Delhi District Court
Cbi vs . Devi Singh on 20 April, 2012
:1:
CBI Vs. Devi Singh
IN THE COURT OF SHRI N. K. KAUSHIK
SPECIAL JUDGE, P C ACT, CBI,
DWARKA COURTS, NEW DELHI
CBI Case No. : 9/11
RC No. : 031A/2009/CBI/ACB/New Delhi
In the matter of :
Central Bureau Investigation,
Anti Corruption Branch,
New Delhi
Versus
Devi Singh,
son of late Sher Singh,
R/o : Village & PO : Nizampur,
PS : Kanjhawala, Delhi - 110 091
Date of Institution : 31.03.2010
Date on which Judgment announced : 20.04.2012
JUDGEMENT
1. The case of the prosecution, in brief, is that CBI Case No. : 9/11 Page No. 1 of 52 :2: CBI Vs. Devi Singh accused Devi Singh, a public servant, while working as Reader/UDC in the Challan Court of Special Metropolitan Magistrate, MCD, Room No. 108, First Floor, Rohini, Delhi, demanded a bribe of Rs.6000/ from the complainant, Manish Sehgal. That thereafter, he agreed for a sum of Rs.4,500/ and in consideration thereof to get the said MCD Challan disposed off for Rs.2000/ to Rs.2500/ only.
2. It is alleged that for the purpose of verification of demand of bribe, the said conversation between complainant and accused Devi Singh was recorded by the complainant, through a Digital Voice Recorder provided by the CBI, on 9.6.2009.
3. That after verification, on the basis of the complaint of Manish Sehgal, a regular case was registered by the CBI on 12.6.2009, against the accused Devi Singh, under section 7 of the Prevention of Corruption Act, 1988. CBI Case No. : 9/11 Page No. 2 of 52 :3:
CBI Vs. Devi Singh
4. That Inspector B. M. Meena was deputed to lay trap on Devi Singh and to apprehend him while demanding and accepting the aforesaid bribe.
5. It is further alleged that prior to laying the trap, the complainant was introduced to two independent witnesses, namely, Shri Deepak Kumar, who was Head Clerk in the Education Department and Shri K.L. Tuteja, a Computer Operator in the Bank of India, Connaught Place, New Delhi. It is alleged that prior to trap, a practical demonstration regarding significance of chemical reaction of the phenolphthalein powder and solution of Sodium Carbonate with water, {the phenolphthalein was to be applied on the G. C. (i.e. Government Currency) notes}, was given to the complainant, in the presence of both the independent witnesses.
6. It is alleged that the complainant produced four G. C. notes in the denomination of Rs.1000/, each, CBI Case No. : 9/11 Page No. 3 of 52 :4: CBI Vs. Devi Singh and one GC note in the denomination of Rs.500/ (total amounting to Rs.4500/). That all the G. C. notes were treated with the said powder and were kept in the right side pant pocket of the complainant.
7. It is further alleged that a digital voice recorder was provided to the complainant and its functions were explained to him and after recording the formal voices of both the witnesses, the digital recorder was kept in the left side shirt pocket of the complainant with the direction to switch it on before contacting the accused.
8. That the independent witness was also directed to accompany the complainant as a shadow witness. That both of them were directed to give signal by scratching their heads after the transaction of the bribe was over. That the complainant, Manish Sehgal, was also directed to give a missed call from his mobile number i.e. 9210068451 on the mobile number 9659394851, of Inspt. B. M. CBI Case No. : 9/11 Page No. 4 of 52 :5: CBI Vs. Devi Singh Meenathe trap laying officer.
9. It is also alleged that before laying the trap, all the members of the trap party, including complainant, washed their hands with soap and water and personal search of the complainant as well as of the all the party members was taken to ensure that none was carrying anything incriminating.
10. It is also alleged that before going to spot, a trap kit, consisting of the material like empty bottles, sodium carbonate powder, glass tumbler, sealing material, electronic accessories, was arranged. That a brief case, consisting of stationery items, a sum of Rs.500/ for use in contingency, complaint dated 8.6.2009 and FIR, was arranged and both the kit and brief case were shown to the witnesses.
11. It is alleged that the CBI team reached the spot CBI Case No. : 9/11 Page No. 5 of 52 :6: CBI Vs. Devi Singh at about 10.00 hrs on 12.6.2009 and the complainant, Manish Sehgal and shadow witness, Deepak Kumar entered the Court Room No. 108 of concerned Spl. Metropolitan Magistrate, whereas other members of the party took their positions outside the court room in a scattered manner.
12. That both the complainant and shadow witness came out as the accused Devi Singh was busy in official work and they kept waiting outside the court room. It is alleged that at about 11.15 Hours, the complainant switched on the recorder and entered room No. 108 alongwith the shadow witness and after a while, they came outside. At about, 12.30 hours, on announcement, the complainant alongwith shadow witness went inside the court room and came out after about 5 minutes alongwith the receipt.
