Delhi District Court
Cbi vs Diganta Gogoi on 10 December, 2024
IN THE COURT OF SHRI ATUL KRISHNA AGRAWAL,
SPECIAL JUDGE, CBI-19 (PC ACT), RADC, NEW DELHI
CC No. 29/20
FIR No. RC-DAI-2019-A-0005
CBI/ACB, New Delhi
U/s 8 & 12 of PC Act, 1988
(As amended in 2018)
CNR No. DLCT11-000105-2020
CBI ..... Prosecution
Versus
Diganta Gogoi
S/o Late Sh. Tankeshwar Gogoi
R/o A-10, Amritkunj Apartment
Jayanta Hazarika Path
R. G. Baruah Road
Lakshmi Nagar
Guwahati-781005. ..... Accused
CBI No. : 20/20
CNR No. : DLCT11-000105-2020
Date of institution : 11.02.2020
Date of transfer of case to this court : 10.02.2020
Date of conclusion of arguments : 22.11.2024
Date of judgment : 10.12.2024
Final Order : Conviction
Ld. PP for CBI:- Sh. Tajwinder Singh
Ld. Defence Counsel for accused :- Sh. Anil Kumar
JUDGMENT
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 1 of 81 Table of contents Sl. Particulars Page No. No.
1. Introductory facts 1-3
2. Detailed facts of the case as per prosecution 3-10
3. Prosecution Evidence 10-30
4. List of Exhibited/ Marked Documents 30-34
5. Statement of accused u/S 313 CrPC 35-36
6. Defence Evidence 36-38
7. Final Arguments 38-42
8. Legal Position 42-44
9. Appreciation of Evidence 44-49
10. Points for Consideration 49-80
11. Decision 80-81
1. Introductory facts 1.1 The present case FIR was registered on the basis of written complaint dated 16.03.2019 of Sh. Manmohan, Senior Secretarial Assistant, Ministry of Environment, Forest & Climate Change, New Delhi, against accused Diganta Gogoi (for short "D.Gogoi"), IFS, (AGMUT 2000) Chief Conservator of Forests, Andaman & Nicobar Islands, and one Tarun Johri, IFS, (AGMUT 2000), for the commission of offences punishable under Section 8 & 12 of Prevention of Corruption Act, 1988 (as amended) (hereinafter to be referred as the "PC Act"), on 16.03.2019, by CBI officials, for the offence of giving unsolicited illegal gratification of Rs.10,000/- in an envelope, to Sh. Manmohan. After registration of FIR, investigation was taken up. During investigation, the factum of giving of unsolicited bribe by accused D. Gogoi to complainant Sh. Manmohan, was established. However, no prosecutable evidence was found against accused/suspect Tarun Johri. Further, sanction for CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 2 of 81 prosecution u/s 19 of PC Act was not required since accused D. Gogoi was the bribe giver and he was not being charge sheeted for the offence u/s 7, 10, 11, 13 and 15 of the PC Act. Ultimately, the CBI filed present charge-sheet only against accused D. Gogoi, before the court of Ld. District & Sessions Judge, Rouse Avenue, Delhi, on 10.02.2020. The same was assigned to Ld. Predecessor of this court vide order dated 10.02.2020 of Ld. District & Sessions Judge, Rouse Avenue. The accused was then summoned vide order dated 07.03.2020 and upon his appearance on 19.12.2020, he was supplied with the copies of the charge sheet alongwith the relied upon documents u/s 207 Cr.PC. 1.2 Charge was framed against the accused vide order dated 19.07.2022, passed by the Ld. Predecessor, for the offence punishable only u/s 8 of the PC Act. The matter was thereafter listed for prosecution evidence. After closure of prosecution evidence, statement of accused u/s 313 Cr.PC was recorded on different dates. Thereafter, accused lead his defence evidence and then final arguments were heard from both sides and accordingly, now the present judgment is being passed.
2. Detailed Prosecution case 2.1 The case of the prosecution is that on 16.03.2019, the complainant Sh. Manmohan S/o late Sh. Bhimi Ram, approached the office of CBI along with one Sh. Subir Kumar, Under Secretary, Ministry of Environment, Forest and Climate Change, New Delhi. The complainant gave a written complaint dated 16.03.2019 to CBI, wherein he alleged that on 15.03.2019 at about 6:00 p.m., Tarun Johri, IFS, who had been recently CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 3 of 81 posted as Chief Conservator of Forests in Arunachal Pradesh, had made a call on his mobile no.7982036993, from his (Tarun Johri's) mobile no. 9560047842 and informed him that he (Tarun Johri) wanted to meet the complainant, relating to the matter of accused D. Gogoi, IFS and that he would hand over Rule Position under which accused's post was upgraded during his posting in Arunachal Pradesh. Tarun Johri further told the complainant that for the said work, approval of Ministry was required and the said work was pending with the complainant. Then, complainant told Tarun Johri that he was going on leave and would return to office after one week, upon which Tarun Johri told the complainant to do the work of accused, after his return to office. Tarun Johri also told the complainant that accused D. Gogoi would also talk to the complainant. 2.2 Complainant further alleged that thereafter, he came down and found Tarun Johri outside his office. Tarun Johri handed over one envelope to him and told to expedite the work of accused and thereafter, he left. As per the complainant, when he opened the envelope, he found another envelope of Balmer Lawrie kept in it and in the said envelope of Balmer Lawrie, 20 GC notes of Rs.500/- each totaling Rs.10,000/- and three photo copies of following letters were kept:-
a) Copy of letter dated 06.09.2018 from D. Gogoi, addressed to Joint Secretary, IFS, Ministry of Environment, Forest and Climate Change.
b) Copy of letter dated 30.05.2018 from D. Riba, Joint Secretary (E&F), addressed to the Secretary, Ministry of Environment, Forest and Climate Change.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 4 of 81
c) Copy of letter dated 06.09.2018 from D. Gogoi, DIG, CZA RO-Guwahati addressed to Principal, CCF and Private Secretary (FC&F), Govt. of Arunachal Pradesh. 2.3 Sh. Manmohan further alleged in his complaint that he immediately informed about the above facts to Ms. Anuradha Singh, Director IFS, who was also Director, Vigilance and Sh. Ritesh Kumar Singh, Joint Secretary, on the same day. He also mentioned in his complaint that he had never demanded bribe from Tarun Johri or D. Gogoi and also did not want to accept the said bribe. The complainant also requested SP CBI for taking appropriate action in the matter. Pursuant to the said complaint, the present FIR RC-5A/2019/ACB/CBI/ND was got registered against D. Gogoi and Tarun Johri, as the complaint prima facie disclosed commission of offences punishable u/s 8 & 12 of PC Act.
