Delhi District Court
A Shield For The Guilty. (Refer ... vs . State Air on 30 May, 2009
1
IN THE COURT OF SH. PADAM KANT SAXENA:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 02/2003 (Old)
CC NO. 46/2008 (New)
CBI
Versus
Sh. Sanjeev Kumar,
Inspector, Central Excise,
Gurgaon. ...Accused
Case arising out of:
FIR No. RC. No. DA1-2002-A-0030
Dated 24.05.2002
Date of FIR : 24.05.2002
Date of Institution : 17.01.2003
Date of Final Arguments : 29.05.2009
Date of Judgment : 30.05.2009
JUDGMENT:
1. Case of CBI as unfolded during the course of 1 Of 59 2 the trial is that Sh. Rupesh Jain (hereinafter called the complainant)was a director of M/s. Flexo Foam Pvt. limited and its factory was situated at Daulatabad Road, Gurgaon wherein seats and berths of Railway Coaches used to be manufactured. According to the complainant in February 2002, the accused who was working as Inspector Central Excise, Gurgaon, called the former to his office and stated that some complaints had been received about the said factory and since then, the latter had been calling him on his phones and wanted him to pay money. Despite this, the complainant did not take it seriously and also did not pay any money. Further according to the complainant, on 17th May 2002 the accused had called him to his residence at AGI/65B Vikas Puri, New Delhi and demanded Rs.2.00 lacs as bribe and threatened that in case the said amount was not paid, a raid would be conducted in his factory and for payment of the said amount of bribe amount, the accused had called the complainant to his residence on 24th May,2002. Since the complainant did not want to pay bribe, he 2 Of 59 3 lodged the complaint (D1) which has been proved as Ex.PW2/A.
2. The said complaint (D1) proved during the trial as Ex.PW2/A, was marked by the then S.P. Shri R.S. Dhankar to PW 12 Inspector A.K. Pandey on the basis of which formal FIR Ex.PW12/A was registered and case was investigated. After completion of the investigation, the charge sheet in question came to be filed.
3. After filing of the charge sheet, cognizance of the offence was taken by ld. Predecessor Court and accused was ordered to be summoned. After appearance of the accused, copies were supplied to him and after hearing arguments on charge, on 18.3.2004 formal charge for commission of offences punishable under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption of Act,1988 (for short 'the Act') came to be framed against him to which he pleaded not guilty and claimed trial.
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4. For bringing home the guilt of the accused prosecution examined as many as 15 witnesses in all whereafter prosecution evidence stood closed.
5. Thereafter, on 17.2.2006 statement of the accused under Section 313 Cr.P.C.,1973 was recorded wherein he claimed innocence and false implication. It would be useful to note that while the case was pending before Ld. Predecessor Court for final arguments, the accused filed an application dated 22.10.2007 under Section 464 Cr.C.P.,1973, seeking his acquittal on the grounds mentioned therein. The said application was dismissed by ld. Predecessor Court vide order dated 05.2.2008 and consequent upon this, additional statement of accused under Section 313 Cr.P.C. , 1973, was again recorded on 06.02.2008.This aspect of the matter would be dealt with by me in some detail, hereinafter, at the appropriate stage.
6. In support of his defence, accused examined 4 Of 59 5 three witnesses in all whereafter he closed his defence evidence.
7. I have heard ld.PP for the CBI, ld. defence counsel and have gone through the records carefully.
8. According to the ordinary principle of criminal jurisprudence, the burden of proving the guilt of the accused in criminal proceedings lies all the way on the prosecution. Therefore, on the basis of the materials on record, let us try to find out whether prosecution has been able to prove its case beyond reasonable doubts against the accused or not.
9. In the charge sheet it has been inter-alia averred that accused was earlier posted as Inspector Customs & Central Excise, Gurgaon and thereafter stood transferred and relieved therefrom, on 29.4.2002 and w.e.f. 01.05.2002 had joined in Technical Branch, as is mentioned in Ex.PW10/B. So, 5 Of 59 6 at that time, the accused was in the service and pay of Government. Hence he was a 'Public Servant' within the meaning of Section2(c)(i) of the Act and as such is governed by the provisions of the Act. Even during the course of arguments, ld. defence counsel very fairly admitted that at the relevant time, accused was a 'Public Servant' within the meaning of the Act.
10. Proceeding further, it may be useful to note that Section 19 of the Act imposes complete bar on the power of the Court to take cognizance of the offences mentioned therein including Sections 7 & 13 of the Act alleged to have been committed by the 'Public Servant' except with the previous Sanction of the Competent Authority enumerated in clauses (a) to ( c) thereof. The said Sanction has to be granted with respect to a specific accused and only after sanction had been granted, that the court becomes competent to take cognizance.
11. At this stage, it would be of immense 6 Of 59 7 importance to remember that intention of the Legislature in providing for sanction is merely to afford a reasonable protection to the public servants in the discharge of their official functions. It is not the object of the Section that a public servant who is guilty of the particular offence should escape the consequences of his criminal act by raising the technical plea of invalidity of Sanction. The Section is a safeguard for the innocent and is not a shield for the guilty. (Refer Gurbachan Singh Vs. State AIR 1970 Delhi 102).
12. Hon'ble Supreme Court, in the case of C.S. Krishnamurthy Vs. State of Karnataka 2005 IV AD SC 145 after considering the judgments in the cases of R.S. Pandit Vs. State of Bihar (1963) Supp. 2 SCR 652 & Gokulchand Drawkadas Morarka Vs. The King AIR ,1948 PC 83 inter-alia held that the ratio of those cases is that 'the Sanction Order should speak for itself and in case the facts do not appear on the face thereof, it should be proved by leading evidence that 7 Of 59 8 all the particulars were placed before the Sanctioning Authority for due application of mind by it'.
