Delhi District Court
Cbi vs . Deepak Kumar Barua Page No. 1 Of 93 on 17 July, 2014
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IN THE COURT OF MS. POONAM A. BAMBA:
SPECIAL JUDGE (PC ACT) : CBI - 03 :
NEW DELHI DISTRICT : PATIALA HOUSE COURT :
NEW DELHI
In re :
CC No. 67/11
Case ID No. 02403R0152562008
RC No. DAI-2007-A-0012/CBI/ACB/New Delhi
u/Sec. 7 & 13 (2) r/w Sec.13 (1)(d) of PC Act, 1988
STATE (CBI)
VS
Deepak Kumar Barua
27-C, DDA Flats, Taimoor Nagar,
New Friends Colony, New Delhi-110065.
Charge-sheet filed on - 25.02.2008
Charges framed on - 08.04.2009
Arguments concluded on - 15.07.2014
Judgment pronounced on - 17.07.2014
APPEARANCES:-
For Prosecution: Sh. S. C. Sharma, Ld. Sr. PP for the State (CBI).
For Defence: Sh. M.K. Sharma, Advocate for accused.
JUDGEMENT
17.07.2014 1.0 On 07.03.2007, this case came to be registered on the basis of a written complaint of Smt. Suchismita Bhuyan, Advocate, Patiala House Courts ('complainant' in short). The CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 1 of 93 -2- complaint mentioned that the accused Deepak Kumar Barua, Assistant Public Prosecutor ('APP' in short), Patiala House Courts ('PHC' in short), demanded bribe of Rs.10,000/-, i.e., Rs. 5000/- for himself and Rs.5,000/- for his senior for extending favour to the complainant in case FIR No.506/2004, dated 14.07.2004, under Section 363 IPC, PS Vasant Kunj, New Delhi, which was pending for legal scrutiny with him; ASI Brahmo Devi, the Investigating Officer of the said case had recommended closure of the case FIR No. 506/2004 and the name of the complainant was mentioned in Khana No.2, as apparently there was no evidence to substantiate the allegations; the said challan was forwarded by Sh. Suresh Dagar, SHO, PS Vasant Kunj, on 20.11.2006 to ACP; the concerned ACP forwarded the same to the Prosecution Branch of South-West District, PHC, for legal scrutiny on 06.02.2007. 1.1 Prosecution case is that the accused asked the complainant to pay a total bribe of Rs.10,000/- to him in the afternoon of 07.03.2007, in PHC, otherwise, he would recommend filing of charge-sheet u/Sec. 365 IPC against her. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 2 of 93 -3- 1.2 Charge-sheet mentions that as per procedure followed by Delhi Police, the challan is sent to Prosecution Branch for legal scrutiny; in case of any short coming, the same is sent back to the police station for necessary rectification; otherwise, the challan is filed in the court through the concerned police station. The accused was posted and functioning as APP in Prosecution Branch of South-West District, since 14.12.2006 and was conducting cases in the court of Ms. Vrinda Kumari, Ld. Metropolitan Magistrate, PHC, who had jurisdiction in the cases pertaining to PS Vasant Kunj; the accused was the only APP posted in the said court, who was required to check and offer legal comments on the challans of cases of PS Vasant Kunj and to conduct the trial of such cases in the said court.
1.3 Charge-sheet further mentions that the challan of FIR No. 506/2004 was received in the Prosecution Branch and entered at serial no. 14, dated 15.02.2007, in the challan register; it was endorsed by Chief Prosecutor, Sh. Bhagwan Singh, to the accused for checking; the said challan was CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 3 of 93 -4- handed over to the accused by Challan Clerk/ Constable on 15.02.2007. Further, files including the said police challan were recovered from the office of Prosecution Branch at the instance of the accused, that is, the said file was found to be in the custody of the accused for the purpose of checking and offering legal comments.
1.4 Charge-sheet also mentions that on 02.03.2007, the accused contacted on complainant's mobile phone no. 9810732895, which was at that time with Sh. Om Prakash, an Advocate friend of the complainant and shared chamber no. 917, PHC, with her. The accused told Sh. Om Prakash that the complainant would have to pay a bribe of Rs.10,000/- (i.e., Rs. 5000/- for him and Rs.5000/- for his senior), for endorsing the recommendations of the Investigating Officer for closure; otherwise, he would recommend prosecution against the complainant u/Sec. 365 IPC. On which, Sh. Om Prakash, Advocate alongwith his friend Sh.R.D. Joshi, Advocate, visited the accused and explained to him that the complainant was out of country and had nothing to do with the said case. But, CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 4 of 93 -5- the accused insisted upon him for payment of bribe; Sh. Om Prakash, Advocate conveyed this fact to the complainant the next day; on 06.03.2007, the accused himself contacted the complainant on her mobile phone number 9810732895, from mobile phone number 9891368787 and demanded the bribe of Rs.10,000/- (i.e., Rs.5000/- for him and Rs.5000/- for his senior, but, did not reveal the name of his senior); he also told her that in case she did not pay the said bribe amount on 07.03.2007 in the afternoon, he would recommend against her, the filing of charge-sheet u/Sec. 365 IPC.
1.5 As the complainant did not want to pay the bribe, she alongwith her advocate friends Sh. Om Prakash and Sh. R.D. Joshi, visited the CBI office and filed a complaint on 07.03.2007 against the accused; accordingly, the present case was registered and was endorsed to Insp. H.K.Lal for investigation.
1.6 In order to lay a trap on 07.03.2007, the presence of two independent witnesses, namely, Sh.Rakesh Kumar Kataria, Manager and Sh. Surendra Kumar Goel, Clerk, both CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 5 of 93 -6- from Vijaya Bank, Regional Office, Barakhamba Road, New Delhi, was secured; a trap team consisting of the complainant, her two aforesaid advocate friends, CBI officials and independent witnesses, was formed; the purpose of assembly was explained; the written complaint of the complainant was shown and read over to all the team members; the independent witnesses and other trap team members satisfied themselves about the genuineness of the complaint by asking questions from the complainant.
1.6.1 In order to verify the demand of bribe, the complainant was asked to contact the accused; she tried to contact the accused through her mobile phone no. 9810732895 at about 01:15 p.m., but, there was no response; subsequently, the accused called the complainant on her aforesaid mobile number from his mobile no. 9891368787; the said conversation was heard and simultaneously recorded in the Digital Voice Recorder (DVR); the transcription of the same was prepared and it revealed the demand of bribe by the accused of Rs.5000/- for himself and Rs.5000/- for his senior; CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 6 of 93 -7- the accused also asked the complainant to hand over the said bribe amount to him in PHC; the said conversation was transferred to a blank audio cassette Mark Q-1. 1.7 The charge-sheet further mentions that the complainant produced Rs.10,000/- in Government Currency notes (GC notes) of Rs.1,000/- each (eight in number) and Rs. 500/- each (four in number); the numbers and denominations thereof were noted down in the Handing Over Memo; the said GC notes were treated with phenolphthalein powder and demonstration of the reaction of phenolphthalein powder and the solution of Sodium Carbonate with water was given, and its significance was explained. Thereafter, the personal search of the complainant was conducted by ASI Sunita Chamoli of CBI, ACB and she was not allowed to keep anything incriminating on her person except her mobile phone bearing no. 9810732895; thereafter, the tainted bribe amount was put in the inner pocket of red colour ladies' hand bag of the complainant by the independent witness S.K. Goel, after ensuring that nothing incriminating was left in the complainant's bag; the CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 7 of 93 -8- complainant was then given instructions not to hand over the bribe amount to the accused except on his specific demand. The operation of the DVR was explained and the same was handed over to the complainant with direction to switch it on after reaching the spot. The independent witness Rakesh Kumar Kataria was asked to act as a shadow witness and to remain close to the complainant in order to overhear the conversation and see the transaction of bribe. Sh. Kataria was also directed to give the pre-determined signal on completion of the transaction of bribe; all the team members mutually searched each other to ensure that they did not carry anything incriminating. The entire pre-trap proceedings were recorded in the Handing Over Memo.
1.8 After the completion of the above proceedings, the trap team left for PHC, where they reached at about 03:10 p.m. The complainant was asked to contact the accused on his mobile phone about specific place of transaction; accordingly, the complainant contacted the accused, who asked her to wait in her chamber and that he would be reaching there soon; CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 8 of 93 -9- accordingly, the complainant, the shadow witness Rakesh Kumar Kataria, went inside Lawyers' Chamber No. 917, PHC and TLO Sh. H.K.Lal alongwith other independent witness S.K.Goel and other team members, took suitable positions near the complainant's chamber in a discreet manner; both the advocate friends of the complainant, namely, Sh. Om Prakash and Sh.R.D.Joshi, also remained close to the said chamber as per the complainant's request; after a considerable wait, the complainant contacted the accused over his mobile phone; on which, the accused told her that he would be reaching her chamber in another 10 - 15 minutes; the complainant again received a call on her mobile phone and she informed the shadow witness that it was accused and that he told her that he was reaching shortly.
1.9 Charge-sheet further mentions that immediately after the aforesaid call, the accused came to the chamber of the complainant; the complainant after exchanging greetings with him, offered him seat beside her chair; she then had discussion with the accused about her case FIR No. 506/04, file CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 9 of 93
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of which was pending with him; she enquired about the status of the said case and told him that there was nothing against her in the said case; the accused told her that he had already asked her to pay a total bribe of Rs.10,000/- (i.e., Rs.5000/- for him and Rs.5000/- for his senior, without disclosing the name of the senior), for doing favour to her in the said case; on the accused's demand, the complainant after taking out the tainted bribe amount of Rs.10,000/- from the pocket of her red coloured ladies' hand bag, handed over the same to the accused; the accused accepted the said tainted bribe amount with his left hand and counted the same with both his hands and kept the same in the left side pocket of his bluish pants; on which, at about 04:05 p.m., the shadow witness Rakesh Kumar Kataria gave a missed call from his mobile phone to the mobile phone of TLO Insp. H.K.Lal.
1.10 Charge-sheet also mentions that on receiving the signal, Insp.H.K.Lal alongwith other independent witness Sh.S.K.Goel, followed by other trap team members, reached chamber no. 917, PHC; both the advocates Sh.Om Prakash and CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 10 of 93
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Sh.R.D. Joshi were also present there; on identification by the complainant, the accused was challenged for demanding and accepting the bribe of Rs.10,000/-, by the TLO, after disclosing his identity as well as the identity of the other team members; on which, the accused turned pale and pleaded forgiveness for his misdeed; Insp. Shyam Prakash, caught hold of the right wrist and Insp.Sandeep Chaudhary, caught hold of the left wrist of the accused; the DVR was taken back from the complainant, but, the same was found in "switched off" mode; the DVR was played, but, no conversation was found recorded; the complainant then told that she forgot to switch it on. On this, the TLO Insp. H.K. Lal asked the shadow witness Sh. Kataria to narrate the entire sequence of events and the conversation which took place between the complainant and the accused and the transaction of bribe; in presence of the other independent witness and other team members, Sh. Kataria narrated the conversation as well as the bribe transaction; the complainant confirmed the facts as narrated by Sh.Kataria. 1.11 The charge-sheet further mentions that thereafter, CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 11 of 93
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the right hand fingers and left hand fingers of the accused were washed in two separate colourless solutions of Sodium Carbonate and water; on doing so, both the solutions turned pink; the same were then transferred into two separate clean glass bottles, which were then capped and sealed with cloth wrapper and were pasted with slips mentioning "RHW' (Right Hand Wash) and 'LHW' (Left Hand Wash); both the independent witnesses signed the said paper slips pasted on the sealed bottles as well as on the cloth wrapper used for sealing the said bottles. Independent witness Sh. S.K.Goel, as directed, recovered the tainted bribe amount of Rs.10,000/- from the left side pocket of wearing pants of the accused; the said recovered tainted money was counted and tallied by both the independent witnesses with the numbers of GC notes already recorded in the Handing Over Memo; the same tallied in toto. 1.12 The charge-sheet also mentions that due to the space constraint, location of the chamber and due to public gathering , the pants of the accused were not seized at the spot; the accused was arrested at the spot and on being CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 12 of 93
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questioned by the TLO, he told that no part of the bribe amount was to be given to his senior/ Chief and it was only a ploy to obtain more money from the complainant. Thereafter, at the instance of the accused, the concerned files including the police challan in question, were recovered and seized from the Prosecution Branch, PHC, from the place where, the accused had kept the same. Thereafter, considering the entire scenario, the trap team returned to CBI, ACB office, Lodhi Road, New Delhi for further proceedings.