2.4 Investigation was assigned to Deputy SP, Atul Hajela, by the order of SP CBI, ACB, New Delhi. During investigation, the IO Deputy SP Atul Hajela, arranged two independent witnesses, namely, Sh. Dinesh (Junior Assistant posted at Zonal Revenue Office, West-III, Paschim Vihar, New Delhi) and Sh. Deepak Shokeen (Junior Assistant posted in the office of Executive Engineer, West-III, Nangloi, New Delhi), both posted with the Delhi Jal Board. The above two independent witnesses were arranged through the Duty Officer, CBI. Sh. Subir Kumar, Under Secretary, Insp. Anand Swaroop, Insp. Shitanshu Sharma, Insp. S.P. Singh and SI Nitin Chaudhary (all from CBI ACB, New Delhi) were joined in the proceedings conducted at CBI office on 16/17.03.2019.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 5 of 81 2.5 During proceedings, the independent witnesses satisfied themselves about the complaint by putting questions to the complainant. Thereafter the complainant produced an envelope containing the bribe money and the documents. The documents were handed over to independent witness Sh. Dinesh, for keeping it in the safe custody. Thereafter, both the independent witnesses counted the bribe amount, which was in the denomination of Rs.500/- each and noted down the description of GC notes. The bribe money was then seized and sealed with CBI Brass seal. The envelope of Balmer Lawrie, where it was hand written "DIGANTA GOGOI" "Rs.24998" was also seized and sealed by the IO. The photo copies of three letters found in the envelope were also taken and the documents were kept in a brown envelope and seized and sealed by the IO. 2.6 It is further the case of prosecution that a digital voice recorder (DVR) make Sony and blank new memory card were arranged by the IO and after ensuring their blankness, the introductory voices of independent witnesses were recorded in the memory card. Thereafter, complainant Manmohan was asked to make a mobile call to accused/suspect Tarun Johri. Accordingly, the complainant made a call at about 2.15 p.m., from his mobile phone. The said conversation was recorded in the memory card. Accused/suspect Tarun Johri denied any knowledge about the money found in the envelope and stated that accused D. Gogoi would be knowing about it.
2.7 It is further the case of the prosecution that thereafter, complainant was asked to make call from his mobile on the mobile phone of accused D. Gogoi on his mobile no. i.e. CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 6 of 81 9436043077, at about 2:58 p.m. This call was also recorded in the memory card fitted in the DVR. In the said call, the complainant made demand for further money, at the behest of CBI officials, to which accused agreed and asked the complainant, to provide his bank account no. and IFSC Code. Thereafter, at about 03:08 p.m., the complainant received a whatsapp message on his mobile phone, from the mobile no. of accused, mentioning "a/c no. with IFSC code please". At about 03:12 p.m., the complainant received another SMS from the mobile phone of accused asking him to send the mobile no. with IFSC code. Accordingly, the bank account no. and IFSC code was sent by complainant Manmohan to accused D. Gogoi on whatsapp. The screenshots of whatsapp messages and SMS were taken by the IO and signed by all the witnesses. 2.8 It is further the case of the prosecution that at about 04:25 p.m. the complainant received a call from the mobile of accused in which the accused asked the complainant whether he had received the transferred amount of Rs.10,000/- and also told him that he (accused) had sent the details on his (complainant) whatsapp. On this, the complainant told him that he would inform him after checking the same. The call was clearly heard by both the independent witnesses, Subir Kumar and CBI officials as the mobile of complainant was on loud speaker mode. However, the said call could not be recorded since the DVR was not switched on. Transcription of the call made by the complainant to Tarun Johri and transcription of call made by complainant to accused at 2:58 p.m. could only be made, as they were recorded through DVR.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 7 of 81 2.9 It is further the case of prosecution that after the receipt of above call, the complainant checked his mobile phone and found that at about 03:40 p.m., he received a whatsapp messages from the mobile of accused, having screenshot image of bank transfer of Rs.10,000/- by accused in the bank account of complainant. The print out of the said screenshot was taken using the official computer and printer, besides other relevant screenshot.
2.10 It is further the case of the prosecution that the mobile phone of complainant containing the SMS and whatsapp messages of the accused, was seized and sealed. The memory card used in recording the audio calls, was taken out from the DVR and seized and sealed, after making a copy of the same. Rough transcriptions of the conversations were prepared. Thereafter, an authorization u/s 165(3) Cr.PC. was given to Insp. Raj Kumar to conduct search at the residential premises of accused/suspect Tarun Johri. The accused/suspect Tarun Johri was brought to CBI office and arrested in this case since he was giving evasive answers upon interrogation. Specimen voice of accused/suspect Tarun Johri was taken, which he gave voluntarily. Introductory and concluding voices of independent witnesses were also recorded and the memory card containing their voices was also seized and sealed. The DVR make Sony which was used in recording the conversation was also seized and sealed. Other documents were also seized and sealed and entire proceedings were recorded in a seizure cum memo of proceedings.
2.11 It is further the case of the prosecution that CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 8 of 81 thereafter, authorization of arrest of accused D. Gogoi, was sent to CBI, ACB, Port Blair along with authorization u/s 165(3) Cr.PC, for conducting search at the premises of accused D. Gogoi. Insp. Aman Ba from CBI ACB, Port Blair, conducted search at the residential and office premises of accused D. Gogoi and arrested him on 16/17.03.2019 and he was brought to Delhi on 19.03.2019 vide transit remand. IO Dy. SP Atul Hajela obtained documents from Ministry of Environment, Forest and climate change, relating to the service record of accused D. Gogoi. Sh. Subir Kumar, Under Secretary, Ministry of Environment, Forest & Climate Change, also intimated through his letter dated 29.03.2019 that the matter pertaining to regularization of service of accused D. Gogoi was being dealt by complainant Manmohan, Under Secretary Ashok Kumar and Director (Vig.)/IFS, Division I, Smt. Anuradha Singh, during the period 11.12.2018 to 10.01.2019.
2.12 It is further the case of prosecution that on 11.04.2019, complainant Manmohan withdrew an amount of Rs.10,000/- from his bank account in Union Bank of India, Jorbagh, New Delhi and handed over the same to second IO/Dy. SP D.S. Sengar and it was seized and sealed by him. Statement of account of bank account of complainant was also taken, which revealed transfer of above money by accused D. Gogoi in the account of complainant. Thereafter, specimen voice of accused D. Gogoi and complainant was recorded in memory card, which was then seized and sealed. The CDR and CAF of the mobile phones of accused D. Gogoi, accused/suspect Tarun Johri and complainant Manmohan was also collected from their respective CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 9 of 81 service providers. The memory cards and DVR were sent to CFSL New Delhi for comparison of voice and for preparation of copies of memory cards.
