile, in August 2007, the area of Jahangir Puri was transferred to the jurisdiction of Executive Engineer/PWD, 1A Battery Lane, Delhi and the said bill was also transferred to Battery Lane office. He visited the said office for payment of bill on several occasions to follow up payment of his bills with accused Pramod who was working as Auditor. He was asked to pay illegal gratification for his payment to be released. Accordingly, on demand by accused Pramod, he paid Rs.6,000/ to him. He also made a payment of Rs.2,000/ to accused Jagdeep Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 8 of 29 9 Singh, Executive Engineer on his demand for release of his payment. In September 2008, he again visited the office of PWD and met accused Jagdeep Singh who told him that payment cannot be released. On this, he demanded his money back and accordingly accused Jagdeep Singh and Pramod returned the amount of Rs. 2,000/ and Rs.6,000/ respectively.
9. The complainant Gulshan Kumar who was examined as PW3, although in his testimony, reiterated most of the contents of his complaint (Ex. PW3/A), but he failed to narrate all the facts. In addition to the contents of Ex. PW3/A, he testified that when he went to PS ACB in the last week of February 2009 to lodge his complaint he met Insp. Dilip Kaushik (PW7) who associated SI Binod with him to record the conversations between the accused persons and him. Accordingly, a button camera (digital audiovideo recording device) was handed over to SI Binod with instructions to handover the same to him (complainant) to record the conversations between him and the accused persons regarding the alleged illegal demand and acceptance of illegal gratification. He further testified that when accused Kanhiya Lal had asked him to Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 9 of 29 10 hand over the amount demanded by accused Pramod to him, he had told him that accused Pramod was not in office and had gone to Alipur. The complainant Gulshan Kumar also proved the seizure memo (Ex. PW3/B) vide which the two CDs containing the recording of the conversation were seized by SI Binod Kumar in presence of alleged Panch Witness Shyam Sunder Sharma.
10.Since, as already stated above, the complainant Gulshan Kumar/PW3 failed to depose the complete facts, he was cross examined by learned Addl.PP for the State wherein he admitted the details missed out by him in his examinationinchief. He further proved the contract executed between him and the Executive Engineer/PWD with respect to repair of ITI office as Ex. PW3/G. He admitted that as per the contract, the work was to be completed by 06.09.2006 but he concluded the same on 06.06.2007. He also admitted that he had undertaken that he will not claim any compensation for any delay in work and that the measurement book was maintained by the concerned JE. He further admitted that he had received some payments vide Hand Receipts (Ex. PW3/J1 to Ex. PW3/J4).
Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 10 of 29 11
11.In his crossexamination by learned counsels for the accused, PW3/Gulshan Kumar testified that he was familiar with the procedure adopted at PWD for raising of bills. As per the procedure, bill is prepared by the JE after the work is concluded. The bill is then verified by AE by checking the work done and is then submitted to Division Office for payment. The role of the Auditor is to check the bill. Bill goes to the Cashier for payment after the same has been cleared by EE. He denied the suggestion that the file goes to the Auditor after the bill has been cleared by JE, AEE and EE. He further testified that he did not know if the role of the Auditor was limited to verifying the bills cleared by Engineering officers as per the rates stipulated in the contract. In his case, bill was prepared by JE in 2008 but he did not remember the date or the month. He denied the suggestion that the bill prepared by the JE and verified by AE are signed by the contractor at various stages. He admitted that as per page No.17 and 18 of measurement book No.3978, Completion Certificate was issued by Mukesh Meena, Executive Engineer on 16.10.2008. He also admitted that as per the procedure, the payment is released only after issuance of Completion Certificate and that Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 11 of 29 12 payment of Rs.1,33,554/ towards final bill was received by him on 18.10.2008 by way of cheque dated 17.10.2008 as per acknowledgment on First and Final Bill (EX. PW3/DA). He reiterated that the payment was released only after he had made a complaint to the Superintending Engineer. He then admitted that no complaint to this effect was on the record and that he had not lodged any complaint when the first demand for illegal gratification was made. He further testified that he was not aware that the Completion Certificate had not been issued in October 2007 i.e. when he paid the first demand of bribe. He admitted that he had not disclosed the name of the person from whom he had borrowed the amount firstly demanded. He further negated the suggestion that no amount was due to him after he had been handed over the cheque dated 17.10.2008. He also admitted that the Hand Receipts (Ex.PW3/J2 to Ex.PW3/J4) regarding repayment of Performance Guarantee bore the date of 09.02.2009. He however, explained the same by stating that although the Hand Receipts bore the date of 09.02.2009, the payments were received only after 20.02.2009. He admitted that he had not given any written complaint to PS ACB on 25.02.2009. He reiterated that when he entered the office of PWD on Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 12 of 29 13 25.02.2009, he was alone and that SI Binod had remained outside the building. After coming out of the building, he had conveyed SI Binod about handing over money to accused Pramod, but neither any arrest was made by him nor any effort was made by him to recover the amount paid by him (PW3) to accused Pramod. He denied the suggestion that no such sting operation had taken place on 25.02.2009.