1.13 On reaching the CBI office, the wash of inner lining of left side pocket of the wearing pants of the accused was obtained, after providing him another pants to wear; the colourless solution of Sodium Carbonate and water turned pink; the said pink solution was then transferred to a clean bottle, which was capped and sealed with a cloth wrapper, which was signed by both the independent witnesses; a paper slip mentioning LSPPW (Left Side Pant Pocket Wash) was pasted on the glass bottle and the same was also initialled by both the independent witnesses.
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1.14 The charge-sheet also mentions that the call details of 06th and 07th March 2007 of the aforesaid mobile numbers of the complainant and the accused were obtained from the mobile companies, which established the contact between the accused and the complainant on the said dates and time.
1.15 The charge-sheet also mentions that CFSL has given positive opinion with respect to the exhibits i.e. hand washes and pant pocket wash of the accused for the presence of phenolphthalein.
2.0 As the above facts and circumstances constituted commission of offences under Section 7 & Sec. 13 (2) r/w Sec. 13 (1)(d) of The Prevention of Corruption Act, 1988 (PC Act, for short), by the accused, after obtaining sanction for prosecution under Section 19 PC Act, the accused was charge- sheeted under aforesaid provisions and the charge-sheet was filed in the Court on 25.02.2008.
3.0 The accused was charged under Section 7 & Sec. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 14 of 93
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13 (2) r/w Sec. 13 (1)(d) of PC Act, vide order dated 08.04.2009. Needless to mention that the accused pleaded not guilty and claimed trial.
4.0 In support of its case, the CBI examined 15 witnesses. PW-1 Ms. Suchismita Bhuyan is the complainant; PW-11 Sh. Rakesh Kumar Kataria, Manager, Vijaya Bank, is the shadow witness; PW-10 Sh. Om Prakash is the advocate friend of the complainant; PW-13 Sh. Karan Arya, DSP, SC-I, CBI, New Delhi (earlier he was known by the name H.K.Lal and subsequently, changed his name to Karan Arya), is the officer to whom the task of verification of the complaint and laying of trap, was assigned by the SP; PW-14 Rajesh Chahal, Dy.SP, CBI, ACB, New Delhi is the Investigating Officer. 4.1 PW-9 ASI Brahmo Devi, PS Vasant Kunj, was the Investigating Officer of case FIR No. 506/04, registered on 14.07.2004, u/Sec. 363 IPC, with PS Vasant Kunj, against the complainant; she had put the complainant in Khana no. 2 and recommended for closure; and the said closure report after approval of the SHO, PS Vasant Kunj, as well as by ACP, South- CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 15 of 93
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West District, Delhi, was marked to the Prosecution Branch for legal scrutiny. PW-4 Ct. Praveen Pandey was posted as Challan Clerk/ Constable in Prosecution Branch, South-West District, PHC, who received the aforesaid challan (Closure Report) w.r.t. FIR No. 506/04, PS Vasant Kunj and entered the same in Challan Register for the year 2007; and handed over the said challan file to the accused. PW-12 Sh. Bhagwan Singh was the then Chief Prosecutor for South-West District, New Delhi, in Prosecution Branch, PHC; he testified that the aforesaid challan was marked to APP Deepak Kumar Barua/ the accused, for scrutiny by the then Challan Clerk.
4.2 PW-8 Sh.Y.S.Yadav was the Director of Prosecution at the relevant time; he had issued the order dated 14.12.2006 of transfer/ posting of the accused from North District, Tis Hazari Courts to PHC. PW-3 Sh.R.S. Negi is the Addl. Public Prosecutor at PHC, with whom the accused shared the office space and the almirah lying therein, from where the case file of FIR No. 506/04, PS Vasant Kunj, was allegedly recovered. 4.3 PW-6 and PW-7 are the Nodal Officers of mobile CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 16 of 93
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companies. PW-6 R.K.Singh is the Nodal Officer, Bharti Airtel, who produced the ownership record and Call Data Record (CDR) of mobile no. 9810732895 of the complainant. PW7 Sh. Pawan Singh is the Nodal Officer, IDEA, who produced the ownership record and Call Data Record of mobile no. 9891368787 of the accused.
4.4 PW-5 Dr. Rajinder Singh, Principal Scientific Officer, CFSL, is the Voice Expert, who compared the questioned and specimen voice of accused and gave his report. PW-15 Sh.R.S. Chauhan is Sr. Scientific Officer, who examined the washes of accused's hands and pants.
4.5 PW-2 Sh. Rakesh Mehta, the then Chief Secretary, Government of NCT of Delhi, is the Sanctioning Authority. 5.0 Statement of the accused u/Sec. 313 Cr.PC was recorded on 04.01.2013 and 04.07.2014. The accused denied incriminating evidence put to him; accused stated that he is innocent and has been falsely implicated by the complainant in collusion with CBI officials, as she wanted to get her name CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 17 of 93
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cleared from the pending investigation report in respect of FIR No.506/04, PS Vasant Kunj, New Delhi and she wanted the said file to be buried for long, so that she did not face any legal action. In fact, on that day (that is, 07.03.2007), he was sitting in the chamber of his advocate friend, and was taken from there by CBI officials; he was brought to CBI office and the entire case was fabricated against him. The accused opted to lead defence evidence.
6.0 Accused produced two witnesses in his defence, namely, DW-1, Sh. D.K. Panchal, Advocate, Chamber no. 366, Saket Courts Complex, New Delhi and DW-2, Sh. Sunil Sehgal, Advocate.
7.0 I have heard Sh. S. C. Sharma, Ld. Sr. PP for the State/ CBI, accused (in person) as well through his advocate Sh. M.K. Sharma at length and have perused the record carefully.
8.0 At the outset, let me briefly mention the genesis of FIR No. 506/04, u/Sec. 363/34 IPC, PS Vasant Kunj ("FIR No. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 18 of 93
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506/04" in short). It has come on record vide testimony of PW-1, the complainant/ her complaint Ex.PW1/A that in case FIR No. 810/04, under Ss 363/376/506 IPC, PS R.K. Puram, titled as State Vs. Sanjay Jena, she was defending the accused Sanjay Jena; the accused after trial, was acquitted in July/ August 2004; thereafter, the prosecutrix lodged a false complaint of kidnapping against the complainant; on the basis of the prosecutrix's complaint, complaint case vide FIR No. 506/04, u/Sec. 363 IPC was registered in PS Vasant Kunj, against her.
8.1 It has also come on record vide testimony of PW-9 ASI Brahmo Devi, PS Vasant Kunj, that she was the Investigating Officer of the aforesaid case FIR No. 506/04, registered on 14.07.2004 u/Sec. 363/34 IPC, with PS Vasant Kunj, against the complainant; and as she did not find any evidence to substantiate the charges against the complainant, she (PW-9) put the complainant in Khana no. 2 and recommended for a closure vide her note Ex.PW9/A; her note was approved by the then SHO, PS Vasant Kunj, vide Ex.PW9/B, CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 19 of 93
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as well as by ACP, South-West, Delhi; accordingly, the closure report was marked to the Prosecution Branch for legal scrutiny. PW-9 has testified that she had handed over the judicial file as well as the police challan to Ct. Praveen Pandey of Prosecution Branch (PW-4) on 14th or 15th February 2007. 8.2 Admittedly, during the said period, i.e., February 2007, the accused an Assistant Public Prosecutor (APP) was posted and functioning in South-West District. Accused has admitted in his statement under Section 313 Cr.PC that he was transferred from North District, Tis Hazari to PHC vide order dated 14.12.2006 i.e. Ex.PW8/A; and that he was posted and functioning as APP, Delhi Police, PHC, New Delhi since 14.12.2006. It has come in the testimony of PW12 Bhagwan Singh (the then Chief Prosecutor for South-West District, in Prosecution Branch, PHC, New Delhi) that vide order issued under his signatures, dated 20.12.2006 - Ex.PW12/A, the accused was posted and functioning in South-West District and was posted in the court of Ms. Vrinda Kumari, Ld. MM, who tried inter alia, the cases pertaining to PS Vasant Kunj; and the CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 20 of 93
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scrutiny of challan of the particular PS, cases of which are prosecuted by APP, are assigned to the same APP for scrutiny. 8.3 It has come in the testimony of PW-12 as well as PW-4 that as per the Challan Register for the year 2007, Ex.P-1, vide entry (dated 15.02.2007) at serial no. 14, on Page No. 3, FIR No. 506/04, u/Sec. 363/34 IPC was marked to accused for scrutiny by PW4/ the then Challan Clerk; and that there is no entry of return of the said file to the Challan Clerk by the accused; PW-4 has testified that he handed over the said challan file, Ex.PW4/B, to the accused. It is interesting to note that although, the accused cross-examined PW-4 as well as PW12 to suggest that the Challan Register does not bear accused's signatures, in acknowledgement of receipt of the said case file (FIR No. 506/04) for scrutiny, so as to suggest that the said file was not handed over to him. But, in his statement u/Sec. 313 Cr.PC, the accused has admitted that the aforesaid challan file w.r.t. FIR No. 506/04, PS Vasant Kunj, Delhi, Ex.PW4/B was handed over to him by PW-4 Ct. Praveen Pandey vide Entry Ex.PW4/A in Challan Register of CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 21 of 93
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the year 2007 (Ex.P-1). Same exposes the falsehood of suggestions put by him to witnesses PW-4 and PW-12. 8.3.1 It would be pertinent to mention here that it has also come on record [as discussed in para no. 18.0 and its sub- paras (infra)] that the said challan file was got recovered (after trap) by the accused from his almirah.
8.4 In view of the above, it is established that the aforesaid challan file w.r.t. FIR No. 506/04, PS Vasant Kunj, in which the complainant was kept in Khana No. 2, was pending with the accused for scrutiny. 8.5 The allegations against the accused are that he demanded illegal gratification of Rs.10,000/- for accepting the recommendations of the Investigating Officer and accepted the tainted bribe amount; he was caught red handed, while accepting the bribe.