13. In the instant case, PW1 Sh.V. Prasad Joint Commissioner Central Excise has proved on record the relevant sanction granted by him to prosecute the accused, as Ex.PW1/A. It has come in his evidence that he was the Competent Authority to remove Inspector Customs & Excise. Genuineness and authenticity of the sanction order Ex.PW1/A has neither been challenged nor disputed. This document also shows that accused was a 'Public Servant'. Detailed facts mentioned in the said order, on the face of it, show complete application of mind by the said witness who was the Competent Authority to accord Sanction for prosecution of the accused. Hence by no stretch of imagination it can be held that the Sanction Order in question Ex.PW1/A, suffers from non application of mind. Even during the course of argument of ld. defence counsel very fairly did not challenge the said Sanction 8 Of 59 9 Order Ex.PW1/A.
14. As already stated, the charge in question was framed by ld. Predecessor court on 18.3.2004. A perusal of the relevant charge reveals that the allegation against the accused is that he while being posted as Inspector, Central Excise, Gurgaon was alleged to have demanded the bribe from the complainant, after February, 2002 telephonically and again on 17.5.2002 and 24.5.2002. It is an admitted case of the prosecution that in February, 2002 accused was posted as Inspector, Central Excise, Gurgaon but he stood transferred therefrom w.e.f. 29.4.2002 and joined the Technical Branch, New Delhi w.e.f. 01.05.2002.
15. Now coming back to situation in which the aforesaid order dated 05.02.2008 mentioned in aforesaid paragraph came to be passed by ld. Predecessor Court, it would be useful to note that after completion of prosecution evidence, 9 Of 59 10 statement of accused under Section 313 Cr.P.C.,1973 had been recorded by it on 17.2.2006. Thereafter while the case was still pending there i.e. before ld. Predecessor Court and was posted for arguments, accused moved his aforesaid application dated 22.10.2007 under Section 464 Cr.P.C., 1973 claiming that during the entire trial he was made to believe that he had been facing charge in respect of an accusation which he allegedly committed while working as Inspector. Central Excise, Gurgaon and even in his statement recorded on 17.2.2006 under Section 313 Cr.P.C. 1973 that was the first piece of evidence put to him. Accused had also averred in the said application that prosecution had not led any evidence to prove that in May, 2002 he was posted as Inspector, Central Excise, Gurgaon and the charge framed against him nowhere alleged that in May, 2002 he was posted in Delhi. Therefore by virtue of the aforesaid application, accused claimed an acquittal.
16. Ld. Predecessor Court dismissed the said 10 Of 59 11 application vide Order dated 05.02.2008. However, it was also observed in para 7 thereof that there was a clerical error in the said charge, dated 18.03.2004 when instead of 'Delhi' word 'Gurgaon' was mentioned. It was also specifically observed in that order that on account of the said error accused was neither misled nor any failure of justice had been occasioned. Hence, amendment of charge was considered unnecessary and instead an additional statement under Section 313 Cr.P.C.,1973 was ordered to be recorded by ld. Predecessor Court and the said additional statement was in fact recorded on 06.02.2008 wherein it was put to the accused that he i.e. the accused remained posted as Inspector,Central Excise, Gurgaon till 29.4.2002 and thereafter stood transferred to Technical Branch and at the time of grant of Sanction on 26.01.2002 he was posted in Central Excise, Commissionerate, Headquarters, Delhi-III.
17. Based on the aforesaid facts ld. defence 11 Of 59 12 counsel has argued that on account of the said mistake in the charge dated 18.3.2004 and the subsequent dismissal of his aforesaid application by ld. Predecessor Court vide order dated 05.2.2008, accused has been misled. Therefore this is a prayer for his acquittal. In this regard reliance has been placed on a judgment of the Apex Court reported as Basavaraja & Others Vs. State JT 2008 (10) SC 440.
18. In view of the facts mentioned above, I am of the firm view that the charge in question framed against the accused on 18.3.2004 should have been amended at the aforesaid earlier stage to read " that on 17.5.2002 and 24.5.2002 the accused was working in Delhi" and not in Gurgaon, as originally mentioned.
19. Be as it may, but at this stage on the basis of the same material, I have no authority to review the said order dated 05.02.2008 passed by ld. Predecessor Court and take a 12 Of 59 13 different view in the matter. Hence, with regard to this aspect of the matter, I stop here and now and no further discussion in this regard is called for.
20. The next question that arises for consideration is whether despite the existence of the aforesaid mistake in the charge in question dated 18.3.2004 framed against the present accused, has he i.e. the accused, been misled and/or, has there been any failure of justice or not.
21. Ld. defence counsel has vehemently argued that accused has been misled and this is a fact which only he could explain. Also according to him, no evidence has come on record to show that accused has not been misled.
22. It is significant to note that after his arrest on 24.5.202, accused himself filed a bail application dated 28.5.2002 before ld. Special Judge, Delhi. This application is 13 Of 59 14 available on record at page no. 995 and wherein, it was admitted by the accused himself that till April 2002 he worked as Inspector, Customs & Central Excise, Gurgaon and after his transfer therefrom, he had been working in New Delhi. This is exactly the case of CBI as unfolded by charge sheet and documents.
23. Further prosecution also examined PW 9 Shri S.K. Panda, who proved Ex.PW9/A according to which accused worked as Inspector,Central Excise, Gurgaon from 18.01.2001 to 29.04.2002. PW 10 Shri Amit Jain, inter-alia proved documents Ex.PW10/A and Ex.PW10/B and the information provided in Ex.PW10/B clearly mentions that w.e.f. 29.4.2002 accused stood transferred to Technical Branch. Further, even Sanction Order Ex.PW1/A clearly refers to the fact that the trap incident took place on 24.5.2002 and the accused at the time of grant of Sanction was posted in Delhi. Genuineness and authenticity of the aforesaid documents was not challenged by 14 Of 59 15 the accused. Therefore, these are deemed to be admitted.
