Delhi District Court
He Had Provided His Room No. 25 For The ... vs State Of Kerala on 10 October, 2011
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 36/2011
R.C. No. 4(A)/08/CBI/ACB/ND
Case I.D No. 02401R0929542608
Central Bureau of Investigation
Versus
Shri G.S. Raju,
S/o Shri G. Samanadhav,
Flat No. 37, RPS DDA Flats,
Mansarovar Park, Shahdara,
Delhi110032.
Date of Institution : 01.07.2008
Date of reserving Judgment : 24.08.2011
Date of Pronouncement : 29.09.2011
JUDGEMENT
1. Brief Facts:
1.1 The Accused was sent up for trial under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The Accused was working as Pollution C.C. No. 36/2011 Level Test Inspector (PLTI) with Auto Rickshaw Unit Burari Transport Department Govt. of NCT Delhi. Govt. of NCT had floated a scheme for the replacement of two stroke Auto Rickshaws with four strokes engine Auto Rickshaws. To do so, it was necessary to get a "No Dues Certificate" from the Auto Rickshaw unit of the Transport Department at Burari Delhi.
Complainant Shri Ramesh Chawla has a business of sale and purchase of Auto Rickshaws being run in the name and style of M/s Chawla Motors. On 26/12/2007, he had submitted papers relating to five Auto Rickshaws for "No Dues Certificate" with the Accused. On 1.01.2008, he had approached the Unit for making inquires about the "No Dues Certificate" and met the Accused. Accused demanded Rs. 8000/ as the bribe and conveyed unless Rs. 8000/ was paid to him "No Due Certificate" would not be issued. Accused asked him to bring the said amount on 03.01.2008. The Complainant instead of paying the bribe made a complainant dated 03.01.2008 to Superintendent of Police CBI Anti Corruption Branch New Delhi, interalia stating the said facts.
C.C. No. 36/2011 1.2 On the same day i.e. 03.01.2007, for verification this Complaint was assigned to inspector Premnath. In order to verify allegation in the Complaint he joined an independent witness Shri Jagdish Singh, Assistant Manager National Co Operative Consumer Federation Nehru Place New Delhi. He introduced the complainant and the Independent witness to each other; arranged for a digital voice recorder; audio cassettes and a tape recorder; recorded introductory voice of Jagdish Singh in the blank voice recorder; explained the functioning of recorder to the complainant and reached at the Transport Office. He and Jagdish waited outside the office in a vehicle while Complainant was sent in with the digital recorder, with a direction to switch on the recorder before entering into conversation with the accused. Complainant went inside, talked to the accused, came out and joined them in the vehicle. He informed them that the Accused had asked him to bring Rs. 8000/ the next day i.e. 04/01/2007. Recorded conversation was heard in the presence of the independent witness Jagdish. All of them returned to the CBI office. Voice from the digital recorder C.C. No. 36/2011 was transferred to an audio cassette after ensuring that the same was blank. It was marked as Q1 and kept in a plastic case. A paper slip was pasted on it, which was signed by Shri Jagdish Singh. It was sealed after wrapping it in a cloth wrapper. Wrapper was singed by Shri Jagdish Singh. Seal impression was taken on a separate sheet which was also signed by the Shri Jagdish. Seal was handed over to him with the instruction to bring it on the next day. A copy of cassette was also prepared to be used of investigation. Instruction was given to the Complainant to bring Rs. 8000/ the next day. The verification proceeding were recorded in a memo, which was signed by everyone. On the basis of the verification of the complaint of the complainant present case was registered and assigned to Shri Raj Singh Inspector.
1.3 Shri Raj Singh Inspector decided to lay a trap to catch the Accused red handed. He organized a trap team which included Rajesh Chahal, H.K. Lal, S.C. Bhalla Prem Nath, all inspectors and Nikhal Malhotra and Mahesh Kumar Sub Inspectors. On C.C. No. 36/2011 the next day i.e. 04/01/20007, Independent witnesses, Jagdish Singh and N.K. Awasthi, another witness, arranged by the Duty Officer also an Assistant Manager with National CoOperative Consumer Federation Nehru Place New Delhi, joined in the investigation. They and the Complainant were introduced to the trap party. The complainant explained to the independent witnesses as well as to the trap party about the demand being made from him by the Accused. He produced 16 currency notes of Rs. 500/ denomination each. These notes were treated with phenolphthalein powder. A sodium carbonate solution was prepared in a clean glass and Shri N.K. Awasthi was asked to touch the notes and dip his fingers in the solution. On his dipping fingers the solution turned pink. He explained to Awasthi the significance of this exercise. The search of the complainant was taken. Treated Currency notes were put in the right side pocket of pant of the complainant by Shri Awasthi. Complainant was not allowed to keep anything else in his pocket besides the mobile phone and the said currency notes. The introductory voices of both the independent witnesses were recorded in a C.C. No. 36/2011 digital voice recorder. Digital voice recorder was handed over to the Complainant. Shri Jagdish Singh was instructed to act as shadow witness and other suitable instructions were given to all .Papers related to the pretrap proceedings were prepared. All of them had then left for the Auto Rickshaw unit of Transport department at Burari.
1.4 After reaching Burari, Complainant and shadow witness had visited the room of the accused; remaining members of the party had taken their positions. The shadow witness was introduced to the Accused as the owner of one of the vehicle for whom the no dues certificate had been applied. During the course of conversation, the Accused signaled the shadow witness to go out of the room. He had accepted the money from the complainant, with his left hand and kept the said money in the upper drawer of his table, after drawing it out with his right hand. As per the instructions complainant had given a missed call to the investigating officer Inspector Raj Singh. He had rushed to the scene with other members of party. The wrists of C.C. No. 36/2011 the Accused were caught. The fingers of his left hand were dipped in a colorless solution which turned pink. The bribe money was recovered from the drawer of the Accused by the other independent witness Shri Awasthi. The numbers of these currency notes were tallied with the currency notes already noted in the pre trap proceedings. The wash of the paper (a carbon copy of NO DUES CERTIFIACTE not related with this case) on which the said currency notes were kept in the draw was also taken by wiping it with a clean cloth. This colorless solution of sodium carbonate had also turned pink after this cloth was dipped in the solution. The washes were sealed in bottles; the voice from the digital voice recorder was transferred into a blank cassette with the help of compact cassette recorder. A copy thereof was also prepared for the purpose of investigation. It was sealed. After the proceedings were concluded the Accused was arrested. All these facts find mention in recovery memo prepared in the room of the Motor Licensing Office, the room just opposite to the room of the accused. On the same day specimen voice of the Accused was C.C. No. 36/2011 also recorded in a digital voice recorder after recording the introductory voices of the independent witnesses. The voice so recorded was also transferred to an audio cassette with help of a compact cassette recorder after ensuring that it was blank. It was sealed after putting paper slips on it, which were signed by the witnesses. All these facts were noted in "Specimen Voice Recording Memo".
1.5 The washes and voices recordings were sent to CFSL. Reports of CFSL supported the case of prosecution. After the receipt of the reports, the charge sheet was filed.
2. Charge 2.1 On the basis of the allegations against the Accused, a charge under Section 7 and 13(2) read 13 (1) (d) of the Prevention of Corruption Act, 1988 was framed against him to which the Accused had pleaded not guilty and claimed trial. C.C. No. 36/2011
3. Examination of witnesses by prosecution 3.1 During the course of trial prosecution has examined in all 12 witnesses.
3.2 Witness PW1 Shri R.S. Chouhan is a scientific officer Chemistry working with CFSL. He had examined the left hand wash of the Accused and paper wash of the Accused on which the Accused had kept the tainted money. He had proved his report Ex PW1/A. 3.3 Witness PW2 Dr. Rajinder Singh is the Principal Scientific Officer Head of Physics and Forensic Division CFSL. He had examined the voice sample of the Accused and the questioned voice of the Accused recorded in audio cassettes. He had found them to be of the same person. He had proved his report, Ex PW2/A. C.C. No. 36/2011 3.4 Witness PW3 is the dealing hand working in the office where the Accused was posted. His job involved processing the files for issuance of the No Dues Certificates and put up the same before the Accused for his signatures. He had identified the entries Ex. PW3/A1 to A5 made in the register Ex PW1/ A with regard the files P1 to P5 sent to the Accused for issuing certificates in respect of the vehicle referred to by the complainant. He had also identified his signatures on the applications submitted for issuing No Dues Certificates Ex PW3/B to PW3/F. He had stated that he had prepared the No Dues Certificates but not signed by the Accused. He had identified the same as ExPW3/G to Ex PW3/K. 3.5 PW4 is the Motor Licensing Officer posted at the relevant time at Burari Transport Authority. According to his testimony, when he was sitting in the chamber of Dy. Commissioner he came to know that the Accused had been caught red handed while accepting the bribe. He had thereafter gone to the room of the accused. One CBI inspector informed him about his arrest. C.C. No. 36/2011 He had provided his room no. 25 for the writing work to the CBI team. He had identified his signatures on the recovery memo Ex PW4/A and arrest cum personal search memo Ex PW4/B. In the crossexamination this witness had admitted that an inspector would put his signatures on the NO Dues Certificates only at the time the applicant would turn up collect it. He had also admitted that the Inspector would display the list of the vehicle for which the No Dues Certificate s is ready and also of those which are under objection for any reason. He had further admitted for the vehicles No Dues Certificates were granted there was a register maintained and a list thereof was sent to the computer department for locking for further transaction. He was shown an extract of the register Ex PW4/D1 wherein the names of all the vehicles of complainant including the one shown under objection and also a form dated 01.01.2008, Ex PW4/D2, bearing the signatures of the Accused purported to have been sent to the computer department for locking for further transaction by the accused, wherein the numbers of the all the vehicles have been mentioned except the one stated to be under objection. C.C. No. 36/2011 3.6 PW 5 is the Dy. Commissioner. His testimony is largely related the process of issuing "No Dues Certificate". He had identified the check lists EX PW5/A1 to Ex PW5/A5 available in all the files of the vehicles. He had explained in the cross examination that a No Dues Certificate is valid for seven days (the reason why the no dues certificate was signed only at the time applicant would turn up for collecting the certificate). His testimony also reveals that except for one vehicle the No Dues Certificates for the remaining vehicles were ready. 3.7 PW6 is the Complainant. He deposed as to how the demand made from him by the accused; he made the complaint to CBI; his demand was verified; he had participated in the pre and post trap proceedings the Accused was apprehended after he had received bribe from him. He had identified his signatures on various documents. He has deposed on the lines of the case of the prosecution.
C.C. No. 36/2011 3.8 PW7 Shri N K. Awasthi is one of the two independent witnesses, who had participated in the investigation of the case. He deposed about the way he had participated in the pretrap and post trap proceedings and also how the Accused was apprehended and money recovered by him after he along with the trap party had reached the room of the Accused after getting the signal from the complainant. He had also identified his signatures on various documents prepared during the investigation of the case. He too has by and large deposed on the lines of the case of the prosecution.
3.9 PW8 Shri R.K. Verma Secretarycum commissioner of Transport Department is the competent authority who granted sanction for the prosecution of the accused. 3.10 PW9 Inspector Premnath is the officer to whom the complaint was assigned for verification. Independent witness Shri Jagdish had joined him in the verification proceedings. After the necessary precaution had been taken so as to ensure that C.C. No. 36/2011 the digital recorder was clean it was handed over to the complaint; who had gone to the Accused engaged him in the conversation about the demand of bribe made by the Accused on the previous day. The conversation verified the fact that the Accused had in fact demanded bribe from the complainant. He had identified the verification memo prepared by him during his testimony.