13. That in the mean time, the predecided signal CBI Case No. : 9/11 Page No. 6 of 52 :7: CBI Vs. Devi Singh was received from the shadow witness as well as complainant. Immediately, party members rushed inside the said court room and the complainant identified the accused Devi Singh and informed that the accused Devi Singh demanded and accepted Rs.4500/ from him and had issued a receipt only for a sum of Rs.3000/, which amount was fined by the Spl. Metropolitan Magistrate.
14. That accused Devi Singh was challenged about demanding and accepting the bribe amount from the complainant but the accused Devi Singh did not react and kept mum. Thereafter, the accused Devi Singh was caught by both his wrists and Spl. Magistrate, Shri K. P. Rajora was also made witness to the proceedings. That the digital recorder was taken back from the complainant and it was replayed in the presence of the trap party members.
15. It is alleged that both the hands of the accused CBI Case No. : 9/11 Page No. 7 of 52 :8: CBI Vs. Devi Singh Devi Singh were got dipped in two separate colourless solution of sodium carbonate with water which was transferred in two separate glass bottles, which in turn were wrapped and sealed with CBI seal.
16. It is also alleged that the numbers of the recovered Govt. Currency (GC) Notes, which were accepted and counted by both the hands and kept in the office table drawer by the accused Devi Singh, were tallied with the distinctive numbers of the Govt. currency Notes, which were earlier handed over to the complainant vide handing over memo dated 12.6.2009 and same were found correct with the denomination and distinctive number of the recovered bribe amount.
17. It is alleged that shadow witness, Deepak Kumar, was asked the sequence of the event and about the conversation, which took place between the complainant and the accused Devi Singh. That the version of the CBI Case No. : 9/11 Page No. 8 of 52 :9: CBI Vs. Devi Singh shadow witness was corroborated by the complainant. That the recorded conversation in the digital recorder were also transferred into a blank CD, which was signed by both the witnesses.
18. It is also alleged that specimen signatures of both the witnesses and accused were recorded and were transferred in another blank CD, which was signed by both the witnesses and sealed with CBI seal.
19. It is further alleged that as per MCD Act, the maximum fine, with penalty, for the offence under section 416, 417 and 461, MCD Act, for which the complainant, Manish Sehgal was challaned, which could be imposed by the court, comes to a total fine of Rs.7,100/. But the Spl. Metropolitan Magistrate imposed a fine of Rs.3000/ only and receipt was issued for the same amount i.e. Rs.3000/ but the accused Devi Singh demanded and accepted the bribe of Rs.1500/ as he took Rs.4500/ including the said CBI Case No. : 9/11 Page No. 9 of 52 :10: CBI Vs. Devi Singh amount of fine i.e. Rs.3000/ from the complainant.
20. The prosecution, therefore, asserted that the accused person has committed offences punishable under sections 7 and 13 (2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988.
21. Primafacie, offences under section 7 & 13(2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988 were made out against the accused person, Devi Singh.
22. Charge, accordingly, was framed against the accused person, to which, he pleaded not guilty and claimed trial.
23. The prosecution, in order to substantiate its claim and contentions, examined 11 witnesses, in all. CBI Case No. : 9/11 Page No. 10 of 52 :11:
CBI Vs. Devi Singh
24. Thereafter, the accused person was examined under section 313 Cr. P.C. The defence preferred not to lead any evidence, in defence.
25. The prosecution, has contended that the case of the prosecution has been duly proved, in view of the material that has appeared on record. That all the prosecution witnesses have supported and proved the prosecution version beyond any reasonable doubt.
26. On behalf of the defence, on the other hand, it has been stated that the case has not been proved beyond reasonable doubt, on record. That the handwash of the accused, which was allegedly taken by the CBI, did not turn pink indicating that the prosecution story is not reliable. It has also been contended that the number of one of the currency note, recorded in the statement of the prosecution witnesses and the handing over memo, proved on record, do not tally and that the complainant is an CBI Case No. : 9/11 Page No. 11 of 52 :12: CBI Vs. Devi Singh interested witness and that the public witnesses examined by the prosecution have turned hostile.
27. It has also been asserted by the defence that the accused person was falsely implicated in this case at the behest of one lady advocate.
28. On behalf of the State, following case law has been cited : i. Satish Chander vs. CBI, 2011(4) CC Cases (Delhi) (HC) 599 ii. Daneshwar vs. (Delhi Administration), 1962 Supreme Court 195 (V 49 of C 36) iii. Prakash Chand vs. State, (Delhi Administration), 1979 CRI. L.J. 329(SC) iv. Maha Singh vs. State, (Delhi Administration), 1976 CRI. L.J. 346(SC) v. Rao Shiv Bahadur Singh vs. State of VindhP, 1954 CRI. L.J. 910(SC) vi. Ram Krishan and another vs. State of Delhi, 1956 CRI. L.J. 837 (Vol. 57.C.N.) (SC) vii. C.K. Damodaran Nair vs. Govt. of India, (1997) 9 (SC) Cases 477 CBI Case No. : 9/11 Page No. 12 of 52 :13: CBI Vs. Devi Singh viii. Rammi @ Rameshwar vs. State of MP, 1999 Cr. LJ 4561 SC.