9.0 Let me mention here that PW-2 Sh. Rakesh Mehta, the then Chief Secretary, Government of N.C.T. of Delhi vide Order dated 18.02.2008, Ex.PW2/B, accorded sanction for CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 22 of 93
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prosecution against accused. It may also be mentioned that as the earlier order of sanction Ex.PW2/A dated 07.01.2008, was signed by PW-2 only on the last page, another order dated 18.02.2008, Ex.PW2/B was passed, which was signed by PW-2 on each page, there being no change in the contents. 9.1 PW-2 has testified that he was competent to remove the accused from service and accordingly he granted sanction for prosecution of the accused after going through the entire record and satisfying himself. The accused has not disputed the competency of PW-2 to remove him from service, as no suggestion to the contrary was put to PW-2, in cross- examination. Further, the accused himself suggested to PW-2, in cross-examination, that the Chief Secretary is the appointing authority of Assistant Public Prosecutor in consultation with the Lt. Governor. Only a general suggestion was put to PW-2 that he was not competent to grant sanction and had granted sanction without application of mind, which was categorically denied by PW-2. The perusal of sanction order Ex.PW2/B reveals that the same is a speaking order. The accused has CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 23 of 93
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failed to demonstrate that the said order suffers from non- application of mind. Rather, during oral arguments, no submission challenging the sanction order was made by the accused.
Arguments 10.0 Before I proceed further, let me briefly outline the arguments advanced by both the sides.
10.1 Ld. counsel for the accused argued inter alia, that to prove charges under Section 7 and 13 (2) r/w 13 (1) (d) PC Act, the prosecution was under an obligation to prove beyond reasonable doubt, that the accused had made a demand of bribe for extending official favour; the accused received/ obtained the bribe amount; and the bribe amount was recovered from the accused. But, CBI has miserably failed to prove the most essential ingredient of the offence, i.e., demand of bribe by the accused, as the testimony of all the three witnesses (i.e., PW-1, the complainant, PW-10 Sh. Om Prakash and panch witness, PW-11 Sh. R.K. Kataria), in this regard, suffer from inconsistencies, contradictions and CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 24 of 93
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exaggerations. Further, the prosecution even failed to prove the second ingredient, i.e., acceptance of bribe by him, in view of serious contradictions and inconsistencies in the versions of PW-1 and PW-11. The accused further pleaded that the complainant is an interested/ partisan witness and her testimony needed to be corroborated by independent evidence, which is lacking. The accused placed reliance upon the judgements Ram Parkash Arora Vs. State of Punjab, AIR 1973 SC 498; Khilli Ram Vs. State of Rajasthan, AIR 1985 SC 79; State of Himachal Pradesh Vs. Inder Kumar, 2006 Cr.LJ 1720; Suraj Mal Vs. State (Delhi Administration), AIR 1979 SC 1408 and Union of India Thr. Inspector, CBI Vs. Purnandu Biswas, Appeal (crl.) 471 of 2004, decided on 07.10.2005, in support. The accused further pleaded that there is no independent corroboration of complainant's testimony. Rather, CBI failed to examine complainant's own colleague Sh.R.D. Joshi and the other independent witness Sh.S.K. Goel.
10.0.1 It was further argued that in absence of proof of CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 25 of 93
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demand by substantive evidence, mere recovery of money is not sufficient to convict the accused. In support, the accused placed reliance upon the judgements in Mahabir Parshad Vs. State of Haryana, CRA-S-596-SB of 2005, decided on 09.04.2014; Suraj Mal's case (supra); Suresh Kumar Vs. State of M.P., 1994 Crl.LJ 3738, and Subhash Parbat Sonvane Vs. State of Gujarat, 2003 (2) RCR Crl. 541. 10.0.2 It was also argued on behalf of the accused that as per Section 7 PC Act, the illegal gratification should have been accepted/ obtained as a motive or reward for doing/ forbearing to do any official act, in the exercise of official function. Whereas, neither was the accused competent to array any person as an accused or to delete the name of any accused, nor was the scrutiny of challan, his official duty, as he was not being paid any salary for the same; therefore, he could not have extended any favour to the complainant, by virtue of his office; hence, could not have demanded illegal gratification for the said purpose.
10.1 On the other hand, Ld. Sr. PP argued that all the CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 26 of 93
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ingredients of the offence under Sections 7 and 13 (1)(d) PC Act, i.e., the demand, acceptance and recovery of tainted bribe amount, have been duly proved beyond reasonable doubt vide oral testimonies of the prosecution witnesses, more particularly, PW-1, PW-10, PW-11 and PW-13; the testimony of the complainant is substantiated by the independent witness PW-11 and the colleague advocate of the complainant, PW-10. Their testimonies are further corroborated by recorded conversation as well as by CDRs of mobile numbers of accused as well as the complainant. The acceptance/ recovery of tainted bribe amount by the accused, is also corroborated by scientific evidence/ testimony of PW-15. 10.1.1 Ld. Sr. PP also argued that in view of proof of demand and acceptance of bribe by the accused and the recovery of bribe amount from his person, this court is duty bound to draw a presumption under Section 20 PC Act that the gratification was received for doing or for forbearing to do an official act by the accused.
10.2 In rebuttal, the accused argued that presumption CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 27 of 93
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under Section 20 PC Act cannot be drawn where the demand is not proved and placed reliance upon the judgements in cases - Purnandu Biswas's (supra), Mahabir Parshad's (supra), V. Venkata Subharao Vs. State, Appeal (crl.) 970 of 2000, decided on 12.12.2006, and Jai Parkash Bhargava Vs. State of Haryana, Crl. Appeal No. 1142-SB of 2003 (O&M) -1- Crl. Appeal No. 1186-SB of 2003 (O&M), decided on 18.11.2013.
10.3 Let me now examine the evidence which has come on record.
Demand and Acceptance of Bribe 11.0 PW1/ complainant has deposed that with regard to aforesaid FIR No. 506/04, in January - February 2007, the accused called up on her mobile number 9810732895, which at that time was with her colleague advocate Sh. Om Prakash, as she was in USA; Sh. Om Prakash (PW-10) conveyed to her that a new Public Prosecutor has come and had contacted him 4 - 5/ several times and had demanded a bribe of Rs.10,000/-, otherwise, he would forward the case u/Sec. 365 Cr.PC against CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 28 of 93
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her; Sh. Om Prakash (PW-10) also apprised her that he alongwith Sh.R.D. Joshi, Advocate visited the accused and told him that the said case (FIR No. 506/04) was false and that the complainant was not in India and was in USA; Sh. Om Prakash also apprised her that the accused told them that the case u/Sec. 363 IPC was genuine and he would forward the same u/Sec.365 IPC. PW-1 has further deposed that the accused again contacted Sh. Om Prakash on 02.03.2007 and inquired whether he had arranged Rs.10,000/- and even told him that if the same was not arranged, he would complete the proceedings; on which, Sh. Om Prakash sought five days' time. She has further stated that on 06.03.2007, she came to PHC and decided not to pay any bribe to the accused; she alongwith her colleague advocates Sh. Om Prakash and Sh. R. D. Joshi visited CBI office, the same day, i.e., 06.03.2007; she was made to meet Sh. Lal (PW-13, Karan Arya); she narrated the entire happenings to CBI; on which, she was asked to come the next day, i.e., 07.03.2007 and to give a complaint in writing. 11.1 PW1 has further testified that on the next day, i.e., CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 29 of 93
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07.03.2007, she alongwith her colleague advocates Sh. Om Prakash and Sh. R.D. Joshi reached the CBI office at about 10:00 a.m. - 10:30 a.m. and gave a written complaint, Ex.PW1/A. Two witnesses, namely, Sh. Rakesh Kataria and Sh. Goel, Manager and Clerk, respectively, of Vijaya Bank, were introduced to her; and they were shown her written complaint. She has also testified that she was then directed by Sh. Lal, (PW-13 - Karan Arya) at about 01:15 p.m., to call up the accused from her mobile phone on his mobile phone. 11.1.1 PW-1 has further deposed that she accordingly dialed the accused's number from her mobile number 9810732895; but, the accused did not pick up her call; thereafter, at about 01:30 p.m. - 01:45 p.m., the accused called her up on her mobile phone; she then spoke with the accused about FIR no. 506/04 and told him that the same was a false case; the accused replied in affirmative. When she told the accused that she wanted to have a discussion with him in that regard, the accused replied that he had already told "him", without specifying the person's name. When she told CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 30 of 93
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the accused that she wanted to meet him that day itself, the accused asked her to meet him at PHC; when she repeatedly inquired about the amount, the accused said that he had already told this to "him". On her insistence in this regard, the accused told her to pay Rs.5000/- for him and Rs.5000/- for his senior. PW1 has further deposed that this entire conversation was simultaneously recorded in Digital Voice Recorder; the recorded conversation was then heard by everyone. 11.1.2 PW1 has further stated that thereafter also, the accused called her twice and one call was received at about 01:53 p.m.; but, these calls were not recorded, as the said calls were not made from accused's mobile phone and were made from a land line number.
11.2 PW1 has also deposed that thereafter, she had produced a sum of Rs.10,000/-, which consisted of eight GC notes of Rs.1,000/- each and four GC notes of Rs.500/- each. She has deposed about the said GC notes being applied with phenolphthalein powder and the demonstration of the reaction CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 31 of 93
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between the phenolphthalein and the Sodium Carbonate solution; noting down of denominations and numbers of the GC notes; her personal search being carried out by a lady ASI and that she was not allowed to keep anything else in her red hand bag except the bribe amount and her mobile phone and also about the searches of other members of the trap team; she being instructed about the use and operation of DVR and the signal to be given by the shadow witness Sh. Kataria, on completion of transaction, etc. 11.3 PW1 has further deposed that after completion of the formalities, the trap team reached PHC at 03:10 p.m.; as directed, she called up accused, who told her that he would be reaching her Chamber No. 917, PHC, within 10 - 15 minutes; after about five minutes, the accused called her up again from a land line number and told that he was reaching her chamber and asked her to wait in her chamber; he then suddenly came to her chamber; she exchanged greetings with him and offered him a seat; as instructed, the shadow witness Sh. Kataria was seated close to her in the chamber. She asked the accused CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 32 of 93
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about case FIR No. 506/04, PS Vasant Kunj; on which, the accused told her that if he was not paid Rs.10,000/-, he would recommend her name u/Sec. 365 IPC; she then pleaded with the accused that the said FIR was a false case and Rs.10,000/- was a huge amount; the accused then told her that Rs.5000/- was for him and Rs.5000/- for his senior/ Chief; she then enquired about the name of his senior/ Chief, but, he did not disclose. She then handed over Rs.10,000/- to the accused, who received the same with his left hand; and after counting the currency notes, he kept the same in left pocket of his blue colour pants, which he was wearing.
11.3.1 PW-1 has further testified that immediately thereafter, the shadow witness Sh. Kataria gave a missed call to Insp. Lal (PW-13, Karan Arya); on which, the entire trap team came inside her chamber; Insp. Lal challenged the accused and asked him about the bribe amount; the accused pleaded to be excused for his misdeed. On being asked about the name of his senior/ Chief, the accused stated that he had demanded the amount of Rs.10,000/- for himself alone.
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11.4 PW-1 has stood by her testimony in cross- examination. The complainant was even cross-examined with respect to her occupancy of chamber no. 917 at PHC, so as to discredit her version about the said chamber belonging to her and the accused visiting the said chamber to meet her. In that regard, PW1 explained that the said chamber was not allotted to her; one Anuradha Sharma was the allottee, but, she (PW1) was sitting in the said chamber since 2002. The fact that PW1 was operating from Chamber No. 917, has also come on record vide testimony of PW10 Sh. Om Prakash, Advocate. PW10 has deposed that he shifted to PHC in the year 2005 and was operating from Chamber No. 917 belonging to PW1. He was not cross-examined in this regard.
