Delhi District Court
Cbi vs . Rajinder Singh on 28 February, 2013
IN THE COURT OF SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
Presiding officer : Sh. Dinesh Kumar Sharma, Special Judge
CC No. 12/12
Unique Case ID No.02406R0194932012
CBI Vs. Rajinder Singh
S/o Late Sh. Dayanand
R/o H.No. 4/69, Line Par,
Shandar Garden, Bahadur Garh,
Haryana.
RC No. : DAIA2009008
u/Ss : Sec. 7 and Sec.13(1)(d) punishable u/S. 13(2) PC Act,
1988.
Date of Institution : 07.08.2012
Arguments Concluded on : 28.02.2013
Date of Decision : 28.02.2013
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. Biswajeet and Sh. VK Gupta, Ld. Counsels for accused Rajinder Singh.
JUDGMENT
1.0 Accused Rajinder Singh has been tried for the offence u/S.7 and S.13(1)(d) punishable u/S.13(2) of the Prevention of Corruption Act, 1988 for having demanded and accepted a bribe of Rs.5,000/ from complainant CBI Vs. Rajender Singh CC No. 12/12 Page 1 of 45 Sh. Nanhe Ram for reducing the house tax liability and clearing the file in respect of complainant's property bearing Flat No.104, Sector 24, Pocket 26, Rohini, Delhi.
FACTS 1.0 Sh. Nanhe Ram (PW2) i.e., complainant herein, upon receiving, letter No. TAX/RZ/2009/253 dated 02.02.2009 from MCD House Tax office, regarding the rateable value of his house, visited MCD office and met Sh. Rajinder Singh, Head Clerk i.e., accused herein. Accused demanded Rs. 5,000/ for reducing the tax liability and giving the clearance. Complainant filed a written complaint dated 05.02.2009, Ex.PW2/A to SP/CBI/ACB/Delhi on the basis of which a case RC No. DAI2009A008, Ex.PW2/B was registered. The case was entrusted to Insp. Manas Kumar Dey (PW13) for verification and for laying a trap. Insp. Manas Kumar Dey joined Sh. Suresh Pal as an independent witness. During verification proceedings, a digital voice recorder (DVR), was arranged. Complainant called the accused from his mobile in the presence of independent witness and the conversation was recorded in the said DVR. During conversation, accused demanded a bribe of Rs.5,000/ from the complainant, and directed the complainant to come to his office with two witnesses in order to complete the formalities. The recorded conversation was transfered into blank CD (Q1) and a verification memo Ex.PW2/C was prepared. A trap CBI Vs. Rajender Singh CC No. 12/12 Page 2 of 45 team was arranged including another independent witness Jawahar Lal and the CBI officials. Complainant produced Rs.4,000/, the numbers of which were duly noted down in handing over memo, Ex.PW2/D and the same were treated with phenolphthalein powder. Thereafter, a demonstration was given to explain the purpose and significance of the phenolphthalein powder and its chemical reaction with sodium carbonate. The tainted GC notes were kept in the left side pocket of shirt of the complainant and he was directed to deliver the GC notes to the accused on his specific demand. Since the complainant was asked to bring two witnesses, both the independent witnesses were directed to accompany the complainant to the accused's office and to give signal, by scratching their heads with both their hands, after completion of transaction of bribe. The complainant was also given the digital voice recorder after recording the introductory voice of both the independent witnesses, to record the conversation between him and the accused. A detailed handing over memo Ex.PW2/D was prepared.
The CBI team along with the complainant and the independent witnesses reached the office of the accused. The other members of the trap team discreetly took the position in a scattered manner.
The complainant introduced Sh. Jawahar Lal and Sh. Suresh Pal as witnesses called by the accused to complete the formalities. Accused demanded the bribe money on which the complainant took out the tainted money of Rs.4,000/ and accused accepted the same and kept it in his right side pant pocket. The accused allegedly demanded more money, however, CBI Vs. Rajender Singh CC No. 12/12 Page 3 of 45 the complainant expressed his inability to pay more. After completion of the transaction, the complainant gave the signal, on which the trap team rushed inside the accused's room. Accused was challenged for demanding and accepting the bribe amount from the complainant. Initially, accused did not speak anything and he was caught from his both wrists by the two trap team members.
The DVR was taken back from the complainant and recorded conversation between the accused and complainant was heard and the same was transferred to blank CD (Q2). The handwashes of the accused were taken in colourless solution of sodium carbonate on which it turned into pink. The handwashes were poured in glass bottles and the same were duly wrapped in cloth and sealed with the seal of CBI.
Sh. JP Vashistha and Sh. Kanhaiya Lal, Asstt. Assessor & Collector were called and asked to remain present during the trap proceedings. Sh. Jawahar Lal recovered the tainted money from the right side pant pocket of accused. The number of the currency notes Ex.P1 to P5 were tallied with the numbers mentioned in the handing over memo and were found same. The pant wash of right side pocket of pant of accused was taken and the same was also sealed in a separate glass bottle. Recovery memo Ex.PW2/E was prepared. A rough site plan Ex.PW3/A was prepared. The specimen voice of the accused was recorded in the blank CD (S1). The handwash of the accused were sent to CFSL. The cassettes of recorded conversation Q1 Ex.P7 and Q2 Ex.P8 and CD (S1) Ex.P14 containing CBI Vs. Rajender Singh CC No. 12/12 Page 4 of 45 specimen voice of accused was also sent to CFSL for comparison. The reports Ex.PW9/A regarding the presence of phenolphthalein and Ex.PW11/A regarding the voice identification, were duly collected and after investigation, the chargesheet u/S.7 and S.13(1)(d) punishable u/S.13(2) of PC Act, 1988, was filed against the accused.
CHARGE 2.0 Being a prima facie case, charge u/S.7 and S.13(1)(d) punishable u/S.13(2) of PC Act, 1988 was framed against the accused on 17.11.2012 to which he pleaded not guilty and claimed trial. PROSECUTION EVIDENCE 3.0 Prosecution examined 15 witnesses in support of its case. The prosecution witnesses can broadly divided into the following categories:
(A) Complainant and Independent witnesses i.e. PW2 Sh. Nanheram, PW4 Sh. Sureshpal and PW12 Sh. Jawahar Lal.
(B) Sanctioning Authority i.e. PW1 Sh. KS Mehra.
(C) Post trap independent witnesses from the office of the accused i.e.,
PW3 Sh. JP Vashisht and PW7 Sh. Kanhaiya Lal.
(D) Trap Laying Officer (TLO), IO and other CBI officials i.e. PW5 Inspt.
Pramod Kumar, PW10 Sh. Rohit Kumar, member of the trap team, CBI Vs. Rajender Singh CC No. 12/12 Page 5 of 45 PW13 Inspt. Manas Kumar Dey (TLO), PW14 Inspt. Nikhil Malhotra (Part IO) and PW15 Inspt. Vivek Prakash (Part IO).