24. So, the aforesaid evidence on record and the conduct of the accused clearly show that both sides viz. the CBI and the accused, have althrough been aware that before 29th April, 2002, accused had been posted as Inspector, Central Excise, Gurgaon and thereafter and more particularly on 17.05.2002 and 24.05.2002, the latter was posted in, Technical Branch, New Delhi and not as Inspector, Central Excise, Gurgaon as mentioned in the charge. In my view, on account of the said lapse, neither accused has been misled nor any failure of justice has taken place. In the case of Basvaraja & Others (Supra) charge against the accused therein was that offence of murder had been committed but at the time of recording of statement, with reference to evidence of the doctor, it was stated that death was due to smothering. On the face of it, the said charge and the said evidence were opposite to each other and therefore accused in that case were acquitted. In my view 15 Of 59 16 this judgment is of no help to the accused because in the present case before 29.4.2002 and even thereafter, more particularly on 17.5.2002 and 24.05.2002 accused was admittedly a public servant within the meaning of Section 2(c)(i) of the Act & governed by the provisions of the Act. In any case, how would the complainant know about the said transfer and therefore a mountain should not be made out of a mole hill. Hence, argument of ld. defence counsel in this regard is rejected.
25. Coming back to the charge framed on 18.03.2004, ld. defence counsel has pointed out that as mentioned in FIR Ex.PW2/A, in the last week of February, 2002, accused was stated to have visited factory of M/s. Flexo Foam Ltd. of which complainant was a director and thereafter he started demanding money on phone. This according to ld. defence counsel is false and there is no evidence to that effect. Secondly, according to ld. defence counsel, also as per the said 16 Of 59 17 FIR Ex.PW2/A, on 17.5.2002, the accused while working as Inspector Central Excise, Gurgaon had called the complainant to his house at AG-1/65-B, Vikaspuri, New Delhi and had demanded Rs.2.00 lacs from him i.e. the complainant, as a motive or reward and had threatened him that if the above demand would not be met, then his factory would be booked in some case. It is claimed by ld. defence counsel that prosecution has miserably failed to prove that any such demand had been made.
26. Ld. defence counsel has vehemently argued that PW8 Shri Jag Mohan , Superintendent , Central Excise categorically deposed that in March, 2002 a case of duty evasion was pending against the firm of Rupesh Kumar Jain and summons had been issued against M/s. Flexo Foam Ltd., and others under signatures of his seniors. Further according to him, despite issuance of summons to the complainant, he never appeared in the office. In this regard reliance has been placed 17 Of 59 18 on Ex.PW8/DA-1 to Ex.PW8/DA-49 pertaining to action against the complainant's firm. Based on this, it is claimed that complainant was aware that accused was neither a part of the search team nor was involved in any action against his firms/companies and therefore there was no motive on his part to demand bribe. Hence the complainant is claimed to be untruthful. It is significant to note that different human beings may respond to the same problem, in different ways. There may not be a uniform response to a problem. A general response/behaviour mentioned above, as has been attributed by ld. defence counsel to the complainant, in my view cannot be accepted. Each case has to be decided on the basis of evidence prevailing therein. Therefore, the said argument of ld. defence counsel being meritless, is rejected.
27. In the judgment reported as Panalal Damodar Rathi Vs. State of Maharastra AIR 1979 SC 1191 and relied upon by ld. defence counsel, it has been 18 Of 59 19 authoritatively held that complainant is no better position than an accomplice and before his evidence is relied upon, it must be corroborated by other evidence on record.
28. The complainant in his deposition in the court categorically deposed that in the year 2002 he was running a firm under the name and style of M/s. Flexo Foam Pvt. Ltd. which was manufacturing seats for Railway coaches at Gurgaon. He went on to state that accused had been demanding money on the ground that if money was not paid, some cases would be initiated against his firm for excise violation. Further according to him demand of bribe was of Rs.2.00 lacs and he had agreed to make part payment of Rs.25,000/-. Since he had resiled from his previous statement with respect to some other portion of the case of the prosecution, he was cross-examined by ld. Sr. PP for CBI. A perusal of his deposition in examination in chief and cross- examination by ld. Sr. PP for CBI and ld. defence counsel 19 Of 59 20 would show that the complainant stood his ground on material aspects of the case and supported the prosecution.
29. It is well settled that FIR is not a substantive piece of evidence and can be used only to corroborate the statement of the maker under Section 157 of Evidence Act, 1872 or to contradict him under Section 145 thereof. (Refer Hasib Vs. State AIR 1972 SC 283).
30. There are two rules of practice which must never be forgotten. First, the witness must be cross-examined on all part of his testimony which it is intended to dispute, otherwise what the witness says in his examination in chief will be accepted as true. Secondly, the attention of the witness must be drawn to any contradiction appearing in his statement or with any previous statement and he must be afforded an opportunity to explain. If that is not done, no argument founded on the contradiction, is permissible. This had been so held by Hon'ble 20 Of 59 21 Delhi High Court in the case of State Vs. Meena Kumari 1986 RLR 319.
31. Significantly during the course of his cross- examination by ld. defence counsel, attention of the complainant was not drawn to Ex.PW2/A wherein it was mentioned that in the last week of February, 2002 accused had visited his factory in Gurgaon. Further his attention was also not drawn to Ex.PW2/A wherein it was also stated that on 17.5.2002 accused had called the complainant to his house at AG-1/65-B, Vikaspuri, New Delhi and demanded Rs.2.00 lacs as bribe. Since the attention of the complainant was not drawn to the said contradictions relied upon by ld. defence counsel vis-a-vis the FIR Ex.PW2/A, no argument based thereon is permissible in view of the law laid down in the case of State Vs. Meena Kumari (Supra ). Therefore, argument of ld. defence counsel in this regard is rejected. I hold that oral deposition of the complainant to the effect that in the year 2002, accused had 21 Of 59 22 demanded a bribe of Rs.2.00 lacs from him i.e. the complainant and he had threatened the complainant that in case of non- payment, cases would be initiated against his firm for excise violation and part payment of Rs.25,000/- was agreed to be made.