11.5 PW-1's version that the accused had called up on her mobile phone no. 9810732895, which at that time was with PW10, is also corroborated by PW-10 Om Prakash. PW-10 has testified that on 02.03.2007, the accused had called from his mobile no. 9891368787 on complainant's mobile phone no. 9810732895, which was with him since at that time the CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 34 of 93
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complainant was in USA. Admittedly, mobile numbers 9891368787 and 9810732895 belong to accused and complainant, respectively, as discussed in Para 15.0 (infra). 11.5.1 The fact that while the complainant was in US, her said mobile 9810732895 was with PW-10, is not disputed by accused, in view of his own suggestion to PW-10 in cross- examination, to the effect that PW-10 handed over PW-1's mobile phone to her, as soon as she returned to India. PW-10 has further deposed that during that phone call, the accused informed him that a file of FIR 506/2004, PS Vasant Kunj for an offence u/s 363 IPC, was lying with him, in which the complainant was arrayed as an accused in Khana No. 2; he alongwith Sh. R.D. Joshi, advocate, who is also operating from Chamber No. 917 (mentioned as '970' in his deposition due to typographic error) then met the accused, the same day, some time in the evening. PW-10 in his cross-examination has stood by his version and categorically denied that the accused never called him and further stated that the accused called him up for the first time in the last week of February 2007. Same lends CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 35 of 93
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credence to complainant's version that PW-10 had informed her that accused called him (PW-10) in February 2007 with respect to the FIR against her. PW-10 also stated in cross- examination that he met the accused personally near the Prosecution Branch on 21st or 22nd February 2007 and categorically denied that the accused did not meet him on said dates. PW-10 was confronted with his statement under Section 161 Cr.PC, Ex.PW10/DA, to point out discrepancy in his version; in Ex.PW10/DA, PW-10 has stated that he had met the accused on 02.03.2007, as deposed in examination in chief. 11.5.1.1 Let me mention here that in accused's suggestion to PW-10 in cross-examination that he (accused) did not meet PW-10 on 21/22 February 2007, there is a hint that he (accused) met but not on those dates; this, when read in conjunction with the recorded conversation [as reproduced in para 13.0 (infra)], clearly points towards the interaction of accused with PW-10. In recorded conversation Ex.PW1/D, the accused told the complainant, - "Aapko maine bata diya tha to wo kahan hai wo dusre wo Bhuiyan Sahab nahi hai kya?". In CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 36 of 93
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response to which the complainant told the accused, "Wo Bhuiyan to nahi hain, wo Om Prakash hain, Bhuiyan to main hoon!". When the complainant insisted upon the accused to tell her about his demand, the accused again responded, "Maine to bata diya tha unko na.". PW-10 even identified the accused in the court. In view of the same, mere discrepancy in date of meeting does not in any manner, affect the credibility of PW-10's testimony, in this regard. 11.6 In view of the above, it is established that pursuant to receipt of the aforesaid challan in FIR No. 506/04, PS Vasant Kunj on 15.02.2007, the accused had called on the mobile no. 9810732895 of the complainant and discussed about the said FIR with PW-10, complainant's colleague advocate; PW-10, even met the accused in that regard.
12.0 The factum of demand of bribe by the accused from the complainant/ PW-1 for favour with respect to FIR No. 506/04, is also corroborated by PW-10. PW-10 has testified that he had accompanied the complainant to CBI office; and that the demand by the accused was verified, as the accused, when CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 37 of 93
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called (on his mobile phone) by PW-1 persisted with his demand of Rs.10,000/-.
12.1 It was argued by accused that the testimonies of PW-1 and PW-10 are unreliable in view of the improvements, exaggerations, inconsistencies and contradictions in their versions. It was pleaded that PW-1 in her cross-examination has stated that she returned to India/ Delhi on 01.03.2007; and that she had taken her mobile phone back from PW-10 on her return; if the mobile phone was taken back by PW-1 on 01.03.2007, where was the occasion for the accused to speak to PW-10, on 02.03.2007, as testified by him. Further, PW-1's version in her complaint Ex.PW1/A, statement under Section161 Cr.PC, Ex.PW1/DA and her cross-examination, is also at variance.
12.1.1 It is noted that in her examination in chief PW-1 stated that the accused had called on her mobile phone (which was with PW-10) in January - February 2007; and in her cross- examination PW-1 stated that she was informed by PW-10 that accused had called him with respect to FIR No. 506/04 and CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 38 of 93
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about demand of bribe in February 2007. Even PW-10 in his cross-examination stated that the accused spoke to him about FIR No. 506/04 in last week of February, corroborating PW-1's version. In her complaint Ex.PW1/A, as well as in her statement under Section 161 Cr.PC, Ex.PW1/DA, the complainant has not mentioned the date/ month, when the accused had called. She has only stated the date of being informed by PW-10. She stated that she was told about the said conversation by PW-10 on 02.03.2007.
12.1.2 When considered in totality, there is hardly any material discrepancy in PW-1's version in her complaint, statement under Section 161 Cr.P.C Ex.PW1/DA and her deposition before the court. Minor discrepancy about the date of her return, i.e., February 2007/ 1st March 2007 and date of being informed about conversation with PW-10 in Ex.PW1/DA / her testimony, are not of much significance. It is noteworthy that PW-1, in her cross-examination, even stated that she could produce her passport to show the date of her return. But, the accused did not ask for the same. In view of the aforesaid CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 39 of 93
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minor discrepancies, entire testimony of PW-1 cannot be thrown out.
12.2 It was further argued by the accused that testimony of PW-10 cannot be looked into at all, in view of material contradictions in his examination in chief and cross- examination; in his examination in chief, PW-10 stated that when accused called him on complainant's mobile phone, he demanded Rs.5000/- for himself and Rs.5000/- for his senior; and that accused further told that otherwise, he would recommend registration of FIR u/Sec. 365 IPC, a non-bailable offence, against complainant. Whereas, in his cross- examination, PW-10 stated that the accused did not make any demand from him, as such.
12.2.1 It is a settled position of law that the entire testimony of a witness is not to be discarded, if he turns hostile with respect to a particular fact. Thus, merely because, PW-10 in his cross-examination stated that the accused did not make demand of money from him as such, does not mean that rest of his testimony, though inspires confidence, also needs to be CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 40 of 93
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thrown away. PW-10 has categorically stated in his cross- examination that the accused had persisted with his demand, over a phone call, which was made in his presence during verification proceedings from CBI office, thus, corroborating the factum of demand of bribe by the accused. 12.2.1.1 PW-10 even corroborated that on 07.03.2007 (during verification call) the accused agreed to meet the complainant on that day at PHC at about 03:00 p.m. He has also corroborated that the accused had visited complainant's Chamber in PHC on 07.03.2007. PW-10 in his cross- examination has stood by the same. Although, in cross- examination he stated the time for meeting as 02:30 p.m.; said minor variation is hardly of any consequence. PW-10 categorically denied that the accused did not visit complainant's chamber on that day. No doubt, contrary to his statement in examination in chief, PW-10 admitted in his cross- examination that no discussion between accused and PW1 took place in his presence; and that he did not witness the transaction of bribe. But, he clarified that he could not see the CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 41 of 93
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same, because he was standing outside chamber. 12.3 Testimony of PW1 about demand of bribe of Rs. 10,000/- and acceptance of tainted money by the accused, is also corroborated by PW-11, the independent witness Sh. Rakesh Kumar Kataria. PW-11 has deposed that when he alongwith other independent witness reached CBI office on 07.03.2007, he was introduced with complainant; and they were also informed that the offender had demanded of Rs. 10,000/- from the complainant, to bury her case. He has testified about verification of demand and stated that the lady complainant talked to someone in regard to the demand of bribe and the said conversation was tape recorded. Thereafter, the tape recorded conversation was heard and its transcript was prepared and the same was signed by him; he identified his signatures on the transcript Ex.PW1/D. Same further corroborates PW-1's version that the rough transcription of the recorded conversation, was prepared on 07.03.2007 vide transcription memo dated 07.03.2007, Ex.PW1/E. 12.3.1 PW-11 has stood by the same in cross-examination. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 42 of 93
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PW-11 in his cross-examination stated that the conversation between the complainant and the accused had taken place at about 01:00 p.m. or 01:15 p.m; he even explained that as far as he could recollect, the accused did not pick up the phone, when the complainant had called; and thereafter, the accused called the complainant; and they discussed the case in question and the complainant had asked the accused as to how much was to be paid; on which, the accused stated that he had already told her about the amount, thus corroborating the version of the complainant. PW-11 has categorically denied that no telephonic conversation took place between the complainant and accused/ anyone regarding bribe, in the CBI office in his presence; he then went on to state that the said discussion with the accused was even tape recorded. He categorically denied that the said conversation was not recorded. Rather, he has further specified that three cassettes were brought by the CBI officials during his presence in the pre-trap proceedings and denied that no audio cassettes were brought or used in his presence. Even PW-1 has deposed that 3 audio cassettes were arranged during verification. It may be CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 43 of 93
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mentioned here that when cassette Mark Q-1 (Ex.P-13) was played in court during testimony of PW-11, he identified his introductory voice recorded in the beginning of the said cassette Mark Q-1.