(E) Witnesses regarding call detail records i.e. PW6 Sh. Sunil Kumar AGM, MTNL (mobile No. 919868917889) and PW8 Sh. MN Vijayan, Nodal Officer, Tata Tele Services Ltd. (mobile No. 9211515279) (F) Expert witnesses i.e. PW9 Sh. VB Ramteke, Sr. Scientific Officer and PW11 Dr. Rajinder Singh, Principal Scientific Officer.
(A) Complainant and Independent witnesses: 3.1 PW2 Nanhe Ram in his testimony deposed on oath that he got
property bearing Flat No. 104, Sector 24, pocket 26, Rohini from his father.
In the month of January or February 2009, a notice from MCD was received, upon which he visited the house tax office and met accused Rajinder Singh. Accused Rajender Singh told that he can get the concession in the house tax, and would clear the file only if the complainant pays bribe of Rs. 5,000/. The complainant stated that he was willing to pay the house tax and also produced the relevant documents and a cheque for the payment of house tax, still the accused demanded bribe for clearing the file. The complainant filed the complaint Ex.PW2/A on which RC No. 8(A)/09 Ex.PW2/B was registered. Complainant was asked to produce the documents and the CBI officials after perusing the documents, called him the next day. On next day Complainant talked to the accused from his mobile No. 9871766372 and this CBI Vs. Rajender Singh CC No. 12/12 Page 6 of 45 conversation was duly recorded. Complainant produced Rs. 4,000/ which were duly treated with phenolphthalein powder and a demonstration was given. The handing over memo was proved by the complainant as Ex.PW2/D. Complainant went to the room of the accused. The accused demanded money. Complainant stated that accused demanded the money, in presence of independent witnesses, and after completing the paper work again demanded Rs.5,000/ as bribe. The complainant handed over Rs. 4,000/ to the accused. Accused accepted the same and put it in the right hand pocket of his pant. Complainant gave the prescheduled signal, on which the CBI officers came inside and caught the accused. Initially, the accused refused to have accepted the bribe. The money was recovered from the right side pocket of the pant of the accused. The handwash and pant wash of the accused was taken and the currency notes were tallied. The recovery memo Ex.PW2/E was duly proved. The complainant proved the currency notes as Ex.P1 to P5. The cheque for payment of the house tax given by the complainant was proved as Ex.PW2/F and the documents prepared by the accused during the process for payment of house tax were collectively proved as Ex.PW2/G. The complainant also proved the transcript of the recorded conversation held on 5/2/2009 as Ex.PW2/H and the identification cum transcription memo as Ex.PW2/I. The CD Q1 (Ex.P7) and CD Q2 (Ex.P8) were duly played in the Court and was found identical with the transcription Ex.PW2/H. The complainant identified his voice and the voice of the accused. The complainant also identified the voices of Sh. Jawahar Lal CBI Vs. Rajender Singh CC No. 12/12 Page 7 of 45 PW12 and Sh. Kanhaiya Lal PW7. During cross examination, the complainant admitted that before making the complaint he had visited the MCD office and met the accused for 45 times, and had told the accused to not to present the cheque as the sufficient amount was not available in his bank account. The complainant also stated voluntarily that he has not deposited the house tax of the period prior to 2004. The complainant admitted that except for the payment by cheque Ex.PW2/F, he had not deposited any money against property tax of this property. He also admitted that without deposit of property tax, clearance could not have been issued. It is pertinent to mention here that the complainant also admitted in the cross examination that Sh. Amarjit had also gone with him to CBI office and also accompanied him to the MCD office and remained present throughout the proceedings.
PW4 Sh Sureshpal, visited CBI Office on 5/2/09 at the direction of his senior officers. In the CBI office, he met Inspt. Manas Dey. The pre trap proceedings were conducted in the presence of this witness. The witness proved the verification memo as Ex.PW2/C and handing over memo as Ex.PW2/D. PW4 Sh. Suresh Pal and PW12 Sh. Jawahar Lal another public witness accompanied complainant to the MCD office, and met accused. During the conversation between complainant and the accused, the witness put signatures on certain papers as a witness. After the signatures, Nanheram asked for the clearance certificate from the accused. On which the accused told the complainant that he i.e. the complainant is not doing CBI Vs. Rajender Singh CC No. 12/12 Page 8 of 45 anything, on which the complainant stated that he has already done. However, the accused stated that complainant has not done anything. Thereafter, the complainant handed over 03 currency notes of Rs. 1,000/ each and 02 currency notes of Rs.500/ each to the accused. The accused took the currency notes and put the same in his pant pocket. After receiving this amount, accused told that this is a lesser amount and complainant had to pay more. Then they all came downstairs and informed the CBI officer, on which the CBI team rushed to the accused and held the accused. Sh. Jawahar Lal recovered Rs.4,000/ from the accused. The office search cum seizure memo Ex.PW4/A was proved and the indemnity bond was proved as Ex.PW4/B. In his cross examination, the witness produced the letter dated Ex.PW4/DA pursuant to which he visited the CBI office. PW4 stated that he simply put his signatures on the papers and did not go through the same. The witness stated that he did not read the papers in the MCD office on which he put his signature as a witness. The witness stated that the accused did not specifically ask for any specific amount of money, and accused was only saying to the complainant that "tu kuch kar nahi raha". PW4 stated that the accused did not say to the complainant in his presence that if he would not pay the money he i.e., accused would not do complainant's work.
PW12 Sh. Jawahar Lal another independent witness deposed on oath that he did not read any document and was only asked to put his signatures on certain papers by the CBI officers. The witness stated that he CBI Vs. Rajender Singh CC No. 12/12 Page 9 of 45 alongwith another independent witness went inside the office. PW12 stated that he saw complainant putting the currency notes in the pant pocket of the accused. The accused took out the currency notes and gave it back to the complainant saying that he does not require it. The witness stated that had the accused wanted to take the bribe he would not have called two witnesses.
In the cross examination, the witness stated that he did not know if there was earlier any demand of bribe on part of the accused, and in his presence, accused did not demand anything. However, the witness voluntarily stated that he had seen the complainant putting money in the pocket of the accused, and thus, paying bribe.
(B) Sanctioning Authority:
PW1 Sh. KS Mehra, IAS, Commissioner MCD, had granted sanction dtd. 21/3/2012 Ex.PW1/A, against accused Rajinder Singh. PW1 stated that he was the competent authority to remove accused Rajinder Singh from his post and after going through all the documents, he considered the same and thereafter, reached to the conclusion that it was a fit case for grant of sanction under Prevention of Corruption Act.
PW1 did not remember if any previous sanction accorded in this case, was also presented before him. The witness denied the suggestion that he had not applied his mind while according sanction in this case and mechanically granted the same on the dotted lines of the previous sanction or CBI Vs. Rajender Singh CC No. 12/12 Page 10 of 45 that he had acted under the influence of CBI. PW1 stated that Head Clerk or Zonal Inspector, in the office of Assessor & Collector, House Tax Department, may have the power to receive cash and it would depend upon the instructions issued by Head of Office. The witness also admitted that all officers of the office of Assessor & Collector were used to be given a target for collection of house tax during a particular year, and in case of non achievement of targets, the officers / officials were used to be given memos, and on completion of targets, officers were given the appreciation letters. (C) Posttrap independent witnesses from the office of the accused .