29. The defence, on the other hand, has cited case law reported as :
i. Ayyasami vs. State of Tamil Nadu, 644 SC, AIR. ii. Bhola Ram Kushwaha vs. State of MP, SC 229, Vol. IV. iii. State of UP vs. Gambhir Singh & Ors, SC 165, Vol. II.
30. At the very outset, it is to be noted that there is no dispute over the propositions of law enunciated in the aforesaid case law, cited at the bar. The case law reported as Satish Chander vs. CBI, 2011(4), CC Cases (Delhi) (HC) 599, however, applies in full amplitude to the facts and circumstances of this case.
31. I have carefully gone through the entire relevant material appearing on record and have given considered thought to the above case law cited by the parties and have also considered the arguments that have been advanced, at CBI Case No. : 9/11 Page No. 13 of 52 :14: CBI Vs. Devi Singh the bar. My findings are as under:
32. Section 7 and 13 (1) (d) of the Prevention of Corruption Act, 1988, provides as under :
"Section 7. Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than CBI Case No. : 9/11 Page No. 14 of 52 :15: CBI Vs. Devi Singh six months but which may extend to five years and shall also be liable to fine."
"Section 13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct ....................................
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
33. The offence committed under section 13 (i) (d) of Prevention of Corruption Act, 1988, is punishable under section 13(2) which reads as under:
Sec. 13(2) CBI Case No. : 9/11 Page No. 15 of 52 :16: CBI Vs. Devi Singh "any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
34. Ingredients of the offence under section 7 and 13 (1) (d) of the Prevention of Corruption Act, 1988, are, therefore, as under: Section. 7
(i) That the accused was a public servant or expected to be a public servant at the time when the offence was committed.
(ii)That the accused accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person for himself or for any other person.
(iii)That such gratification was not a remuneration to which the accused was legally entitled.
(iv)The accused accepted such gratification as a motive or reward for :
(a) doing or forbearing to do an official act, or CBI Case No. : 9/11 Page No. 16 of 52 :17: CBI Vs. Devi Singh
(b) doing or forbearing to show favour of disfavour to someone in the exercise of his official functions, or
(c) rendering or attempting to render any service or disservice to someone with the Central or any State Government or Parliament or the Legislature of any State Government or Parliament or the Legislature of any State, of with any local authority, Corporation or Government company referred to in Sec. 2 Clause (c) of the Prevention of Corruption Act, 1988, or with any public servant, whether named or otherwise.
Section 13 (1) (d)
(i) That the accused by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) That the accused by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) That the accused while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or CBI Case No. : 9/11 Page No. 17 of 52 :18: CBI Vs. Devi Singh
35. In this case all the ingredients of Section 7 and 13 (1) (d) of the Prevention of Corruption Act, 1988, stand established, as is discussed, hereinbelow.
36. PW1, Shri Ram Kishan Jaitley, is Factory Inspector and is a formal witness. He issued the challan in question under section 416, 417 of the MCD Act, 1957, and proved the same as Ex.PW1/A. He identified his signatures at point A on the notice, issued by the Spl. Metropolitan Magistrate and proved the same as Ex. PW 1/B.
37. This witness was subjected to a brief cross examination but nothing appeared therein so as to bring out any contradiction in the prosecution story.
38. PW2 Sh. Pawan Singh Tomar, had accorded sanction under section 19 of PC Act, 1988, for prosecution CBI Case No. : 9/11 Page No. 18 of 52 :19: CBI Vs. Devi Singh of the accused, a public servant. He proved the said sanction order as Ex.PW2/A, having his signatures at point A, which were duly identified and proved by him. There is nothing on record to suggest that the sanction accorded by him was without application of mind.
39. PW3Sh. Anand Kumar Aggarwal is Asstt.
Municipal Prosecutor, who forwarded the challan to the Court of Spl. M. M. MCD, Rohini, Delhi. He proved the production cum seizure memo as Ex. PW 3/A.
40. PW 4 - Shri Manish Sehgal is the complainant.
He has been examined as one of the star witness by the State. It was upon his complaint that the present case was registered against the accused, Devi Singh. He deposed that since he was challaned by the MCD officials for keeping some of his sewing machines, outside his shop, he received a notice to attend the MCD Court No. 108, Rohini, on 8.6.2009. He further deposed that on 8.6.2009, he CBI Case No. : 9/11 Page No. 19 of 52 :20: CBI Vs. Devi Singh visited the said court and met Reader of the Court, accused Devi Singh. That on showing him the said MCD notice, accused Devi Singh told him that a fine of Rs.10,000/ to 12,000/ could be slapped by the court upon him but accused Devi Singh can get the matter disposed off with the fine of Rs.6000/ to Rs.7000/. That on request, accused Devi Singh agreed to sort out the matter for Rs. 4500/ only. That he further told the complainant that the court receipt might be issued, however, for Rs.2000/ to Rs.3000/. During the testimony of PW4, this witness correctly identified the accused Devi Singh.