12.4 PW-11 has also stood by his version that the transcript Ex.PW1/D of the aforesaid conversation also was prepared; and that the same was written by one of the CBI officials, although he could not remember the said official's name. PW-11 categorically denied that no transcript was prepared in his presence and that the transcript Ex.PW1/D was signed by him later on in the office of the CBI on being forced by the CBI. PW-11 has even stated that cuttings/ overwriting at some places in the said transcript also bear his initials. PW-11 even stated that the Transcription Memo Ex.PW1/E, was also prepared on 07.03.2007, in his presence and that of the other independent witness Sh.S.K. Goel, one Sh. Om Prakash colleague of the complainant, besides CBI officials; and identified his signatures at point B on the Transcription memo Ex.PW1/E. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 44 of 93
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12.5 Testimony of PW-1, PW-10 and PW-11 about demand of bribe is further corroborated by PW-13. Sh. Karan Arya (H.K. Lal)/ PW-13 has deposed that Superintendent of Police (SP) had endorsed the complaint to him to verify and do the needful. For that purpose, he asked the complainant/ PW-1 to contact the accused Deepak Kumar Barua on his mobile phone from her mobile phone and the conversation was recorded in the DVR; same was simultaneously heard with the help of speaker phone facility on the mobile of the complainant; the conversation between the complainant and the accused established the demand of bribe in the matter; and the accused had asked the complainant to meet him at Patiala House Court soon; thereafter, the company sealed cassette was opened and its blankness was ensured by playing it through and through; the conversation was then transferred to the audio cassette; one of the audio cassettes was sealed with CBI seal after obtaining the signatures of independent witnesses on the cassette and the same was marked Q-1 and the other audio cassette was kept for investigation. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 45 of 93
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12.6 It was argued by Ld. defence counsel that demand of bribe is not proved as the testimony of PW-1, the interested witness, regarding recording of her telephonic conversation with the accused, is absolutely untrustworthy. It was pleaded that PW-1 in her examination in chief has testified that her conversation with accused, when she called him up at about 01:15 p.m. through her mobile phone, was recorded; at other place, she has stated that at about 01:15 p.m., she contacted the accused again but, he did not pick up her phone; at about 01:30 p.m. - 01:45 p.m. the accused called her at her mobile phone and the said conversation was recorded; this creates doubt about recorded conversation. It was also argued that the complainant has not disclosed the details of conversation, which allegedly took place and was recorded. It was further argued by accused that PW-11, in this regard, initially stated that the complainant talked to someone; he has not specified as to whom the complainant talked to; and also that, PW-11 could not even remember in cross-examination, whether any amount (bribe) was specified by the accused during conversation between the two; and that, from the same it is CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 46 of 93
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clear that PW-11 was not a witness to the demand of bribe. 12.6.1 Let me mention that on careful reading of PW-1's deposition, no material discrepancy is found. It is seen that the complainant has talked about the same call twice, which becomes clear in her cross-examination. In her cross- examination, the complainant has clearly stated that when she called up, the accused did not respond/ lift the phone. But, subsequently he himself called back at 01:30 p.m. and the said conversation was recorded. Even if for a while, PW-1's testimony about the call, which was recorded, is ignored, same does not help the accused in any manner. Vide CDRs of accused and complainant's mobile numbers, i.e, Ex.PW7/D and Ex.PW6/B, respectively, it is established that the accused had called the complainant around the same time as averred by the complainant, i.e., at 13:31; thus, it has come on record that the conversation had taken place between the complainant and the accused on their mobile phones. Further, same is substantiated by PW-11. As mentioned above, PW-11 in his cross-examination has given the complete details and even CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 47 of 93
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explained that the complainant had called from her mobile phone at about 01:00 p.m. - 01:15 p.m., which was not picked up; thereafter, the complainant had received a call. PW-11 in his cross-examination has even specified that the conversation between the complainant and the accused might have lasted for 2-3-4 minutes, which version is substantiated by CDR (Ex.PW7/D) of accused's mobile phone [as reproduced in para 15.1 (infra)]. As per Ex.PW7/D, the call from accused's mobile phone to complainant's mobile phone on 07.03.2007 at 13:31 lasted for 131 seconds, i.e., little more than two minutes. Recording of conversation is also corroborated by PW-11. Thus, it stands substantiated that the conversation between the accused and the complainant on the call made by accused, was recorded.
12.6.2 Further, the accused's argument that the complainant has not deposed as to what conversation took place between her and the accused, is also bereft of any substance, in view of PW-1's categoric deposition in this regard.
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13.0 Further, the testimony of witnesses PW-1, PW-10, PW-11 and PW-13 about the conversation and demand of bribe by the accused from complainant; and that the accused asked the complainant to meet him in PHC, is further corroborated by recorded conversation. The relevant portion of which is reproduced hereunder :
C: Hello! Hello!
... ....
C: Haan sir namaste... main Suchismita Guhiya
bol rahi thi.
A: Haan, achcha-achcha
C: wo jo aapke paas ek case file pending hai
363 Vasant Kunj ke
A: Haan haan.
C: Haan uske baare me jara baat karna tha.
A: Achcha kahan pe hain aap?
C: Main abhi Patiala House Court mein hun.
A: Achcha to kahan baithe hai abhi aap.
C: Aap bataiye kaise kya karna hai. Us case
mein to kuchch hai hi nahi.
A: Haan haan aapko maine bata diya tha to wo
kahan hai wo dusare ...
.....
A: Achcha Achcha to aap milo mujhse abhi aa
ke
C: Tis Hazari?
A: Nahi-nahi Patiala House mein hi hun abhi.
C: Aap mujhe bataiye kaise kya karenge,
kitna kya hai.
A: Maine to bata diya tha unko na.
C: Mujhe to bataiye.
A: Aap milo mujhse phir se.
......
A: Nahi nahi aap idhar aa jayie. Mujhse mil
lo.
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C: Direct baat ho jaegi to better hoga.
A: Haan haan haan. Aap mujhse mil lo phir
idhar hi. Ye jo hai.
C: Nahi aaj hi kar denge complete aaj kar denge.
Wo mujhe bol to rahe the. Aap mujhe bataiye. Kitna chahiye kya.
A: Aisa hai main five to bata diya tha unke
liye, apne senior ke liye.
C: Achcha.
A: unhone five hi bole, jo hamare chief hain.
C: Achcha
A: Aur baaki maine apne liye kaha tha ki five
ki mere liye hi kar do five hi.
C: Achcha.
A: Itna maine kaha tha.
A: Jabki yeh amount kuchch nahi hai.
C: to kahan karenge
A: Aa jao yahin idhar hi hun Patiala House
mein hum.
.....
C: Paise ka arrange karne hai na mujhe.
A: Haan?
C: Paise ki arrange karni hai mujhe.
A: Aap mujhe yahan to milo na pahle mere
saamne to aa jao na, saamne to mil lo ek
baar.
C: Achcha.
A: Aap jo hai ye Library jaante hain na,
Library gate ke neeche.
C: Haan haan
A: Wahan aa jao, wahan mil lo, mai wahin
wait kar raha hun.
C: To abhi to mere paas time nahi hai, kitne
baje, kal parso...
A: Nahi nahi mil to lo ek baar mujhse
C: Achcha
A: Wahin baat kar lete hain na
C: Achcha theek hai
A: Aaj aap....
A: wahin aa jao, wahin par main hun
C: Achcha
A: theek
C: Theek hai sir.
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13.1 From the above conversation, it is evident that the complainant talked to the accused about her case file, which was pending with him. When she told the accused that she wanted to discuss about the said file, the accused told her that he had already informed - "....... wo kahan hai wo dusare ... Maine to bata diya tha unko na.....". Same shows that the accused had already discussed the matter and corroborates the version of PW-1 that the accused had called up PW-1's advocate colleague Om Prakash (PW-10) and told him about his demand, for favouring her (the complainant). When the complainant insisted upon the accused, - "Aap mujhe bataiye kaise kya karenge, kitna kya hai.", the accused, public servant (with whom the case FIR No. 506/04 was pending for scrutiny) instead of refusing to discuss the official matter, rather, insisted upon the complainant to meet him and stated, - "Aap milo mujhse ... Nahi nahi aap idhar aa jayie. Mujhse mil lo.". When the complainant insisted upon accused to tell her as to how much money he required for doing the job, the accused ultimately revealed that he had already told and stated that - "A: Aisa hai main five to bata diya tha unke liye, CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 51 of 93
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apne senior ke liye. C: Achcha. A: unhone five hi bole, jo hamare chief hain..... A: Aur baaki maine apne liye kaha tha ki five ki mere liye hi kar do five hi... A: Itna maine kaha tha. .....". From the same, it is apparent that he had already told the said amount, to PW-10, as deposed by PW-1. Not only did the accused repeat the amount quoted earlier, he even justified the said amount and further told the complainant that the demanded amount was nothing - "Jabki yeh amount kuchch nahi hai...". When the complainant told that she required time to arrange for the money, the accused insisted upon her to meet him first, - "Aap mujhe yahan to milo na pahle mere saamne to aa jao na, saamne to mil lo ek baar....", and asked her to meet near the library gate, in PHC. 13.2 It was argued by Ld. defence counsel that the recorded conversation in cassette Mark Q-1 (Ex.P-13) is fabricated and therefore, cannot be admitted in evidence. It was pleaded that fabrication is evident from cuttings/ alterations/ additions made in the transcript Ex.PW1/D. 13.2.1 It may be mentioned that Hon'ble Supreme Court CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 52 of 93
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in R. M. Malkani v. State of Maharastra, 1973 Cr.L.J. 228, while reiterating the views of the Constitutional Bench in N. Sri Rama Reddy v. V. V. Giri, AIR 1971 SC 1162, Hon'ble Supreme Court laid down the pre-conditions for admitting tape recorded conversation in evidence and observed as under :
"23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape-record. A contemporaneous tape-record of a relevant conversation is a relevant fact that is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. ......
.......
27. When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. ......"
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13.2.2 In Ram Singh & Ors. Vs. Col. Ram Singh, AIR 1986 SC 3, the Hon'ble Court reiterated the same tests for admissibility of the recorded conversation, viz., speaker identification, accuracy of tape recorded conversation, ruling out the possibility of tampering, the speaker's voice should be audible and the conversation must be relevant. 14.0 In the instant case, the recorded conversation in cassette Mark Q-1 [as reproduced in para 13.0 (supra)], is very much relevant to the matter in issue.
14.1 PW-1 has testified that she had identified the voice of the accused in the recorded conversation in CBI office on 10.03.2007 and the Voice Identification Memo Ex.PW1/F was prepared. Further, when the cassette Mark Q-1 (Ex.P-13) was played in the court, PW-1 identified her own voice and that of the accused. No suggestion to the contrary was put to PW-1 in cross-examination that she has wrongly identified accused's voice. PW-1 even specified that the said conversation was made on her mobile phone no. 9810732895, while she was in CBI office; and that Ex.PW1/D is the true transcript of the said CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 54 of 93
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conversation.
14.1.1 Further, the voice in the recorded conversation/ cassette Mark Q-1 is also identified to be that of the accused by Voice Expert, PW5 - Rajender Singh, Principal Scientific Officer, on comparing the same with the specimen voice of accused in cassette Mark S-1 (Ex.Px-1), on the basis of auditory as well as spectographic analysis. No specific suggestion was put even to PW-5 in cross-examination that he has wrongly identified the voice of accused.
14.1.2 It may be mentioned that it has come in the testimony of PW-11 that the specimen voice of the complainant and the accused were taken in his presence and Specimen Voice Recording Memo dated 17.03.2007 Ex.PW11/A, was prepared. In cross-examination, only a general suggestion was put to PW-11 that no specimen voice of the accused was taken in his presence, which was categorically denied by PW-11. PW-11's version is also corroborated by PW-13, Sh. Karan Arya (H.K. Lal), who has testified that vide Memo Ex.PW11/A, he had collected the specimen voice of the accused, while the accused CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 55 of 93
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was in judicial custody; and the audio cassette Mark S-1(Ex. Px-1), containing the accused's specimen voice was sealed with the seal of the IO; PW-13 also identified his signatures (at point A) on the said Memo Ex.PW11/A. PW-13 was not cross- examined in this regard. Thus, the fact that the accused's specimen voice was obtained and the cassette in which it was recorded was sealed, has remained unrebutted. The testimonies of PW-11 and PW-13 are even substantiated by Ex.PW11/A, Specimen Voice Recording Memo. As per Memo Ex.PW11/A, the specimen voice of the accused was obtained on 17.03.2007 at Tihar Jail, where he was lodged at that time; the Memo also records the manner of obtaining the specimen voice, it being transferred to a blank cassette and the same being wrapped in a piece of cloth and sealed with CBI seal. Neither PW-11 nor PW-13 was cross-examined with respect to the manner of recording of specimen voice of the accused, as detailed in Ex.PW11/A and its sealing.