12.In his further crossexamination, PW3/complainant further testified that he had reached PS ACB at about 10.00 am on 25.02.2009 and had left for PWD office, 1A Battery Lane at about 12 noon. When he and SI Binod had returned to PS ACB at about 2 pm, he had met Insp. Dilip Kaushik (PW7). He admitted that there was no handing over and taking over memo of the recording device prepared on 25.02.2009 and that he had not referred to any recording device such as button camera in his complaint (EX. PW3/A). He also testified that between 25.02.2009 and 17.03.2009, he had visited PS ACB several times for investigation. On 17.03.2009, he had been called by Insp. Dilip Kaushik (PW7) at 10.00 am and he had written his complaint (Ex. PW3/A) on reaching PS ACB at 10.00 am. He Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 13 of 29 14 denied the suggestion that the complaint was written at the behest and under dictation of Insp. Dilip Kaushik (PW7). He denied the suggestion that the entire amount which was due to him had been paid on 09.02.2009 and therefore, he had no occasion to visit PWD office after 09.02.2009. He admitted that the tender amount for the work contracted by him was Rs.3,36,000/ and that he had not completed the work for the entire contractual amount. He also admitted that he was not entitled to any amount over and above the amount paid to him vide cheque dated 17.10.2008.
13.During his further crossexamination, PW3 Gulshan Kumar testified that Performance Guarantee Amount is to be returned on completion of entire work and that he had not made any written request for return of Performance Guarantee Amount. He also stated that Security Amount is supposed to be returned only after six months of entire work and that at the time of execution of work, accused Pramod and Jagdeep Singh were not posted at the place of execution of contracted work. He admitted that accused Jagdeep Singh was not competent to certify if he had completed the work or not and that only Mukesh Meena (Executive Engineer) was Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 14 of 29 15 competent person to issue certificate of completion of work. He also admitted that at the time of release of payment vide Ex.PW3/DA (First and Final bill), no bribe was demanded from him. He had not met JE of Division No.13 after submitting his bill and he had met Sh.Anant Kumar Shukla, AE and not Mukesh Meena, EE to certify his bill. He explained the same by stating that there was no occasion to meet Mukesh Meena as by then, the jurisdiction had been transferred to the Office at Battery Lane. He was not aware if the bill had been certified or not by Mukesh Meena before transfer of jurisdiction. Although he was using a mobile phone at the relevant time, his Call Details Record were not taken by the IO. He also deposed that there is no practice of a formal bill being raised by the contractor. On completion of work, bill is prepared by the JE and processed for release of payment. He further admitted that he had not furnished details of denomination of GC (gratification currency) notes given by him to accused Pramod. The balance amount was neither demanded nor ever paid by him. He had received the cheques without payment of balance (illegal gratification) amount. He explained the same by stating that he was handed over the cheque on the payment illegal gratification of Rs.3000/. He then Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 15 of 29 16 admitted that he had not mentioned this fact in his complaint Ex.PW3/A or in his statement to the IO. He further admitted that the cheque was given to him on the same date when he was called by accused Pramod informing him that his cheque was ready. He denied the suggestion that he had made a false complaint against the accused persons and that no amount was ever paid by him.