2.13 It is the further the case of the prosecution that the investigation revealed that accused D. Gogoi had committed offences punishable u/s 8 & 12 of PC Act (as amended in 2018). As regard accused/suspect Tarun Johri, investigation revealed that he was merely acting as messenger of the envelope, on behalf of accused D. Gogoi and he was unaware of the contents of the envelope, which was stapled, so no prosecutable evidence came on record against Tarun Johri, which could indicate abetment/ conspiracy or even awareness with respect to the two transfers of illegal gratification by accused D. Gogoi to the complainant, firstly through envelope and secondly through bank transfer. Accordingly, accused/suspect Tarun Johri was not charge-sheeted and cited as a prosecution witness. Further, no sanction of prosecution u/s 19 of PC Act was required against accused D. Gogoi as he was a bribe giver, so he was charge sheeted for the aforesaid offences.
2.14 After compliance of Section 207 Cr.PC, the matter was listed for arguments on charge. Thereafter, charge was framed against accused on 19.07.2022, but only for offence punishable u/s 8 of PC Act and not for offence u/s 12 of PC Act. The accused pleaded not guilty and claimed trial.
3. Prosecution Evidence During prosecution evidence, 17 witnesses have been examined by CBI in support of the allegations.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 10 of 81 3.1 PW1 is Sh. Manmohan, Senior Secretarial Assistant, Ministry of Environment, Forest & Climate Change, who is the complainant of this case. He deposed that in the year 2019, he was looking after the administrative work of IFS Officers of AGMUT Cadre. Accused D. Gogoi had made a request in writing from Arunachal Pradesh, where he was posted at the relevant time as Conservator of Forest, for regularization of his service to the Ministry of Environment, Forest & Climate Change. PW1 had made notings on the file of accused and his noting was approved by the subsequent noting dated 10.01.2019 of the then Dy. Secretary Sh. Ashok Kumar.
PW1 further deposed that on 15.03.2019, he received a call from Tarun Johri on his mobile number wherein Tarun Johri asked to meet him. When he went to meet Tarun Johri after office hours outside his (PW1's) office, Tarun Johri handed over a stapled envelope stating that the envelope contained rule position of D. Gogoi and also asked him (PW1) to put up the file of accused D. Gogoi regarding regularization of his service. When, PW1 opened the envelope after some time, he found it to be containing Rs.10,000/- in cash (in the currency notes of Rs.500/- each) and some papers. On seeing the currency notes, PW1 informed about it to Ms. Anuradha Singh, the then Director, IFS, who further took him (PW1) to Sh. Ritesh Kumar, the then Joint Secretary, IFS, who after discussing the matter with Sh. C. K. Mishra, then Secretary, IFS, asked PW1 to lodge a report with PS Lodhi Colony. When PW1 went to the PS, he was told to approach CBI and thereafter, upon instructions of Ms. Anuradha Singh, PW1 went to CBI office on the same day, but CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 11 of 81 the premises were closed. On the next morning, when PW1 went to CBI office, Sh. Subir Kumar, the then Under Secretary (deputed by Ms. Anuradha Singh) met him at CBI office. Both PW1 and Sh. Subir Kumar went inside the CBI office where PW1 told about the entire incident to CBI officers, who asked him to give a complaint in writing, upon which PW1 gave a written complaint.
PW1 further deposed that on the same day, one CBI officer asked him to make a call to Tarun Johri and also made arrangements to get the call recorded. During conversation with him, Tarun Johri denied any knowledge about the money in the envelope. Thereafter, PW1 was asked to make a call to accused D. Gogoi. When PW1 called the accused, as instructed by CBI officials, he asked accused to send some more money, after which accused sent an amount of Rs.10,000/- from his bank account, to the account of PW1, online. Accused also admitted having sent Rs.10,000/- alongwith other documents in a stapled envelope, to him. Thereafter, the witness identified his complaint, his mobile phone, the print out of whatsapp chat, etc. He also deposed about the procedure followed in recording the conversation between him and Tarun Johri & him and accused D. Gogoi and also correctly identified the relevant audio recordings, when they were played in court. He also identified the various memos prepared by CBI during the proceedings conducted by CBI officials. The witness was cross examined at length by Ld. Defence Counsel.
In his cross-examination, PW1 has stated that the matter of the accused D. Gogoi regarding regularization of CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 12 of 81 service for the period 10.05.2017 to 31.07.2017 was pending in the Ministry and he dealt with the file Ex.PW1/A1 (colly). He further stated that the matter of accused was probably decided in 2020 and his service period was regularized. He further stated that he was not the competent authority to decide the matter of service regularization of the accused and the said matter fell within the competence of Joint Cadre Authority (JCA) Committee. He further admitted that after his noting dated 10.01.2019, the matter of accused was not placed before JCA Committee till the date of incident in this case. He further admitted that the file of accused remained with him till the incident happened in this case.
He further stated that the premises of the Ministry from outside, were covered by CCTV cameras but he was not sure whether the area where he went to meet Tarun Johri, was covered by CCTV cameras or not. He further stated that he had met Tarun Johri 3-4 times prior to 15.03.2019, but he had no personal relations with Tarun Johri and he knew Tarun Johri only as an IFS Officer.
He further admitted that he had no conversation with accused about transaction of money at any point of time, prior to the day when CBI asked him to talk to accused in this regard. He denied the suggestion that when he had asked accused about sending Rs.10,000/- along with other documents, during the conversations done with accused, on instructions of CBI, accused was surprised and he had uttered 'Hain' in an enquiring tone. He further denied the suggestion that accused was frustrated due to inaction in his matter relating to the regularization of his service CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 13 of 81 and wanted to initiate action against him (PW1) or that accused had sent money by way of transfer in the account of PW1 on his insistence, so as to give complaint against him. 3.2 PW2 is Sh. Manoj Kumar, Branch Manager, Union Bank of India, who deposed that on 11.04.2019, Sh. Manmohan had withdrawn Rs.10,000/- from his account at Union Bank of India, Jor Bagh, Delhi, which was seized by CBI officials, in his presence. He also produced the bank account statement of Sh. Manmohan. He was not cross examined by Ld. Defence Counsel despite opportunity being given.