3.11 PW 10 Shri Jagdish Singh is an independent witness. He is the witness who was involved in the verification of the complaint. He is also the shadow witness. He has not supported the case of the prosecution and had to be crossexamined by the Ld Prosecutor. He though identified the signatures on various documents stated to have been prepared during the case of the prosecution but denied the knowledge of these documents. According to him he had signed them at the instance of CBI officials without knowing their contents. C.C. No. 36/2011 3.12 PW11 Inspector Raj Sigh is the trap lying officer. PW12 Manish Kumar Upadhayay SI is one of the members of the trap party. He had also completed the later part of the investigation. Both these witnesses have deposed on the line of the case of the prosecution and identified all the documents prepared during the course of the investigation in their presence.
4. Statement of the Accused under Section 313 of the Code of Criminal Procedure, 1973 4.1 All the incriminating evidence which has come on record was put to the Accused and his statement under section 313 of the Code of Criminal Procedure, 1973 was recorded.
5. Examination of witnesses by defense 5.1 The Accused had examined four witnesses in defense. Witness DW1 Shri T C Meena LDC ACB CBI had produced the visitors register maintained at the gate of CBI office. Accused wanted to show that on 03.01.2008 and 04.01.2008 the independent witnesses and the complaint had not visited the C.C. No. 36/2011 office of CBI as their names did not mention in the visitors register. Defense witnesses DW2 to DW4 are the Inspectors from the same departments or to say are the colleagues of accused. According to them, they and the Accused used to take lunch together, when they were taking lunch on 4.1.2008 between 1 to 1.15 PM a person (peon) came there and informed the Accused that someone had come to meet him. After finishing the lunch hurriedly Accused had left for his room.
6. Documents Exhibited 6.1 Following are the documents exhibited during the Course of the trial of this case:
(1) Complaint made by the Complainant Sh. Ramesh Chawla dated 03.01.2008- ExPW6/A. (2) Verification memo dated 03.01.2008 Ex PW6/B. (3) FIR dated 04.01.2008 at 9.30 AM - Ex PW11/A. (4) Handing Over Memo dated 04.01.2008 Ex PW6/C. C.C. No. 36/2011 (5) Recovery Memo dated 04.01.2008 Ex PW 4/A. (6) Carbon copy of "No dues Certificate" seized on 04.01.2008 (relating vehicle DL1R 6967 old no. DBR 2240) on which the tainted currency notes were found to be lying in the drawer of the accused Ex PW6/G. (7) Arrest -Cum Search Memo dated 04.01.2008 Ex PW4/B. (8) Office Search - cum -seizure memo Ex PW7/B. (9) Site Plan dated 04.01.2008 - Ex PW7/A. (10) Specimen Voice Recording Memo of Accused (also having introductory voice of witnesses) dated 04.01.2008 PW7/C. (11) Forwarding Letter dated 07.01.08 addressed to the Director CFSL CBI New Delhi regarding audio cassettes -
PW12/A. (12) Forwarding Letter dated 07.01.08 addressed to the Director CFSL CBI New Delhi regarding sealed bottles of washes PW12/B. (13) Specimen Seals - Ex PW2/B and Ex PW2/C. (14) Order of the Court permitting the Shri M.K. Upadhyay, a subinspector to investigate the case Ex PW12/C. C.C. No. 36/2011 (15) Report of the CFSL regarding audio cassettes Ex PW2/A. (16) Chemical Examination Report of CFSL regarding the washes EX PW1/A. (17) Transcriptioncum Voice Identification memo dated 05/05/2008 - Ex PW6/D. (18) Transcript of the conversation dated 03.01.2008 - Ex PW6/E. (19) Transcript of the Conversation dated 04.01.2008 Ex PW6/F (20) Five files pertaining to vehicles A. File Ex P 3 Vehicle no. DL1RC9229 containing Ex PW3/I - No dues certificate, Ex PW5/A3 - Check List and Ex PW 3/D - Application Form for getting No Dues Certificate .
B. File Ex P 1 Vehicle no. DL1RC7411 containing Ex PW3/G - No dues certificate, Ex PW5/A1 - Check List and Ex PW 3/B - Application Form for getting No Dues Certificate .
C. File Ex P 2 Vehicle no. DL1RC6809 containing Ex PW3/H - No dues certificate, Ex PW5/A2 - Check C.C. No. 36/2011 List and Ex PW 3/C - Application Form for getting No Dues Certificate.
D. File Ex P 5 Vehicle no. DL1RC7772 containing Ex PW3/L - No dues certificate, Ex PW5/A5 - Check List and Ex PW 3/F - Application Form for getting No Dues Certificate.
E. File Ex P 4 Vehicle no. DL1RC2810 containing Ex PW3/J - No dues certificate, Ex PW5/A4 - Check List and Ex PW 3/E - Application Form for getting No Dues Certificate.
(21) Photocopy of a register wherein names of vehicles have been mentioned Ex PW4/ D1.
(22) Photocopy of the form purported to be signed by the Accused by which the files for locking had been sent to the computer department by the accused Ex PW4/ D 2. (23) Pollution certificate regarding the vehicle DLIR C 9229, the application of which was under objection Ex PW 5/D1. (24) Extract of the visitors register giving the details of visitors visiting CBI office on 03.06.2008 including the entry, Ex PW3/ DX1, relating to the witness PW3, dealing hand Shri Dinesh Verma working in the office of the accused Ex DW1/1 C.C. No. 36/2011 (25) Extract of the visitors register giving the details of visitors visiting CBI office on 05.05.2008 including the entry, Ex PW 4/ DX1, relating to the witness PW4, Shri Rajesh Kumar MLO Ex DW1/2.
(26) Extract of the visitors register giving the details of visitors visiting CBI office on 13.06.2008 including the entry, Ex PW / DX 1, relating to the witness PW5 Shri Ashok Gupta DY Commissioner in Auto Rickshaw Unit Ex - DW 1/3.
7. Hearing of submissions 7.1 I have heard LD counsel for the Accused and Ld Public Prosecutor for CBI. I have also gone through the record of this case and the written submission filed on behalf of the accused.
8. Discussion and Findings 8.1 Corroboration 8.1.1 It is matter of fact that in this case the shadow witness has not supported the case of the prosecution. Should this lead to disbelieving the case of the prosecution in general or make it unsafe to convict the Accused on the basis of the remaining C.C. No. 36/2011 evidence adduced by the prosecution including that of the testimony of the complainant?
8.1.2 It will be appropriate here to reproduce the relevant portion of the Judgment of the Hon'ble Supreme Court in AIR 2009 SUPREME COURT 214 "Ravi v. State Rep. by Inspector of Police" to understand what should be approach of the Court while looking for the corroboration of one witness by the other, which reads as under:
"8. On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, 1872 (in short the 'Evidence Act') the following propositions may be safely stated as firmly established :
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated.
One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in C.C. No. 36/2011 the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes."
From the same Judgment to elaborate this point further relevant portions can be fruitfully reproduced from the earlier judgment of the Hon'ble Supreme Court in case Vadivelu Thevar v. The State of Madras (1957 SCR 981). It reads as follows:
" '11.... Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either C.C. No. 36/2011 way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.'"
8.1.3 In other words even if the testimony of the complainant is not supported other witnesses,the may not be a reason to discard the testimony of the Complainant. ( In the present case only witness has not supported the testimony of complainant others have.) 8.1.4 It may also be noted that the corroboration may not be direct it can also be circumstantial. The Hon,ble Supreme Court in the case M.O. Shamshuddin vs. State of Kerala, 1995(II) C.C. No. 36/2011 Crimes 282 has observed:
"It is wellsettled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The Court should weigh the evidence and then see whether corroboration is necessary. Therefore as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case. In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. However, it is cautioned that the evidence of a bribe giver has to be scrutinised very carefully and it is for the court to consider and appreciate the evidence in a proper manner and decide the question whether a conviction can be based upon or not in those given circumstances."C.C. No. 36/2011
8.2 Hostile witness in the context of requirement of corroboration.
8.2.1 Like in the case of any witness, testimony of a witness who has not supported the case of the prosecution (hostile witness) can also be divided into three categories viz:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
A hostile witness may not necessarily speak a lie. If his testimony is credit worthy or wholly reliable it can be used for supporting the case of prosecution to the extent possible or in add of the defense again to the extent possible. If his testimony is not trustworthy or wholly unreliable for sure the best thing would be to discard his testimony altogether and keep it out of reckoning either for supporting the case of prosecution or defense. In case of it being "Neither wholly reliable nor wholly unreliable" the best approach would be use parts of the C.C. No. 36/2011 testimony of such a witness only if there is other supportive evidence available which is reliable.
8.3 Where there is no support from independent witnesses Accused can still be convicted.
8.3.1 This is a fact well established but just needs to be restated on two counts first, non support of the case of the prosecution by an independent witness would not necessarily lead to discrediting the case of the prosecution and secondly testimony of police witnesses is not inherently unreliable or it cannot be accepted with corroboration. To support this view one only needs to refer to the judgment of the Hon'ble Supreme in the case ""Girja Prasad v. State of M.P." [AIR 2007 SUPREME COURT 3106] In this case neither of the two independent panch witnesses had supported the case of prosecution, they were declared hostile. The fate of the cases depended upon the testimony of the Complainant and Inspector of Special Establishment. The trial court acquitted the accused. High Court over turned the decision of the trial Court. In appeal the C.C. No. 36/2011 Hon'ble Supreme Court, upheld the decision of the Hon'ble High Court. This is what Hon'ble Supreme Court had observed:
"23. We are equally unable to uphold the contention of the learned counsel for the appellant that the trial Court was right in not relying upon PW 1Anup Kumarcomplainant and PW 10S.K. Tiwari Inspector of Special Police Establishment. The trial Court, it may be stated, discarded the evidence of these two witnesses by laying down the following proposition of law;
"It goes without saying that Anup Kumar and Shri S.K. Tiwari were concerned only with the success of the trap and thus both these persons are interested witnesses. PW 10, Shri Tiwari is Inspector in Lokayukt Office therefore he is highly interested witness."
24. In our judgment, the above proposition does not lay down correct law on the point. It is wellsettled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of complainant or a Police Official but it is not the law C.C. No. 36/2011 that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
[See also AIR 1980 SUPREME COURT 873 "Hazari Lal v. State (Delhi Admn.)"] 8.4 Testimony of Hostile witness PW 10 Shri Jagdish Prasad.
8.4.1 Bare reading of the testimony of this would be show that majority of answers given are either in the form "I do not know"
or "I do not remember" or "it is incorrect to suggest" though he C.C. No. 36/2011 admitted his signatures on all the documents including the papers slips pasted on the bottles in which the pink color liquid was collected(hand wash and wash of the paper on which the tainted currency notes were found to be kept) and wrappers with which the bottles were sealed, which he was supposed to have signed as per the case of the prosecution.
8.4.2 His testimony gives an impression as if he was determined to deny the case of the prosecution. He began by saying "On 13.1.2008 I along Complainant Chawla had gone to the room of accused. I was sent outside the room by Chawla. Accordingly I came outside and remain standing there. Nothing had happened in my presence." This led to seeking permission by the Prosecutor to crossexamine the witness.
8.4.3 The witness is no naive. He must have been about 54 years of age when he participated in the investigation of this case. He had been working as Assistant Manger with National Cooperative Federation of Indian Limited (a Govt. of India C.C. No. 36/2011 undertaking) for about nine years on the day when he was called upon to participate in the investigation of the case. As per his own admission he had gone to CBI office on the directions of his senior officer and had met duty officer (an official of CBI whose job generally is to arrange for such independent witnesses from other departments) who introduced him Inspector Prem Nath. He would have known for sure for what purpose he had been called.