41. He has further deposed that on 8.6.2009 itself, he went to CBI office and met Inspector Manas Dey at CBI Office, Lodhi Road and made a written complaint, which he proved as Ex. PW4/A. This complaint, made by him, is about the demand of bribe made by accused Devi Singh, in respect of the challan in question.
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42. He further deposed that on 9.6.2009, he was introduced to one Mr. Deepak Kumar. That the said Deepak Kumar was briefed about the complaint of the complainant and a Sony Voice Recorder was given to the complainant i.e. PW4.
43. He further deposed that he alongwith the said Shri Deepak Kumar went to the MCD Court and met accused Devi Singh in MCD court and requested him to further reduce the amount of Rs.4500/, to which accused Devi Singh denied and accused Devi Singh gave the summons and asked the complainant to come on 12.6.2009.
44. He further deposed that before meeting the accused Devi Singh on 09.6.2009, he switched on the voice recorder, provided by the CBI and which was kept in his left side pocket of the shirt. That the conversation between accused Devi Singh and the complainant was recorded. CBI Case No. : 9/11 Page No. 21 of 52 :22:
CBI Vs. Devi Singh Later on, it was transferred in the blank CD and the said CD has been proved as Ex. PW4/P1. The envelope containing the said CD has been proved as Ex. PW 4/B.
45. PW4 further narrated the entire story of the prosecution, in his deposition, with regard to the trap proceedings dated 12.6.2009. He proved the handing over memo as Ex. PW4/D. The receipt of Rs.3000/, issued by accused Devi Singh, as against the payment of Rs.4500/, towards the challan is proved as Ex. PW 4/E. The G. C. notes have been proved as Ex. PW 4/F to Ex. PW4/J. The envelope containing the said G. C. Notes have been proved as Ex. PW 4/K.
46. The wash of the left hand and right hand of the accused Devi Singh have been proved as Ex. PW 4/L & Ex. PW 4/M. Two pullandas, used for wrapping the bottles containing hand wash of left and right hand, have been proved as Ex. PW 4/N & Ex. PW 4/O, respectively. The CBI Case No. : 9/11 Page No. 22 of 52 :23: CBI Vs. Devi Singh pullanda, containing CD, has been proved as Ex. PW 4/P. The said CD, used for transferring the conversation is proved as Ex PW 4/P2. The CD, containing the voice sample of accused Devi Singh is proved as Ex. PW 4/P3 and cloth pullanda, used to wrap the said CD, is proved as Ex. PW4/Q.
47. This witness has further proved the recovery memo as Ex. PW4/R and the rough site plan as EX. PW 4/S. The transcription of conversation between him and the accused Devi Singh has been proved as Ex. PW 4/T and the transcription of conversation of another CD is proved as Ex. PW 4/U. The voice identification memo, in respect of the third CD is proved as EX. PW 4/V.
48. That during his testimony, this witness further identified the voice of accused Devi Singh and that of witness Deepak Kumar.
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49. Nothing appeared in the crossexamination of this witness which discredits the prosecution version. PW4 has, thus, proved demand and acceptance of the alleged bribe by the accused person.
50. Once the 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. [Madhukar Bhaskararao V State of Maharashtra, AIR 2001 SC 147, is relied upon]
51. In the case of Mabarak Ali Vs. State, AIR 1958, MP 157: 1958 Cr.LJ 764, it was held that:
"Mere demand or solicitation of gratification by a public servant amounts to an offence under section 161 IPC. (The corresponding offence has been incorporated as Section 7 of the P. C. Act.)"
52. It was held in 'Krishan Kumar Vs. State of CBI Case No. : 9/11 Page No. 24 of 52 :25: CBI Vs. Devi Singh Punjab, 2011 (3) RCR (Criminal) 2006 (P&H) that :
"Since the demand of illegal gratification is a settlement in secrecy, therefore, the court need not insist upon independent corroboration of the demand of bribe money by accused. Such crimes are committed in secrecy and normally bribes are not taken openly."
53. PW5Shri Deepak Kumar is an independent public witness, who was working as Head Clerk in Govt. Girls Sr. Secondary Kanya Vidyalaya, Jahangir Puri, at the relevant time. He accompanied the complainant, during the trap proceeding in respect of accused Devi Singh.
54. Initially, he was not coming forward to depose in line with the prosecution story. However, when he was declared hostile and was crossexamined by the State, he admitted all the documents signed by him and that the same were prepared/executed in his presence. He has CBI Case No. : 9/11 Page No. 25 of 52 :26: CBI Vs. Devi Singh fully corroborated, in material particulars, the deposition of PW4 in as much demand and acceptance of the bribe and the recovery of G. C. Notes in question are concerned.
55. PW 5, admittedly, was a Govt. Servant and was one of the ocular trap witnesses. In the case law reported as Babarali Ahmadali Syed V. State of Gujrat, 1991 Cr. LJ 1269: 1990 Cr. LR 228 (Guj), it was held that:
"The evidence of the trap witness cannot be discarded on the ground that he is a Government servant. It is settled law that while appreciating the evidence of the witness in a criminal case, the court should not attach much importance to minor discrepancies which do not shake the basic version of the prosecution and should ignore the errors due to lapse of memory or for some such other reason."