14.1.3 PW-5 Dr. Rajender Singh vide his Voice Examination Report Ex.PW5/A has opined that on auditory examination, CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 56 of 93
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the questioned voice in audio cassette Mark Q-1 is found similar to the specimen voice in audio cassette Mark S-1, in respect of their linguistic and phonetic features. Further, on voice spectographic examination of questioned voice and the specimen voice sample, the same are found similar in respect of their formant frequencies distribution, intonation pattern, number of formants and other general visual features in voice grams. Hence, the voice marked Q-1 is the probable voice of the person (accused) whose specimen voice is Mark S-1. PW-5 has testified on the same lines. As already noted above, no specific suggestion denying his voice was put to PW-5 in cross-examination. Further, admission of the fact that the voice in cassette Mark Q-1 is the probable voice of the accused, is evident from his own suggestion to PW-5, to which PW-5 responded that, - "It is correct that the voice in the questioned audio cassettes was probably of the same person, whose voice was contained in the specimen cassette." Even otherwise, nothing to discredit PW-5's report/ his testimony, could be brought out in PW-5's cross-examination. PW-5 has even stated in cross-examination that even mimicry or CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 57 of 93
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imitation of the voices can also be detected by voice spectography analysis.
14.1.4 It would be pertinent to mention here that the spectogram/ voice prints are like finger prints and are distinctive and unique for each individual and help in speaker identification.
14.1.5 In view of the above, the accused's voice in the recorded conversation cassette Mark Q-1 (Ex.P-13) has been duly identified.
14.2 The fact that the audio cassette mark Q1/ Ex.P-13/ conversation recorded therein was not tampered, has also come on record vide testimonies of PW1 and PW5, PW5's report Ex.PW5/A and testimony of PW-13. It has come in the testimony of PW1 that the transcript Ex.PW1/D reflects the conversation, which took place between her and the accused and which was simultaneously recorded in the DVR. PW-1 in her cross-examination (recorded on 05.06.2014) has stood by her deposition that transcript Ex.PW1/D was prepared in her CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 58 of 93
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presence, although, she could not recollect whether it was prepared on 07.03.2007 or 10.03.2007. PW-1's inability to recollect the date, after lapse of almost seven years, is nothing very out of the place. It is noteworthy that on one hand, it was put to PW-1 in cross-examination, that the accused had not talked about any word (five) implying that the accused did have conversation, but, did not utter the word "five"; and on the other hand, it was suggested to her that no conversation as detailed in Ex.PW1/D took place between him and the complainant, at any point of time, which was categorically denied by the complainant. The rough transcription Ex.PW1/D was found to match with the conversation recorded in Cassette Mark 'Q-1' (Ex.P-13), when played and heard during the course of trial.
14.2.1 Further, PW-1 in her cross-examination stated that the said conversation from the mini cassette was transferred to the larger cassette, immediately after the recording; after the transfer of conversation to the larger cassette, the mini cassette was destroyed in her presence; the said large cassette CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 59 of 93
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in which the conversation was transferred was sealed. Mere fact that PW-1 could not remember as to whom the seal after sealing the cassette, was handed over does not discredit her testimony, as pleaded by the accused. More so, as PW-1 has explained that she could not recollect the same, as it had been long time. PW-1 was cross-examined in this respect almost 7 years appx. after the incident. PW-13 Karan Arya has also testified that the recorded conversation was transferred into company sealed cassette Mark Q-1; same was then sealed with CBI seal, after obtaining signatures of independent witnesses on the cassette Mark Q-1 and other cassette was kept for investigation. It is also noteworthy that neither was any suggestion that audio cassette Mark Q-1/ conversation recorded therein was tampered, put either to PW-1 or PW-13. Nor could anything be brought out in their cross-examination, to demonstrate that the cassette Mark Q-1 (Ex.P-13)/ conversation recorded therein was tampered. 14.2.2 Further, it has come in the testimony of PW5 as well as in his report Ex.PW5/A, that on 20.03.2007, he had CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 60 of 93
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received two sealed parcels, i.e., Ex.Q1 and Ex.S1 from SP, CBI, with seals in intact conditions; and that the seals on the parcels tallied with specimen seal impression. In his cross-examination, PW-5 categorically denied that audio cassettes were not received in sealed condition. PW-5 in his cross-examination also denied that the audio cassettes did not contain the entire conversation and the same had been tampered with, at the initial stage.
14.2.3 The authenticity/ accuracy of recorded conversation and that there is no tampering with the recorded conversation has also come in the testimony of PW5. Vide his report Ex.PW5/A, PW5 has opined that, "....that examination of audio cassettes marked exhibits 'Q-1' and 'S-1' reveal that no pause, discontinuity, etc. could be detected in the recorded conversation. Hence, the same could not have been tampered".
14.3 It may also be mentioned that conversation in audio cassette Mark Q-1 (Ex.P-13), when played in court, was clearly audible.
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14.4 In view of the above, the conversation recorded in audio cassette Mark Q-1 (Ex.P-13) meets the criteria as laid down by Hon'ble Supreme Court, and is, therefore, admissible in evidence.
14.5 It was argued on behalf of accused that cuttings/ additions/ alterations in the transcript clearly show the tampering in recorded conversation. As already noted above, the recorded conversation matched with transcript Ex.PW1/D. Minor corrections in the transcript are in the nature of striking off the repetitive word or putting the word at the right place, addition of name 'Om Prakash Joshi' at point F in transcript, does not appear in recorded conversation. Same does not in manner, change the text. Thus, nothing material could be pointed out by the accused so as to render the recorded conversation, suspect. It was further argued that the accused had not talked about any word (five) as mentioned at Points H, I and J, on page 2 of the transcript Ex.PW1/D and PW1 was even cross-examined in this regard. PW1 categorically denied that the accused had not uttered those words. On playing the CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 62 of 93
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cassette Mark Q-1 during the course of trial, word 'five', as reflected in the transcript, was heard in recorded conversation. 14.6 Accused also argued that PW-1 has stated that accused demanded Rs.10,000/- from her. Whereas, no such demand is depicted in the recorded conversation. It is noted that PW-1 in cross-examination has clarified that the accused told her that Rs.5,000/- was for his Senior/ Chief and Rs.5,000/- for him. PW1 even pointed out that the demand of Rs.10,000/- is depicted in portion 'L to L1' on page no. 2 of transcript Ex.PW1/D. Same is clearly borne out from Ex.PW1/D. Although, the words '10,000' do not appear as such.
14.7 Ld. counsel for the accused also argued that there is no mention of even "Rs.5,000/-" in the entire conversation; word "five" as used in conversation could be Rs.5/- or Rs.500/-. Let me mention here that the word 'five', when read in the context and in conjunction with other evidence on record, makes it clear that it referred to Rs.5000/-. Thus, this argument also lacks any force.
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15.0 The testimonies of the above witnesses, i.e., complainant/ PW-1, independent witness PW-11, PW-10 and PW-13 are further corroborated by the Call Data Record (CDR) of 06.03.2007 and 07.03.2007 of the complainant's mobile no. 9810732895, which is Ex.PW6/B and that of the accused's mobile number 9891368787, which is Ex.PW7/D. Let me mention here that the accused in his statement u/Sec. 313 Cr.PC has not disputed that the mobile no. 9891368787 belonged to him, which was obtained by him in his name vide application Ex.PW7/A. He has also not disputed the details of the calls as reflected in Ex.PW7/D, the CDR of his said mobile number, as PW-7 was not cross-examined in this regard. Further, the accused has also not specifically disputed the mobile number of the complainant. Even otherwise, the fact that the mobile no. 9810732895 belonged to Ms. Suchismita Bhuyan/ the complainant has also come in the testimony of PW-6 R.K. Singh, Nodal Officer, Bharti Airtel. In his cross- examination, PW-6 has stated that the details of the calls of the said phone number and the name of the subscriber was taken by him from the system maintained with him. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 64 of 93
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15.1 The calls exchanged between the complainant/ PW-1 and the accused as per CDR, Ex.PW6/B (complainant's mobile number 9810732895) and Ex.PW7/D (the accused's mobile number 9891368787) are reproduced hereunder :
S. No. Call Details Time Duration
CDR - Ex.PW6/B - Complainant
1. Accused to Complainant 15:18:25/ 29 seconds
06.03.2007
2. Accused to Complainant 13:27:56/ 130 seconds
07.03.2007
3. Complainant to Accused 15:07:36/ 41 seconds
07.03.2007
4. Complainant to Accused 15:35:34/ 15 seconds
07.03.2007
CDR - Ex.PW7/D - Accused
5. Accused to complainant 15:22/ 30 seconds
06.03.2007
6. Accused to complainant 13:31/ 131 seconds
07.03.2007
7. Complainant to accused 15:11/ 42 seconds
07.03.2007
8. Complainant to accused 15:39/ 16 seconds
07.03.2007
15.1.1 Let me mention here that the aforesaid CDR takes
the steam out of Ld. defence counsel's argument that no conversation between the accused and the complainant took place on 06.03.2007. It was contended that PW-1 in her CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 65 of 93
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complaint has stated that the accused contacted her on her mobile phone. Whereas, in her cross-examination (recorded on 03.06.2014), PW-1 stated that she had called the accused on his mobile phone on 06.03.2007; and subsequently, she even stated that the said conversation was not recorded because it was a direct conversation; these discrepancies render complainant's testimony suspect and shows that actually no such conversation took place.
15.1.2 From the CDR Ex.PW7/D, it is evident that the accused called the complainant on her mobile phone on 06.03.2007 at 03:22 p.m. Same belies the accused's argument as well as the suggestion put to the complainant (in cross- examination) that he did not phone her on 06.03.2007; and rather, goes to corroborate the complainant's version that the accused had contacted her on 06.03.2007. The time of call as per CDR (03:22 p.m.), further substantiates PW-1's version that the accused had called her at about 03:20 p.m. Same also substantiates PW-10's version that the complainant talked to the accused on 06.03.2007 and tried to reason out with him, CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 66 of 93
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but, in vein. Mere discrepancy in the complainant's version in complaint and her cross-examination, about who called whom, is hardly of any consequence. More so, as the complainant was cross-examined in this regard on 03.06.2014, i.e., more than seven years after her complaint (dated 07.03.2007). 15.1.3 As per CDRs Ex.PW6/B and Ex.PW7/D, the accused called the complainant at about 13:27:56/ 13:31:00 and the said call lasted for about 131 seconds. Same corroborates the testimony of PW-1, the independent witness PW-11, PW-10 and PW-13 that the complainant/ PW-1 had called up the accused on 07.03.2007 at about 01:15 p.m., on the asking of PW-13, from CBI office; but, the accused did not pick up her call; and, thereafter, the accused had called her up at about 01:30 p.m. 15.1.4 PW-1's version that even after the aforesaid call, the accused had called her up once or twice from a land line number (and therefore, the said calls were not recorded) is also corroborated by her CDR Ex.PW6/B. As per the same, on 07.03.2007, the complainant received calls at 13:40:31 from land line number 011-23074345 and at 13:50:48 from land line CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 67 of 93
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number 011-23073958.
15.2 In view of the above evidence on record, demand of bribe by the accused from the complainant, in connection with case FIR No. 506/04, in which complainant was kept in Khana No. 2, is proved beyond reasonable doubt.
Acceptance of Bribe 16.0 PW-11 has also corroborated complainant/ PW-1's version that for trap they had gone to PHC and accused visited PW-1's chamber. PW-11 has deposed that they had reached PHC and, as instructed, he had accompanied the lady advocate/ PW-1, who was having a chamber in the Patiala House Courts; he sat alongwith PW-1 in Chamber; while CBI officials remained outside, around the chamber. He has further corroborated that he and the complainant kept waiting for the arrival of the accused but, as he did not come for quite sometime, the lady complainant telephoned him; and thereafter, the accused arrived in about 5-10 minutes. PW-11 CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 68 of 93
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even identified the accused in court.