PW3 Sh. Jai Prakash Vashisht, testified on oath that in the year 2009, he was posted in the office of Assessor & Collector, Rohini Zone as Head Clerk and used to sit in the same room with accused. The witness stated that on 5/2/09 at around 5:10pm, certain people came to accused and some transaction took place between those persons and accused. Accused asked the witness to issue some register, however, he did not have the receipt book with him at that time. PW3 stated that he was also asked to call their senior Sh. Kanhaiya Lal by the CBI officer. PW3 stated that he could not see anything regarding the recovery of the money, however, proved the recovery memo Ex.PW2/E and the siteplan as Ex.PW3/A. CBI Vs. Rajender Singh CC No. 12/12 Page 11 of 45 In the cross examination, PW3 who was holding the equivalent post to the accused, stated that the accused did not name complainant but he asked PW3 to issue a receipt after complainant had left. PW3 further stated that he or the accused had the authority to receive cash upto Rs. 5,000/ against house tax. PW3 stated that it normally happens that they ask the assessee to collect the receipt later after payment of the house tax. The witness stated that the CBI did not prepare any document in his presence and was asked to put his signautres on the prepared documents. The documents were not read over and explained to him before his signatures were taken on the same.
PW7 Sh. Kanhaiya Lal deposed on oath that in February 2009, he was working as Asstt. Assessor and Collector in Rohini Zone, and on 05.02.2009, he was called by CBI officers through PW3, being the senior person in the office. PW7 identified his signatures on the arrest cum personal search memo and on the office search cum seizure memo Ex.PW4/A. In the cross examination, PW7 stated that no proceedings took place in his presence. CBI officials called him later and asked him to put signatures on certain papers. The witness stated that the accused had the power of accepting cash to the extent of Rs.5,000/, and Inspectors i.e. officer of the level of the accused were used to be sent to the residence of people for collecting the house tax. PW7 admitted that vide order dated 02.02.2009 Ex.PW2/DA, he had assessed the house tax in relation to the property of the complainant and accused had no power to assess the house CBI Vs. Rajender Singh CC No. 12/12 Page 12 of 45 tax, nor he had any power to reduce the house tax. On the basis of assessment order Ex.PW2/DA, the total house tax in relation to the property of the complainant for the year 200203 and 200304, was Rs.13,120/ without interest. After 01.04.2004, the system regarding assessment of house tax was changed to unit area method on the self assessment. On this basis, the complainant had filled up the self assessment form which is Ex.PW7/DB. As per self assessment form Ex.PW7/DB, the total house tax in relation to the property of the complainant was Rs.20,325/ upto 2009. On 02.02.2009 the complainant had come to PW7 and told that he had issued cheque for the excess amount, whereas he had already paid some amount of house tax. PW7 told the complainant that if he has paid the house tax earlier, the same would be adjusted on showing the receipt. PW7 admitted that the complainant had told that he would deposit the house tax of the period 01.04.2004 onwards in cash. PW7 admitted that as per self assessment form Ex.PW7/DB, the house tax after the period 01.04.2004 was around Rs.5,000/. The witness also stated that the house tax department cannot issue clearance without deposit of house tax. The complainant had approached him with an application Ex.PW7/DA for reduction of house tax and that at the relevant time there was a scheme that on deposit of entire house tax, there can be rebate on the full and final payment. CBI Vs. Rajender Singh CC No. 12/12 Page 13 of 45 (D) Trap Laying Officer (TLO), IO and other CBI officials:
PW5 Inspt. Pramod Kumar, Inspector, CBI, ACB, Delhi joined the trap team headed by Inspt. Manas Kumar Dey including independent witness Sh. Suresh Pal and Sh. Jawahar Lal and the complainant. Besides PW5, Inspt. NVN Krishnan, SI Rohit, SI Anmol Sachan and SI Anil Bisht were also present there. TLO Inspt. Manas Kumar Dey introduced the complainant to all the team members. He also showed the verification report and complaint written in Hindi by the complainant. It was alleged in the complaint that accused demanded bribe of Rs.5,000/ for house tax.
Inspt Pramod Kumar proved the pretrap proceedings and also proved the handing over memo Ex.PW2/D. The witness stated that after the transaction complainant stated that he had given the trap money to accused, on being demanded, which accused accepted from his right hand and kept in right side pant pocket. Independent witness Jawahar Lal recovered the said bribe amount of Rs.4,000/. Inspt. Pramod Kumar proved the siteplan Ex.PW3/A showing the position of trap team members.
In the cross examination, PW5 stated that at around 12 afternoon, while he was in the office, he was told to not to leave the office as some verification proceedings was to be conducted. He further stated that in the CBI office, normally the public witnesses are called in routine as some work or the other keep on taking place. However, he stated that if there is no complaint pending, the witnesses are not called in the CBI office. CBI Vs. Rajender Singh CC No. 12/12 Page 14 of 45
PW10 Sh. Rohit Kumar, testified on oath that during February 2009 while he was posted in CBI, ACB, New Delhi as Sub Inspector, joined the trap proceedings, at the direction of Inspt. Manas Kumar Dey alongwith other CBI officers and independent witnesses. The witness informed that the verification had already been done in the presence of independent witnesses Suresh Pal and that accused was demanding bribe amount of Rs.5,000/ for adjustment of house tax. Insp. NVN Krishnan gave the practical demonstration of phenolphthalein powder, water and sodium carbonate. After treating the said GC notes with phenolphthalein powder, the same were kept in left side shirt pocket of the complainant with the directions to hand it over to the accused on his specific demand. A digital voice recorder (DVR) Sony make was arranged and SI Anmol Sacchan explained about its functioning and after recording the formal voices of both the witnesses the same was kept in right side shirt pocket of the complainant with directions to switch it on before contacting the accused. During verification, the accused directed the complainant to come along with two witnesses for completion of house tax formalities, therefore, both the independent witnesses were directed to go to the accused along with the complainant and oversee the bribe transaction. The complainant was directed to give a missed call from his mobile phone on TLO's mobile phone, once the bribe transaction was complete. Both the witnesses and the complainant were also directed to give a signal by scratching their head once the accused has accepted the tainted bribe amount. After searching everyone and washing hands, the CBI team CBI Vs. Rajender Singh CC No. 12/12 Page 15 of 45 left for the spot.