32. Now let us deal with the last portion of the charge contained in the aforesaid charge dated 18.03.2004. According to second head of the charge, 'accused had obtained pecuniary advantage to the tune of Rs.25,000/-' and the last portion of the charge under first head states 'that accused had accepted the said payment on 24.5.2002 at his house i.e. house no. AG-1/65-B, Vikaspuri, New Delhi'. So, on a combined reading of the said portions of the charge as a whole, the allegation against the accused is that he had obtained Rs.25,000/- from the complainant on 24.5.2002 by abusing his official position or otherwise, by corrupt or illegal means. At the cost of repetition it may be stated that accused has been 22 Of 59 23 charged for commission of offences under Sections 7 and 13(1)
(d) of the Act.
33. In order to constitute an offence under Section 7 of the Act, the prosecution has to prove that accused had accepted or obtained or agreed to accept or attempted to obtain from the complainant any gratification, 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 etc. Section 13(1)(d) of the Act envisages, obtaining of the valuable thing or pecuniary advantage by abusing his position as a public servant or by corrupt or illegal means etc. The word 'obtains' used above does not eliminate an idea of acceptance of what is given or offered to be given, though it connotes an element of effort on the part of the receiver.
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34. Hon'ble Supreme Court in the case of M.M. Mohinddin Vs. State of Maharashtra(1995) 3 SCC 567 while dealing with a case of bribe, had inter-alia observed that 'whether there was an acceptance of what is given as bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe, depends on the facts and circumstances of each case.
35. It cannot be lost sight of that ultimate objective of every system is to arrive at the truth, punish the guilty and protect the innocent. ( Refer Sushil Kumar Sharma Vs. Union of India 2005 RLR SC 346).
36. Now for the purpose of finding out the truth, let us analyse the evidence on record. According to CBI the truth is that in pursuance of his demand of bribe amount of Rs.2.00 lacs, accused had obtained part payment of Rs.25,000/- from the complainant on 24.05.2002 at his house no. AG-1/65- 24 Of 59 25 B, Vikaspuri, New Delhi while the accused claims that the said allegation is untrue and he being innocent, has been falsely implicated.
37. It is well settled that a witness turns hostile and is cross-examined and contradicted , even then, part of his testimony which is in accordance with evidence on record, may be relied upon.(See Jagir Singh Vs. State 1975 Cr.L.J. SC 1900).
38. I have already referred to Sanction Order Ex.PW1/A whereby Sanction to prosecute accused had been granted by the Competent Authority. As already stated, genuineness and authenticity of Ex.PW1/A has not been specifically challenged by the accused in the cross-examination of PW.1. Therefore entire contents of this document Ex.PW1/A are deemed to have been admitted as correct by the accused. Now on page 3 of this order Ex.PW1/A it has been clearly 25 Of 59 26 mentioned that print outs of mobile phone no. 9810669995 of accused and 9810076446 of the complainant Rupesh Jain, for the period 11.4.2002 to 24.5.2002 were obtained from M/s. Bharti Cellular Ltd. and as per the said witness viz. PW1 Shri Vinayak Mohan Prasad, the said record clearly showed that between 11.4.2002 to 24.5.2002 accused had called the complainant twice while he i.e. the accused had received six calls from the latter. Further according to this document, accused also received calls on his said mobile phone from Telephone Nos. 6366716 and 6366930 installed in the factory of the complainant. Also, during the course of cross-examination of the complainant by ld. defence counsel details of telephone record of his mobile phone i.e. mobile phone of the complainant, contained in the printout pertaining thereto were put to him and the same was proved as Ex.PW2/DA. So, this becomes an admitted document. The other print out of mobile phone no. 9810669995, of the accused, as mentioned in Ex.PW1/A has remained unproved. On account of non challenge to the 26 Of 59 27 contents of the Sanction Order Ex.PW1/A, it is clear that the print out of mobile no. 981066995, of the accused also becomes an admitted document. At the time of writing the judgment, this print out of Mobile Phone No. 9810669995, being used by the accused, has been marked as Ex.C1. During the course of cross-examination of the complainant by ld. defence counsel, a suggestion was put to him i.e. the complainant to the effect that he had made telephone calls to the accused which he admitted as correct and volunteered to say that the same must have been made by him after receiving the message or missed call. In fact, Ex.C.1 , print out of mobile phone no. 9810669995 of the accused clearly shows that on 11.4.2002 & 24.4.2002 accused had called on the said mobile phone of the complainant whereas the complainant called the accused on his mobile phone on 06.05.2002, 09.05.2002, 10.05.2002, 13.05.2002 and 24.05.2002. It is well settled that the said call records pertaining to cellular phones are admissible and reliable and it would be legitimate to draw a presumption that the system was functional 27 Of 59 28 and the output was produced by the computer in regular use whether this fact was specifically deposed to by the witness or not. In this regard a reference may be made to a judgment of the Apex Court reported as State Vs. Navjot Sandhu 2005 Crl. Law Journal SC 3950.
39. Ld. defence counsel relying on the judgments reported as Santa Singh Vs. State of Punjab AIR 1956 SC 526 and Ramkishan & Others Vs. State of Bombay AIR 1955 SC 104 has argued that Recovery Memo Ex.PW2/B is inadmissible since it contains narrations/statements made by the accused and the witnesses, to the CBI officials. However, it was admitted by ld. defence counsel that only those statements made by the complainant to the CBI officials and mentioned in ex.PW2/B would be hit by Section 162 Cr.P.C. , 1973 and therefore, would be inadmissible whereas whatever was recovered by the CBI officers at the spot and mentioned therein, would be admissible. Consequently, the observation made in 28 Of 59 29 the said Recovery Memo Ex.PW2/B to the effect that the mobile phone of the accused, which had been recovered and is mentioned at item No.4 on page 4 thereof, contained telephone no. and the name of the complainant, would be relevant and admissible.