14.It has been held in a catena of decisions (Ram Prakash Arora Vs. State of Punjab, AIR 1973 SC 498; T.Subramanian Vs. State of Tamilnadu, AIR 2006 SC 836; State of Kerala & Anr. Vs. C.P. Rao (2011) 6 SCC 450 and Mukut Bihari & Anr. Vs. State of Rajasthan, (2012) 11 SCC 642) that in such like cases, the complainant is interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. The careful analysis of evidence of complainant Gulshan Kumar/PW3 shows that it is marred by contradictions at every nook and corner and does not inspire any confidence. Also, there is neither any recovery of alleged illegal gratification currency from the accused persons nor any corroboration from independent witnesses. The evidence also Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 16 of 29 17 indicates that even though the complainant was aware of the entire procedure as to how the payment for the work done is disbursed and the steps involved in it, yet as per the allegations he proceeded to pay illegal gratification to persons who had no role to play in getting his payment released/ expedited; which is rather unbelievable. PW3 is not a layman. Rather, he is an old hand, who has been in this business since long as per his own showing. The reason why his testimony cannot be relied upon and is not credible is discussed as following:
APPRECIATION OF EVIDENCE
(i) Regarding the alleged illegal demand and payment of gratification prior to 25.02.2009
15.The evidence reveals that prior to alleged incident of 25.02.2009, all the allegations of complainant PW3 regarding demand of illegal gratification are vague and lack material particulars. As per the complainant PW3, accused Pramod Kumar had demanded an amount of Rs.6,000/ and accused Jagdeep Singh had demanded Rs. 2,000/, which amounts were paid by him. However, he failed to provide the relevant dates and time of the alleged demands. He also failed to provide the details of the denomination of GC given by him Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 17 of 29 18 to the accused Pramod Kumar and Jagdeep Singh. It is also significant that it was very categorically admitted by the complainant PW3 that prior to the complaint dated 17.03.2009 (Ex. PW3/A), he never made any complaint against accused Pramod Kumar and Jagdeep Singh regarding their alleged illegal demand of gratification even though he visited the ACB 45 times prior to 25.02.2009. Even no explanation has been put forth by the complainant for his visit to ACB, 45 times before 25.02.2009 to the ACB.
(ii) regarding the alleged illegal demand and payment of gratification on 25.02.2009
16.According to the complainant/PW3, accused Pramod Kumar had called him telephonically on 20.02.2009 informing him that his payments were ready and he could come and collect the same. Accused Pramod Kumar had also asked him to come prepared with the bribe amount which he had returned earlier. Consequently, the complainant/PW3 had gone to PS ACB on 25.02.2009 where he had met Insp. Dilip Kaushik (PW7), who after listening to his grievance had sent SI Binod with a recording device to the office of the accused persons. SI Binod had stood outside, whereas the Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 18 of 29 19 complainant/PW3 had recorded the entire conversation of illegal demand of gratification by the accused persons and payment of Rs. 3,000/ to accused Pramod Kumar. Whereafter, he had come back to PS ACB accompanied with SI Binod. At PS ACB, he had handed over the audiovideo recording device to SI Binod, who had played the same in his presence. In A.Suber Vs. State of Kerala reported as 2009 (6) SCC 587, the Hon'ble Supreme Court has held that :
"illegal gratification has to be proved like any criminal offence and when the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest the conviction on such evidence."
The evidence also which has come on record completely belies the story of the prosecution which is discussed here as under:
(a) According to the complainant/PW3, when he came to PS ACB on 25.02.2009, he had met Insp. Dilip Kaushik (PW7) who had directed the sting operation against the accused persons by handing over the audiovideo recording device. The testimony of PW7/ Insp. Dilip Kaushik shows that as per him, he had met complainant/ PW3 for the first time only on 17.03.2009 and not on 25.02.2009 as claimed by the complainant/PW3.
(b) As per the case of the prosecution and that of the Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 19 of 29 20 complainant/PW3, audiovideo recording device was handed over to the complainant by Insp. Dilip Kaushik (PW7), however, PW7 testified that he did not come across any record which indicated that audiovideo recording device was issued to the complainant on 25.02.2009 or any other date subsequent thereto.
(c) DD No.19 (EX. PW1/D) dated 25.02.2009 which records the departure of SI Binod at 3:15 pm by HC Satdev is not proved. HC Satdev who was the author of DD No.19 was not examined by the prosecution. Further, as per the testimony of the complainant/PW3, he had left PS ACB with SI Binod for 1A Battery Lane at 12 noon on 25.02.2009 and not at 3.15 pm as mentioned in DD No.19 (Ex. PW1/D).
(d) SI Binod who was a very vital witness in the sting operation which was allegedly conducted on 25.02.2009 was not examined by the prosecution and was dropped from the list of witnesses.
(e) No explanation has come forth from the prosecution that in case everything was preplanned then why the particulars of GC were not noted or treated with phenolphthalein powder or Panch Witness sent with PW3 during the alleged sting operation.