56. PW5 has, thus, reiterated and confirmed the CBI Case No. : 9/11 Page No. 26 of 52 :27: CBI Vs. Devi Singh entire story of the prosecution proved by the complainant.
57. PW 5 was an independent witness. In the case of Hazari Lal V Delhi Administration, reported as 1980 (2) SCR 1053, it was held by the Apex Court that:
"The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses, who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties have sought the help CBI Case No. : 9/11 Page No. 27 of 52 :28: CBI Vs. Devi Singh of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever".
58. PW6Shri T. L. Tuteja is another independent and public witness, who was working as Computer Operator in the Bank of India, Connought Place, New Delhi, at the relevant time. He deposed that he was briefed about the complaint and was introduced to the complainant. Like PW 5 he has also supported the prosecution story in all material particulars and identified G. C. notes as the same which were given to the accused Devi Singh by the complainant, Manish Sehgal and were recovered from the accused as the bribe money paid. He CBI Case No. : 9/11 Page No. 28 of 52 :29: CBI Vs. Devi Singh also identified his signatures on the various exhibited and proved documents, mentioned herein above.
59. In the case of Surain Singh V. State of Punjab, reported as 2008 Cr. LJ (NOC) 13 (P&H), while recording conviction, it was observed that the conviction is justified when:
"the complainant and shadow witness fully supported the prosecution's case, money was recovered from the pocket of the accused and report of FSL found positive qua presence of phenolphthalein powder."
60. PW 7 - Shri K. P. Rajora is Spl. Metropolitan Magistrate, in whose court accused Devi Singh was posted as Reader. He did not support the prosecution story on some of the aspects. He was cross examined by the Ld. Spl. PP for the CBI, as he resiled from his previous statement, made during the course of investigation, to the CBI Case No. : 9/11 Page No. 29 of 52 :30: CBI Vs. Devi Singh CBI.
61. Crossexamination of PW7 by the State very clearly indicates that this witness was trying to suppress the truth in his examinationinchief. In his cross examination, he has very clearly admitted that the document, Ex.PW4/R, which is a Recovery Memo (comprising of five pages) is duly signed by him. His assertion to the defence that it was signed by him without reading the same does not inspire any confidence and is bereft of merit. This witness was acting as Special Metropolitan Magistrate at the relevant time and cannot be expected to sign a document without going through the same. That he would have signed the recovery memo, Ex. PW 4/R, without reading the same, does not appear to be either logical or inspire confidence, especially when the post raid proceedings for a long period were, admittedly, recorded in his presence. The accused was nabbed red handed in his court only.
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62. It is almost impossible to believe that this witness would have signed the document, Ex. PW 4/R, without going through the same, merely at the instance of the CBI officials. Even otherwise, there is nothing on record to lend support to the above stand adopted by PW7, during his cross examination by the defence.
63. Ex. PW 4/R has been signed by various other witnesses also and has been duly proved, on record, by them.
64. There is nothing on record to suggest that this witness was under any compelling circumstance to blindly sign Ex. PW 4/R. Besides, no diligent person, much less a magistrate, would behave so irresponsibly and casually acted in a serious matter like this.
65. Further, in crossexamination by the Ld. P.P. CBI Case No. : 9/11 Page No. 31 of 52 :32: CBI Vs. Devi Singh for the State, this witness has clearly admitted that he has signed Ex. PW 4/R, after going through it, which appears to be his natural and circumstantial deposition, closer to the truth.
66. Once, this witness has signed the Ex. PW 4/R after going through it, nothing more remains to be established by the prosecution. The contents of the Ex. PW 4/R proves the entire story of the prosecution beyond any pale of doubts. Even otherwise, Ex. PW 4/R has been proved by all other prosecution witnesses, who had signed it.
67. PW 7 has clearly admitted that his statement was recorded by the Investigating Officer (IO) during the investigation. He has identified his signature on the transcription, which is Ex. PW4/U, at point D. He has further admitted that transcription recorded on 9.6.2009, which is Ex. PW 4/T, was prepared in his presence and in CBI Case No. : 9/11 Page No. 32 of 52 :33: CBI Vs. Devi Singh the presence of other witnesses.
68. Similarly, transcriptioncumvoice identification memo, Ex. PW 4/V, bears his signature at point D, which this witness has clearly admitted.
69. PW7 has further stated that the CBI took into possession the Notice under section 251 Cr. PC, 1973, which is Ex. PW1/B; the challan, Ex. PW 1/A and the carbon copy of the challan, Ex. PW 5/PX6. Second copy of the challan, Ex. PW 5/PX7 was also taken into possession in his presence. That he signed all these documents at point D, which he identified. He has further admitted that besides the aforesaid documents, CBI took into possession the document Ex. PW5/PX8, which is a general receipt (carbon copy) and original general receipt, Ex. PW 4/E, in his presence vide seizure memo dated 12.6.2009, which is proved on record as PW5/PX5. Both the above stated documents bear his CBI Case No. : 9/11 Page No. 33 of 52 :34: CBI Vs. Devi Singh signature at point 'C' and 'D', which he identified.