3.3 PW3 is Sh. Tarun Johri, who deposed that in the year 2019, he was posted in Agricultural Ministry, Govt. of India at New Delhi as Director Crops on deputation and after being relieved from the said posting, he was awaiting posting in Ministry of Environment, Forest & Climate Change. He further stated that accused D. Gogoi was his batch mate during forest training in 1983-1985 batch and they used to meet during meetings, etc. He also knew complainant Sh. Manmohan, who was a clerk in Ministry of Environment, Forest & Climate Change.
He further deposed that on 05.03.2019, as he was coming down from the office of the Ministry, he met accused D. Gogoi, outside the lift. During talks, accused told him that he wanted to meet complainant Sh. Manmohan, who was dealing with his pending matter of regularization of some period of his posting in Arunachal Pradesh. Thereafter, PW3 introduced accused to complainant. When, he again met accused, the accused told him that complainant had asked him to give the CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 14 of 81 relevant earlier cases and documents to finalize his case. However, due to accused being busy in meetings, he could not give those papers to complainant on 06.03.2019. Accused told PW3 that he will leave some documents in the house of PW3 before sleeping, which PW3 may give to Sh. Manmohan because accused had an early morning flight for Port Blair, around 5 a.m. PW3 further deposed that on 07.03.2019, when he woke up, he found one closed envelope lying on the table and he picked it up. After about a week on 14.03.2019, Sh. Manmohan called him and told him about his (PW3's) posting order for Arunachal Pradesh. On the same day, accused also called PW3 and enquired whether PW3 had given the papers to Sh. Manmohan or not, on which PW3 told him that he had forgotten about it and will try to give it to Sh. Manmohan, in a day or two. On the next day i.e. 15.03.2019, PW3 handed over those documents (lying in stapled envelope), to Sh. Manmohan. Thereafter on 16.03.2019 Sh. Manmohan called him and informed that alongwith documents, the envelope also contained Rs.10,000/-. On the same day in the evening, a search was conducted at the house of PW3 and he was arrested by CBI at around 11.30 p.m. The witness identified the said white envelope when shown to him as well as the accused. He was also cross examined by Ld. Defence Counsel.
PW3 in his cross-examination admitted that he knew accused D. Gogoi very well and he had been a very close friend for about 30 years. He further stated that he knew complainant Manmohan since 2015 and used to talk to complainant on mobile phone. He further admitted that during his visit to Andaman & CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 15 of 81 Nicobar Islands for a training course in December, 2018, he had called complainant Manmohan over phone and introduced him with the accused, so that the pending case of regularization of service of accused, could be explained to the complainant. He further stated that accused was really frustrated because of his long pending issue in the Ministry and he was even contemplating action/complaint against Manmohan.
He further admitted that he never felt that the envelope which was given to him by accused for it to be given to the complainant, was containing any money. He further stated that no discussion had taken place between him and accused regarding any money to be given to the complainant. He further stated that he knew that the pending matter of accused was later on decided in favour of the accused and no further document was supplied for that, by the accused.
3.4 PW4 is Sh. Praveen Kumar, Alternate Nodal Officer, Reliance Jio. He proved the covering letter dated 05.06.2019 alongwith call detail record (CDR) of the period 05.03.2019 till 16.03.2019, customer application form (CAF) and cell ID chart of the mobile phone no.7982036993, which was in the name of Sh. Manmohan, alongwith certificate u/S 65B of Indian Evidence Act.
In his cross-examination, PW4 stated that he was not aware whether the Master Server of Reliance Jio, which was in Mumbai, was functioning properly during the entire period to which the aforesaid CDR referred in his examination in chief, pertained or it had any mechanical, electrical or digital failure, during the aforesaid period. He admitted that the details of the CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 16 of 81 computer used, was not mentioned in certificate u/s 65B Evidence Act. He further admitted that from the above certificate, the particulars of software application and the hardware used, cannot be deciphered.
3.5 PW5 is Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd. He proved the covering letter dated 29.08.2019 alongwith call detail record (CDR) of the period 05.03.2019 till 16.03.2019, customer application form (CAF) and cell ID chart of the mobile phone no.9560047872, which was in the name of Sh. Tarun Johri, alongwith certificate u/S 65B of Indian Evidence Act.
In his cross-examination, PW5 stated that the Master server of Bharti Airtel, which was in Noida, was functioning properly during the entire period to which the aforesaid CDR referred in his examination in chief, pertained and he denied that it was having any mechanical, electrical or digital failure during the aforesaid period. He however, admitted that the said server had never been in his control. He admitted that the details of the computer used, was not mentioned in certificate u/s 65B Indian Evidence Act. He further admitted that from the above certificate, the particulars of software application and the hardware used, cannot be deciphered.
3.6 PW6 is Sh. Prabhala Kumar, Nodal Officer, BSNL. He proved the covering letter dated 09.05.2019 alongwith call detail record (CDR) of the period 05.03.2019 till 16.03.2019, customer application form (CAF) and cell ID chart of the mobile phone no.9436043077.
PW6 admitted in his cross-examination that the CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 17 of 81 CDRs in question and the certificate u/s 65-B of Indian Evidence Act, as referred in his examination in chief, were neither signed by him nor was prepared in his presence. He denied the suggestion that he had wrongly identified the signatures of Sh. Thangavelu, DGM (CM), Port Blair, who had signed on the document exhibited by this witness.
3.7 PW7 is Tarun Kumar Boro, who was posted as Chief Manager with SBI, Itanagar, in the year 2019. He deposed that the then Sr. Chief Manager Anshuman Bordoloi had handed over the bank statement of accused Diganta Gogoi, to him, with directions to hand it over to Raj Saurabh, CBI officer, which he did accordingly. As per record, an amount of Rs.10,000/- was transferred through mobile app. from the account of accused Diganta, on 16.03.2019. This witness was not cross-examined by Ld. Defence counsel.
3.8 PW8 is Deepak Kumar Tanwar, who was posted in CFSL, DFSS, MHA, New Delhi, on the post of Principal Scientific Officer, in the year 2020. He deposed that certain sealed parcels were received in his office from SP CBI, for voice examination and those were marked to self (PW8) being the Divisional Head. The parcels contained the specific voices and the questioned voices, on which PW8 had to give his opinion. He deposed that after examining the aforesaid questioned voices and specimen voices, he prepared his report dated 30.03.2021. He found that the specimen voice and the questioned voice of Tarun Johri, accused Diganta Gogoi and complainant Manmohan, were similar in respect of their number of formants, formants frequencies distributions, intonation pattern and other general CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 18 of 81 visual features in their voice grams.