16.0.1 PW-11 has further corroborated PW-1's version about acceptance of tainted money/ bribe. He testified that the accused had some discussion with the lady complainant about some case and thereafter, the lady complainant opened her hand bag and gave the bribe money to the accused; the accused took the money and kept it in his pant pocket; on which, he (PW-11) immediately, placed a missed call on the mobile number given to him by the CBI official; and on that, the CBI officials immediately came to the chamber and apprehended the accused.
16.0.2 PW-11 has stood by his testimony in cross- examination. In his cross-examination, PW-11 has categorically denied that that he was not in the chamber of the complainant and was called to the spot much after. He also denied that no phone call was made by the complainant to accused in his presence. PW-11 further denied that no bribe was given to accused and that he did not receive and keep the same. In response to a specific query, PW-11 even specified CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 69 of 93
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that the complainant had taken out the bribe money from the red colour leather hand bag, she was carrying. 16.1 PW-1/ complainant's version that after reaching PHC, she called up accused, at about 03:10 pm, who informed that he would be reaching her chamber, is further corroborated by CDR Ex.PW6/B. It is noted that as per CDR Ex.PW6/B, the complainant had called accused at 15:07:36 on 07.03.2007; and another call by the complainant to accused was made at 15:35:34. Same also corroborates PW-11's version that when the accused did not reach for about half an hour, the complainant had again called the accused to find out as to when was he reaching.
16.1.1 The complainant/ PW-1's version that thereafter, the accused called her up again from a land line number and told that he was reaching shortly, is also corroborated by CDR Ex.PW6/B. As per Ex.PW6/B, a call was received at complainant's mobile number at 15:51:33 from a land line number 011-23070776. As per the complainant, the accused had arrived soon after the said call. Same also substantiates CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 70 of 93
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PW-11's version in cross-examination that the accused had reached the chamber some time around 03:40 p.m. - 03:45 p.m. 16.2 Ld. defence counsel argued that as per the alleged recorded conversation/ transcript Ex.PW1/D, the accused asked the complainant to meet him near the gate of Patiala House Courts and not at her chamber. Same shows that the entire story of the accused visiting the complainant's chamber is false. It may be mentioned that the complainant/ PW-1 in her cross-examination admitted that as per recorded conversation/ transcript Ex.PW1/D, the accused had asked her to meet near the Library Gate. But, she has clarified that thereafter, in the phone call made from land line, the accused told her that he would be meeting her in her chamber.
16.3 In view of the above evidence on record, the acceptance of tainted bribe amount by the accused is also proved beyond reasonable doubt.
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Recovery of Bribe amount 17.0 PW1 has deposed that on the directions of Insp. Lal, the independent witness Sh. Goel recovered the bribe amount of Rs.10,000/- from the pant pocket of the accused; the currency notes were counted and their numbers were tallied with the numbers already recorded in the memo. PW-1 was not cross-examined in this regard. She was only asked about the place, where the recovery of money was made from accused; to which, she responded that it was done in her chamber. PW-11 has also corroborated the factum of recovery of bribe amount from the pants of accused; and that the GC notes recovered from the accused, were tallied with the numbers noted in handing over memo Ex.PW1/B. PW-11 has stood by his version in cross-examination and categorically denied that the recovery was not effected in his presence and that GC notes were not tallied in his presence and that Recovery Memo, Ex.PW1/C was not prepared in his presence. He also denied that his signatures were obtained on blank papers and the said papers, were misused later on. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 72 of 93
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17.1 Testimony of PW-1 and PW-11 is further corroborated by PW-13. PW-13 has testified that on receiving the pre-appointed signal/ missed call from the shadow witness on his mobile phone on completion of the bribe transaction, he alongwith trap team members rushed to the complainant's chamber. On being challenged for demanding and accepting the bribe amount of Rs.10,000/- from the complainant, the accused turned pale and requested to be excused for his misdeed; thereafter, Inspectors Shyam Prakash and Sandeep Chaudhary caught hold of the wrists of the accused and the bribe money was recovered from the left side pants' pocket of the accused by the independent witness Sh. S.K. Goyal, on his direction; the GC notes recovered from the accused were tallied with numbers mentioned in the Handing Over Memo and the same tallied. He even identified the GC notes (Ex.P-1 to Ex.P-12) in the court.
17.1.1 PW-13 has stood by his testimony in material particulars. He has stated in cross-examination that one of the independent witnesses had recovered the tainted money from CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 73 of 93
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the possession of the accused; though, he could not recollect the name of the said independent witness. Ld. defence counsel pleaded that PW-13 in cross-examination could neither tell the time of reaching of accused in complainant's chamber nor tell the name of independent witness; and that the same shows that he was not present at the spot. Merely because, PW-13 could not recollect the name of independent witness and the exact time of reaching of accused in complainant's chamber does not wipe out his entire testimony, as pleaded by accused. Moreso, as PW-13 was cross-examined (on 22.11.2012), almost five years after the incident. Even otherwise, PW-13 has stated that the accused had probably reached at about 04:00 p.m., which has already come on record vide testimony of other witnesses. Further, PW-13 categorically denied in cross- examination that no independent witness had recovered the tainted money from the accused. He also stated that tainted money was taken into custody.
17.1.2 It may be mentioned that it was suggested to PW-13 by the accused that the accused was not apprehended CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 74 of 93
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from the chamber of the complainant and that he was picked up from his friend's chamber and that he has been falsely implicated in this case, which was categorically denied by PW-13. In support of his said defence, the accused produced DW-2 Sunil Sehgal, Advocate and DW-1, D.K. Panchal, Advocate. But, the said plea/ defence of the accused is contrary to his own suggestion to PW-1 in cross-examination, from which the presence of the accused at the spot and being found in possession of the bribe amount of Rs.10,000/- is implicit. The said suggestion was replied to by PW-1 as, - "It is wrong to suggest that the conversation was recorded at the time of trap, but the same was erased, because it would have revealed that the money was forced upon the accused." It may be mentioned that it has come in PW1's testimony that the conversation during the trap could not be recorded because she was not able to switch on the DVR.
17.2 Ld. defence counsel also argued that CBI failed to examine independent witness Sh. S.K. Goel, who as per them had recovered the tainted bribe money from the pocket of the CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 75 of 93
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accused. It may be mentioned that PW Surender Kumar Goel was repeatedly summoned, but, the summons could not be served on him, he having shifted from his last known address. Thereafter, SP, CBI was directed to trace the witness and fresh summons were issued at his new address. Subsequently, on 24.02.2012, even bailable warrants against the witness were issued for 15.03.2012. The warrants were received unexecuted with the report vide letter dated 13.03.2012 of Chief Manager, Vijaya Bank, Barakhamba Road, New Delhi, that Sh. S.K. Goel had been dismissed from bank's service. In view of these facts and circumstances, the prosecution/ CBI closed its evidence. Thus, it is not that the witness was deliberately not examined by CBI. Be that as it may. As already found above, the factum of recovery of tainted bribe amount from the left hand side pant pocket of the accused has been duly established vide testimony of PW-1, PW-11 and PW-13 as well as scientific evidence.
17.3 Testimony of PW1, PW-11 and PW-13 about acceptance of tainted money by accused and its recovery from CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 76 of 93
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the accused is further corroborated by the scientific evidence. 17.3.1 PW1, PW-11 and PW-13 have testified that after apprehension, the hand washes of the accused were taken separately, which turned pink; Right Hand Wash and Left Hand Wash were then transferred to separate bottles, RHW and LHW, which were signed by both the independent witnesses. PW-11 has categorically stated that handwashes/ pink solutions were separately transferred to two empty glass bottles, i.e., Ex.PW11/A-1 and Ex.PW11/A-2. PW-11 & PW-13 have also stated that the said bottles were sealed; and that PW-11 had signed on paper label; PW-11 even identified his signatures on the same, before court.
17.3.2 It has also come in the testimony of PW-1, PW-11 and PW-13 that the pant wash of the accused was not taken in the chamber; the wash of left side pant pocket, was taken in CBI office; the justification, why pant wash was not taken in chamber, has also come in their testimony; they have stated that since the chamber was a public place/ crowded, the pant wash was taken in CBI office after providing another pants to CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 77 of 93
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the accused; and after making suitable arrangement for the accused to change. PW1 even identified during her testimony, one blue colour pants with stripes (Ex.P-14) to be the same, which were worn by the accused and were seized by CBI officials. Witnesses PW-1, PW-11 and PW-13 have also deposed that the left side pant pocket wash also turned pink; the said pink wash was then put in a separate bottle, Ex.PW11/A-3, which was sealed and seized by CBI officials and the independent witnesses signed the same; and the same was marked 'LSPPW'. PW-13 has testified that the independent witnesses also signed on the inner lining of the left side pocket of the pant of the accused. PW-11 even identified his signatures on the same.
17.3.3 These witnesses have stood by their testimony in cross-examination. PW-11 categorically denied that the handwash of the accused was not taken in his presence or that the solution was not transferred into bottles in his presence. Rather, he specified in cross-examination that the handwashes of the accused were taken in the chamber itself in his presence CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 78 of 93
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and were put in quarter bottles. About pant wash PW-11 stated that they went to the first floor of the CBI office where, a spare pant was arranged for the accused. He denied that he was not present at CBI office and the pant of the accused was not washed in his presence and the bottles were not sealed in his presence.
17.4 Testimony of these witnesses is further corroborated by PW-15/ Chemical Examination Report Ex.PW15/A. PW-15 R.S. Chauhan, Senior Scientific Officer vide his chemical examination report Ex.PW15/A, has found that the exhibits Mark RHW (Right Hand Wash), LHW (Left Hand Wash) and LSPPW (Left Side Pant Pocket Wash) tested positive for the presence of phenolphthalein. PW-15 stood by his report/ his testimony in his cross-examination. In response to a query during cross-examination, PW-15 even produced and showed the work-sheet of the chemical analysis carried out by him, to the accused. But, no further query in that regard was put to PW-15. Nothing could be extracted in the cross-examination of PW-15 so as to discredit his report/ testimony. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 79 of 93
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17.5 Ld. defence counsel argued that the witnesses have simply stated that the accused's hands' wash and pant pocket wash was taken; they have not specified that his hands were washed in Sodium Carbonate solution. It may be mentioned that PW-13 has categorically stated that both the hands of the accused and his left side pant pocket were separately dipped in the solution of Sodium Carbonate. Even, PW-15 vide his report Ex.PW15/A has found that all the three solutions, i.e. RHW, LHW and LSPPW tested positive for the presence of phenolphthalein. In view of the same, merely because PW-1 and PW-11 have not specified the chemical name of the solution, does not in any manner impact their testimony.
Recovery of file of FIR 506/04 at the instance of accused 18.0 The factum of laying of trap and the accused being caught red handed, is further corroborated by the fact that in the same evening after apprehension of accused, the file of FIR No. 506/04, PS Vasant Kunj was got recovered by the accused from his office, as has come in the testimony of PW-1, PW-11, CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 80 of 93
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the independent witness and PW-13.