70. This witness, clearly, has admitted that all the above said documents were prepared in the presence of the accused and other witnesses including him.
71. The crossexamination of this witness by the State and his admission of all the aforesaid documents, proved on record, by the prosecution, clearly demonstrate that this witness, in order to save the accused person, has consciously tried to suppress the truth, initially. He, however, could not avoid or deny the execution of the aforesaid documents, in his presence, when he was confronted with the same by the Ld. Prosecutor for the State.
72. PW 7, being a responsible person, was not expected to turn hostile to the version of the prosecution, even initially.
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73. The State shall proceed against this witness, in accordance with law, for having tried to subvert and suppress the truth.
74. In the case of Kishna Narain V State of Maharashtra, reported as AIR 1973 SC 2751: 1973 Cr. LJ 1839, it was held that:
"The maxim falsus in uno, falsus in omnibus is not of universal application and has not been implicitly followed by the courts in this country. The maxim if carried to its logical end would bring the administration of justice to a standstill. A person, whose evidence is false or evasive in part, on a most minor and irrelevant part of the case, may be perfectly reliable in other part of the case."
75. It was further reiterated in the case law cited as 2011 (i) RCR (Crl.) 405, that it is the duty of the Court to CBI Case No. : 9/11 Page No. 35 of 52 :36: CBI Vs. Devi Singh separate the grain from the chaff and the maxim 'falsus in uno, falsus in omnibus' has no application in India.
76. Dealing with the evidentiary value of a hostile witness, in the case of Bhajju @ Karan Singh vs. State of M.P., 2012 II AD (CRI.) (SC) 305, Hon'ble Supreme Court has observed as under:
"Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant/accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under section 161 of the Cr.P.C, the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to crossexamine the said witness. If such a permission is granted by the Court then the witness is subjected to crossexamination by the prosecutor as well as an opportunity is provided to the defence to crossexamine such witnesses, if he so desires. In other words, there is a limited examinationinchief, cross examination by the prosecutor and cross examination by the counsel for CBI Case No. : 9/11 Page No. 36 of 52 :37: CBI Vs. Devi Singh for the accused. It is admissible to use the examinationinchief as well as the cross examination of the said witness in so far as it supports the case of the prosecution. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross examination by the adverse party. The view that the evidence of the witness who has been called and crossexamined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be crossexamined can also be relied upon by the prosecution. CBI Case No. : 9/11 Page No. 37 of 52 :38:
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77. The aforesaid principles were laid down as well in the earlier judgments of the Apex Court in the cases cited as :
(1) Koli Lakhmanbhai Chanabhai vs. State of Gujarat, (1998) 8 SCC 624.
(2) Prithvi vs. State of Haryana (2010), 8 SCC 536. (3) Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1.
(4) Ramkrushna vs. State of Maharashtra, (2007) 13, SCC 525."
78. In any case, the crossexamination of this witness by the State corroborated fully the version projected by the prosecution.
79. PW8 is Inspector Sushil Kumar, who was entrusted the case for further investigation after the trap was laid by Inspector B. M. Meena. He deposed that he sent the hand washes, CDs of conversation and specimen voice to the CFSL for scientific analysis and prepared the transcription of recorded conversation recorded in the CDs. He also examined and recorded the statements of CBI Case No. : 9/11 Page No. 38 of 52 :39: CBI Vs. Devi Singh the relevant witnesses. Further, he collected the documents and after obtaining sanction, filed the charge Sheet, in the Court.
80. This witness, during his testimony, proved the FIR as Ex. PW 8/1; the letter vide which he sent the hand washes to the CFSL for expert opinion as Ex. PW 8/2, and the letter vide which CDs marked as Q1, Q2 and S1 were sent to CFSL for expert opinion, as Ex. PW 8/3.
81. PW 9 Dr. Rajinder Singh, Director, is a witness from CFSL, who examined the CDs in question. He proved his report as Ex. PW 9/A. He also proved the chemical examination report of hand washes as Ex. PW 9/B, in which the presence of the chemical phenolphthalein was confirmed. His testimony goes unchallenged.
82. PW10 is Inspector Brij Mohan Meena, who was the initial IO, with regard to laying the trap against the CBI Case No. : 9/11 Page No. 39 of 52 :40: CBI Vs. Devi Singh accused Devi Singh. During his testimony, he has corroborated, in material particulars, the whole story of the prosecution as was given by the other prosecution witnesses.
83. PW10 has further deposed that during trap proceedings, he seized/recovered many documents and on his dictation recovery memo, Ex. PW 4/R, was prepared and a rough site plan was also prepared. He further deposed that after the trap proceedings and preparation of recovery/seizure memos, he handed over further investigation of this case to Inspector Sushil Kumar. During his testimony, he has also identified the case property, recovered in this case, as Ex.PW4/1 to Ex.PW4/3.