On reaching the office of MCD, the complainant and the independent witnesses were directed to proceed inside and meet the accused in Room No.216. The remaining CBI team discreetly got scattered in the nearby corridor. After while, a missed call was received from complainant's mobile on to TLO's mobile phone. The complainant also came out and gave a predecided signal by scratching his head. Immediately the CBI team rushed inside the room No.216. The complainant identified accused Rajinder Singh. After giving formal introduction, the accused Rajinder Singh was challenged of having demanded the bribe amount. Immediately Insp. NVN Krishnan and SI Anil Bisht caught hold of the wrist of the accused. Sh. JP Vashisth (PW3), Head Clerk was also available in the said room. He was directed to call any officer available in the office. PW3 returned with Sh. Kanhaiya Lal (PW7), Asstt. Collector cum Assessor. Sh. Kanhaiya Lal (PW7) was informed about CBI team visit and was requested to remain present during the post trap proceedings. Sh. Jawahar Lal (PW12) was directed to recover the bribe amount from the right side pant pocket of the accused and tally it. After tallying it was informed that the denominations matched to those mentioned in handing over memo. The right hand wash of accused was taken which turned mild pink. The same was transferred into a glass bottle sealed cap and marked as RHW. Similarly, the left hand wash of the accused was taken which was transferred to another glass bottle and after sealing marked as LHW. After making alternate arrangements the wash of CBI Vs. Rajender Singh CC No. 12/12 Page 16 of 45 the inner lining of right side pant pocket was taken which turned mild pink, the same was also transferred into another glass bottle and sealed and marked as RSPPW. The DVR was taken back and replayed before everyone which confirmed the acceptance of bribe amount. The said recording was transferred into a blank CD which was sealed and marked as Q2. The sample voice of the accused which he voluntarily tendered was also taken. The same was transferred into another blank CD, sealed and marked as S1. The said recording was also transferred into another blank CD for investigation purpose. A rough site plan was prepared. The CBI seal was handed over to Sh. Suresh Pal for safe custody. PW10 also proved the handing over memo Ex.PW2/D and the recovery memo Ex.PW2/E. In the cross examination, PW10 stated that he was called by TLO at about 1:30 pm. The public witnesses and complainant were already present there. The verification proceedings had already been done. During cross examination the witness stated that all the members of the trap team were near room No.216, however, the ancillary staff remained on the ground floor. The area where accused was sitting was not visible to PW10 and he rushed to the room after hearing the voice. The proceedings concluded at 9:30 pm and immediately thereafter, they left MCD office. The witness did not remember that how many storey building it was, nor could he tell the adjacent building of this MCD office. He also could not tell that how many other rooms were there on the floor where room No.216 was situated.
CBI Vs. Rajender Singh CC No. 12/12 Page 17 of 45
PW13 Inspt. Manas Kumar Dey (TLO), stated that on 5/2/09, he was called by the then SP Sh. NM Singh in his chamber and introduced him to complainant. SP, CBI made an endorsement on Ex.PW2/A and directed for verification of complainant. During verification proceedings, the complainant was asked to contact the accused on mobile. The conversation between the complainant and the accused at that time was duly recorded in the said digital recorder. The said conversation was transferred into a blank CD and the same was sealed in an envelop and marked as Q1. A verification memo dtd. 5/2/09 Ex.PW2/C was prepared and FIR RC case Ex.PW2/B was registered. The FIR was duly endorsed to the TLO by SP, CBI for further action. Thereafter, another witness namely Jawahar Lal was arranged. TLO stated that complainant produced Rs.4,000/ in the denomination of 03 notes of Rs.1,000/ and 02 notes of Rs.500/. Thereafter, handing over memo Ex.PW2/D was prepared. All the team members gave their respective search to ensure that the team was not carrying anything incriminating.
The functioning of the digital voice recorder was duly explained to the complainant and was handed over to him with instruction to give a signal after the completion of the bribe transaction. The CBI team members alongwith the complainant and independent witnesses proceeded to the spot i.e. Office of the Collector, House Tax, MCD, Rohini Sub Zonal Office, Delhi and reached the spot at about 4:30 hrs. The complainant was requested to go and meet the accused in his office alongwith the said two independent CBI Vs. Rajender Singh CC No. 12/12 Page 18 of 45 witnesses. The other CBI team members took their respective positions in the nearby vicinity in a discreet and secret manner.
TLO deposed that he received a signal by way of a call from the mobile of the complainant and the complainant came out and gave the pre arranged signal. The trap team rushed into the office of the accused Rajinder Singh i.e. room No. 216. The complainant duly identified the accused and Inspt. Krishnan and SI Anil Bisht caught hold of both the wrists of accused Rajinder Singh. TLO stated that Sh. JP Vashisht, Head Clerk was present at that time and their officer Sh. Kanhaiya Lal was also informed and requested to be present. The hand wash of accused Rajinder Singh was taken in sodium carbonate solution prepared at that time. The said solution turned pink. TLO identified the bottles containing the handwash as Ex.P11 and Ex.P12. The pant was also proved as Ex.P13.
Independent witness Jawahar Lal was requested to recover the GC notes from the accused. The recovered GC notes were duly compared with the handing over memo Ex.PW2/D and the same duly tallied. The digital voice recorder which was earlier given to the complainant was taken back from him and the conversation recorded therein was transferred into a blank CD marked Q2. TLO deposed that accused Rajinder Singh voluntarily gave his sample voice and same was recorded in CD mark S1. An investigation copy was prepared on the spot. TLO stated that at the time when money was recovered from the accused, a recovery memo Ex.PW2/E CBI Vs. Rajender Singh CC No. 12/12 Page 19 of 45 was prepared recording therein the details the events that took place on that day.
During cross examination, TLO did not know whether the complainant Nanheram had come to the CBI office for the first time or he had approached CBI earlier also regarding this complaint. He did not know if in January 2009, complainant Nanheram had filed a complaint against some DDA official. The complainant told PW13 that he had already deposited the entire due house tax, however, accused was still demanding money for issuing clearance certificate. TLO stated that the complainant did not show him any receipt of deposit of house tax, nor did he show any other property paper. PW13 stated that he did not conduct any verification regarding the calculation of house tax or ownership of the property for which the house tax was demanded. TLO stated that complainant introduced himself as a petty contractor. PW13 denied the suggestion that no telephonic conversation was held between the accused and the complainant in CBI office, and also denied the suggestion that there was no demand of bribe by the accused from the complainant. TLO denied the suggestion that FIR was lodged without any verification knowing fully well that the complaint was false. A specific suggestion was put that the complainant had only made the payment to the accused against demand of house tax for which the receipt was duly issued.
CBI Vs. Rajender Singh CC No. 12/12 Page 20 of 45
PW14 Inspt. Nikhil Malhotra, deposed on oath that the investigation was entrusted to him after the proceedings were stopped by the court on account of invalid sanction. Inspt. Nikhil Malhotra applied for the sanction and same was accorded by Commissioner, MCD. In the cross examination, PW14 denied the suggestion that he had sent the earlier sanction to the Commissioner MCD.
PW15 Inspt. Vivek Prakash, another part IO, deposed that he conducted part investigation in this case. PW15 prepared voice identification and transcription memo and transcription of Q1 and Q2 (Ex.PW2/H) was also prepared.
(E) Witnesses regarding call detail records:
PW6 Sunil Kumar, Asstt. General Manager, Mobile Service, MTNL, proved the call details as Ex.PW6/A. From the certificate it appears that conversation had taken place from mobile No. 919211515279 to 919868917889.