8.4.4 Let us look at the way he has answered the questions.
8.4.5 At one stage he had stated:
"I do not know whether Awasthi had kept tainted GC notes in the right side pant pocket of complainant. I do not know whether complainant was specifically instructed to pass on the tainted GC notes of Rs. 8,000 / only on being demanded as bribe by Accused and not otherwise. Even I do not remember whether we had washed our hands with soap and water after completion of pre trap proceedings. I do not remember whether I was directed to remain close as shadow witness to the complainant and tried to over hear the conversation and see the transaction C.C. No. 36/2011 between complainant and accused. I do not remember whether I was directed to give signal of completion of transaction of bribe by scratching my head with both the hands or giving a miss call from my mobile phone to the phone of Raj Singh."
8.4.6 Further at another stage he had stated:
"I do not remember whether Raj Singh had challenged Accused of accepting bribe or not. Vol. complainant and Accused came out of the chamber. What had transpired between them inside the chamber before coming out I do not know. No hand wash of Accused was taken in my presence. No bribe money was recovered from Accused in my presence, however, I was so informed later on. I do not know whether on tallying the number of GC notes with the Handing Over Memo, the same were found correct. I do not know whether the colour of hand wash of Accused turned pink."
8.4.7 He had admitted his signatures on the following documents:
I Ex.PW6/B -It runs into two pages. It has the signatures of witness Jagdish Singh on both the pages. It is a verification memo prepared by Inspector Prem Nath. It contains all the C.C. No. 36/2011 details with regard to the visit of complainant along with this witness to the office of Accused for verifying the demand of bribe and it also includes the reference to the recording of the conversation between the complainant and the accused.
Ii Ex.PW6/C - It is a Handing over Memo dated 4.1.2008. It runs into three pages making reference to pre trap proceedings wherein there were also instructions stated to have been given to the witness Sh. Jagdish Singh to act as a shadow witness and it includes the entire process of handing over the tainted currency notes to the complainant for being passed on as the bribe to the Accused after a demand is made from him. The witness admitted his signatures on this document on all the three pages.
Iii Ex.PW4/A - It is a recovery memo dated 4.1.2008 running into seven pages. It contains the details of all the post trap proceedings. The Accused had admitted his signatures on this document on all the pages.C.C. No. 36/2011
Iv Ex.PW4/B -It is the arrest cum personal search memo of the Accused prepared at the time of arresting the accused. This memo runs into two pages and on both the pages the witness has admitted his signatures.
V Ex PW6/E - Transcript of conversation between Complainant and Accused of 03.01.2008 prepared on 05/05/2008.
VI Ex PW/6F Transcript of conversation between the Complainant and the Accused of 04.01.2008, prepared on 05/05/2008.
VII Ex.PW7/A - Site plan.
VIII Ex PW7/B - Office search cum seizure memo dated 04.01.2008, giving the details of the files seized of various vehicles related to this case C.C. No. 36/2011 IX Ex.PW7/C - It is the Specimen Voice recording memo prepared also on 4.1.2008. It makes reference to the recording of specimen voice of the Accused in the presence of the witness.
8.4.8 It may be noted that Ex.PW6/C and Ex 4/A are neatly typed documents and document Ex.PW4/B, Ex.7/A and 7/C are documents though written in English in longhand but they are readable and neatly written.
8.4.9 After having admitted his signatures on the said documents when he was crossexamined by the Ld defense Counsel this what he had said "I had (sic. signed) Ex.PW6/C at the instance of CBI officer without knowing the contents of the same. Signature of all the persons on Ex.PW4/A were taken in CBI office. I do not know the contents of Ex.PW4/A. I had not joined investigation of CBI case except this case. Ex.PW4/B, Ex.PW7/A, Ex.PW7/B and Ex.PW7/C were prepared in CBI office. My signatures were also taken there. The seal on C.C. No. 36/2011 Ex.PW4/B and Ex.PW2/C was affixed in the office of CBI. I am not aware what is document Ex.PW6/E and Ex.PW6/F, however I put signature on the asking of CBI officer."
8.4.10 It is impossible to believe that a person would not even be curious to know what papers he is being asked to sign after having signed papers not just on one date but on three dates. (03.01.2008, 04.01.2208 and 05.05.2008). It is not his case that he was under any pressure from any one to sign on those papers. It is possible that if a witness is examined after a long time he may sometimes forget the small details but not like this. It can be said without doubt that this witness is completely untrustworthy and cannot be counted at least for disbelieving the case of prosecution.
9. Presumption under section of 20 Prevention of Corruption Act.
9.1 It is now well established that a presumption under section C.C. No. 36/2011 1 2 20 of the PC Act a presumption of Law and not a presumption of fact. If we cut through the section 20(1) and pick up what is relevant for us it would mean "If in a trial for an offence under section 7, it is proved that the Accused has accepted any gratification it shall be presumed, unless contrary is proved, that he accepted it as a motive or reward such as mentioned in Section 7." Drawing from the meaning of the word "gratification" used in Section 20 from Oxford Advance Learner's Dictionary "to give pleasure or satisfaction to" Hon'ble Supreme Court in 3 the context of Section 20 has laid down "The premise to be 1 20. Presumption where public servant accepts gratification other than legal remuneration (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an Accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be Inadequate. (2) - --- ---
(3) - 2 M Narsinga Rao V State of AP AIR 2001 Supreme Court 318; State of AP V C. Uma Maheswara Rao AIR 2004 SC 2042; Mahmoodkhan Pathan V State of Maharashtra AIR 1998 SC 2360; State of Maharashtra V Rashid Babubhai Multani AIR 2006 SC 825; Madulkar Bhaskar Rao Joshi V Sate of Maharashtra AIR 2001 SC 147 3 Madulkar Bhaskar Rao Joshi V Sate of Maharashtra AIR 2001 SC 147 [ Para 12] C.C. No. 36/2011 established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the Court has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing." If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
9.2 That is to say once it is established that the Accused accepted gratification it would be presumed he did so for motive C.C. No. 36/2011 or reward for doing or forbearing to do any an official Act as envisaged under section 7 of the Act, the burden would shift to the Accused to prove to the contrary. The fact of acceptance of course can be established on the basis of direct or indirect evidence. Though the prosecution is required to establish its case beyond reasonable doubt but the Accused can rebut the presumption by setting up a defense on the basis of preponderance of probabilities like in a civil case. Since it is a presumption of law it cannot be rebutted by offering a reasonable or probable explanation but by establish facts to the contrary. It will be appropriate to reproduce here the observation of the Hon'ble Supreme Court in Dhanvantrai Balvantrai Desai V State of Maharashtra [ AIR 1964 SC 575 Para 12 and 13] as quoted State of Maharashtra V. Rashid Babubhai Mulani AIR 2006 SC 825. It reads as under:
"Therefore, the Court has no choice in the matter once it is established that the Accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though money was not due to him as legal remuneration, it was legally due to him in some other C.C. No. 36/2011 manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the Accused person in such a case would not be as light as it is where a presumption is raised under Section 114, Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the Accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. ..... Something more, than raising a reasonable probability, is required for rebutting a presumption of law. The bare word of the appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man ought, in the circumstances, to have accepted it."
9.3 Though, it is wellsettled that the Accused is not required to establish his explanation by the strict standard of 'proof C.C. No. 36/2011 beyond reasonable doubt', and the presumption under Section 4 of the Act would stand rebutted if the explanation or defense offered and proved by the Accused is reasonable and probable, the following words of caution in Chaturdas Bhagwandas Patel v. The State of Gujarat [AIR 1976 SC 1497] need be kept in mind before it can be said that the presumption stood rebutted:
"Thus it had been indubitably established that the appellant, a public servant accepted a gratification that is a sum of Rs. 500/ which was not his legal remuneration, from Ghanshamsinh (PW1). On proof of this fact, the statutory presumption under Section 4(1) of the Prevention of Corruption Act was attracted in full force and the burden had shifted on to the appellant to show that he had not accepted this money as a motive or reward such as is mentioned in S. 161, Penal Code. ..... It is true that the burden which rests on an Accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the Accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in Sec. 161."C.C. No. 36/2011
9.4 To conclude one may say to rebut the presumption under section 20 of the Act mere explanation would not be sufficient. It would be necessary to prove otherwise by the evidence on record whether by bringing in evidence in defence or on the basis for the material which has come on record during cross examination of prosecution witnesses. The standard of proof required would be that of that the civil court and not criminal court.
10. Acceptance of tainted money 10.1 Tainted left hand of Accused 10.1.1 The defense of the Accused is simple. He had not received the money from the complainant. He was taking lunch with his other colleagues in the room of one another inspector Shri Ashok Tyagi , at the time he was called to his room. He was informed by CBI officials that some money has been recovered from his drawer. He was caught hold of by his hand (palm) and thereafter his hand wash taken thus chemical C.C. No. 36/2011 getting transferred from the hands of CBI officials to the hand of the Accused. In one of the questions he had answered in his statement under section 313 CRPC he has stated "I was called by CBI officials as I was out of my room and was with one of the colleagues for lunch. CBI officials caught me from my hand and thereafter they had taken the hand wash by transferring the chemical by holding my hand."
10.1.2 It is also so stated in the written submissions filed on behalf of the accused. It is stated "it is an admitted fact that the Accused was caught hold by hand by the CBI officials which fact has been categorically admitted by PW6 In his examination in chief ... ... ... ... . "Accused Raju was caught hold by his wrists by one CBI inspector......" Further more PW 11 also in his examination in chief ... .... Stated "I caught hold left wrist of Accused and Rajesh Chahal Caught hold his right hand wrist... ". Thus the possibility of transferring the chemical and planting the same cannot be over ruled." In the written arguments it is further stated at the end "It is humbly submitted C.C. No. 36/2011 the alleged hand wash of the Accused can at best be mere corroborative evidence and in the absence of such Substantive evidence the alleged hand wash of the Accused cannot be relied upon by this Hon'ble Court."
10.1.3 PW 6 is none other than the complainant. In the cross examination as well this witness had stuck to his stand. He had stated "Accused was apprehended by his wrist by the CBI officers". Shri N K Awasthi the other independent witness has used word "hands" both in the cross examination as well as examination in chief to say his "hands" had been caught by the officers. Here the words "hands" seems to have been clearly used to in the general sense. This is an expression which is most likely to used by a person for "wrist" unless he or she is made alive to the consequence of the use of such an expression. There was no clarification sought from him as to what he meant by the use of the expression "hand". There was also no suggestion given to from the defense that Accused was caught hold of by palm as was given specifically to the witness C.C. No. 36/2011 PW 11. There is one more witness examined in this case PW 12 S I Mainsh Kumar Upadhaya, who was also part of the trap team. In his examination in chief he had stated "The right and left hands wrists of the Accused was got hold by CBI officials" (sic). In the cross examination he had stated "It is wrong to suggest that the hand wash of Accused was taken after rubbing the hand of the CBI officials with the hand of the accused."
10.1.4 It is absolutely clear that the witnesses have stated with one voice that the Accused was caught hold of by wrists and not by palm as is being tried to be made out by the accused. I accordingly hold that the Accused was held by wrists and not by palm and there was no possibility of phenolphthalein being transferred to his hand by from the hands of the CBI officials. In the absence of any other explanation it can also be said conclusively that phenolphthalein it could have reached his hands only if he had touched or held the tainted currency notes. C.C. No. 36/2011 10.2 Hand wash of the accused 10.2.1 The witnesses have consistently stated that hand wash of the Accused was taken soon after he was challenged and apprehend. Though in the written submission the Accused has tried to describe it as "alleged hand wash" and to the witness PW 6 a suggestion was given that no such hand wash was taken which was replied to by the witness by saying "It is incorrect to suggest that no hand wash of Accused was taken." A similar suggestion was also given to witness PW 7 Shri Awasthi. But I would not like delve deep into to it as the Accused himself has admitted this fact at the time of the examination of the last witness of prosecution PW 12 S I Mainsh Kumar Upadhaya, who was also part of the trap team while giving a suggestion to this witness (also already reproduced above) "It is wrong to suggest that the hand wash of Accused was taken after rubbing the hand of the CBI officials with the hand of the accused." (Emphasis supplied) C.C. No. 36/2011 10.2.2 It is stated in the written submissions "Even otherwise there is no hand wash of PW 7, who allegedly recovered the money to corroborate the factum of recovery and presence of money in the drawer. Therefore there is strong possibility that hand wash of the Accused was in fact the hand wash of N K Avasthi because he was the person who admittedly as per the case of the CBI handed the currency notes, therefore, this piece of evidence of the prosecution cannot be relied upon against the Accused person."