40. In the cross-examination of the complainant a defence has been sought to be raised by the accused to the effect that before 24.5.2002 neither he contacted the complainant nor complainant contacted him i.e. the accused at all, which he claimed to be incorrect. Also, the other portion of the defence sought to be raised by the accused in the cross- examination of the complainant is to the effect that on 24.5.2002 he i.e. the complainant had gone to the house of the accused as a stranger, for seeking help in an Excise matter, which was claimed by him i.e. the complainant, to be wrong. The aforesaid cellphone records contained in Ex.PW2/DA and Ex C1 clearly show that before the date of trap, the complainant 29 Of 59 30 and the accused were in touch telephonically and had also been calling each other.(Underlining is mine to supply emphasis) Defence of the accused that before 24.5.2002 he was not in contact with the complainant stands falsified by the said record viz. Ex.PW2/DA , ExC1 and PW2/B. So,this conduct of the accused is a circumstance against him i.e. the accused and falsifies his aforesaid projected defence. From this conduct of the accused it could be inferred that he had telephonically contacted the complainant and also demanded bribe amount of Rs.2.00 lacs.
41. It stands admitted by the accused that on 24.5.2002 when the complainant had come to his house i.e. the house of the accused, he i.e. the accused had prepared document Ex.PW12/DX. This admittedly contains names and addresses of both firms of which complainant was the director, mobile number of the complainant and landline nos. of the factory of the complainant. So, presence of the complainant in 30 Of 59 31 the house of the accused on 24.05.2002 is admitted even by the accused himself. This is also evident from the cross- examination of the complainant by ld. defence counsel.
42. The complainant in his sworn testimony inter- alia deposed that when he had gone to the house of the accused where he had some conversation with him and told him that he could not arrange the entire amount of Rs.2.00 lacs. The complainant further deposed that thereafter he took out Rs.25,000/- and handed over the same to the accused who kept the same inside a magazine which was lying on the table.
43. At this stage, ld. defence counsel submits that depositions of the complainant and other prosecution witnesses including two independent witnesses are full of contradictions and inconsistencies which have been pointed out during the course of arguments and therefore there is a prayer that the said depositions should be discarded from the zone of 31 Of 59 32 consideration. In this regard reliance has been placed on the judgment dated 04.01.2005 delivered by Hon'ble Delhi High Court in Subhash Chand Chauhan Vs. CBI in Crl. A. No. 467/02, and two judgments of Hon'ble Supreme Court in the cases of Suraj Mal Vs. State AIR 1979 SC 1408 and Vikramjit Singh Vs. State 2007(1) Crimes 181(SC).
44. It is well settled that credibility of a witness has to be tested on the touchstone of truthfulness and trustworthiness. It is equally well settled that if the court is convinced that what was stated by a witness has a ring of truth, then conviction can be based on such evidence. (Refer Girija Prasad Vs. State AIR 2007 SC 3106).
45. A perusal of the judicial file reveals that the complainant, the two independent witnesses, Trap Laying Officer, etc. were cross-examined at length by ld. defence counsel. The complainant and PW 5 Ishwar Singh had also 32 Of 59 33 partially resiled from their previous statements and were cross- examined by ld. Sr. PP for CBI. Thereafter they were cross- examined by ld. defence counsel. Admittedly in their depositions a number of contradictions are discernible but the question is, should the said depositions be rejected outrightly. My answer in this regard is an emphatic 'No'.
46. Hon'ble Supreme Court in the case of Krishna Mochi Sree Kumar and another Vs. State of Kerala AIR 1981 SC 1237 while dealing with inconsistencies and discrepancies appearing in the prosecution evidence in that case, has inter-alia held as follows:-
"...........It is no doubt true that the prosecution evidence does suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies etc., go to the root of 33 Of 59 34 the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases. ........"
47. In the case of Vadivelu Thevar Vs. State of Madras AIR 1957 SC 614 the Apex court has inter-alia held that generally speaking , oral testimony may be classified into three categories, namely: (1) Wholly reliable, (2) Wholly unreliable, (3) Neither wholly reliable nor wholly unreliable. It was further held that in the first category of proof, the court should have no difficulty in coming to its conclusion either 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, 34 Of 59 35 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.
48. It also has to be kept in view that criminal case is not an ordinary litigation involving two or more parties as in a civil case. In a criminal case ,the society/community as a whole is involved and the case of the State is prosecuted by the prosecuting agency. The object is to find out the truth viz. whether crime in question has been committed by the accused or not.
49. In the case of Suraj Mal Vs. The State (Supra) relied upon by ld. defence counsel it has been held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of 35 Of 59 36 such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. It was also held in that case that mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable.
50. Now let us deal with the proceedings which took place on the date of the trap i.e. 24.5.2002. PW 12 Inspector A.K. Pandey, the Trap Laying Officer inter-alia deposed in his deposition that at the pre-trap stage, on 24.05.2002 a digital Samsung recorder had been arranged wherein voices of both independent witnesses were recorded and the digital recorder had been given to the complainant with a direction to switch it on after reaching the spot. This witness also went on to state that after preparation of cassette from the digital recorder it was sealed vide Memo Ex.PW4/A. PW 4 36 Of 59 37 Suresh Chand, independent witness identified the cassette Ex.P.6, its cover Ex.P.7 and the cloth wrapper Ex.P.5 and they were all signed by him. To the same effect is the deposition of the other independent witness PW 5 Ishwar Singh.
51. With regard to this aspect of the matter PW 14 Prem Nath inter-alia testified that on 25.5.2002 vide ExPW4/A he had prepared investigation copy of the cassette vide Sanyo Cassette Compact Recorder and thereafter the original cassette was sealed in a cloth wrapper.
52. During the course of arguments, I had called for the cassette Ex.P.6 , its cover Ex.P.7 and cloth wrapper Ex.P.5. On the said cassette Ex.P.6 and cover Ex.P.7 alphabet "Q-1" was written. A bare look at Ex.P.5 to Ex.P.7 shows that the same were signed by both independent witnesses viz. PW4 Suresh Chand and PW 5 Ishwar Singh on the date of the trap itself.