PW8 Sh. MN Vijayan, Nodal Officer, TATA Tele services Ltd. proved the call details record of mobile No. 9211515279 in the name of Sh. Ranvir S/o Sh. Hardyal Singh of 05.02.2009 as Ex.PW8/A. CBI Vs. Rajender Singh CC No. 12/12 Page 21 of 45 (F) Expert Witnesses:
PW9 Sh. VB Ramteke, Sr. Scientific Officer, CFSL deposed on oath that vide letter No.DAI2009A0008/1409 dated 11.02.2009 of SP, CBI, New Delhi, three sealed glass bottles were received in CFSL, New Delhi on 13.02.2009. PW9 deposed that the contents of the bottles were examined and found to be containing phenolphthalein. The chemical examination report was proved as Ex.PW9/A. In the cross examination, PW9 stated that he cannot say as to whose handwash were contained in the bottles produced before him.
PW11 Dr. Rajender Singh, Principal Scientific Officer and Head of Physics and Forensic Voice Identification Division, CFSL, deposed on oath that on 13.02.2009, he received three sealed parcels from SP, CBI, ACB, New Delhi, sealed with the seal of CBI containing the questioned and specimen voice of the accused. He tallied the same in respect of their linguistic, phonetic and other general spectography parameters. The witness proved the detailed result of examination in his report No.CFSL/2009/P0112 dated 29.05.2009 as Ex.PW11/A. 4.0 In his statement u/S 313 Cr.PC, accused Rajender Singh denied all the allegations levelled against him and stated that he has been falsely implicated in this case. In respect of demand of money, the accused stated that he had demanded money for depositing the house tax as complainant did CBI Vs. Rajender Singh CC No. 12/12 Page 22 of 45 not deposit a single penny as house tax and that he took the signatures of the witnesses for departmental formalities. Accused stated that his pant wash was not taken, however, a pant was given to him for changing. He also stated that search of his office was not conducted in his presence. Accused further stated that the complainant infact is a secret informer for CBI and he falsely implicates the accused persons only to generate the cases for CBI. Accused had been advising the complainant in accordance with the rules and had never demanded or accepted any bribe from him.
Accused Rajinder Singh stated that firstly, the complainant visited his office furiously on 29.01.2009 with the demand note. Accused told him that there is a scheme and in that scheme tax will be reduced if complainant deposit all the house tax dues. Thereafter, on 30.01.2009, complainant again visited his office and gave an application and deposited the relevant documents and cheque.
On 02.02.2009, complainant again came to the accused and he i.e., accused advised him to meet Sh. Kanhaiya Lal, Asstt. Collector. Then the complainant met Sh. Kanhaiya Lal, who issued a rectified order of House Tax of complainant and thereafter, the application was marked to the accused. Accused assessed the tax of Rs.20,000/ approx. as per rule of MCD and it was about Rs.15,000/ approx. for the period till 2004 and Rs. 5,000/ approx. for the year 20042009. Accused filled the cheque in favour of MCD on which complainant told that he had already deposited the tax upto the year 2004 and he will deposit the remaining amount of Rs.5,000/ in CBI Vs. Rajender Singh CC No. 12/12 Page 23 of 45 cash and requested the accused to not to present the cheque as he ie. complainant had not sufficient balance in his account. Complainant also told that he would again come on 05.02.2009 and bring all the tax receipts and cash of Rs.5,000/ for paying his house tax.
On 05.02.2009 at about 4:45 pm, complainant visited the office of the accused alongwith two witnesses as directed by him for completing the formalities regarding the house tax. Accused took the signatures of witnesses on some documents and demanded the old house tax receipts along with Rs.5,000/ for the period 20042009. The complainant handed over Rs.4,000/ to accused in cash. Accused returned the same as the tax was of Rs.5,000/, on which the complainant requested that he had only Rs. 4,000/. Accused asked complainant to deposit Rs. 1,000/ and old tax receipts also. On this, the complainant told the accused that he would bring Rs.1,000/ and old tax receipts in 1015 minutes from a person who is standing outside the MCD office. On this assurance, accused requested Sh. JP Vashisth to issue a receipt of Rs.5,000/. After 15 minutes complainant came back alongwith CBI officials. Accused stated that he had informed the officers that the amount of Rs.5,000/ is for the house tax of complainant and that he had never demanded any bribe from the complainant. Accused stated he is innocent and the complainant was not willing to deposit his tax therefore, he falsely implicated the accused in this case. CBI Vs. Rajender Singh CC No. 12/12 Page 24 of 45 5.0 Sh. Biswajeet, Ld. Counsel for accused has opened his argument assailing the creditworthiness of the complainant. Ld. Counsel submitted that the complainant has spoken all the lies and he is not at all reliable. Ld. Counsel has pointed out various contradictions regarding his profession and about the fact of he being sole legal heir. Ld. Counsel has pointed that complainant infact wanted to avoid the tax liability and for this purpose, he filed a false and frivolous complaint and implicated the accused persons. It has also been pointed out that as per documents filed by the prosecution itself, the tax liability before the year 2004 was around Rs. 13,156/ and the tax liability for the subsequent period was around Rs. 5,500/. Ld. Counsel submitted that complainant himself mischievously gave a cheque and then requested the accused, PW3 JP Vashisht and PW7 Kanhaiya Lal to not to present it. He also requested them that he would pay the house tax in cash of the period subsequent to year 2004. It has been submitted that this is a clear case of entrapment.
Ld. Counsel also submitted that the sanction in this case is also invalid. The sanctioning authority did not apply its mind at all and this fact is borne out from the fact that the sanction on record is verbatim to the earlier sanction filed by the prosecution. It may be recalled that earlier the proceedings were stopped by this court on account of invalid sanction and the CBI filed the chargesheet afresh after getting fresh sanction from the competent authority. Ld. Counsel cited Madan Mohan Arora Vs. State, 31 CBI Vs. Rajender Singh CC No. 12/12 Page 25 of 45 (1987) DLT 347, Bhisham Kumar Vs. State, 79 (1999) DLT 14, State Vs. Ravinder Singh, 57 (1995) DLT 506, Tirath Prakash (Deceased) Through His Widow Smt. Mithlesh Sharma Vs. State, 92 (2001) DLT 613 and Om Prakash Vs. State & Ors., 2009 (2) JCC 1210, to bring home the fact that the sanction accorded in the present case is invalid and cannot be relied upon and therefore, accused is entitled to be acquitted. Besides this, Ld. Defence counsel has also cited Banarsi Dass Vs. State of Haryana, (2010) 2 SCC (Cri.) 864 wherein it was held that mere recovery of money from the accused itself is not enough in absence of substantive evidence of demand and acceptance. In T. Subramanian Vs. State of T.N. (2006) 1 SCC 401, it has been held that mere proof of receipt of money by accused, in absence of proof of demand and acceptance of money as illegal gratification, is not sufficient to establish guilt of the accused.
5.1 Per contra, Sh. DK Singh, Ld. PP for CBI submitted that prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld. PP submitted that the complainant has made consistent and corroborative statement and the contradictions which have appeared in the case are minor and does not go to the root of the case. In regard to the sanction, Ld. PP relied upon Indu Bhusan Chatterjee Vs. State of W.B., CBI Vs. Rajender Singh CC No. 12/12 Page 26 of 45 AIR 1958 SC 148 , State of T.N. Vs. Damodaran, AIR 1992 SC 563 and K. Nachimuthu Vs. State, 1994 Cri.L.J. 2760.