84. PW11 is Sub Inspector Anmol Sachan, who assisted Inspector Manas Kumar Dey, in verification of the complainant of the complainant against the accused Devi Singh. He deposed that investigation of the case was CBI Case No. : 9/11 Page No. 40 of 52 :41: CBI Vs. Devi Singh entrusted to Inspector B. M. Meena, who laid the trap proceedings against the accused Devi Singh. He further deposed that he assisted Inspector B. M. Meena during further investigation of the case.
85. In his testimony, he corroborated the version of the other prosecution witness and reiterated the entire prosecution story.
86. I have thoroughly examined the contentions raised by the defence and find that the contentions raised by the defence are devoid of merit.
87. At the very outset, the defence has failed to place even an iota of evidence on record to show that at the behest of one lady advocate, the accused was falsely implicated.
88. Regarding the contention, that the handwash, CBI Case No. : 9/11 Page No. 41 of 52 :42: CBI Vs. Devi Singh which was taken by the CBI after the accused was trapped, did not turn pink, it is required to be observed that this test is not the mandatory requirement of law. It is conducted to corroborate the prosecution story, as an abundant caution. The chemical examination report, Ex. PW 9/B, clearly indicates the presence of phenolphthalein in the handwash of the accused and, therefore, whether at the spot, the solution turned into pink or not is immaterial. The chemical examination finding by the expert is more reliable than the observation by the naked eye.
89. In the instant case, the presence of phenolphthalein, which was applied to Government Currency (G. C.) Notes and got transmitted to the accused person on handling of those G. C. Notes, is clearly indicated in the unchallenged Chemical Analysis Report, Ex. PW 9/B, duly proved by PW9. The testimony of PW9 could not be controverted, on record. Once, the Chemical Examination found the presence of chemical CBI Case No. : 9/11 Page No. 42 of 52 :43: CBI Vs. Devi Singh phenolphthalein in the bottles containing handwash of the accused, which remained intact, from the seizure, till the time were examined by the Analyst, it is manifestly clear that the accused handled the G. C. notes in question and this corroborate the prosecution story that the accused committed the alleged offences.
90. Now, I come to the contention regarding the discrepancy in respect of distinguishing number (i.e. 4DF 361577) of one of the Government Currency Note of the denomination of Rs.1000/ as is appearing in the handing over memo and as is appearing in the statement of witnesses under section 161 Cr.PC (i.e. 4DF 316577). From the circumstances, available on record, it appears that there is only difference in respect of two digits i.e. '6' & '1'. It clearly appears to be merely a typographical error. Even otherwise, admittedly, the Government Currency Notes, which were given by the complainant to the accused, consisted of a total of five Government Currency Notes; CBI Case No. : 9/11 Page No. 43 of 52 :44:
CBI Vs. Devi Singh four in the denomination of Rs.1000/ and one in the denomination of Rs.500/. For the sake of assumption, even if, it is taken that there is a doubt relating to one G. C. Note of denomination of Rs.1000/ and it is taken out, the other currency notes, seized as per the seizure memo, perfectly match with the handing over memo, duly placed and proved on record and still case of acceptance of bribe as against the accused person is made out since the amount accepted by the accused exceeds the amount of Rs.3000/, for which the receipt was actually given by the accused. This contention of the defence also, therefore, has no merit and substance.
91. Regarding the hostile witnesses i.e. PW 5, PW 6 and PW 7, it has already been observed, herein above, that these witnesses, in crossexamination, have clearly admitted the case of the prosecution. When they admitted all the documents and their signature thereon, they only corroborated the version given by the PW 4 and by the CBI Case No. : 9/11 Page No. 44 of 52 :45: CBI Vs. Devi Singh other prosecution witnesses.
92. In this case, thus, there is overwhelming evidence having been placed and proved on record by the prosecution that the accused person demanded the bribe and thereafter, accepted the same.
93. On behalf of the defence, it was contended that meeting of the complainant with the accused person on 8.6.2009 is doubtful as per the pretrap transcription showing demand of bribe made by the accused on 8.6.2009 is concerned. This contention too has no merit. The said transcription, placed on record by the prosecution, clearly show that the alleged demand of bribe was made by the accused on 8.6.2009 and that it was made on 9.6.2009 also.
94. Further, even if, the above said contention of the defence is presumed to be correct that no demand of CBI Case No. : 9/11 Page No. 45 of 52 :46: CBI Vs. Devi Singh bribe was made by the accused on 8.6.2009 (although it inspires no confidence), there is a evidence on record that this demand was subsequently made by the accused on 9.6.2009 and again on 12.6.2009. Thereafter, illegal gratification/bribe was accepted by the accused on 12.6.2009.