10.2.3 I do not see any logic as to why the hand wash of Shri N K Avasthi should have been taken. What was material, was whether there was phenolphthalein on the hands of the Accused or not as it would have shown he had accepted the phenolphthalein smeared money. The defense of "strong possibility" that washes collected were of witness Shri N K Awasthi, at best can be said to be a "wild possibility". It is without any basis in terms of evidence which has come on record. It may noted that this an issue which has been raised for C.C. No. 36/2011 the first time in the arguments. There is not a single suggestion put to any of the witnesses to this effect.
10.2.4 I, therefore, conclude that the left hand wash of the Accused was taken during the investigation at the spot. 10.3 Recovery of money from drawer of the accused 10.3.1 The tainted money was in the drawer of the accused. The Accused when confronted with the evidence on record under section 313 of the Code had replied "I was called by CBI and was informed that some money has been recovered from my drawer". The submission in the written arguments is also to the same effect, wherein it is submitted "The alleged recovery is in fact planted on the Accused ... ... .... ." The categorically assertion "in fact planted" leaves no scope for doubt that the money was in the drawer of the Accused is not in doubt but the allegation is that it was planted or stage managed. C.C. No. 36/2011 10.4 Whether the money was planted 10.4.1 Thus the prime question in the given circumstances would be whether this money was planted in drawer of the Accused when he was away to take lunch with his friends. There are contradiction pointed out by the learned defense counsel in the case of the prosecution and there is also evidence led on behalf of the Accused to bring home this point. 10.4.2 Let us look at the testimony of the complainant. He has stated " ... I along with Jagdish Singh went inside the room no. 26 where the Accused G S Raju was sitting. G S Raju demanded bribe amount of RS. 8000/ . I told that I had brought Rs.8000/ Thereafter, Accused G S Raju made a gesture asking me to send the shadow witness Jagdish outside the room. Thereafter he again demanded the bribe amount of Rs.8000/ and I gave the said amount to him. Accused G S Raju kept the bribe amount in a drawer. Thereafter I went outside the room and gave a call to inspector CBI who has given his cell number. C.C. No. 36/2011 Thereafter all the trap team members rush towards the office of Accused G S Raju. They disclosed their identity that they are from CBI office and they challenged the Accused that he has demanded and accepted bribe amount of Rs. 8000/ from the complainant. He became perplexed and pale. Accused G S Raju was caught hold (of) by his wrists by one CBI Inspector. Witnesses were (sic) also come along with the raiding team. Hand wash of the Accused was taken in a solution. It turned pink. The pink colour solution was transferred in a glass and was sealed and both the independent witnesses signed the same. One inspector CBI asked N K Avasthi to search the drawer to recover the bribe amount. Thereafter N K Avasthi recovered bribe amount of Rs. 8000/ from the drawer of the table. The numbers of 16 GC notes were tallied with the numbers noted in the Handing Over Memo Ex PW6/C and the numbers were found to be correct."
10.4.3 The cross examination of witness was done on two dates. On the first date he had stated "I cannot tell the C.C. No. 36/2011 dimension of the room of the accused, however, that was sufficient to accommodate about three charpais. No site plan was prepared in my presence. When there was talks about the transaction of money with the Accused Jagdish had gone outside the room. At that time there was none else in the room of Accused however some chairs lying there. There were two tables in the room. Money was given in the hand of the accused. When I came out of the room of Accused to give miscall Accused had also come out of his room. The CBI officers had given their number by giving miscall on my mobile phone. On that number I had given miscall after coming out of the room of accused. As far as I remember I had given miscall on the number of Raj Singh. Jagdish must be near about (AAS PAS), however I had noticed him. I cannot understand the site plan dt 4.108. The table of Accused was about 4 feet. After giving miscall about 8 or 10 CBI Personnel had reached the spot and entered in the room of the accused." There was a specific question put to the witness on behalf of the Accused about the reason for the visit of the Accused on 04.01.2008. The C.C. No. 36/2011 said question and the answer to the same read as under:
"Q. I put it to you that pollution certificate Ex PW5/D1 was handed over by you to Accused Raju on 4.1.08?
Ans: Now I do not recollect whether I had given this document on 4.1.08."
10.4.4 On the second date on this point he had stated "After 5/7 minutes of my giving call they had entered in the room of the accused. They were 5/7 persons at that time. The independent witness had also entered after them in the room of the accused. No document was prepared in the room of accused. After apprehending the Accused first of all transcription of recorded conversation was prepared in Hindi. What other document was prepared there after I cannot tell their nature/ name. I had not gone to the office of GS Raju along with Jagdish on 4.1.2008. the Accused had not demanded Rs. 8000/ in presence witness Jagdish. It is incorrect to suggest that since I had not gone to the office of G S Raju on 4.1.2008 with Jagdish singh, therefore, the question of Accused asking Jagdish by gesture to go out of the room does not arise. It is C.C. No. 36/2011 incorrect to suggest that the Accused has not demanded on 4.1.2008. Now I remember demand of money was made on 4.01.2008, however, I cannot say whether it has been so recorded in conversation. It is incorrect to suggest that transcription Ex PW 6/E and F are not the correct transcription. It is incorrect to suggest the voice in Ex P19 is not Accused Raju. It is incorrect to suggest that the Accused has not accepted bribe of Rs. 8000/ from on 4.1.2008. It is incorrect to suggest that the Accused had not kept money in his drawer.
The Accused was apprehended by his wrist by the CBI officers. It is incorrect to suggest that no hand was of Accused G S Raju was taken ( sic). It is incorrect suggest that when CBI team was already in the room of the Accused when the Accused entered his room. It is incorrect to suggest that sum of Rs. 8000/ was not recovered from the drawer of the accused. It is correct that I identified my documents on the basis my signatures only. It is incorrect that I do not know the nature of these documents. Wash of paper was also taken. Some C.C. No. 36/2011 writings was on the paper I cannot tell what was the writing. Paper was seized by the CBI officer. I cannot tell whether it was sealed or not."
10.4.5 The other independent witness Shri N K Awasthi has substantially supported the version of the complainant .He has stated thus in his examinationinchief "Complainant along with Mr. Jagdish had gone inside the office of Accused and I along with other members remained outside the gate the gate. Complainant was asked to give signal after paying the money. After receiving the signal we had gone in the room. CBI inspector disclosed his identity and shown his I card to Accused and told him that he is CBI inspector challenged the Accused that he had accepted the bribe from complainant, Accused became perplexed and stated "NO NO". Accused was alone in the room however there were CBI personnel. Witness has correctly identified the accused. When the search was taken the same currency notes no of which noted in the handing over memo were found lying in the drawer of table and the same were recovered. I was asked by CBI team to open the drawer. I C.C. No. 36/2011 had recovered. I had recovered GC notes from drawer. Hands of Accused were caught hold by the CBI personnel prior to my recovery of the money from the drawer. The witness was asked the question "who told you that money is lying in drawer?". He had replied "CBI asked me to open the drawer." He was then asked "who told CBI that money is lying in drawer?" To which he had replied "I do not know." The witness had thereafter continued to narrate the incident as "Thereafter left hand wash of the Accused was taken which turned pink. That wash was transferred in a bottle and that bottle was sealed and our signatures were taken on it. The room of the Accused was searched, files were seized. Wash of the paper on which the currency notes were lying in the drawer were taken that had also turned pink. That was transferred in bottle, that bottle was also sealed and our signatures also obtained on that bottle." He had identified the currency notes. He had further stated " I had recovered the money at the instance of CBI officer. I was asked to count the money. I had counted it with help of Jagdish Singh. It had been tallied with the handing over memo and found to be C.C. No. 36/2011 correct."
10.4.6 One may also look at the cross examination of this witness. He has stated "it was a big room which can accommodate 5/6 Charpais. I do not know who had prepared he site plan. I do not remember his name. I had signed the site plan. There was only table in the room of Raju some almirah was also there. There was no name plate display the name of Accused Raju. (sic) Now I do not recollect whether the name of Accused was displayed on the table. Raju was sitting by that table hence I say it was the table of Raju. I do not remember whether the table was having drawers on both the sides or one side. There may be three drawers on the side from where the money was recovered from the top drawer. Some documents were also lying in that drawer. I do not remember whether any documents was prepared with regard to those documents lying in that drawer." He had continued further "Signal was received by the CBI (officer) on his mobile phone from the complainant. I was standing with the CBI officer. We had entered in the room of the Accused within two minutes after receiving the signal. It is C.C. No. 36/2011 incorrect to suggest that I had not gone to the office of the Accused on 4.01.2008. it is incorrect to suggest that I had not recovered any money from the drawer of the table of Raju. It is incorrect to suggest that I signed several documents at the instance of CBI without knowing the contents of the same." 10.4.7 He had further stated in the crossexamination "we had remained in the room of Accused for about half an hour. When I reached in the room of Accused after receiving the signal Jagdish and complainant were standing out side the room of the accused. Accused was in his room. It is incorrect to suggest that when the CBI team came in the room thereafter the Accused was called from outside. I was inside the room. At another stage in the crossexamination this witness has stated "I do not know whether on that day CBI team had apprehended some touts operating outside office of authority and complainant was one of them. I do not know whether Ramesh Chawla was/is a tout operating outside the authority. It is incorrect to suggest that no recovery was affected from the drawer of table. It is in C.C. No. 36/2011 correct to suggest no hand was of the Accused was taken. Accused was about take his meal when we entered in his room he was apprehended by the CBI officer."
10.4.8 The investigating officer PW 11 Shri Raj Singh and Manish Kumar Upadhyay SubInspector , the other member of the trap team have of course supported the case of the prosecution. There is nothing referred from their testimony either at the time of making oral submissions or in written submissions filed for creating doubt about the case of the prosecution . Thus there would be no difficulty in saying that they have fully supported the version of the complainant.
10.4.9 Before I go on to evaluate the submissions of defense, I would like to make one observation. The nature of examination of a witness in the cross examination is entirely different from the examination in chief. In the examination in chief the effort is that narration by the witness is in orderly fashion, moving from fact to the other, one sequence to the C.C. No. 36/2011 other. The witness is not given clues to give an answer. He is expected to say lot things of his own. It is, therefore, possible to read examination in chief as one composite whole. This, however, is not always true of cross examination. In fact the attempt is deliberately made to not ask the question in sequence or one fact joined by the other fact, so as to catch the witness on wrong foot in order to elicit truth from him. It is expected witness would answer the questions as they are asked and not go on to say something of his own, as what he wanted say has already been said by him in his examination in chief. Therefore, the way to look at cross examination is not as a free wheeling narration but as an answer to individual questions which may not have any connection with the next question asked. If a witness has missed something in the examinationinchief it would assumed that something did not happened. Where as in the case of cross examination there is no question of missing something for he has only answered the questions specifically was put to him. 10.4.10 According to the defense the testimony of the C.C. No. 36/2011 Complainant would be highly risky to be relied upon. In one breath he says the demand was made in the presence of the witness PW 10, Jagdish Singh and in the other that the demand was not made in his presence. To prove this point reference has been made to different parts of the testimony of the witness from examination in chief as well as from the cross examination. The same are as follows:
-" that I along with Jadish Singh were inside the Room 26, where Accused demanded bribe amount of Rs. 8000/ I told that I had brought Rs. 8000/. Thereafter Accused G.S. Raju made a gesture asking me send shadow witness Jagdish out side the room" (from examination in chief) ;
"When there was talks about the transaction of money with the Accused Jagdish had gone outside the room."(sic) (From cross examination); and "The Accused had not demanded Rs. 8000/ in presence of witness Jagdish."[ from cross examination] 10.4.11 It is difficult to understand where the contradiction in the first two parts is. The first part gives the initiation of C.C. No. 36/2011 conversation about the money and indicates as the conversation was progressing Jagdish was asked to leave the room by gesture. The second part describes the same fact in different word to indicate as the conversation with regard to transaction money was progressing Jadish was asked to leave.