6.0 The accused has been tried for the offence u/S.7 and S.13(1)(d) r/w S.13(2) of PC Act for having misconducted and demanded and accepted the bribe from the complainant.
The necessary ingredients of Section 7 POC Act, 1988 are as follows :
(1) the accused at the time of the offence was, or expected to be a public servant;
(2) that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification;
(3) that such gratification was not a legal remuneration due to him;
and, (4) that he accepted the gratification in question as a motive or reward, for:
(a) doing or forbearing to do an official act, or
(b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or
(c) rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant.CBI Vs. Rajender Singh CC No. 12/12 Page 27 of 45
Similarly the necessary ingredients of Section 13(1)(d) are as follows :
1) accused was a public servant;
2) accused used corrupt or illegal means or otherwise abused his position; and,
3) accused obtained for himself or for any other person any valuable thing or pecuniary advantage.
6.1 In State of Maharasthra Vs. Dnyaneshwar Laxman Rao Wankhede VI (2009) SLT 439, the apex court while discussing the ingredients of offence u/s 7 and S.20 of POC Act inter alia held as under :
"Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused visavis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
CBI Vs. Rajender Singh CC No. 12/12 Page 28 of 45
7.0 Section 20 of the PC Act 1988 provides for raising of a presumption in the event it is proved that the accused person has accepted or obtained or to obtain for himself any gratification or valuable thing. The presumption u/s 20 can be invoked if the prosecution has successfully proved by way of clinching evidence that accused has accepted or agreed to accept any gratification or valuable thing. Once this fact is proved, the presumption as provided u/s 20 PC Act, 1988 can be raised that public servant has accepted or agreed to accept the same as a motive for doing or forbearing for doing an official act. However, it is a rebuttable presumption and the burden of proof shifts upon the accused to prove that it was not as a motive or reward that the gratification or valuable thing was obtained. However, the onus on the accused to rebut this presumption is not as onerous as on the prosecution. The presumption u/S.20 POC Act can be raised only if the prosecution has proved the fact of demand and acceptance by way of positive evidence. Thus, we are required to appreciate the evidence as a whole to ascertain that whether the prosecution has been able to prove its case by cogent and creditworthy evidence. The complainant is normally the fulcrum of present like cases. It is relevant to note here that prosecution can prove its case successfully, even if the complainant of the case had turned hostile or refused to support the case of the prosecution. But the prosecution can meet its waterloo if the complainant is proved to be unworthy of credit. CBI Vs. Rajender Singh CC No. 12/12 Page 29 of 45 In order to ascertain the credit worthiness of the complainant, this court has appreciated his testimony in juxtaposition with other evidence on record. 7.1 The complainant in his testimony stated that he was asked to produce the documents and CBI officials duly perused the same whereas TLO PW13 Inspt. Manas Kumar Dey in the cross examination specifically stated that the complainant did not show him any receipt of the deposit of house tax nor did any other property papers were shown. TLO also specifically stated that no verification was conducted regarding the calculation of house tax or ownership of the property for which the house tax was demanded.
It is relevant to note that as per the case of the CBI as indicated from the verification memo Ex.PW2/C, the complainant contacted accused Rajinder Singh from his mobile No. 9211515279 and as per PW8 Sh. MN Vijayan, mobile No. 9211515279 was in the name of some Ranvir s/o Hardyal Singh. The complainant also in his testimony stated his mobile number to be 9871766372. It is also pertinent to mention here that the complainant stated that transcription of telephonic conversation was duly prepared in this presence. However, as per record, the transcription in this case was prepared on 21/4/09. But, if we peruse the CFSL report CBI Vs. Rajender Singh CC No. 12/12 Page 30 of 45 Ex.PW11/A, it would indicate that in the CFSL a forwarding memo dtd. 13/2/09 was received alongwith the cassettes Q1, Q2 and S1 and xerox copy of the transcript of the recorded conversation comprising of 13 pages.
In the cross examination, the complainant stated that they are 06 brothers and one sister, whereas, as has been pointed out by the Ld. Counsel for the accused, in the documents filed before the MCD Ex.PW2/G, by the complainant, he has stated that he is the only legal heir of his father.
Even in the cross examination, the complainant admitted that he had given a document to the MCD indicating that he is the only child of his father. The explanation given by the complainant was that the property fell to his share. In regard to the reliability of the complainant, it is worth to note that the complainant while making statement on oath before the Court stated that he is a property dealer, however, during the cross examination he admitted that he was employee of MCD from 1984 to 2010 and only in 2010 he took the voluntary retirement. It is interesting to note that the complainant in his statement u/S 161 Cr.PC recorded by the CBI on 28/4/09 had stated that he was a property dealer. The genuineness of the complainant has also been assailed on the ground that he has regularly been filing the complaint against the public servants and at his instance three or four CBI cases were registered. This fact was also admitted by the complainant in the cross examination. In the present case, the core question before the Court is that whether the testimony of the complainant is reliable to record the conviction CBI Vs. Rajender Singh CC No. 12/12 Page 31 of 45 against the accused. The defence has challenged the case of the prosecution primarily on the ground that complainant himself is an unreliable witness and if his testimony is taken as a whole, it would be more than clear that he has rather entrapped the accused. The prosecution has urged the court to believe the testimony of the complainant on the ground that he has made a consistent statement regarding the demand and acceptance of bribe and this has duly been corroborated by the testimony of independent and panch witnesses as well as the scientific witnesses. There has been catena of judgments regarding the appreciation of evidence of the complainant in the bribe cases. The defence in the bribe cases has always taken a plea that complainant in such cases are the accomplice. This point came up for consideration before Supreme Court in M.O. Shamsudhin Vs. State of Kerala, (1995) 3 SCC 351.
"22. Now coming to the witnesses in trap cases, as held in Basawan Singh's case (supra) by a Bench of five Judges, if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charge, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices in that sense but are only partisan or interested witnesses who are concerned in the success of the trap, their evidence must be tested in the same away as other interested evidence is tested which may vary from case to case and the corroboration in the case of such interested witnesses can be in a general way and not as one required in material particulars as in the case of an approver. Therefore in seeking corroboration for the evidence of trap witnesses a distinction has to be drawn where participation of an individual in a crime is not voluntary but is the result of pressure. In such a case the element of means rea to commit the crime is not appparent and cannot strictly be classified CBI Vs. Rajender Singh CC No. 12/12 Page 32 of 45 as an accomplice and at any rate he cannot be treated as being on the same footing. Where a bribe has already been demanded from a man and if without giving the bribe he goes to the police or Magistrate and brings them to witness the payment it will be a legitimate trap and in such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within the discretion of the Court depending upon the facts and circumstances of each case. However as a rule of prudence, the Court has to scrutinise the evidence of such interested witnesses carefully.