PW8 admitted in his cross-examination that the details of allegations against the accused by name and as to which specimen voice and questioned voice belonged to which person, were mentioned in requisition of CBI Ex.PW8/A1. He stated that the CBI had sent the exhibits in a set proforma for submitting any case in CFSL, which also has the gist of the case, along with the description of parcel/ exhibits. He further stated that the continuity and authenticity of the recording were scientifically examined as was mentioned in his report and no form of tampering was detected.
He further admitted that while comparing the voice of same person, variations may occur which are called intra speaker variation and he had not made any remark about such intra speaker variation in his report Ex.PW8/A-2. He however, also stated that he had examined such intra speaker variation, even though it was not mentioned in his report. He further admitted that CFSL New Delhi was not notified u/s 79(A) of IT Act, as examiner of electronic evidence. He further admitted that he did not have any degree, diploma or certificate in the field of psychology, science of linguistics, science of sound engineering and the science of phonetics.
He further admitted that there was another method called automatic speaker recognition, which was based only on computer analysis for voice comparison, but further stated that the same was not prevalent in India and hence, it was not used in this case, nor the same was available in their Lab. He further admitted that the recorded conversation mark Q-1 (6) (D) as CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 19 of 81 mentioned in last para of page 4 of his report Ex.PW8/A-2 was not considered for voice spectrographic examination. He denied the suggestion that his report was given without any scientific analysis or without any application of mind or without any sound reasoning.
3.9 PW9 is Sh. Thangavel, who was working as DGM CM, BSNL, Port Blair, Andaman & Nicobar Islands, in the year 2019 and was also the Nodal Officer of BSNL Andaman Circle. He deposed that a request was received from Delhi Nodal Officer to produce the CDR, CAF details and certificates, which was supplied to the Nodal Officer of Delhi along with certificate u/s 65 of Indian Evidence Act.
In his cross-examination PW9 stated that he was not aware whether the Master Server of BSNL with respect to area of Andaman & Nicobar Islands, which was in Kolkata, was functioning properly during the entire period to which the aforesaid CDR referred in his examination in chief, pertained. He further stated that the master server was not under his control or he was designated officer to access the said data on the server, by using password, even though he was the Nodal Officer. He further admitted that the data stored on the server was not in the same format as the data which was reflected in the CD relating to CDRs provided to CBI. He further admitted that the details of the computer used in printing the aforesaid data or the person who had accessed the server and taken its printout, was not mentioned in certificate Ex.PW9/A-1. He further admitted that from the above certificate, the particulars of software application and the hardware used, cannot be deciphered.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 20 of 81 3.10 PW10 is Tajuddin, who deposed that he was the personal driver of Tarun Johri in the year 2018-19, at his residence. On 05.03.2019, he had brought Tarun Johri to Paryavaran Bhawan and at about 5-6 p.m., he saw D. Gogoi coming out of Paryavaran Bhawan and both D. Gogoi and Tarun Johri had conversations for about 5 minutes, thereafter, he (PW10) took both of them to the house of Tarun Johri. On the next day i.e. 06.03.2019 at about 9:00 a.m., he took D. Gogoi from his house to Paryavaran Bhawan. He was not cross- examined by Ld. Defence counsel.
3.11 PW11 is Sh. Brijesh Kumar, who was working as Sub-Divisional Engineer at Tis Hazari, in the year 2019. He deposed that he had received a written order on 19.03.2019, to report to CBI office on the next day. On 20.03.2019, when he was at CBI office, he was called by DSP Atul and asked to observe the interrogation of D. Gogoi and Tarun Johri, who were present there. Certain questions were put to both of them and their responses were typed in the presence of this witness.
PW11 in his cross-examination has stated that the signatures of the person who were being interrogated (accused D. Gogoi and Tarun Johri), were not obtained in his presence. It was told to him by IO Atul that both the said persons were in police custody of CBI. He further stated that there were some heated discussions between accused D. Gogoi and Tarun Johri at that time and DSP Atul had to intervene.
3.12 PW12 is Sh. Brijesh Yadav, the then UDC in SKV, Shahbad Mohammadpur, Sector-8 Dwarka, New Delhi. He deposed that on 02.06.2019, he received a telephonic intimation CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 21 of 81 from the head of Directorate of Education, Old Secretariat, New Delhi, that on 03.06.2019, he (PW12) had to report to CBI headquarter. On 03.06.2019, when he went to CBI headquarter, he met Insp. Raj Saurabh and he was shown transcript of some audio recording and was asked to match the same with the audio recording, which he was made to hear. After hearing the audio recording, PW12 found the same to be matching with the transcripts provided to him. The complainant Manmohan had also recognized his voice in the audio recording, in his presence.
In his cross-examination, PW12 stated that this was the only case in which he had participated as a witness in CBI proceedings. He further stated that the transcription about which he had deposed in his examination in chief, was not prepared in his presence. He further stated that he was continuously hearing the audio recording through headphone and was simultaneously comparing the same with the transcriptions provided to him. He had heard the audio recordings in one go, 3-4 times, while comparing the same with transcriptions. He further stated that he could not identify the voices of Diganta Gogoi and Tarun Johri as he had never met them before.
3.13 PW13 is independent witness Sh. Deepak Kumar Shokeen, who was posted as Jr. Asstt., Delhi Jal Board, in the office of Executive Engineer, West-III, Nangloi, New Delhi-41, in the year 2019. He deposed that he was directed by his senior officer to attend CBI office on 15.03.2019 at 9:30 a.m. till 16.03.2019 at 10:00 p.m., through a letter. Then on 15.03.2019, he went to CBI office along with one Sh. Dinesh, Jr. Asstt. in Zonal Revenue Office, Paschim Vihar, Delhi. At CBI office, he CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 22 of 81 was informed by CBI officer that there was one case related to Forest officer for which he had to attend CBI office, even on 16.03.2019. He did not remember the proceedings of 15.03.2019 but stated that on 16.03.2019, he was introduced to complainant Manmohan by IO Atul Hajela. Complainant Manmohan informed them that he had made complaint against two forest officers namely, D. Gogoi and Tarun Johri, as Rs.10,000/- had been given to him by Tarun Johri in an envelope, for some service verification of Tarun Johri's friend D. Gogoi. One senior of Sh. Manmohan, namely, Subir was also present.
Thereafter, the witness deposed about the proceedings which took place at CBI office, regarding bringing of new DVR, new memory card, recording of voices of complainant and witnesses, calls made by complainant Manmohan to Tarun Johri and thereafter to D. Gogoi, the transfer of Rs.10,000/- by D. Gogoi, to complainant, etc. The witness also deposed that complainant Manmohan was briefed by CBI officials as to how he had to talk to accused D. Gogoi and complainant talked on similar line. He also stated that he had heard the conversation between complainant and Tarun Johri as well as complainant and D. Gogoi, as the mobile phone of complainant was on loud speaker mode.