(f) In his examinationinchief, it was claimed by PW3/Gulshan Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 20 of 29 21 Kumar that he was awarded contract in the year 2006 and completed the same in 2007. However, in his crossexamination, he admitted that he did not finish the entire work and was not entitled to any payment over and above, what was paid to him by cheque dated 17.10.2008 amounting to Rs.1,33,554/. Further, the evidence of PW3/Gulshan Kumar and the documents Ex. PW3/DA (First and Final Bill), Ex. PW3/J2, Ex. PW3/J3 and Ex. PW3/J4 (Hand Receipts towards Security Deposit, Performance Guarantee) show that PW3 had received all the payments by 09.02.2009. In that scenario, PW3/Gulshan Kumar had no reason to fulfill the alleged illegal demand of gratification by the accused persons. Otherwise also, the accused persons had no role to play in releasing the payment to PW3 before the issuance of Completion Certificate by Sh.Mukesh Meena, the then EE, which in this case was issued on 16.10.2008, hence, there was no motive for demanding or accepting bribe.
(g) As per pages 17 and 18 of Measurement Book No.3798 pertaining to Division13, SubDivision3, the Completion Certificate by Sh. Mukesh Meena was issued only on 16.10.2008 and the cheque of Rs. 1,33,554/ was issued on 17.10.2008, which was collected by the complainant/PW3 on 18.10.2008 against his signatures which Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 21 of 29 22 establishes the fact that there was no delay in preparing the cheque, once the Completion Certificate was issued. The complainant/PW3 in his crossexamination also, admitted that the payment of final bill was released on the very next day of signing of the Completion Certificate and that no gratification was demanded or accepted when he collected the cheque dated 17.03.2008 on 18.03.2008 against his signatures, thus demolishing his own case.
(h) In his examinationinchief, PW3 testified that accused Pramod Kumar had called him on 20.02.2009 and in his crossexamination, he admitted that the cheques were given to him on the same day when he was called by accused Pramod informing him that the cheques were ready. Thus, if that was the case, there was no occasion for PW3/Gulshan Kumar to visit PWD office at Battery Lane on 25.02.2009.
(i) The alleged sting operation took place on 25.02.2009, whereas the FIR against accused persons was registered on 17.03.2009 i.e. after a delay of 20 days. The delay in filing complaint and FIR without any explanation has been held in a number of judgments of the Hon'ble Supreme Court to be fatal. In a case titled as State of Andhra Pradesh Vs M. Madhusudan Rao reported as 2009 (1)JCC 2983, it Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 22 of 29 23 was observed as under:
"Time and again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets benefit of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained........... No explanation worth the name for delay in filing the complaint with the police has come on record. We are of the opinion that this circumstance raises considerable doubt regarding the genuineness of the complaint and the veracity of the evidence of the complainant........ Resultantly, when the substratum of the evidence given by the complainant is found to be unreliable, the prosecution case has to be rejected in its entirety."
No explanation has also been given in this case by the prosecution regarding the delay in registration of FIR. Thus, the same is fatal to the case of the prosecution and raises considerable doubt regarding the genuineness of the complaint.
17.Apart from the aforesaid reasons, it is significant to note that the complainant/PW3 made substantial improvement over his complaint (Ex. PW3/A) by testifying that the audiovideo recording device was a button camera. The bare perusal of the complaint (Ex. PW3/A) shows that he did not describe the device in his complaint. Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 23 of 29 24 Similarly, he improved upon his complaint (Ex. PW3/A) by adding that he declined to hand over the amount to accused Kanhiya Lal on 25.02.2009 as he had no interaction with him and that accused Kanhiya Lal had informed him that accused Pramod was not in the office and had gone to Alipur.