10.4.12 In order to understand the third statement one will have to look a little closer. The first statement quoted by the defense is not complete. The complete sequence narrated is "
" that I along with Jadish Singh were inside the Room 26, where Accused demanded bribe amount of Rs. 8000/ I told that I had brought Rs. 8000/. Thereafter Accused G.S. Raju made a gesture asking me send shadow witness Jagdish out side the room. Thereafter he again demanded the bribe amount of Rs. 8000/ and I gave the said amount to him." (Emphasis supplied) 10.4.13 The third part of the statement quoted is an answer to a question squeezed between absolutely to different kind of C.C. No. 36/2011 questions. It is like this "It is incorrect to suggest that I had not gone to the office of G S Raju on 4.1.2008. The Accused had not demanded Rs. 8000/ in presence of witness Jagdish. It is incorrect to suggest that since I had not gone to the office of G S Raju on 4.01.2008 with Jagdish Singh therefore the question of Accused asking Jagdish by gesture to go out of the room does not arise."
10.4.14 If we read last two sentences of paragraph 10.4.12 along underlined portion of paragraph 10.4.13 it would be clear there is no contradiction as is being made out to be. 10.4.15 It may be noted, it was not expected from the witness to repeat the same exact words used in the conversation. He was only articulating an impression of events embedded in his memory. I find no contradiction in his statement to discredit his testimony.
10.4.16 There is lot of emphasis laid by the defense that if C.C. No. 36/2011 one goes through the entire recorded conversation of both 3.01.2008 and 4.01.2008 one will find that there is not reference of demand of Rs.8000/. It has been rightly pointed out by the prosecution that the conversation is to read in the context and not out of context. It may also be noted it would only be a foolhardy who will while being in office demand money using the clear words. Within the factual matrix, where the trap was laid for apprehending the Accused red handed for demanding Rs. 8000/ from the accused, it is absolutely clear that there is a demand of money of nothing but Rs.8000/ whether such words were actually used or not. As they say it proof of pudding is in the eating. I may reproduce herein below the some part of the conversation in Hindi in English language script to drive home the point I am making:
(C Stands for complainant and A stands for accused) "C: Unhone abhi aisi hi bola na ki woh chali gai hai aage, koi objection toh nahi tha, haan ji, chali gai register toh unhone nahi dekha na, phir dobara jake tasalee se almari valmari C.C. No. 36/2011 mein dekhta hoon aur toh woh sir paise the de doon. ( previous part of conversation would show that " who cahli gai" is in reference to file") A: Baad main C: Ek minute aap (Shadow witness asked to leave) A.: Paas main rakh lo C: Nahi Sir main nikal raha hoon woh A: Nikel rahe ho C: Haan nikal raha hoon, aur yeh haath mar toh A: Kitne hain C: Dekh lo sir ek minute please A: Aare de do yaar C: Nahi sahib ji baad ka koi bharosa__ki paanch sau rupaye kam A: Koi baat nahi yaar C: Mere kehne pe ek baar maar lo, please samjha karo mere kehne pe ek baar maar lo, baad mein koi dikkat ho jati hai A: Koi baat nahi yaar C: Main phir kam badti ho jaate hain A: Kuch nahi hota kam badti kaise ho jayega___jo theek diya, theek hai C: Are sahib ji nahi acha lagta, mere kehne par maar lo, yeh lo main kundi laga deta hoon A: Nahi Nahi C: NahiNahi sahib ji yeh lo C.C. No. 36/2011 A: NahiNahi yaar C: Pakka kaam kar diya A: Koi baat nahi, theek hai job hi hai chinta mat kar yaar C: Jao phir A: O.K C: Phir do__ file udhar hi dikhaunga jo objection ____pakka kaam kiya hua hai aapne A: Laughing C: Aao upar chalo zara__udhar dikhwa lete hain ek bari__ 10.4.17 The said conversation leaves no manner of doubt that what is being talked about between the Accused and the complainant is money.
10.4.18 I have taken up this issue for discussion only for the reason that there has been so much of emphasis on this aspect of the case. The discussion to follow would show that I would not be relying on the recorded conversation between the Accused and the complainant to prove the case against the accused.
C.C. No. 36/2011 10.4.19 There is another issue raised by the defense. The testimony of the prosecution witnesses as well as the examination of the defense witnesses would reveal that the Accused was not in his room when the CBI officials had entered his room.
10.4.20 According to the defense as per the complainant, Accused moved out of the room along with him when he came out to give signal. The complainant no where claims that the Accused got back to his room before the entry of CBI officials in the room of the accused.
10.4.21 As has been noted above in the cross examination the answers are given in reply to the questions asked. I would be pick up the statement of this witness ( complainant) two sentences above this part of the statement made by the witness and end after two sentences of his statement. The statement reads, "There were two tables in the room. Money was given C.C. No. 36/2011 in the hand of the accused. When I came out of the room of Accused to give miscall Accused had also came out of his room. The CBI officers had given their number by giving miscall on my mobile phone. As far as I remember I had given miscall on number of Raj Singh." [Emphasis supplied] one would notice that the witness has just been replying the questions put to him one after the other. There was hardly any occasion for him to say whether the Accused got back to his room before CBI officials came in. The responsibility lay completely with the Ld defense counsel to probe this angle further and clinch this issue, whether the Accused got back to his room thereafter or not. He, however, chose to move on to the next question. In the absence of insufficient cross examination on the issue I am of the view no inference can be drawn that after coming out of the room the Accused did not get back to his room.
10.4.22 In the written submission the attention has been drawn to statement of the witness PW 10, Shri Jagdish the C.C. No. 36/2011 shadow witness, wherein it is written "When the proceedings had taken place inside the chamber of Accused Awasthi was present inside the chamber of accused, however, Accused and complainant were standing outside."
10.4.23 Although I have already expressed the opinion that this witness is not credit worthy but even independent of that , this statement does stand to reason from any angle. Is it believable that CBI officials are inside the room of Accused conducting proceeding, the other independent witness N K Avasthi is also inside the room but the Accused and the complainant are standing outside?
10.4.24 There is reference made also to the testimony of the witness PW 7 Sh. N. K Avasthi where it is recorded:
"Q. Who told you that money is lying in drawer? Ans. CBI asked me to open the drawer.
Q Who told the CBI that money is lying in drawer?C.C. No. 36/2011
Ans. I do not know."
10.4.25 On the first impression, one may tend to conclude that since the money had already been recovered before CBI officials had entered the room; it could not have been in the knowledge of CBI officials where the money was lying unless they were told about it by someone. The question, however, is can this be stretched to conclude that money was planted or the answer of the witness "I do not know" be equated with the phrase "no one told CBI officials about the money" to infer that CBI officials already knew where they money was lying and they were enacting a drama of recovering money after having already planted it in the drawer of the accused. To me, any such conclusion would be far fetched. It should only mean that this witness did not know who informed CBI where the money was lying. If one were to believe that the money was planted and this witness was integral part of the drama of falsely implicating the accused, there was no necessity for him to say that he did not know who informed CBI officials that money was lying in the C.C. No. 36/2011 drawer, he would have straight away said that it was complainant who informed CBI about it. It may also be noted , it would have been seen that the money was not in the hand of the Accused and the next obvious thing to look for was the drawer.
10.4.26 The submission that PW 7 has no where stated that he recovered 16 govt. currencies notes totaling Rs.8000/ is factually incorrect. In his examination in chief this witness has stated "The money was lying in drawer of the table of Accused on a paper which were sixteen GC currency of Rs. 500/ denomination each."
10.4.27 The question that to corroborate that there was "missed call" made by the complainant to Inspector Raj Singh as signal to indicate that the Accused has accepted the bribe, no record from 'mobile company' was produced is also meaning less as log record of ' mobile company' would not show the record of 'missed calls'.
C.C. No. 36/2011 10.4.28 None of the defence raised by the defence in this respect in my view creates a doubt about the case of the prosecution that the money was planted on the accused. 10.5 Corroboration from chemical examination 10.5.1 It has already been concluded that there was phenolphthalein on the hand of the accused. The chemical examination report EX PW1 has only confirmed this fact. This report is as such admissible in evidence under section 293 of the Code of Criminal Procedure , 1973.There is no serious challenge to this report from the defense. This report supports this case of prosecution.
10.6 Tapes secondary evidence not admissible in evidence.
10.6.1 The case of the prosecution is that the conversation between the Accused and the complainant was recorded on C.C. No. 36/2011 4.01.2008; with the help of digital voice recorder the voice so recorded was transferred to a cassette in the post trap proceedings subsequently on the same day the sample of the specimen voice of the Accused was also recorded. The recorded conversation and the sample specimen voice of Accused were sent to CFSL for comparison. According to the report of CFSL the voice of the Accused in the recorded conversation and in the sample specimen voice matched with each other.
10.6.2 There was also a transcript of the said voice recording prepared from the copy of the recording conversation at the time of transferring the voice of the Accused digital voice recorder to the cassette. The complainant had also identified his voice and the voice of the Accused when the cassette was played in Court and matched with the transcript prepared on its bases.
10.6.3 It has been submitted by defense "transcript/ recording cannot be relied upon." It has been interalia C.C. No. 36/2011 submitted that the voice recording produced in Court, in cassette P 19 (Q2) is secondary evidence.
10.6.4 This is not in dispute that the conversation between the Accused and the complainant on 04.01.2008 was recorded in a Digital Voice Recorder handed over to the complainant in pre trap proceedings. How the cassette P19 (Q2) was prepared is clearly mentioned in the recovery memo ExPW4/A. Its relevant part reads "The digital recorder which was also taken back from the complainant immediately after the trap of the Accused was played and heard in presence of witnesses which confirmed the demand of bribe by accused. The recorded conversation was transferred into a blank audio cassette with the help of compact cassette recorder. The cassette was marked as 'Q2' and paper slip pasted on the cassette was signed by both the independent witnesses. Then it was placed inside its cover and wrapped in a cloth and sealed and signed by independent witnesses. Before sealing, a copy of said cassette was prepared for purpose of investigation."
C.C. No. 36/2011 10.6.4 Bare reading of the process by which cassette was prepared would show that this cassette was copy of what was recorded in digital voice recorder and thus secondary evidence 1 as per section 63(2) of the Evidence Act. A digital voice 2 recorder is not a Computer within the meaning Section (2) (i) of the Information Technology Act, 2000 as a "digital voice recorder" does not perform any "memory functions" as envisaged under the said definition. Even if it were, such a copy would still be secondary evidence as there is no certification 3 under 65 B of the Indian Evidence Act . Therefore, from any 1 63. Secondary evidence Secondary evidence means and includes--
(1) certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves en- sure the accuracy of the copy, and copies compared with such copies. (3) copies made from or compared with the original ; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a documents given by some person who has himself seen it.