PW13 further deposed that thereafter one team of CBI consisting of 4-5 CBI officials left CBI office at around 5-6 p.m. and returned back with Tarun Johri, at about 10:00 p.m. The personal search of Tarun Johri was conducted by CBI officials in his presence. The sample voice of Tarun Johri, introductory and concluding voice of Dinesh as well as him (PW13) was also CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 23 of 81 recorded. The amount of Rs.10,000/- which was given in the envelope to complainant, was counted by witness Dinesh and was sealed in their presence. The envelope and the three letters which were also handed over by Tarun Johri to complainant, were also seized and sealed by CBI.
PW13 in his cross-examination has stated that he had not made any enquiry about the cutting of the word "Chale Gaye" at page no.2 of complaint Ex.PW1/A-2. He further stated that Balmer Lawrie envelope containing the alleged currency notes and the three letters was in another white colour envelope Ex.PW3/A-2, when the same was shown to him during CBI proceedings. He further admitted that there was no call from the side of accused Diganta Gogoi to the complainant regarding offering of money to the complainant, in his presence. He further stated that the audio recordings were done in blank memory cards, which were put in the DVR after ensuring their blankness. He also stated that he had identified the voices of Tarun Johri and D. Gogoi as it was recorded in his presence. He denied the suggestion that the voice samples as well as the proceedings pertaining to obtaining of voice samples of accused, were manipulated.
3.14 PW14 is first IO Atul Hajela, the then DSP CBI, ACB, as on 16.03.2019. He deposed that on that day, complainant Manmohan, Under Secretary Subir Kumar, had come to CBI office and given a written complaint dated 16.03.2019 to SP CBI and on the directions of SP CBI, ACB, he (PW14) registered the present case. He deposed that for the purpose of investigation, the presence of independent witnesses CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 24 of 81 Sh. Dinesh and Sh. Deepak Shokeen, junior assistants in Delhi Jal Board, was secured through duty officer CBI, ACB, New Delhi. Insp. Anand Swaroop, Insp. Shitanshu Sharma, Insp. S.P. Singh and SI Nitin Chaudhary were also joined in the proceedings. The facts mentioned in the complaint of complainant were informed to all the team members. The complainant also handed over the envelope having printing of Balmer & Laurie, containing the amount of Rs.10,000/- and copies of three letters. On his instructions, both the independent witnesses tallied the said amount of Rs.10,000/- and noted down their denomination and currency numbers and thereafter, the amount of Rs.10,000/- was seized along with the envelope and the papers.
He further deposed about the proceedings conducted by him during investigation of this case i.e. arranging of new digital voice recorder (DVR), new memory cards, recording of voices of the independent witnesses, etc. He further deposed that on his instructions, complainant made a call firstly, on the mobile no. of Tarun Johri and thereafter, on the mobile no. of accused D. Gogoi. Both the said conversations were heard by all the team members. Thereafter, accused transferred Rs.10,000/- in the account of complainant, after the complainant provided his bank account no. and IFSC code on whatsapp. The rough transcript of the conversation was also prepared.
PW14 further deposed that he issued authorisation u/s 155 Cr.PC in the name of Insp. Raj Kumar for conducting search in the premises of Tarun Johri. At the same time, he issued another authorisation u/s 165 Cr.PC to CBI, ACB, Port Blair, for CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 25 of 81 arrest of accused D. Gogoi. After sometime, Tarun Johri was brought to CBI office and was interrogated, on which he gave evasive reply and so, he was arrested vide separate memo. The sample voice of Tarun Johri was taken in a separate a new memory card. The witness also deposed that accused D. Gogoi was also arrested vide separate arrest memo, by CBI officials at Port Blair and handed over to him (PW14), for investigation. He interrogated and confronted both Tarun Johri and D. Gogoi in the presence of independent witness. Thereafter, the investigation was transferred to Deputy SP G.S. Sengar.
PW14 in his cross-examination admitted that verification of the complaint in trap cases, is done to verify the allegations made in the complaint and this provision was also mentioned in CBI Crime Manual. He further stated that in the present matter, the complainant was public servant and was accompanied by senior officer i.e. Under Secretary of the department, to file a complaint with CBI on 16.03.2019, when he was questioned by Ld. Defence counsel as to why the verification of the complaint was not carried out in the present case. He denied that the contents of the complaint do not disclose commission of any cognizable offence by the accused. He stated that as per the FIR, the matter of accused D. Gogoi was pending with the complainant and the then co-accused Tarun Johri had approached the complainant on 16.03.2019 and requested the complainant to take up the matter of accused Diganta Gogoi and also gave an envelope containing some documents related to the matter of accused, along with bribe of Rs.10,000/-. This was enough to register the FIR against accused Diganta Gogoi and CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 26 of 81 Tarun Johri and accordingly, FIR was registered against them.
As regards the cutting at point X "Chale Gaye" in complaint Ex.PW1/8, PW14 stated that the complainant was already carrying the complaint and the correction was already there in the said complaint. He further stated that he did not verify the contents of the copies of three letters (belonging to accused) handed over by the complainant to him. He further stated that since the suspect Tarun Johri showed his ignorance about the payment of bribe to the complainant on behalf of accused Diganta Gogoi, it was necessary to ascertain the genuineness of the said transaction of Rs.10,000/- and so, call was made by complainant to accused Diganta Gogoi and during the said conversation, it was proved that an offer of Rs.10,000/- was made by accused Diganta Gogoi to the complainant.
PW14 further admitted in his cross-examination that he had not conducted any investigation with respect to the availability of CCTV footage at the place where envelope was handed over by Tarun Johri to the complainant or with respect to the competency of complainant to decide the matter of regularization of service of accused Diganta Gogoi.
3.15 PW15 is Ms. Anuradha Singh, who was working as Director, Vigilance and was also Director, Indian Forest Service in the Ministry of Environment, Forest and Climate Change, in the year 2019. She deposed that in the evening of 15.03.2019, Sh. Manmohan, who was working under her as Sr. Secretarial Assistant, came to her and told that he had received a telephonic call from Tarun Johri, IFS, to do some post upgradation work of D. Gogoi. Sh. Tarun Johri had also handed over one envelope to CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 27 of 81 him, containing some papers and Rs.10,000/- in cash. As per PW15, she was informed about this incident by Manmohan as she was Director Vigilance of the said department. Since the issue was serious, she took Manmohan to her Sr. officer then Joint Secretary Sh. Ritesh Kumar Singh and both she and Ritesh Kumar Singh, suggested Manmohan to lodge a complaint or FIR. Then on 16.03.2019, complainant along with Under Secretary Subir Kumar, went to CBI office to lodge complaint.