(iii) SANCTION :
18.In CBI Vs. Ashok Arora reported as AIR 2014 SC 827, the legal propositions regarding grant of sanction were summarised here as under:
"(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to be complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 24 of 29 25 relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
Applying these guidelines to the sanction orders in the present case, sanction for prosecuting accused Jagdeep Singh was accorded by PW5/John Mathew, the then Under Secretary to the Govt. of India on 31.01.2012. He testified that the documents were firstly placed before the Minister for Urban Development who after examining facts and circumstances of this case and the documents had applied his mind and had approved the Sanction for prosecuting accused Jagdeep Singh. PW5 had then by the order and in the name of the President had accorded Sanction on 21.01.2011 to prosecute accused Jagdeep Singh/Executive Engineer, PWD Division. Similarly, PW4/N.K. Bansal, Superintending Engineer, CBMCM32, PWD testified that after going through the copy of the FIR, seizure memo, transcripts and complaint by Gulshan Kumar/PW3, he had applied his mind and after examining facts and circumstances of the case, he had accorded Sanction to prosecute accused Pramod Kumar and Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 25 of 29 26 Kanhiya Lal. In his crossexamination, PW4/N.K. Bansal admitted that in his Sanction orders (Ex. PW4/A and Ex. PW4/B) regarding accused Pramod Kumar and Kanhiya Lal respectively, he had referred to Shyam Sunder Sharma/Panch Witness as an eyewitness to sting operation. However, reference to Shyam Sunder Sharma/Panch Witness as witness to sting operation is not only factually incorrect but also establishes the fact that the sanction orders (Ex. PW4/A, Ex. PW4/B and Ex. PW5/A) were accorded without application of mind. As disclosed from the facts of the prosecution case, Panch Witness Shyam Sunder Sharma was called on 17.03.2009 to append his signatures on the complaint (Ex. PW3/A) and to hear the recording of audio video CD only, he was never a witness to the sting operation alleged to have been conducted on 25.02.2009. It is settled law that grant of sanction for prosecution is not a mere formality but it has to be accorded by the Competent Authority after perusing the material collected during investigation and placed before the sanctioning authority, whereafter the sanctioning authority is required to apply its Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 26 of 29 27 mind to the question whether sanction for prosecution of the accused public servant is to be granted or not. In case cited as K.C. Singh Vs. CBI decided on 10.08.2011 in Crl. Appeal No. 976/2010 decided by the Hon'ble High Court of Delhi, perusal of the sanction order revealed that it referred to some other CFSL report and not the CFSL report pertaining to the case in question. It was held that :
"this factor by itself shows nonapplication of mind by the sanctioning authority to the material collected during investigation of the case. Had PW3/Sindhu Shree Khullar perused the CFSL report, this infirmity would not have occurred in the sanction order Ex. PW3/A. This infirmity coupled with the fact that sanction order is verbatim copy of the draft sanction order wherein the similar error is there, is clear indication of the fact that the sanction order Ex. PW3/A is the result of nonapplication of mind by the sanctioning authority. Accordingly, it does not stand the scrutiny of law and is liable to be quashed."
Drawing an analogy from the case cited above, I am of the opinion that grant of sanction in the instant case too was thus without application of mind by the competent authority. Hence, the same is invalid and bad in law.
19.So far as the recording of audiovideo CD alleged to have been made on 25.02.2009 with the audiovideo recording device is concerned, Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 27 of 29 28 the record shows that neither the audiovideo recording device was seized nor the CDs which were prepared were supported by a certificate u/s 65B of the Indian Evidence Act. In view of these anomalies of the investigating agency, the learned Predecessor of this Court while referring the judgments titled as Anvar P.V. Vs. P.K. Basheer decided by the Hon'ble Supreme Court in Crl.Appl. No. 4226/2012 and Ankur Chawla Vs. Central Bureau of Investigation decided by the Hon'ble High Court of Delhi in Crl.M.C. No. 2455/12 & Crl.M.A. Nos. 8308 and 8318/2014 had declined to consider the electronic evidence as admissible. Since the order of the learned Predecessor of this Court was not challenged and same has attained finality and for this reason it will be a futile exercise to discuss the same, more so when the said evidence was not allowed to be placed on record by the learned Predecessor of this Court.
20.In view of the aforesaid discussion, I am of the opinion that the prosecution miserably failed to establish its case and more specifically the incident dated 25.02.2009. Accordingly, the accused Jagdeep Singh, Kanhiya Lal and Pramod Kumar are acquitted for commission of offences punishable under Section 7 and 13(1)(d) Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 28 of 29 29 of the Prevention of Corruption Act R/W 120B and Section 120B IPC. However, all accused are directed to furnish fresh bail bond and surety amount for the sum of Rs.10,000/ each in terms of Section 437A Cr.P.C. which shall sustain till the expiry of period of appeal.
File be consigned to Record Room.
Announced and signed in the open Court on 30th November, 2015 (HEMANI MALHOTRA) Special Judge(PC Act)(Central)05, Tis Hazari Courts, Delhi Judgment in case State Vs. Jagdeep Singh etc.; FIR No.07/15 Page 29 of 29