18.1 It is significant to note that the factum of recovery of the said file that evening (of 07.03.2007) from accused's office, pursuant to his disclosure in that regard, is admitted by the accused by virtue of his own suggestion to PW-13 Karan Arya/ H.K.Lal, in cross-examination; to which, PW-13 Karan Arya replied that, - "It is correct that after disclosure about the file, the accused led us to his office and I got the file recovered. It is correct that the disclosure statement of the accused in regard to discovery of the file pertaining to the case of the complainant was not recorded." Same belies accused's denial under Section 313 Cr.PC of seizure of the file at his instance. Same also exposes falsehood of his suggestion put to PW-11, the independent witness in cross-examination that he (accused) was not present at the time of recovery of file (FIR No. 506/04), which was categorically denied by PW-11. PW-11 then went on to state that accused himself had taken them there (as has come in accused's own suggestion to PW-13). In further cross-examination, PW13 stated that the accused had CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 81 of 93
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made a verbal disclosure, gist of which was recorded in office search-cum-seizure memo Ex.PW3/A. Same is corroborated by Ex.PW3/A. 18.2 PW-13's testimony is further corroborated by PW3 Sh.R.S.Negi, Addl. Public Prosecutor, Prosecution Branch, PHC. PW-3 has deposed that CBI officials alongwith accused visited his office in room no. 17, Prosecution Branch on 07.03.2007, between 05:00 p.m. to 05:15 p.m. and recovered a case file at the instance of accused Deepak Kumar Barua, from the almirah kept in the said office. PW3 also stated that seizure memo of the said file, i.e., Ex.PW3/A was prepared and he had signed the same. PW-3's testimony in this regard had remained unchallenged, as no suggestion to the contrary was put to PW-3. It has also come in testimony of PW-3 that the accused was sharing his office and he & accused Deepak Kumar Barua used to keep their files in the said almirah, as till that time, the accused was not allotted an office. Said fact has also remained unrebutted in absence of any suggestion to the contrary. The only suggestion which was put to PW-3 is that the Additional CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 82 of 93
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PP, Sh. Inder Kumar was the joint allottee of room no. 17; he also used to keep his books and files in the same almirah. 18.2.1 In view of the above, the mere fact that PW-3 when shown the file of FIR No. 506/04 during his deposition, stated that, he was not sure if it was the same file which was seized in his presence, does not in any manner dent his testimony, as pleaded by Ld. defence counsel. Moreso, as admittedly, the file of FIR No. 506/04 was pending with accused for scrutiny and the accused has not disputed PW-3's version that CBI had recovered a file at his instance.
19.0 In view of the above, acceptance of bribe amount of Rs.10,000/- and its recovery from the person/ left side pant pocket of the accused, is proved beyond reasonable doubt.
20.0 In view of the demand and acceptance of illegal gratification by accused and recovery of tainted bribe amount from him, having been proved beyond reasonable doubt, the case law relied upon by the accused, is of no assistance to him. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 83 of 93
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20.1 Ld. counsel for accused argued that as per Section 7 PC Act, it was incumbent upon the prosecution to prove that the accused accepted/ obtained/ agreed to obtain a gratification as motive or reward for doing/ forbearing to do an official act, in the exercise of official functions. But, the prosecution has failed to prove the same. Because, the scrutiny of challan was not part of accused's work, as no salary was being paid to him, for the said purpose. Further, the accused was not even competent to array any person as an accused, during scrutiny of challan; he could have only made recommendations in this regard; the final authority to array/ drop someone as an accused was with ACP concerned; and, therefore, he could not have deleted/ added complainant's name, as an accused and extended any favour/ disfavour to the complainant. Thus, charge under Section 7 PC Act stands not proved. Accused placed reliance upon the judgment of Hon'ble Himachal Pradesh High Court in State of Himachal Pradesh Vs. Inder Kumar (2006 CL.LJ 1720). 20.2 On the other hand, Ld. Sr. PP argued that once CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 84 of 93
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demand and acceptance of bribe is proved, presumption under Section 20 PC Act shall be drawn that the gratification was received for doing or for forbearing to do an official act by the accused.
20.3 It is settled position of law that once the prosecution proves that the accused accepted or obtained gratification other than legal remuneration, the Court is bound to presume, unless contrary is proved, that the accused accepted such gratification as a motive or reward, as described in Sec. 7 PC Act [B. Jayraj Vs. State of UP, 2014 Cri.L.J. 2433]. The burden is on the accused to rebut this presumption. [Dhanvantrai Balwantrai Desai Vs. State of Maharashtra, AIR 1964 SC 575 (Five Judges Bench); Trilok Chand Jain Vs. State of Delhi, 1977 Cr.LJ 254 (SC)].
20.3.1 The Hon'ble Bombay High Court in Shivrao Wamanrao Deshmukh Vs. State of Maharashtra vide judgment dated 8 May 2012, in 1 Cri. Appeal No. 2/2003 while making reference to the judgment in Dhanvantrai CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 85 of 93
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Balwantrai Desai's case (supra), noted in para 46 as under :
"46] The observations made by the Apex Court in the case of Dhanvantrai (cited supra) show that when the conditions laid down in Section 20 are satisfied by the prosecution, it becomes necessary for the accused to show that money was legally due to him or that he had received it for transaction or arrangement which was lawful. The Apex Court has observed that the accused can establish directly his case by leading evidence or upon the material before the Court he can show that his case is so probable that a reasonable man would act on the supposition that it exists. Thus, only probable or reasonable explanation from the accused is not sufficient for rebutting the burden imposed by Section 20...... So unless and until the fact established by the prosecution is disproved, the Court is required to continue to presume the existence of fact established by the prosecution viz. the gratification was accepted as motive or reward as is mentioned in Section 7.
..........."
20.4 In view of the evidence on record, it was for the accused to demonstrate that a sum of Rs.10,000/- was CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 86 of 93
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accepted by him towards some lawful transaction. But, the accused has failed to discharge the said burden. Further,as per the accused's own plea,he certainly had a role to play, that is, to either accept or reject the recommendation of the Investigating Officer, to keep the complainant in Khana No. 2. 20.5 In view of the above, Inder Mohan's case (supra) relied upon by the accused, is of no assistance to him, the facts in that case being different. In that case, the prosecution failed to prove demand and acceptance of bribe by the accused. 21.0 In view of the above findings, accused Deepak Kumar Barua is found guilty of offences punishable under Section 7 and Section 13 (2) read with Section 13 (1) (d) of The Prevention of Corruption Act, 1988 and is convicted accordingly.
Announced in the open Court on this 17th July 2014. (POONAM A. BAMBA) Special Judge (PC Act):
CBI-03 :PHC :New Delhi CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 87 of 93
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IN THE COURT OF MS. POONAM A. BAMBA:
SPECIAL JUDGE (PC ACT) : CBI - 03 : NEW DELHI DISTRICT : PATIALA HOUSE COURT :
NEW DELHI In re :CC No. 67/11
Case ID No. 02403R0152562008 RC No. DAI-2007-A-0012/CBI/ACB/New Delhi u/Sec. 7 & 13 (2) r/w Sec.13 (1)(d) of PC Act, 1988 STATE (CBI) VS Deepak Kumar Barua 27-C, DDA Flats, Taimoor Nagar, New Friends Colony, New Delhi-110065. Date of pronouncement of Judgment :17.07.2014 Date of Order on Sentence :21.07.2014 APPEARANCES:-
For prosecution: Sh. S. C. Sharma, Ld. Sr. PP for the State (CBI). For Defence: Sh. M.K. Sharma, Advocate for accused. ORDER ON SENTENCE :
21.07.2014 1.0 Convict Deepak Kumar Barua has been found guilty of offences punishable under Section 7 and Section 13(2) read with Section 13 (1) (d) of The Prevention of Corruption Act, 1988 (PC Act).
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2.0 I have heard learned Sr. PP Sh. S.C. Sharma as well as Sh. M.K. Sharma, Advocate for convict Deepak Kumar Barua. I have also perused the record carefully.
3.0 It was submitted on behalf of convict Deepak Kumar Barua that he is 48 years of age; he has no previous involvement in any criminal case. He remained on bail during trial and never misused the concession of bail. 3.1 It was further submitted on behalf of the convict that he is married having school going twin sons, who are aged about 14 years; his wife is a housewife and he is the sole bread earner of the family. It was also submitted that the convict belongs to West Bengal and lives in Delhi with his sons and wife; there is no other relative in Delhi to take care of his family, in his absence. It was prayed that in view of these facts, a lenient view may be taken and the minimum punishment be awarded.
4.0 On the other hand, learned Sr. PP submitted that the convict is not a layman; he is a public prosecutor and was CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 89 of 93
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well conversant with the laws. His responsibility to uphold the law was much higher and he was expected to discharge his duties honestly. Keeping in mind that the corruption is on rise in public life, the convict deserves maximum punishment, in order to send a strong message in the society. 5.0 I have given my thoughtful consideration to the submissions made by both the sides. I have duly considered the facts and circumstances of this case in entirety. 6.0 It is noted that the convict is 48 years of age and has clean antecedents. He is a family man and has roots in society. He is the sole bread earner.
6.1 But, at the same time, it can not be lost sight of that the convict is a Public Prosecutor; being part of the criminal justice delivery system, he was supposed to assist to reach at truth and to render assistance in justice delivery. He was all the more expected to maintain the dignity and probity attached to the position, he has holding. But, the convict has breached the faith reposed in him by the system. CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 90 of 93
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6.2 It also needs to be kept in mind that because of the misconduct of officials like convict, the common man's faith in the system has taken a beating; a belief in society has come to set in, that anything can be managed by greasing the palms of officials at the helm of the affairs. Not only this, it also reinforces the fear in the mind of a common man that he may invite trouble, if the demanded amount is not paid. Therefore, a strong message needs to be sent to the society that the laws meant to curb and punish corruption are not simple vanities. Anyone found to be on the wrong side of law, would meet his fate, as prescribed.
6.3 It is also noted that the convict is also responsible for delay in conclusion of the trial, on account of repeated adjournments.
7.0 In view of the above facts & circumstances, keeping in mind the settled position of law and on weighing the aggravating and the mitigating factors, as discussed above, I am of the considered opinion that under Section 7 PC Act, a sentence of rigorous imprisonment for a period of three CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 91 of 93
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years and a fine of Rs.5,000/- (Rs. Five Thousand); and in default, to undergo SI for a period of two months; AND under Section 13 (2) read with Section 13 (1) (d) of PC Act, a sentence of rigorous imprisonment for a period of three years and a fine of Rs.5,000/- (Rs. Five Thousand); and in default, to undergo SI for a period of three months, shall meet the ends of justice.
7.1 Accordingly, convict Deepak Kumar Barua is sentenced as under :
(i) a sentence to undergo rigorous imprisonment for a period of three years under Section 7 of PC Act; and to pay a fine of Rs.5,000/- (Rs. Five Thousand); and in default, to undergo SI for a period of two months;
(ii) a sentence to undergo rigorous imprisonment for a period of three years under Section 13 (2) read with Section 13 (1) (d) of PC Act; and to pay a fine of Rs.5,000/- (Rs. Five Thousand); and in default, to undergo CC No.67/11 : RC No. DAI-2007-A-0012/CBI/ACB/New Delhi CBI Vs. Deepak Kumar Barua Page no. 92 of 93
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SI for a period of three months.
7.2 The sentences shall run concurrently. Benefit of Section 428 Cr.PC be given to the convict. 8.0 Copy of the judgment dated 17.07.2014 as well as order on sentence passed today be supplied to the convict free of cost.
9.0 Personal bond and surety bond of the convict is hereby cancelled and endorsement, if any, on the documents/ FDR, placed alongwith, be cancelled and the same may be released.
File be consigned to Record Room.
Announced in the open Court
on this 21st July, 2014 (POONAM A. BAMBA)
Special Judge (PC Act):
CBI-03 :PHC :New Delhi
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