23. Now coming to the nature of corroborating evidence that is required, it is wellsettled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The Court should weigh the evidence and then see whether corroboration is necessary. Therefore as a rule of law it cannot be laid down that the evidence of every complaintant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case. In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. However, it is cautioned that the evidence of a bribegiver has to be scrutinised very carefully and it is for the Court to consider and appreciate the evidence in a proper manner and decide the question whether a conviction can be based upon or not in those given circumstances."
7.2 It is a settled proposition that there cannot be universal or inflexible rule with regard to the evidence of the complainant in bribery CBI Vs. Rajender Singh CC No. 12/12 Page 33 of 45 cases. The value of testimony of a witness depends upon two factors, one whether he is reliable and second, how he has appeared in the cross examination. If the character or tenor of the complainant is doubtful, the court as a matter of caution, look for independent corroboration.
On the basis of the law laid down regarding appreciation of evidence in bribery cases, the law can be summarized as thus :
1) the corroboration of a witness in the nature of an accomplice would depend upon the level of involvement of an accused in the offence ;
2) the corroboration is required as a rule of prudence and the extent and nature of corroboration would depend upon the facts and circumstances of the case ;
3) the corroboration may not be by way of direct evidence, it may be in the form of circumstantial evidence to connect the accused with the crime ;
4) the court may look for corroboration in the form of independent evidence which may make it reasonably safe to believe that the witness's story is not false ;
5) the corroboration must come from an independent source. The testimony of one accomplice cannot corroborate the testimony of another accomplice ;
CBI Vs. Rajender Singh CC No. 12/12 Page 34 of 45
6) the corroboration may not be in respect of entire chain of facts. If the corroboration is in general terms on material points it would be sufficient ;
7) in a given case, the necessity of corroboration may be dispensed with and the conviction based on uncorroborated testimony would not be illegal ;
8) in bribe cases, if the bribe giver is unwilling person would stand on a different footing from the willing bribe giver. The later would fall in the category of "particeps criminis" and former would fall in the category of "interested" or "partisan witness" ;
9) the evidence of a "particeps criminis" should be treated at par with accomplice and must need independent corroboration ;
10)the evidence of a "partisan" or an "interested witness" may need corroboration only in a general way, and may even be dispensed with, if the evidence is found to be reliable ; and
11)the evidence of TLO and other members of trap team can be accepted, if they are found to be reliable and creditworthy.
The perusal of all the above said judgments and conclusions would indicate that the first and foremost requirement in the bribery case is CBI Vs. Rajender Singh CC No. 12/12 Page 35 of 45 to ascertain that whether the complainant in such case is reliable or not. If the complainant himself is not reliable then the other corroboration would not be of any relevance. I consider that the basic rule regarding corroboration of evidence would be that the that the testimony on which we are looking for corroboration should atleast have some credence, cogent and creditworthiness. It is also pertinent to mention here that there is a difference between "trap" and "entrap". The dictionary meaning of the word "trap" is any device, stratagem trick, or the like for catching the person unaware whereas the dictionary meaning of the word "entrap" is to lure into performing an act or making a statement i.e., compromising or illegal. Thus, in the case of the trap, the initiative is on the person who is out to do something illegal whereas in the case of entrap some may mischievously allure the innocent to do an illegal thing. Therefore, the testimony of the complainant in the bribe cases is required to be appreciated in the manner that whether accused has been trapped or has been entrapped. It is also interesting to note that the complainant admitted in the cross examination that he visited the office of MCD 45 times to meet the accused but he did not tell this fact to the CBI. It is also pertinent to mention here that complainant did not mention in his complaint Ex.PW2/A that he had handed over the cheque Ex.PW2/F to the accused before he went to the CBI office. It is also interesting to note that the present complaint was filed on 5/2/09 whereas the indemnity bond Ex.PW4/B bears the signature of independent witnesses Sureshpal and Jawahar Lal and this document has been purported CBI Vs. Rajender Singh CC No. 12/12 Page 36 of 45 to have been prepared on 3/2/09. It is also worth to note that when PW4 stated that he had received a letter from his department on 4/2/09 in pursuance to the request of the CBI dtd. 3/2/09 to depute him for some secret operations. The fact that signature of Sh. Sureshpal is appearing on a document purported to have been prepared on 3/2/09 indicates that the independent / panch witnesses Sh. Sureshpal and Sh. Jawahar Lal were in loop since 3/2/09 and they were going in hand in hand with the CBI and the complainant. This fact makes a dent in the credibility of these witnesses.
It is relevant to note here that though complainant admitted in the cross examination that Sh. Amarjit remained with him throughout the proceedings but he has not been made a witness for the reasons best known to the CBI. The facts borne out from the records are that there was a demand of house tax against the complainant regarding Flat No.104, Sector 24, pocket 26, Rohini in pursuance of which the complainant made a request Ex.PW7/DA dtd. 30/1/09 for reconsideration of his house tax liability. The material on record indicates that pursuant to this letter, PW7 Kanhaiyalal passed an order dtd. 2/2/09 Ex.PW2/DA whereby the rateable value was fixed as Rs. 37,890/ wef 1/4/02 in place of rateable value of Rs. 68,000/ wef 1/4/02 fixed earlier. The perusal of this document Ex.PW2/DA would indicate that this was rectification order reducing the rateable value from Rs. 68,000/ to Rs. 37,890/ of the property in question. Thus, the benefit to the accused had already been given on 2/2/09 as far as the reduction of the rateable value was concerned. Now in pursuance of this rateable value, the CBI Vs. Rajender Singh CC No. 12/12 Page 37 of 45 complainant was bound to pay house tax and in this regard the important document is Ex.PW7/DB. The perusal of this document indicates that there was tax liability of Rs. 15,000/ around for the period prior to 2004 and there was tax liability of around Rs. 5,000/ for the period between 2004 to 2009. As per the document Ex.PW7/DB, the total liability was assessed at Rs. 20,325/ . The complainant in pursuance to this tax liability issued the cheque Ex.PW2/F, however, the complainant himself admitted in the cross examination that he had told the accused that the cheque may not be presented as the sufficient amount was not available in his bank account. In this regard, the evidence of PW7 Sh. Kanhaiya Lal is very important. In the cross examination, PW7 Kanhaiya Lal had stated that after 1/4/04 the system regarding assessment of house tax was changed to unit area method on the self assessment. This stands corroborated with the self assessment form Ex.PW7/DB. It also came in the cross examination of PW7 that on 2/2/09, the complainant had come to him and told that he had issued cheque Ex.PW2/F dtd. 5/2/09 for the excess amount, whereas he already paid some amount of house tax. PW7 on this stated that if he has paid house tax earlier, the same would be adjusted on showing the receipt. It is relevant to note that PW7 Sh. Kanhaiya Lal in his cross examination stated that complainant had told him that he would deposit the house tax for the period 1/4/04 onwards in cash. The case of the defence is that the house tax Inspectors were entitled to receive the payment of tax in cash also if it is of smaller amount and this fact has been admitted by none else than PW1 Sh. KS Mehra, who had been the CBI Vs. Rajender Singh CC No. 12/12 Page 38 of 45 Commissioner, MCD. PW1 admitted in the cross examination that Head Clerk or Zonal Inspector, in the office of Assessor & Collector, House Tax Department, may have the power to receive cash. It has also come in the evidence of this witness that the Inspectors are given the targets of the