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53. The contemporaneous dialogue between the accused and the complainant formed part of the res gestae and is relevant and admissible under Section 8 of Evidence Act, 1872. In S. Pratap Singh Vs. State of Punjab AIR 1964 S.C. 72 the tape record of a conversation was admitted in evidence to corroborate the evidence of witnesses who had stated that such a conversation had taken place.
54. If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time, place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.
55. When a court permits recording to be played over, it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. Hon'ble Supreme Court in the 38 Of 59 39 case of Ram Singh Vs. Col. Ram Singh AIR 1986 SC 3 has held that a tape recorded statement is admissible in evidence subject to the following conditions:-
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice.
Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the making of the record by satisfactory evidence direct or circumstantial.
(3) Possibility of tampering with or erasure of any/part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.
56. The complainant in his cross-examination by ld. Sr. PP for CBI after hearing the cassette, inter-alia deposed 39 Of 59 40 that it initially contained voices of the witnesses and thereafter that of himself and the accused.
57. According to the prosecution, transcription Ex.PW-2/E was prepared by PW 14 Prem Nath on 19.07.2002 and in this regard Memo Ex.PW4/E was also prepared. It is signed by him at point D. It is significant to note that PW 4 Suresh Chand, the independent witness in his examination-in- chief recorded on 21.07.2004, inter-alia categorically deposed that on 19.07.2002 transcription Ex.PW-2/E was prepared after playing the cassette and after voices therein had been identified inter-alia by the complainant. He had also proved the cassette Ex.P-6 which was signed by him. This has also remained unchallenged and uncontroverted in the respective cross- examinations of the said witnesses.
58. Further in the cross-examination of the complainant ld. defence counsel did not claim that the said 40 Of 59 41 cassette Ex.P 6 did not contain the voice of the accused. On the contrary in the cross-examination dated 21.07.2004 of the complainant by ld. defence counsel, appearing on last page a suggestion was put to him to the effect that the entire transcript did not contain conversation regarding demand and acceptance of money by the accused which he claimed as incorrect. So, it was admitted by the accused that in the said conversation of which Ex.PW2/E is the transcription, voice of the accused as mentioned therein, was also there. At that time, no such defence had been raised by the accused that the said cassette had been tampered with. As already stated, the said cassette was duly sealed at the time of its preparation whereafter it was desealed in the court and played. At the time when the said cassette Ex.P 6 was played in court, the voices were clearly audible as is mentioned in the deposition sheet. Even at the time of preparation of the transcription Ex.PW2/E, the voices were clearly audible as mentioned therein.
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59. The complainant during his cross-examination by ld. PP for CBI after hearing the cassette Ex.P6 had identified his own voice and that of the accused and stated that the accused had stated 'Kya decide Kiya Aapne' and this utterance of the accused appears between portion C to C of transcription Ex.PW2/E. Then the complainant went on to depose that thereafter he stated that 'Ikattha To Ho Nahin Paayega' and this has been mentioned in portion between portion D to D of Ex.PW2/E. Then as per the portion F to F of Ex.PW2/E the complainant stated 'Ise To Rakh Lo' on which accused asked 'Kitne Hai' on which the complainant stated '25 Hain'.
60. As per Ex.PW2/F, Voice Specimen Recording Memo dated 19.7.2002, specimen voice of the accused was taken. The said cassette was kept in the cover , was sealed and marked as S-1. This was signed by both independent public witnesses.
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61. It is also the case of the prosecution that the aforesaid Cassettes Q1 and S1 had sent to CFSL for comparision. PW.7 Dr. Rajender Singh examined the same and proved his report Ex.PW7/A. In this report the said expert stated that the auditory examination of voice marked exhibits Q- 1(A) and Q-1(B) in cassette marked Q-1 and specimen voice of Shri Sanjeev Kumar and Rupesh Jain marked exhibits S-1(A) &S-2(A) respectively in cassette marked S-1 reveal that voice marked exhibits Q-1(A) and Q-1(B) were similar to the voice marked S-1(A) and S-2(A) respectively in respect of their linguistic and phonetic features. According to this report voice spectographic examination could not be carried out due to interference of background noise. It is well settled that opinion of an expert cannot be more reliable than the statement of a witness of a fact and a finding cannot be based on sole testimony of an expert opinion. As mentioned in the said report Ex.PW7/A auditory examination as mentioned in point no. ( i ) of result of examination had been conducted. This fact was not 43 Of 59 44 challenged in the cross-examination.
62. So, the oral deposition of the complainant that his voice and that of accused were there in Ex.P.6 of which Ex.PW2/E is the transcription, stands corroborated by Ex.PW 7/A also.
63. Significantly genuineness and authenticity of the contemporaneous dialogue between accused and the complainant contained in Ex.P6, transcription Ex.PW-2/E and/or the Transcription cum Identification Memo Ex.PW4/E was not challenged in the cross-examination of the said relevant witnesses. Therefore, the contents of said documents and the cassette are deemed to have been admitted by the accused, as correct. From the entire tone and tenor of the conversation between the complainant and the accused as contained in Ex.PW2/E, particularly the portions referred to hereinbefore, it is clear that there was an active effort or request or demand on 44 Of 59 45 the part of the accused to take illegal gratification. This was in addition to demand of bribe of Rs.2.00 lacs from the complainant made by the accused which had been referred to by him in his examination in chief. The same would clearly go to show that his defence to the effect that he did not know the complainant and just with a view to help a 'stranger' who had dropped at his house to seek help, is false on the face of it. It is not understood as to why would the accused talk to the complainant stranger in the manner as revealed in Ex.PW2/E and also why would he prepare a detailed note like Ex.PW12/DX for such a stranger. This is beyond comprehension and defies logic. Ex-facie this is unacceptable.
64. Now let us consider the other corroborative piece of evidence on record vis-a-vis the acceptance of tainted money by the accused from the complainant.