22 (l) "computer system" means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions; 3 65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a pa- per, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a docu- ment, if the conditions mentioned in this section are satisfied in relation to the informa - C.C. No. 36/2011 angle the cassette here Ex P19 (Q2) is secondary evidence. In other words to it be accepted as an evidence we need to consider if it is covered by Section 65 of the Indian Evidence Act. The careful reading would show that it is not covered by 1 any of the clauses of Section 65 of the Evidence Act therefore tion and computer in question and shall be admissible in any proceedings, without fur- ther proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) --- --- ---
(3) ---- --- ---
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the man- ner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in re- lation to the operation of the relevant device or the management of the relevant activi- ties (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) --- --- ---
1 65. Cases in which secondary evidence relating to documents may be given Secondary evidence may be given of the existence, condition, or contents of a docu- ments in the following cases:-
(a) When the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved , or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; C.C. No. 36/2011 not admissible as evidence. The transcripts of the cassette is only a copy of the copy and again not admissible as in evidence. 10.7 Res ipsa liquator The fact that the tainted money was required from the Accused is sufficient to establish presumption under section 20.
10.7.1 Even if take away the recording aspect of the conversation between the Accused there is sufficient material on
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, pro- duce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 40[India] to be given in evidence ;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evi- dence, admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. C.C. No. 36/2011 record to conclude that the tainted money was recovered from the accused. It has already been seen above there is nothing to doubt the currency notes smeared with phenolphthalein were recovered from the accused. There was no reason for the Accused to be in possession of the said currency notes. As was observed by the Hon'ble Supreme Court in the case Raghu Bir Singh V State of Haryana where a station master was found in 1 possession of marked currency notes and he failed give any explanation for detaining the bedding of passenger that it was case of res ipsa loquitur. In this case the same thing can be said. Here, in this case there is evidence that the phenolphthalein was found on the left hand of the accused. He had received this money by left hand from the complainant. It was recovered from the drawer of the accused. Once these facts have been established, there is no getting away from the presumption under section 20 (1) of the Prevention of Corruption Act, 1988.
1 Ragubir Singh V State of Haryana 1974 AIR 1516 C.C. No. 36/2011
11. Discharging burden of proof under section 20 of the Act 11.1 The Accused has indeed tried to discharge this burden. According to him he was not in his room when this episode was alleged to have happened he was taking lunch with his colleagues, in the room of Shri Ashok Tyagi.
11.2 The evidence on record reveals that this defence is a kind of after thought. The witness PW 6 complainant was lastly cross examined on 21.03.2009. There is no suggestion to this witness on these lines. The only suggestion given was that the CBI officials were already in his room when the Accused had entered his room. The same was denied by the witness in the following words "It is incorrect to suggest that when the CBI team was already in the room of Accused when Accused entered in his room." There is no suggestion that the Accused was taking lunch some where on a message being sent to him he had returned to his room after finishing his lunch early. C.C. No. 36/2011 11.3 There was no such suggestion given to the independent witness PW 7 Shri N K Avasthi on these lines. In the cross examination of this witness on 28.3.2009 to a question this witness had given the answer "Accused was about take his meal when we entered in his room .... .... ....". That is to say he was in his room when trap party entered the room.This testimony has not been countered on behalf of the accused. 11.4 Even to the witness PW 10 who has not supported the case of the prosecution no such suggestion was given. 11.5 The suggestion to the witness PW 11, trap laying officer does not go beyond "It is wrong to suggest that when we entered in the room of Accused he was not present there." To him also it was not suggested that he was called from the room of Shri Ashok Tyagi where he was taking lunch. This witness was crossexamined on 24.7.2010.
11.6 It is for the first time when the last witness PW 12, a C.C. No. 36/2011 member of the trap team was crossexamined on 28.08.2010, a suggestion was given that the Accused was not in his room and he was subsequently called to his room. The witness denied the suggestions in this respect by saying "It is wrong to suggest that when CBI team entered in the room of G S Raju he was not present in his room. It is wrong to suggest he was called subsequently in his room."
11.7 It is also repeated in his statement under section 313 of the Code he states "I came out of the room along with complainant thereafter went for lunch at the seat of one of my colleagues in the other room. I was called by CBI and was informed that some money has been recovered from my drawer".
11.8 The defense witnesses have stated some person (some peon) came to call the Accused when he was taking lunch in the room of Shri Ashok Tyagi inspector. It is submitted in the written submissions that "the statement of defense in this respect is un C.C. No. 36/2011 rebutted piece of evidence. No suggestion was given by the prosecution to rebut this piece of evidence." 11.9 In the cross examination there are suggestions to the effect that the witnesses were close to the accused, which is not in dispute otherwise there is no reason why would they sit together every day to eat. There is suggestion to each of the said witnesses that they were deposing falsely to save the accused. The testimony of these witnesses is short. The prosecution had already evidence in place to rebut this defense of the accused. It is difficult to understand what else was expected to be done to rebut the testimony of these witnesses. 11.10 Apart from the fact that this defense of the Accused has been built up later on, it also is unbelievable. Lunch time is the most cherished time of the day, it offers you an opportunity to not to just share lunch but also lighten up a bit, in particular if you are in public dealing. You would loath to leave early. You are not most likely to leave just because some one is calling you. Your first reaction would be to call the person over or ask C.C. No. 36/2011 him to wait and definitely to not leave in a hurry especially when you have no clue who is calling you.
11.11 When I compare the evidence led from both the sides the case of prosecution is more probable than that of the accused. I, therefore, conclude that the Accused has failed to discharge the burden as required under section 20 of the Act.
12. Other defenses of the accused.
12.1 Reason for false implication of Accused 12.1.1 The Accused has in the course of the evidence given suggestion to the complainant that the Accused has been falsely implicated in this case by CBI and the Complainant, who was allegedly working as tout out side transport authority, allowed himself to falsely implicate the Accused because on the previous day he was caught red handed by CBI while charging money from public and in order to save himself he had stated that he was charging the money behalf of the Accused and since he was not made the accused, at the instance of the CBI, C.C. No. 36/2011 he was giving false evidence of the accused.
12.1.2 A similar suggestion was also to the witness N K Awasthi.
12.1.3 Surprisingly no such suggestion was given to the witness Inspector Premnath who according to the prosecution had visited the transport authority at Burari to verify the demand made by the accused.
12.1.4 There was no such suggestion given to the trap lying officer. Instead the suggestion given to this witness was that Shri Deepak brother of the complainant is his friend. This witness had replied "It is wrong to suggest that Deepak Chawala is my friend." It was a legitimate question which could have been put to him as he is the officer who is the leader of the team and it is he who had organized the trap and caught the accused.
C.C. No. 36/2011 12.1.5 This defence of the Accused is inherently week and does not inspire confidence. There is no evidence that CBI had visited the transport authority Burari the previous day. If there had been raid this kind, it would have definitely not escaped the attention of other, in fact the news would have all over the place. It would have been difficult to find some witnesses to prove this fact. Assuming It did happen, it does not stand to reason why would complainant name the Accused and no other person and why CBI would implicate the Accused just because complainant said so.
12.2 Shri N K Awasthi is a Stock witness 12.2.1 There is a submission that the independent witness PW9 is a stock witness of CBI for the reason the witness had admitted "I am also witness in more then three/four CBI matters. The cases in which I had joined were not the bribe cases but other cases." Merely saying that since he has appeared in a few cases as witness for CBI would not make him "regular peddler C.C. No. 36/2011 1 of perjury" and "on CBI service". One may notice that he works as an Assistant Manger Accounts with a public sector undertaking. He did not go to the CBI office because he was under any pressure from CBI. He begins his testimony by saying "On 04.01.2008 I was directed by my senior officers to go to CBI office to attend some secret duty." Besides it the discussion herein above would show that there is ring of truth in what this witness has stated. It would be unfair to use word "stock witness" against the witness in the sense it is sought to being conveyed. I am, therefore, not inclined to reject the testimony of this witness on the account he had on previous occasions also joined the investigation with CBI. 12.3 Not joining the witnesses from the department 12.3.1 It is not necessary in a criminal investigation that each and person who happens to be around should be a citied as witness and made to take part in the investigation proceeding. It is a decision which the investigating officer has to 1 AIR 1981 SUPREME COURT 613 "Prem Chand v. Union of India" C.C. No. 36/2011
take. Unnecessary addition of witnesses sometimes only complicates the investigation. There is another way of looking at it, there is no use piling the witnesses just to prove a fact which can be proved by only a few of them.
12.3.2 I would, therefore, conclude not involving the officials of the transport department in general in the investigation would not defeat the case of the prosecution.
12.4 Documents during the course of the investigation not prepared in the presence of witnesses.
12.4.1 It is pointed that the witness PW 7 Shri N K Awasthi, in his crossexamination had stated "I do not remember what other proceedings were recorded in that documents. When I had signed the document it was already signed by the CBI "
12.4.2 To understand what the witness has stated it would be appropriate to read a little more than what has been quoted C.C. No. 36/2011 from the testimony of the witness. The witness states "First document on 4.01.2008 with regard to currency notes was prepared in my presence by the CBI. I do not remember what other proceedings were recorded in that document. When I had signed that document it was already signed by the CBI. Now I do not remember who else had signed that document in my presence."
12.4.3 Before we go on to talk about this portion of the testimony of the witness, one may also notice one another portion of his testimony wherein he states "It is incorrect to suggest that I had not gone to the office of Accused on 4.01.2008. It is incorrect to suggest that I had not recovered any money from the drawer of the table of Raju. It is incorrect to suggest that I signed several documents at the instance of CBI without knowing the contents of the same."
12.4.4 This witness has insisted that he had recovered money from the drawer of the Accused and also that he had not C.C. No. 36/2011 signed the document without knowing the document. No one expects from a witness that he would remember finer details of a document, when it runs into many pages. So long as the witness states that he had signed the document after knowing its contents it is okay. One may also notice at a time when a document is prepared not everyone can sign the same at the same time. Someone will sign first followed by the others. It real makes no difference if this witness had signed first or CBI officials had signed first, so long as they had signed the document in the same flow.
12.4.5 It is submitted that the witness PW 4 has been shown to be witness of recovery and admittedly according to his own statement he was called after the arrest of the accused. It may be noted though the PW4 has been referred as "Recovery Memo" but it is a composite document in which everything has been recounted like the process of apprehending of the accused, recovery of money, collecting the washes in bottles sealing them, transferring the recording from Digital Voice C.C. No. 36/2011 recorder to the cassette etc. It is not the case of the prosecution itself that the witness PW4, who was the Motor Licensing Officer, posted in that office, had not visited the room where the proceedings were being recorded and case property being sealed.
12.4.6 in fact, this witness states "Upon receiving the information regarding the arrest of the Accused G S (raju) for accepting bribe I went to his room. One CBI inspector told me about the arrest. I provided my room No.25 for doing writing work to the CBI team. I have been shown Recovery memo dated 4/1/2008. I identify my signatures at points A on each page Ex PW4/A. It was prepared at the spot. I have seen arrest cum personal search memo dated 4.1.2008. It was also prepared at the spot it bears my signatures at point A on both the pages and the same Ex PW4/B."
12.4.7 One must understand that the word 'arrest' has been used in common parlance. It does not necessarily indicate C.C. No. 36/2011 formal arrest of the Accused at the end of the accused. 12.4.8 It, therefore, cannot be said, as submitted in the written submissions, that the testimony of this witness has no value.
12.5 No entry of the independent witnesses and complainant on 03.01.2088 and 04.01.2008 in gate/visitor's register of CBI.