In her cross-examination PW15 stated that complainant had met her at around 5.30 p.m. on 15.03.2019. She had not asked complainant to give in writing about the incident of 15.03.2019, when he came to meet her. She also did not remember whether there was CCTV camera installed outside the office of the Ministry, where complainant was posted during the relevant period. She further stated that the complainant had no power/ authority for upgradation of the post of accused or for regularization of his service. The complainant had only initiated the file vide which the matter of accused was processed. She further stated that as far as she remembered, there was one envelope given to the complainant, inside which there was another envelope.
3.16 PW16 is Subir Kumar, the then Under Secretary in the Ministry of Environment, Forest and Climate Change, who deposed that on 16.03.2019, he along with complainant went to CBI office, on the directions of Smt. Anuradha Singh, the then Director Vigilance. His remaining testimony is on the same lines as that of other witnesses and is not being repeated for the sake of brevity.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 28 of 81 PW16 has stated in his cross-examination that during the relevant period, he was looking after the matter related to transfer/posting of IFS officers of AGMUT Cadre, Cadre Management of AGMUT in the Ministry, in addition to other works and at that time, complainant Manmohan, then Sr. Secretariat Assistant, AGMUT Section, was working under his control. He further stated that he was not aware that the complainant has sought Rule position from the accused. He denied the suggestion that he had simply signed the documents at the asking of CBI or that no proceedings took place in his presence.
3.17 PW17 is the second IO D.S. Sengar, the then DSP, CBI ACB, New Delhi. He deposed that then DSP Atul Hajela had conducted initial investigation in the case and thereafter, the case was transferred to him for the purpose of further investigation. During the course of further investigation, he collected the documents from various departments and recorded the statement of witnesses u/s 161 Cr.P.C. and also seized the tainted amount of Rs.10,000/- from Union Bank of India, where the amount was transferred by accused in the Savings Bank account of complainant. The specimen voice of accused, complainant and Tarun Johri were taken in his presence and was sent to CFSL along with their questioned voices as recorded in the conversation, for expert opinion. As per PW17, after completion of investigation, he filed charge sheet only against accused Diganta Gogoi for offence u/s 8 of PC Act as he did not find enough evidence against Tarun Johri.
In his cross-examination by Ld. Defence counsel, CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 29 of 81 PW17 admitted that as per the practice prevalent in the CBI as well as the CBI Crime Manual, all the complaints of trap cases are verified before registration of FIR. He also admitted that no verification of complaint of Manmohan was carried out in the present case, before registration of FIR and he had not enquired about the non-verification. He denied the suggestion that it was explained to him by accused that he (accused) was being harassed by the complainant and as such, he in order to collect evidence against complainant, had transferred Rs.10,000/- in the account of complainant on 16.03.2019 and before he could lodge the complaint against complainant, he was arrested by CBI. PW17 further stated that he was not aware whether the matter of accused Diganta Gogoi, the subject matter of file Ex.PW1/A-1 (colly) was cleared/decided in his favour without any further document, after the incident.
PW17 further stated that he did not remember as to how many envelopes produced by the complainant, were the subject matter of investigation in the present case. He denied the suggestion that there was no evidence against accused in the present case or that accused was falsely implicated on the basis of biased and perfunctory investigation. Thereafter, PE was closed.
4. List of Exhibited/ Marked Documents During prosecution evidence, following documents were exhibited/marked during the testimony of prosecution witnesses:-
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 30 of 81 EXIBITED DOCUMENTS (PROSECUTION) Sl. Name of Exhibit Particulars Part / Remarks Witness s File No.
1. Sh. Ex.PW- Regularization file of accused D. D-10 Manmoh 1/A1 Gogoi.
an (colly)
Ex.PW- Original handwritten complaint D-2
1/A2 of PW1
Ex.PW- Screenshot of whatsapp D-6
1/A3 messages and SMS sent by
(colly) accused to the complainant.
Ex.PW- Envelope containing one mobile Retained 1/A4 phone and Sim card of By (colly) complainant. MHC(M) Ex.PW- Original FIR D-1 1/A5 Ex.PW- Seizure cum memo dt. 16.03.19 D-3 1/A6 Ex.PW- Transcription of audio D-4 1/A7 conversation between complainant and Tarun Johri.
Ex.PW- Transcription of audio D-5
1/A8 conversation between
complainant and accused.
Ex.PW- Specimen voice memo dt. D-13
1/A9 22.04.19
Ex.PW- Voice identification cum D-15
1/A10 Transcription memo
Ex.PW- Signed copy of FIR Charge
1/A11 sheet
Ex.PW- Brown colour sealed Envelope Retained 1/A12 containing white colour envelope By colly and Balmer Lawrie MHC(M) Ex.PW- Copies of three letters found in Retained 1/A13 the white colour envelope. By MHC(M) Ex.PW- Brown colour sealed Envelope Retained 1/A14 containing copies of three letters By found in the white colour MHC(M) envelope.
Ex.PW- Brown colour sealed Envelope Retained 1/A15 containing 20 GC notes of By (Colly) Rs.10,000/- found in an MHC(M) envelope.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 31 of 81 Ex.PW- Brown colour sealed Envelope Retained 1/A16 containing 20 GC notes By (Colly) amounting to Rs.10,000/- MHC(M) transferred by accused in the account of complainant.
Ex.PW1 Yellow colour Envelope Retained
/A17 containing brown envelope, By
(Colly) original paper packing cover, MHC(M) plastic cover and memory card S-3.
Mark Statement u/s 161 Cr.PC of Charge PW1/D PW-1 sheet 1 2. Sh. Ex. Seizure cum production memo D-11 Manoj PW2/A dated 11.04.2019 regarding the Kumar 1 amount of Rs.10,000/- transferred in the bank account of complainant. Ex. Bank account statement of D-12 PW2/A complainant (12.03.2019 to 2 11.04.2019) along with (Colly) certificate u/s 2A of Bankers' Books of Evidence Act. 3. Sh. Tarun Ex. PW Arrest cum personal search D-21 Johri 3/A1 memo of Tarun Johri.