65. For the purposes of corroboration of the oral 45 Of 59 46 evidence on record regarding acceptance of the tainted money by the accused, the prosecution claims that the complainant who was not willing to pay bribe to the accused had lodged a complaint Ex.PW2/1 with CBI whereafter the currency notes of the value of Rs.25,000/- produced by him were smeared with phenolphthalein powder and the same were passed on to the accused. While dealing with a trap case, Hon'ble Supreme Court in the case of Raghubir Singh Vs. State of Punjab AIR 1976 SC 91 had pointed out that it would be desirable that the marked currency notes used for the purposes of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by a chemical process and the Court does not have to depend on oral evidence which is some time of a dubious character for the purpose of deciding the fate of the public servant. (Underlining is mine to supply emphasis).
66. Now coming back to the discussion about the 46 Of 59 47 said chemical process, portion of the sworn deposition PW.12 Inspector A.K. Pandey to the effect that currency notes of Rs.25,000/- which had been produced by the complainant were treated into phenolphthalein powder was not challenged in the cross-examination and therefore deemed to have been admitted as correct. This portion of evidence is also corroborated by oral unchallenged deposition of independent witness PW4 Suresh Chand to the effect that the G.C. Notes of Rs.25,000/- produced by the complainant had been treated with some powder. When this portion of evidence was put to accused in Question no.6 in his statement recorded under Section 313 Cr.P.C.,1973 and he stated that he did not know about it. Also , the accused in his statement recorded under Section 313 Cr.P.C.,1973 with regard to this aspect of the matter stated that he did not know. Hence factum of treatment of GC Notes with phenolphthalein powder, which had been produced by the complainant, stands proved.
67. Further oral portion of deposition of PW 12 47 Of 59 48 A.K. Pandey to the effect that after demonstration of chemical reaction of phenolphthalein powder with Sodium Carbonate had been explained by Inspector PW Umesh Vashisth, tainted money had been kept in the pocket of the complainant and thereafter all the team members washed their hands with soap and water, also remained unchallenged and uncorroborated. Therefore it is also deemed to have been admitted as correct.
68. PW 12 Inspector A.K. Pandey, Trap Laying Officer inter-alia deposed that after it had been decided to lay a trap, two witnesses viz. Suresh Chand (PW 4) and Ishwar Singh (PW5) were requisitioned from Railway department. According to him, thereafter pre-trap proceedings had been conducted. He also deposed that Inspector Umesh Vashisth was asked to give demonstration of chemical reaction with phenolphthalein powder and solution of Sodium Carbonate. Shri Rupesh Jain produced Rs.25,000/- in the denomination of Rs.1000/- and Rs.500/- GC notes. The said GC notes were treated with the phenolphthalein 48 Of 59 49 powder and witness Shri Ishwar Singh was asked to touch the powder treated notes with his right hand fingers. Thereafter the solution of sodium Carbonate was prepared in a neat and clean glass tumbler. Shri Ishwar Singh was asked to dip his right hand fingers in the said colourless solution and on his doing so the colour of solution turned pink which was destroyed. The effect of chemical reaction was explained to all the trap team members including complainant and independent witnesses. The tainted money was then kept in the pocket of complainant Shri Rupesh Jain with the direction to hand over the tainted money to the accused Shri Sanjeev Kumar, Inspector, Central Excise on his specific demand. The independent witness Shri Ishwar Singh and other trap team members washed their hands with soap and water. The remaining phenolphthalein powder was returned to the malkhana of ACB. This said portions of his deposition have remained unchallenged and uncontroverted and there is no reason as to why the same should not be believed to be true.
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69. Handing Over Memo wherein pre-trap proceedings had been recorded on 24.5.2002 has been proved as Ex.PW2/D. PW12 Inspector A.K. Pandey, Trap Laying Officer had inter-alia deposed that the entire pre-trap proceedings deposed by him in his examination in chief had been recorded in the said Handing Over Memo Ex.PW2/D. This memo was proved by the complainant. It is signed inter-alia by PW 12 Inspector A.K. Pandey and PW 4 Suresh Chand. As per the said memo 26 GC Notes mentioned therein had been treated with phenolphthalein powder.
70. It is an admitted case of CBI that at the time of handing over of the tainted money to the accused , apart from him i.e. the accused, only one member of the trap team viz. the complainant, was present there.
71. The complainant in his sworn deposition inter- alia categorically deposed that he had given the currency notes 50 Of 59 51 of Rs.25,000/- to the accused who kept the same inside the magazine lying on the table. He identified 26 GC Notes Ex.P1/1 to Ex.P1/26 to be the same which were given by him to accused. Even PW 4 Suresh Chand , identified Ex.P1/1 to Ex.P1/26 to be the same which had been handed over to the complainant during the pre-trap proceedings. Numbers of GC Notes which were handed over to the complainant during pre- trap proceedings were mentioned in the Handing Over Memo Ex. PW 2/D and after their recovery, their numbers were also mentioned in the Recovery Memo Ex.PW2/B and the same are identical and tally.
72. The complainant in his oral deposition had inter-alia deposed that the GC notes had been recovered from inside the magazine and the relevant Recovery Memo Ex.PW2/B was signed by him at point A. Similarly, PW4 Suresh Chand also deposed that the aforesaid GC notes Ex.P1/1 to Ex.P1/26 had been recovered in his presence. Similarly, PW 12 51 Of 59 52 Inspector A.K. Pandey also deposed that the said Recovery Memo was signed by him at point D. A perusal of the said Recovery Memo Ex.PW2/B reveals that it inter-alia talks about the recovery of the aforesaid GC notes Ex.P1/1 to Ex.P1/26 from the magazine. Admittedly the said magazine has not been proved in evidence.
73. It is the specific case of the CBI that after the trap proceedings, fingers of both the hands of the accused and the relevant portion of magazine where tainted money had been kept, were washed in the Sodium Carbonate solution.