12.5.1 It has been very strongly submitted that the two independent witnesses and the Complainant had not visited the CBI office on 03.01.2088 and 04.01.2008. Therefore, the entire proceeding relating the verification of the demand by the Accused after the complainant is stated to have made complaint to CBI for demand of bribe by the Accused and the pretrap proceedings on 04.01.2008 when all the preparation had been made before proceeding to the office of the Accused for trapping him redhanded are not reliable.
C.C. No. 36/2011 12.5.2 There is no dispute for the said two dates there are no entries in the visitors register at the reception. This is a matter of record that witness PW 9 Inspector Prem Nath who had verified the demand on 03.01.2008 and the witness PW 12, member of trap team ,Manish Kumar inspector, had stated in their statement that it is necessary for any one from public to make an entry at the reception. These witnesses were allowed to be recalled only for getting clarification on this question. 12.5.3 After being recalled witness PW 9 had stated "If an outsider comes in the office of CBI, at CGO complex. It is mandatory for him to obtain a pass fro his entry in the office of CBI and his entry is made at the reception. But no entry is made with regard entrance of complainant and witnesses in the CBI office at CGO complex in order to maintain the secrecy. In the crossexamination it was admitted by him at the first visit of the complainant there was no secrecy." He continued "I do not know whether even the first entry of complainant with regard to his visit is not mentioned in the register maintained at the C.C. No. 36/2011 reception. To a specific question "Even in the lift Liftman will not allow the entry of an outsider without having token/pass." He had replied "In a case of entry of a complainant/witness directions of SP concerned is (sic was) sought at the reception and entry of such person allowed even without pass/token." 12.5.4 So is the statement of the PW 12. Relevant extract of the same reads as under:
"Generally the entries of outsiders who comes to visit CBI office at CGO complex, New Delhi made at the reception but in cases like trap cases entries of complainant and witnesses are not made for the purpose to maintain secrecy."
12.5.5 He had continued in the crossexamination by saying:
"It is correct that there is no such mention in the case diary and there is no record available in the judicial file that reception had contacted SP and SP instructed not make the entry of the complainant at the reception. Vol. It is a set norm. Secrecy is to be C.C. No. 36/2011 maintained that trap proceedings may not be leaked. The status is of a witness whenever he visits the office of CBI. In general cases pass is to be issued whoever comes to CBI office as a visitor. I have no idea if there is only one type of visitor pass for any visitor visiting the CBI office or there are separate types of passes. It is correct that secrecy is up to the trap. I have no idea whether there is no entry with regard to visit of complainant, PW7 Awasthi and PW10 Jagdish even after the trial. However, their status remains that of complainant and witness. It is incorrect to suggest that I have made a story of secrecy just to manipulation, fabrications in the records."
12.5.6 The witnesses have not denied that they had not visited the CBI office. The defense on the one hand would like everyone to believe all the documents relating to this case were signed by the witnesses in CBI office and on the other would also like to say that the witnesses had not visited the office of CBI. It was suggested to the witness PW 7, witness N K Awasthi that he had signed all the papers connected with the case in CBI office. He denied the same by saying "It is incorrect to suggest that I signed in connection of this case in the office of CBI." The C.C. No. 36/2011 defense itself has relied on the statement of the witness PW 10, the other independent witness Shri Jagdish Singh, wherein it has been stated " Signatures of all the persons on Ex PW 4/A were taken in CBI office. I do not know the contents of EX PW 4/A. I had not joined investigation of CBI case except this case. EX PW4/B, Ex PW7/A, Ex PW 7/B and EX PW7/C were prepared in CBI office. My signatures were also taken there. My self and Awasthi signed in the office of CBI." The documents referred in his testimony are of 04.01.2008. 12.5.7 Even though the explanations given by the witnesses PW9 and PW12 came late after changing there earlier statement the same , however, same appeals to logic. I am accordingly not inclined to believe that the complainant and other independent witnesses had not visited the office of CBI on 03.01.2008 or 04.01.2008.
12.6 Accused was acting according to procedure. C.C. No. 36/2011 12.6.1 There is nothing to suggest that the Accused had flouted any procedure in terms of granting No Dues Certificate ss to the complainant. In the written submissions filed there is a reference made to the portions of the testimony of the witnesses PW4, PW5 and PW6. The same reads as under:
- Witness PW5 Sh. Rajesh Kumar, MLO had stated "....The Pollution Level Test Inspector will prepare the No Dues Certificate but will put the date and is signature only at the time when the applicant comes to collect the same. It is also correct that the concerned Inspector will display list of vehicles in respect to which No Dues Certificate s is ready and also the list of those vehicles in respect of which there is some deficiency/objection... It is correct that Inspector used to maintain a register with regard to the vehicle of which No Dues Certificate s is granted and the list of which sent to computer department for locking of further transaction."
The complainant to the effect that No Due Certificate of the four vehicles was ready and only one of the vehicle was under objection, in the relevant part of his testimony, has stated "It is correct that my four vehicle numbers were mentioned in the list of ready No Dues Certificate s, and No. of one vehicle was mentioned in the list of having objection".C.C. No. 36/2011
Similarly giving the reason why the No Dues Certificate s was not signed the witness PW5 Dy. Commissioner in the Transport Office, in his crossexamination had stated "It is correct that no dues certificate is valid only for 07 days from the date of its issue".
12.6.2 Thus as submitted in the written statement that the things were in order and the proper procedure was being followed for issuing the No Dues Certificate. But, is it not true that more often than not a bribe is demanded for something legitimately due and is it also not true that it is at this moment it hurts the ordinary citizens the most. Since the work of the complainant was being done in order is no guarantee that there was no bribe demanded by the accused. It also does not mean that the possibility of demanding bribe can be ruled.
13. Sanction of prosecution
13.1 It is submitted forcefully on behalf of the Accused that the sanction in this case was without the application of mind. It is submitted the sanction is based on a draft supplied by the CBI. It also is submitted this fact has been admitted by the witness C.C. No. 36/2011 PW 8 Shri A K Verma, the then transport commissioner, that the prosecution sanction order is a verbatim of draft sanction received from CBI. To lay emphasis on this point it is further submitted that the witness had also admitted that he was not even aware of the ingredients of section 5, 6, 7 and 13 of the P C Act.
13.2 The reference is made to the judgment of the Hon'ble Supreme Court in the case of Manshukhlal Vithaldas Chauhan V State of Gujarat reported in ( 1997) 7 SCC 622, which was followed by the Hon'ble High Court in the case Bhisham Kumar V State 1999 III AD 177. It was a case where sanction was accorded in obedience of the mandamus issued by the High Court. Hon'ble Supreme Court held "sanction implies application of mind."
13.3 Let us be clear about this fact "the order of sanction is only an administrative act and not a quasijudicial one nor is a C.C. No. 36/2011 1 lis involved". The form or expression of application of mind as may be necessary in the case a judicial or quasi judicial order is not the same as in the case of an administrative order. It usual in the case of administrative decision making process that a basic draft is prepared by lower functionary and merely endorsed by an higher ranking officer in approval of the decision. Placing drafts for approval to the higher officer is a usual way of working in administrative setups but it does not make a case of non application of mind. "A sanction order could be drafted by any one in the office, even by Law officer kept for that purpose. The sanctioning Authority is only required to go through that order, fully satisfy himself that what has been stated is according to what and if he finds it all right he could 2 sign it and that would be a perfect legal sanction". 13.4 The present case is closest to the full bench judgment of the Hon'ble Supreme Court in the case Indu Bhushan Chatterjee V State of WB 1958 Cri. L.J. 279 ( Vol.59, 1 State of Maharastra and other Appellants V Ishwar Piraji Kalpatri and others, Respondents 1996 CRI L J. 1127 (1) - para 17 2 Nareshkumar Kikabhai Tansdel V State of Gujrat 1986 CRI L J 457 C.C. No. 36/2011 C.N. 88) (1) in terms of the facts as far as the question of according sanction is concerned. It was a case under Prevention of Corruption Act, 1947. It was also a case where the draft sanction was prepared by the police and presented before the competent authority. The following part of the judgment would make the make similarity in the two cases apparent:
"In our opinion, this sanction clearly states all the facts which concern the prosecution case alleged against the appellant with reference to his acceptance of Rs. 100 from Doraiswamy on May 12, 1952, in circumstances which, if established, would constitute offences under S. 161, Indian Penal Code and S. 5 (2) of the Act. The sanction also clearly states that Mr. Bokil had applied his mind and was of the opinion that in the interests of justice the appellant should be prosecuted. The charge framed against the appellant at his trial was with reference to this very incident and none other. What more facts were required to be stated in the sanction itself we are unable to understand. Mr. Bokil in his examinationinchief stated "On the prayer of the police I accorded sanction to the prosecution of one Shri. I. B. Chatterjee who was the Assistant Supervisor of Claims. Before according sanction I went through all relevant papers and was satisfied that in the interest of C.C. No. 36/2011 justice, Sri I. B. Chatterjee should be prosecuted. This is the sanction marked Ex. 6". In cross examination, however, he made the following statement: "This sanction Ex. 6 was prepared by the police and it was put before me by the personnel branch of my office. I did not call for any record in connection with this matter from my office. I did not call for the connected claim cases nor did I enquire about the position of those claim cases." The learned Judges in granting the certificate, apparently, were impressed by the statement of Mr. Bokil that Ex. 6 was prepared by the police and put before him by the personnel branch of his office, because the learned Chief Justice observed, "I can hardly imagine the duty of granting the proper sanction being properly discharged by merely putting one's signature on a readymade sanction presented by the police." It seems to us that, Mr. Bokil's statements does not prove that he merely put his signature on a readymade sanction presented by the police. It is true that he did not himself dictate or draft the sanction, but Mr. Bokil has stated in the clearest terms, in his examinationinchief, that before he accorded sanction he went through all the relevant papers. There is no reason to distrust this statement of Mr. Bokil, nor has the High Court, while granting the certificate of fitness, done so. He C.C. No. 36/2011 was an officer of his rank in the Railway and must have been fully aware that the responsibility of according to sanction against an official of the Railway subordinate to him lay upon him. It is inconceivable that an officer of the rank of Mr. Bokil would blindly sign a readymade sanction prepared by the police. Apparently, the sanction already drafted contained all the material facts upon which the prosecution was to be launched, if at all, concerning the acceptance of the bribe by the appellant on May 12, 1952. When Ex. 6 was placed before Mr. Bokil other relevant papers were also placed before him. It is significant that Mr. Bokil was not crossexamined as to what the other relevant papers were and in the absence of any question being put to Mr. Bokil we must accept his statement that the papers placed before him were relevant to the only question before him whether he should or should not accord his sanction to the prosecution of the appellant. Mr. Bokil said, and we see no reason to distrust his statement, that before he accorded his sanction he went through all these papers and after being satisfied that sanction should be given he accorded his sanction. It is true that he did not call for any record in connection with matter from his office nor did he call for the connected claim cases or find out as to how they stood. It was not for Mr. Bokil to judge the truth of the allegations made against the appellant, by C.C. No. 36/2011 calling for the records of the connected claim cases or other records in connection with the matter from his office. The papers which were placed before him apparently gave him the necessary material upon which he decided that it was necessary in the ends of justice of accord his sanction." [Emphasis Supplied] 13.5 In the present case as well in his examination the witness has stated "After having gone through the entire record, statement of witnesses and documents when I found that prima facie made out on being satisfied myself I had granted sanction for prosecution of Accused G S Raju in this case." As far as the ingredients of the provisions of the Pc Act is concerned, it is not necessary even for a regular practitioner of law to remember them all the time as, the same can always be seen just by opening the Act. The witness was right when he said "I cannot recount the same verbatim. I am not supposed to be in knowledge of exact provisions of the P C Act."C.C. No. 36/2011
13.6 It is not the case of the defense that the sanction order as such does not show that on the basis of the material mentioned therein, the sanction could not have been accorded. 13.7 I accordingly conclude that the sanction granted in this case is in order and cannot be said be without the application of mind.