collection of house tax. Thus, though the complainant had given the cheque of Rs. 20,325/ but admittedly, he asked the accused not to present it and also represented before PW7 that he may deposit the house tax of the period subsequent to 2004 in cash. It is a matter of record that tax liability of the period subsequent to 2004 was around Rs. 5,000/. The defence taken by the accused is that infact complainant had represented to deposit the house tax subsequent to the period 2004 in cash and the payment that he made was actually on account of that house tax liability. If we go through the entire transcript also, there is no specific conversation which would indicate the demand of bribe. The court can also not forget the basic principle of criminal jurisprudence that prosecution is required to prove its case against the accused beyond reasonable doubt and if any doubt arises, benefit of it must go to the accused. It is also conscious of the settled proposition that prosecution cannot take benefit of the weakness of the prosecution and it has to stand on its own legs. In bribery cases, the court is required to take the strict interpretation of the provisions of law and here that concept of beyond reasonable doubt may have to be understood in a different perspective, in view of the objective of the Act. But at the same time it becomes bounden duty of the court that before holding a public servant corrupt, the court must CBI Vs. Rajender Singh CC No. 12/12 Page 39 of 45 be fully firm in its conscious that the prosecution has proved its case beyond reasonable doubt. In respect of the receipt of the cash, PW3 Sh. Jai Prakash Vashisht also admitted in the cross examination that the accused had authority to receive cash upto Rs. 5,000/ against house tax. Even in the testimony of PW4 Sh. Sureshpal, he has not made any specific statement regarding the demand of bribe. He only stated that when complainant asked for the clearance certificate from the accused, the accused told the complainant that he i.e. complainant is not doing anything and thereafter, complainant handed over the currency notes which the accused accepted and put the same in his pocket and further stated that accused will have to pay more. However, in the cross examination, the witness stated that accused did not specifically ask for any amount of money. The witness also stated that nor did the accused state that if the complainant did not pay the money, the accused would not do his work. Rather the witness stated that in his presence, the entire work was done smoothly. In respect of the acceptance of the bribe money, the testimony of PW12 Sh. Jawahar Lal is also very interesting. He stated on oath that he saw the complainant putting the currency notes in the pant pocket of the accused. The accused took out the currency notes and gave it back to the complainant saying that he does not require it. Rather the witness went to the extent of saying that had the accused wanted to take the bribe he would not have called two witnesses. In the cross examination, the witness stated that the accused did not demand anything in his presence. However, he volunteered that he had seen the CBI Vs. Rajender Singh CC No. 12/12 Page 40 of 45 complainant giving the bribe to the accused. It is a settled proposition that mere acceptance of money is not sufficient to held the accused liable. 8.0 The defence has assailed the sanction for prosecution on the ground that it being verbatim with the earlier sanction, goes to show that PW1 KS Mehra the then Commissioner, has not applied his mind. However, perusal of testimony of PW1 would indicate that he has made a specific statement that he had granted the sanction after due application of mind. I have gone through his testimony. There is nothing in this testimony which could lead to a conclusion that competent authority had not applied his mind while granting the sanction. The statement of PW1 does not prove that competent authority had merely put his signatures on the readymade sanction presented by CBI without applying his mind to the facts of the case. The competent authority is not required to judge the veracity of allegations made against the accused. The competent authority is only required to go through the necessary material upon which he could decide that it is necessary to the end of justice to grant sanction. Even it has been held that if the draft sanction has been put up before the competent authority, but the competent authority granted the sanction only after going through the relevant papers, the sanction cannot be held invalid. Reference can be made to Indu Bhusan Chatterjee, Damodaran and K. Nachimuthu cases (supra). Thus, I hold that sanction was perfectly valid in this case. CBI Vs. Rajender Singh CC No. 12/12 Page 41 of 45 9.0 It is a settled canon of criminal jurisprudence that accused cannot be convicted merely on the basis of inference. Prosecution is required to prove its case beyond reasonable doubt either by direct evidence or by circumstantial evidence. The conviction can be recorded if the link of the chain of the events is established pointing towards the guilt of the accused and the prosecution is required to lead cogent evidence in that regard so as to satisfy the essential of a complete chain duly supported by proper evidence.
In Banarsi Dass's case (supra), the Hon'ble Supreme Court deliberated upon the point that whether mere recovery of money is sufficient to convict the accused. It has been inter alia held as under :
"23. To constitute an offence under Section 161 of the IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1)
(d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused.
24. In the case of M.K. Harshan v. State of Kerala [1996 (11) SCC 720], this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under (SCC pp. 72324, para 8) :
"8.......It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in CBI Vs. Rajender Singh CC No. 12/12 Page 42 of 45 the present case we have no other evidence except that of PW1. Since PW1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable."
25. Reliance on behalf of the appellant was placed upon the judgment of this Court in C.M. Girish Babu where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in para 18 and 20 of the judgment held as under (SCC pp. 784 & 78586) :
"18. In Suraj Mal v. State (Delhi Admn.) [1979 (4) SCC 725] this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. ...
20. A threeJudge Bench in M. Narsinga Rao v. State of A.P.[2001 (1) SCC 691: SCC (Cri) 258] while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p. 700, para 24) "24. ... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra [2000 (8) SCC 571]).The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel:
(Madhukar case, SCC p. 577, para 12) `12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive CBI Vs. Rajender Singh CC No. 12/12 Page 43 of 45 or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.' "
In fact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case, where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthan [1975 (2) SCC 227], where similar view was taken.
26. C.M. Girish Babu case was registered under the Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case."
9.1 There is no doubt that the CBI officials have made a consistent statement regarding their case. There is also no doubt to the proposition that testimony of a witness cannot be discarded merely because he happens to be a police official. However, at the same time, before looking into the testimony of such witness, the basic acid test is that whether the case of the prosecution as a whole, inspires the confidence of the Court. The entire edifice of the case of the prosecution is the testimony of the complainant. If CBI Vs. Rajender Singh CC No. 12/12 Page 44 of 45 the complainant himself if not reliable, the case of the prosecution cannot succeed. I consider that complainant in this case is not reliable and suffers from serious infirmities. The defence seems to be plausible and probable, and is sufficient to create a doubt in the story of the prosecution. 10.0 In view of the above discussions, I consider that prosecution has not been able to prove its case beyond reasonable doubt and accused is entitled for benefit of doubt. Hence, accused Rajinder Singh is acquitted of the offence u/S 7 and Sec. 13(1)(d) punishable u/S 13(2) of the PC Act, 1988 in RC No. 8(A)/09.
Accused is on bail. Bail bond / surety bond is cancelled. Surety is discharged. Original documents, if any, on record may be returned against proper acknowledgement.
11.0 File be consigned to RR.
Announced in Open Court (Dinesh Kumar Sharma )
on 28.02.2013 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
CBI Vs. Rajender Singh CC No. 12/12 Page 45 of 45