95. In case of State V Sejappa, 2008, reported as Cr.LJ 3312 (Karn.), the Karnataka High Court held that :
"failure of prosecution to prove fact of initial demand by accused is not an infirmity as concept of initial demand does not find a place in Sec. 7 and as the State has established that accused did demand and did accept bribe of Rs. 5000/ through complainant, in the presence of the shadow witness and the amount was recovered from the accused and right hand wash tested positive, plea of foisting a false case is not tenable as it was not shown that Officer who laid CBI Case No. : 9/11 Page No. 46 of 52 :47: CBI Vs. Devi Singh trap had any grouse against the accused."
96. Once, the accused person has accepted the illegal gratification and the same was recovered from him, presumption under Section 20 of the Prevention of Corruption Act, 1988, is available that the said money was taken as a motive or reward and can be raised as against the accused person. The accused person has placed or proved nothing on record, to repel this presumption.
97. It was held in "M. Sunderamoorthy Vs. State of Tamil Nadu, AIR 1990 SC 1269" that the appellant is guilty of offence under section 13 (1) (d) and 13(2) of the P. C. Act as recovery of currency notes from the appellant proves the guilty conduct of the appellant in view of the presumption arising under section 20 which has not been rebutted.
98. Our own High Court held in the case law CBI Case No. : 9/11 Page No. 47 of 52 :48: CBI Vs. Devi Singh reported as "Harish Kumar Vs. CBI'-2011(4) RCR (Criminal) 300 Delhi, that when prosecution has proved beyond reasonable doubt the demand and acceptance of bribe made by the appellant at the time of trap, the Court is duty bound to raise presumption under section 20 of the P.C. Act.
99. In the case of Vinod Kumar Garg Vs. State, 2009, Cr. LJ 3224 (Del): 1 (2009) CCR 317 (Del), it was held that:
"The High Court after examination of various aspects observed : (i) once order of sanction shows that all materials were placed before sanctioning authority, adequacy or inadequacy of material cannot be gone into by the High Court sitting as Court of Appeal over sanction order; (ii) once tainted money kept in a polythene pack was recovered from the right side pocket of accused and the currency notes tally, in the absence of any material contradiction, presumption CBI Case No. : 9/11 Page No. 48 of 52 :49: CBI Vs. Devi Singh under Sec. 20 gets attracted; (iii) absence of hand wash or pant wash of accused not resulted in miscarriage of justice as money was recovered and dismissed the appeal."
100. In case of Ram Chander V State (Govt. of NCT of Delhi), 2009 Cr. LJ 4058 (Del), it was held that:
"Accused, a doctor working in Tihar Jail Hospital was convicted by the Special Judge for accepting Rs.10000/ on behalf of the complainant who was taking treatment in the Indoor Hospital of the Jail for not discharging him from the Jail Hospital. On appeal, the High Court held that: (i) demand can be proved by circumstantial evidence; (ii) demand proved and recovery of money from accused soon after the raid was also proved (iii) CFSL report on sodium carbonate and phenolphthalein test was positive; (iv) sanction order was proved by categorical deposition of the sanctioning authority that he granted sanction after going through papers produced before him; (v) CBI Case No. : 9/11 Page No. 49 of 52 :50: CBI Vs. Devi Singh defence failed to prove conspiracy to falsely implicate the accused in the case by Jail Superintendent; and (vi) conviction based on presumption under sec. 20 is sustainable notwithstanding absence of evidence of complainant. The appeal was dismissed."
101. The prosecution evidence led and proved, on record, shows that the accused person, who was a public servant, misconducted himself within the meaning of section 13 (1) (d) of the Prevention of Corruption Act, 1988, when he accepted the illegal gratification as a motive or reward from the complainant, which was a pecuniary gain to which the accused person was not legally entitled to. He has, therefore, committed the offence under Section 13 (1)
(d) of the Prevention of Corruption Act, 1988, also.
102. Section 7 of the Prevention of Corruption Act bars demand of bribe while Sec. 13 of the Act prohibits obtaining of pecuniary advantage. Both the offences are CBI Case No. : 9/11 Page No. 50 of 52 :51: CBI Vs. Devi Singh distinct and discrete offences. Hence, under sec. 26 of the General Clauses Act there is no bar to try or convict and punish the accused for both the offences.
103. As discussed herein above, the State has clearly proved on record that:
(i) The accused demanded and accepted the said amount of bribe.
(ii) He handled the bribed G. C. Notes as is evident from the chemical examination report, which is unchallenged.
(iii) The bribe money was recovered from him.
(iv)The sanction for prosecution of the accused was accorded after proper application of mind.
(v) That the presumption under section 20 of the Prevention of Corruption Act available against the accused has not been rebutted by him.
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104. The prosecution has, thus, established, without any pale of doubt, the alleged offences as against the accused person, under section 7 & 13 (i) (d) of the Prevention of Corruption Act, 1988.
105. I, therefore, have no option but to convict the accused person of the offences punishable under section 7 and 13 (2) of the Prevention of Corruption Act, 1988. The accused is, accordingly, convicted.
106. Let the convict be heard on the point of sentence on 26.04.2012.
Announced in the open court ( N. K. Kaushik ) on April 20, 2012 Special Judge, PC Act CBI Dwarka Courts CBI Case No. : 9/11 Page No. 52 of 52