14. Verification of demand on 03.01.2008.
14.1 The witness PW 6 complainant in his statement has stated that on 01.01.2008 he had gone to meet Accused in connection with the five files submitted of auto rickshaws in lieu of old auto rickshaws and to get no dues certificate for the same and the Accused had demanded Rs. 8000/ from him ( Rs. 1600/ per file). Accused asked him to visit him 3.1.2008 with the money. Since the complainant did not want to make the payment he lodged complaint with CBI. He had also proved his complaint Ex PW6/A. According to his testimony he along with C.C. No. 36/2011 the witness Jagdish Singh had visited the office of the accused. He was given a digital voice recorder to record the conversation between him and the accused. This is a fact reiterated by PW9 Inspector Prem Nath. It has not been denied by the witness Jagdish Singh that he had visited the office of the Accused on 03.01.2008 with the complainant and there is no cross examination of this witness on this point on behalf of the accused. There is no serious crossexamination on the issue that the Accused had not lodged the report Ex PW6/A, wherein there is reference of demand made by the Accused of Rs. 8000/.
14.2 Thus there is little doubt that the complainant had filed the said compliant with the CBI against the Accused for demanding money from him and him visiting the office of the Accused on 03.01.2008 with inspector Prem Nath and the independent witness Jagdish. Complainant has reiterated in his testimony that the Accused had demanded money from on 03.01.2008 and asked him bring it on 04.01.2008. Though in C.C. No. 36/2011 support of this statement recorded conversation cannot be read in evidence, it being secondary evidence and not qualified to be read as evidence a per section 65 of the Evidence Act, but the events that followed on 04.01.2008 buttress this statement of the complainant that the Accused had demanded money from him on 03.01.2008.
15. Judgments relied upon by the defense not applicable.
15.1 I do not feel the need to discuss the judgments relating the reliability of recorded conversations as I have expressed an opinion that they cannot be read in evidence. Judgment of Manshukhlal Vithaldas Chauhan (supra) will have no applicability in this case, as it has already been held sanction order was not without the application of mind. The judgment in case Smt. Meena w/o Balwant Hemke V State of Maharashtra [ Indian Kanoon - http://indiankanoon.org/doc/153380/ ]will also have no applicability in this case for the case and circumstances in that case were different from this case. In that case money C.C. No. 36/2011 was found to be lying on the table and not in the drawer as in the present case. And this a fact which weighed with the Hon'ble Supreme court in deciding the case in favour of the Appellant in that case. It was observed in the judgment "Mere recovery of the currency note of Rs.20/ denomination and that lying on the table, by itself cannot be held to be proper or sufficient proof of acceptance of the bribe. In the peculiar circumstances of this case which lend credence to the case of the appellant that it fell on the table in process of the appellant pushing it away with her hands when attempted to thrust into her hands by PW1."
16. Conclusion and Conviction.
16.1 Thus what we have before us is the evidence that the Accused had demanded money from the complainant; he had received the money from the complainant; and he was found in possession of the tainted currency notes. He also failed to discharge the burden in terms of section 20 of the Prevention of Corruption Act. The prosecution has been able to prove C.C. No. 36/2011 beyond reasonable doubt that the Accused being a public servant demanded and accepted illegal gratification from the Accused of Rs.8000/ , a pecuniary advantage by corrupt and illegal means abusing his position as a public servant . I am accordingly convicting the Accused under Section 7 and Section 13(1) (d), punishable under section 13 (2), of Prevention of Corruption, 1988, as charged.
Announced in the Open Court ( L. K. GAUR )
on 29 of September, 2011 Special Judge (CBI)9
th
Central District, Delhi.
C.C. No. 36/2011
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE P.C. ACT (CBI09), CENTRAL DISTRICT, TIS HAZARI: DELHI CC No. 36/2011 R.C. No. 4(A)/08/CBI/ACB/ND Case I.D No. 02401R0929542608 Central Bureau of Investigation Versus Shri G.S. Raju, S/o Shri G. Samanadhav, Flat No. 37, RPS DDA Flats, Mansarovar Park, Shahdara, Delhi110032.
Date of Institution : 01.07.2008 Date of reserving order : 03.10.2011 Date of Order : 10.10.2011 ORDER ON SENTENCE : 1. Background 1.1 The Convict, a Pollution Level Test inspector in
transport department, has been convicted for having committed the offenses under section 7 and section 13(1) (d) punishable C.C. No. 36/2011 under section 13(2) of the prevention of corruption act, 1988 for having demanded and accepted a bribe of Rs. 8000/ from the complainant for issuing " No Dues Certificate" necessary for "Two Stroke Auto Engine Rickshaws" to be replaced by " Four Stroke Auto Engine Rickshaws" according to a scheme floated by the Govt. of NCT of Delhi.
2. Hearing 2.1 I have heard Ld Defense Counsel for the convict and Ld Public Prosecutor for CBI and have gone through the record of this case including the written submissions filed on behalf of the Convict.
2.2 Predictably the Ld Defense counsel for the Convict has prayed for a lenient view to be taken and Ld Prosecutor on the hand has leaded for severe deterrent punishment being awarded.
C.C. No. 36/2011 2.3 I would like to note here, sentencing is always a challenge and the absence of any clear guidelines makes this task still more challenging . I am sure at an opportune time Hon'ble High Court would surely undertake some steps for laying such guidelines, may be just on the basis of past precedents alike the guidelines laid down by the Sentencing council for England www.sentencingcouncil.org.uk ).Such guidelines would not only make the task of sentencing a little easier but also bring about some uniformity in sentencing.
2.4 When it comes to sentencing Rule 1 of Chapter 19 of Volume 3 of Delhi High Court Rules and Orders always makes a useful reading. It reads as under:
"The award of suitable sentence depends on a variety of considerations-- The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and the limit of the punishment permissible for an offence, but the C.C. No. 36/2011 Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence."
2.4 Extenuating Circumstances 2.4.1 Following are the extenuating circumstances pointed by the defence:
1. The convict never tried to stall or delay the proceedings.
2. The convict has an unblemished record of 24 years of service.
3. There was a raid conducted at the residence of the Convict after his arrest in this case. The investigating agency did C.C. No. 36/2011 not find anything incriminating against him. In other words he was not found to be living beyond his known means of earning.
4. His past antecedents are clean.
5. Convict has one daughter and two sons aged 25, 23 and 20 years respectively and all of them are still studying and dependent upon him.
6. He is the only bread earner in the family.
7. Apart from his family he also has his aged motherin law aged about 80 years is also living with him and dependent upon him. She is bed ridden.
8. He himself is a diabetic and is on insulin. He had a major surgery in 2006 at AIIMS for compressive myelopathy and is required to visit AIIMS for periodical check ups.C.C. No. 36/2011
I would like another from my side:
9. The amount of money involved in the bribery is on the lower side.
2.5 Aggravating circumstance 2.5.1 One of the reasons for awarding sentence on the higher side can be to award sentence which will have sufficient 1 deterrent effect in general. Like in a case Hon'ble Supreme Court has observed "Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise." It is a fact, there is a wide spread corruption in govt offices. The sentence to be imposed needs to serve that role of bringing about deterrent effect for the prospective bribe takers.
3. Sentence of imprisonment
3.1 The fact that the Convict has an unblemished long service of record of 24 years and he was not living beyond his means 1 AIR 2004 SUPREME COURT 5064 "Adu Ram v. Mukna" [ para 16] C.C. No. 36/2011 definitely goes in favour of the accused. If he had been a thorough corrupt person he would have amassed wealth for sure in 24 years of his service way beyond his means. It could be one of those occasions where he saw the opportunity of making easy money and fell for it.
3.2 The fact the convict is the only bread earner in the family and he has family responsibilities, a long incarceration will have an undue adverse impact on his family also is an extenuating factor in his favour.
3.3 Factum of bribe amount being on a lower side is too a factor which must matter while imposing the punishment. 3.4 Some amount of deterrence is in built both in section 7 and section 13(2) of the Act, wherein it is ensured that once a Govt. servant is convicted under section 7 or section 13 (2) of the Act, the convict would receive minimum prescribed punishment. It would be appropriate to refer here the following C.C. No. 36/2011 1 observation of the Hon'ble Supreme Court:
"When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was the precise reason why the punishment was fixed as seven years and directed that even if the said period of imprisonment need not be given the sentence shall not be less than the imprisonment for one year."
3.5 For guidance I have looked at the Judgement of the Hon'ble Supreme Court in the case State of A.P. Appellant v. K Punardana Rao AIR 2004 Supreme Court 4194. It is a case where convict was working as a commercial Tax Officer he was convicted under section 13(1) (d) read with section 13(2) of the 1 AIR 2001 Supreme Court 147 Madhukar Bhasakar Rao Joshi V State of Maharashtra [ para 18] C.C. No. 36/2011 Act for having demanded and accepted Rs. 20,000/ as the bribe for extending time for submission of books of account etc. The convict was acquitted by the Hon'ble High Court. The Judgement of the Hon'ble High Court was reversed and the convict was sentenced to undergo imprisonment for a period of one year for the offence under section 13(1) (d) read with section 13(2) of the Act.
3.6 The present case almost stands on the same footing, I, therefore, feel sentencing the convict for rigorous imprisonment of six months for the offence under section of the Act 7 and sentencing him to rigorous imprisonment for a period of one year for the offence 13 (1) (d) read with section 13(2) of the Act, with a direction that both the sentences shall concurrently would be just and proper.
4. Sentence of Fine 4.1 Sentence of Fine is an integral part of section 7 as well as section 13(2) of the Act.
C.C. No. 36/2011 4.2 I would like to note here, fine as a form of sentence over the years has lost its sheen. Where the value of money has gone down in the course of time but the fine in statutes have remained unchanged . Fine is one of the best ways to punish a person convicted of an economic offense for it gives a clear message to the offender that earning through illegal means would be a bad bargain. This is not to overshadow the fact that fine to be imposed should have due regard to the fact that it may be a touch uncomfortable to the convict but should not prove ruinous to his family in the long run. The fine to be imposed should also have some correlation with the money earned or sought to be earned by corrupt means. In the present case if the convict is sentenced to overall pay fine equal to ten times the demand of bribe made by the convict, it would meet the ends of justice. I would also like this amount be actually paid by the convict and not just get away be suffering imprisonment in default of payment fine.
C.C. No. 36/2011
5. Imposition of sentence 5.1 In the light of the foregoing discussion and the facts and circumstances of the case, I am convicting the Convict Shri G. S. Raju, to undergo rigorous imprisonment of Six Months and pay a fine of Rs.8000/ ( Rs. Eight Thousand) for having committed the offence under section of 7 of the Act. I am further convicting him to undergo rigorous imprisonment of One Year and to pay a fine of Rs. 72,000/ ( Rs. Seventy Two Thousand ) for having committed the offence under Section 13(1) (d) of the Act, punishable under section 13(2) of the Act. 5.2 The sentences of imprisonment shall run concurrently and the period spent by the Convict in jail after his arrest shall stand set off against the sentence of imprisonment imposed by this order.
5.3 The Convict will have time of six weeks to make the payment of fine. In case of his failure to pay the fine during the C.C. No. 36/2011 said period steps would be taken for the recovery of fine in accordance with Section 421 of the Code of Criminal Procedure, 1973.
Announced in the Open Court ( L. K. GAUR )
on 10 of October, 2011 Special Judge (CBI)9
th
Central District, Delhi.
C.C. No. 36/2011