74. With regard to this aspect of the matter PW12 Inspector A.K. Pandey inter alia deposed that the right hand of the accused was dipped in the said solution to ascertain whether the accused had handled the trained money or not. On doing so the colour of the solution turned into pink which establishes that the accused had handled the tainted money.
52 Of 59 53 Thereafter the left hand wash was also taken in separate solution but there was no visible change in the colour. Another separate solution was prepared and the wash of portion of magazine from where tainted money was recovered was taken and the solution turned into pink colour. All the solutions were kept in separate bottles and sealed. A label was pasted on each bottle and marked as RHW, LHW and FBPW (magazine wash) and the witnesses put their signature on them. The said portion of his deposition is corroborated by deposition of PW2, the complainant. Even the independent witness PW 4 Suresh Chand corroborated the said depositions about taking of washes and proved relevant bottles as Ex.P2 to Ex.P.4. According to him his signatures were also obtained on the labels of these bottles and identified his signatures on the labels at point A.
75. PW 3 Prem Nath , SSO-II, CFSL inter alia deposed that on 30.5.2002 three sealed bottles marked as Ex.
53 Of 59 54 RHW, LHW and FPBW were received in CFSL. According to him, the washes were chemically analysed by a team under his supervision. He proved his report as Ex.PW3/A. According to this report exhibit LHW gave positive test for presence of phenolphthalein and sodium carbonate where exhibits RHW and FPBW gave positive test for presence of sodium carbonate only. Significantly the said report Ex.PW3/A and the oral deposition of PW3 Shri P. Nath remained unchallanged and uncorroborated in his cross-examination. Therefore the said deposition is deemed to have been admitted as correct by the accused.
76. Various inconsistencies pointed out by ld. defence counsel in the depositions of the prosecution witnesses with regard to this aspect of the matter pale into insignificance and are of no help to the accused particularly when the aforesaid chemical test admittedly confirms presence of phenolphthalein powder which decisively proves that tainted money had in fact been accepted and handled by the accused.
54 Of 59 55 The aforesaid discussion regarding sworn testimonies of various prosecution witnesses would show that they have a ring of truth around them and therefore, can be acted upon particularly when the same stand corroborated the tape recorded conversation as contained in the cassette Ex.P 6 , the transcription Ex.PW2/E and detection of handling of marked currency notes Ex.P1/1 to Ex.P1/26 by the accused by the said chemical process.
77. In the facts and circumstances of the present case it can be safely inferred that Ex.P1/1 to Ex.P1/26 which were in the possession of the complainant immediately prior to the trap, been obtained by the accused from him illegally by abusing his position and presence of phenolphthalein powder on his left hand chemically confirms that the tainted money had been handled by the accused.
78. Admittedly Ex.P1/1 to Ex.P1/26 were not the legal remuneration of accused.
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79. There is no dispute that before 29.04.2002 and even thereafter , particularly on 24.05.2002, accused was a public servant. It is claimed by the accused that on 24.05.2002 he did not accept Ex.P1/1 to Ex.P1/26 from the complainant and in fact in his absence , the complainant himself put the money under the table in the magazine. This defence is reflected in the cross-examination of the complainant. The accused also claims that while being posted as Inspector, Central Excise, Gurgaon he was not associated with the raids conducted in the business premises of the complainant and after his transfer therefrom w.e.f. 29.4.2002 to the Technical Branch, New Delhi, there was no motive on his part to receive the said money as a reward since he was not in any official position to show any favour etc. to the complainant.
80. As already stated, since the accused has been facing trial for commission of an offence under Section 7 of the Act, Section 20 thereof , would also come into play. While 56 Of 59 57 dealing with an identical provision in the predecessor Prevention of Corruption Act, 1947, it was held by the Apex Court in the case of Jhangan Vs. State of U.P. AIR 1966 SC 1762 that mere receipt of money was sufficient to raise presumption under Section 4 (1) thereof. While dealing with the said provision, a four Judges Bench of Hon'ble Supreme Court in the case of Dhanvantari Balwantrai Desai Vs. State of Maharashtra, AIR 1964 Supreme Court 575, had held that in order to raise the presumption thereunder what the prosecution has to prove is that the accused person had received "gratification other than legal remuneration" and when it was shown that he had received a certain sum of money which was not a legal remuneration, then the condition prescribed by the said section would be satisfied and the presumption thereunder must be raised. It was further held that unless the explanation offered by the accused is supported by proof, the presumption raised by the provision cannot be said to be rebutted.
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81. Now, in the instant case, I have already held that accused who was a public servant had demanded bribe and accepted part payment of Rs.25,000/- on 24.05.2002, from the complainant. Argument of ld. defence counsel that on that date, accused was not posted in Gurgaon and was posted in Delhi and therefore, there was no motive etc. on his part as contemplated by Section 7 of the Act.
82. The aforesaid argument of ld. defence counsel, in my view , has no value in the eyes of law in view of the presumption referred to in Section 20 of the Act which has to be raised. Significantly, accused has failed to lead any evidence to show as to why he had received and handled the aforesaid phenolphthalein treated currency notes Ex.P1/1 to Ex.P1/26. In fact, case of the accused is of a flat denial and non receipt of Ex.P1/1 to Ex.P1/26. This defence I have already rejected to be untrue.
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83. In view of the aforesaid legal position, I have no hesitation in holding that the said gratification Ex.P1/1 to Ex.P1/26 had been accepted by the accused as a motive or reward for showing favour etc. to him. Consequently, accused is held guilty for commission of an offence under Section 7 of the Act, which is also punishable thereunder. Also, it stands proved on record that while doing so, accused had abused his official position as a 'Public Servant' and used corrupt or illegal means and as such, he committed the offence of Criminal Misconduct under Section 13 (1) (d) of the Act punishable under Section 13 (2) thereof.
Announced in the (PADAM KANT SAXENA)
open court today SPECIAL JUDGE-IV, CBI (PC ACT)
i.e. on 30.05.2009. TIS HAZARI, DELHI
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