Ex. PW Plain white Envelope received Retained 3/A2 by PW3 from accused and given By to PW1. MHC(M)
4. Sh. Ex. PW Covering letter dated 05.06.2019 D-19 Parveen 4/A1 sent by PW4 to IO D.S. Sengar.
Kumar
Ex. PW Certificate u/s 65B (4)(c) of the D-19
4/A2 evidence Act 1872
Ex. PW Customer application form of D-19
4/A3 mobile no., 7982036993 of
complainant.
Ex. PW Certified records of call detail D-19
4/A4 record of above mobile.
Ex. PW Certified copy of tower location D-19
4/A5 chart/cell ID chart of above
mobile.
Ex. PW Certificate u/s 65B (4) (c) of the In folder 4/A6 evidence Act 1872 of above Cell D-11 to ID chart. D-21
5. Sh. Ex. PW Covering letter dated 29.08.2019 D-20 Surender 5/A1 sent by PW5 to IO D.S. Sengar.
Kumar Ex. PW Certificate u/s 65B of evidence D-20 5/A2 Act 1872 CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 32 of 81 Ex. PW e-KYC of the customer D-20 5/A3 application form of mobile no.
9560047842 in the name of Tarun Johri.
Ex. PW Certificate u/s 65B of evidence In folder 5/A4 Act 1872 in support of e-KYC. D-11 to D-21
6. Sh. Ex. PW Covering letter dated 09.05.2019 D-18 Prabhala 6/A1 sent by PW6 to DSP D.S. Sengar. Kumar Ex. PW One CD.
6/A2 Ex. PW Yellow colour closed envelope 6/A3 which was containing CD.
Mark A Certificate u/s 65B of evidence D-18 Ex. PW
Act 1872 6/A4,
later on
de-
exhibited
and
marked as
Mark A
Mark B CDR of mobile no. 9436043077 D-18
(Colly) for the period 05.03.19 to
16.03.19.
Mark Statement of witness u/s
D1 161Cr.PC of Sh. Prabhala Kumar
7. Sh. Tarun Ex. PW Bank Account statement of D-17
Kumar 7/A accused from 06.03.2019 to
Boro 17.03.2019
8. Sh. Ex. PW Forwarding Letter dated D-16
Deepak 8/A-1 20.04.2019 and marked by PW8
Kumar to himself, being HOD.
Tanwar
Ex. PW Forensic voice report dated
8/A-2 30.03.2021 of PW8.
Ex. Forwarding Letter dated
PW8/A- 01.04.2021 regarding collection
3 of voice examination reports and
exhibits
Ex. PW Yellow colour envelope Ex. Q-1 MHC(M) 8/A-4 containing brown colour (Colly) envelope, original paper packing cover, 8gb memory card in plastic cover.
Ex. PW Yellow colour envelope Ex. S-1 MHC(M) 8/A-5(C containing brown colour olly) envelope, original paper packing cover, 8gb memory card in CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 33 of 81 plastic cover Ex. PW Yellow colour envelope Ex. S-2 MHC(M) 8/A-6(C containing brown colour olly) envelope, original paper packing cover, 8gb memory card in plastic cover Ex. Spectrographic comparison PW8/D- worksheets prepared by PW8 1 while analyzing the voices.
9. Sh. Ex. Certificate u/s 65B of evidence D-18 Thangave PW9/A- Act 1872 l 1
10. Sh. No document was Tajuddin exhibited or marked in his testimony.
11. Sh. Ex.PW1 Confrontation memo dated D-7 Brijesh 1/A 20.03.2019 Kumar
12. Sh. Ex.PW1 Voice transcription memo D-14 Brijesh 2/A prepared in presence of PW12.
Yadav
13. Sh. Ex.PW1 Two brass seals of CBI, used in Brass Deepak 3/A1 this case. seals were Kr. brought Shokeen. by this witness
14. Sh. Atul Ex.PW1 Arrest-cum-personal Search D-22 Hajela 4/A Memo of accused.
15 Ms. Mark Statement u/s 161 Cr.P.C. of the Charge Anuradha PW15/ witness. sheet Singh D-1
16. Sh. Subir Ex.PW1 Letter dated 29.03.19 written by D-8 Kumar 6/A1 PW16 to DSP Atul Hajela regarding forwarding of documents.
Ex.PW1 Certified copy of office order D-9 6/A2 dated 26.03.18 of Ministry of EF&CC.
Ex.PW1 Certified copy of office order D-9 6/A3 dated 05.01.18 of Ministry of EF&CC.
Ex.PW1 Certified copy of office order D-9 6/A4 dated 14.03.19 of Ministry of EF&CC.
17. Retd. No document was DSP D.S. exhibited or marked Sengar in his testimony.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 34 of 81
5. Statement of accused Statement of accused was recorded u/s 313 Cr.P.C. on 31.08.2024, 12.09.2024 and 30.09.2024 wherein the accused denied that on 06.03.2019, he gave Rs.10,000/- in a stapled envelope to Sh. Tarun Johri for handing over the same to Sh. Manmohan, for regularization of his service from 09.05.2017 to 26.07.2017. He stated that he had left copies of three letters in a Balmer Lawrie envelope, at the house of Tarun Johri in open condition in the early morning of 07.03.2019, while leaving his house for Delhi Airport to catch a flight to Port Blair. He further stated that neither he discussed anything about paying any money to complainant Manmohan nor left any money with Tarun Johri for paying the same to the complainant.
He further stated that the matter of regularization of his service period for about 2 & ½ months, was pending in the Ministry of Environment, Forest & Climate Change, New Delhi, for quite some time and Sh. Tarun Johri, who was his batchmate and friend, knew about it. During discussions with Tarun Johri in that regard, he had offered to help in expediting the said matter, in Ministry as he knew the dealing hand i.e. complainant Manmohan and so, on the request of Tarun Johri, he had left the copies of letters at his house for pursuing the matter in the Ministry, since, Tarun Johri was posted in Delhi. Furthermore, those three letters were not at all concerned with the rule position. Further the documents were not given to Tarun Johri for the purpose of handing it over to Manmohan, but rather they were meant for Tarun Johri himself, so that he can pursue his (accused) matter in the Ministry.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 35 of 81 He further stated that in the conversation with Manmohan, there was consistent demand of illegal gratification by Manmohan from him. He (accused) never intended to pay or offer any bribe to Manmohan and he had transferred a sum of Rs.10,000/- in the account of complainant Manmohan on 16.03.2019, only for the purpose of collecting evidence, so as to lodge a complaint against Manmohan for demand of illegal gratification, as he had been unnecessarily delaying his pending work of regularization, in the Ministry and was also unnecessarily harassing him and consistently demanding money from him. However, before, he could do anything, he was illegally arrested by CBI on the complaint of Manmohan.
He further stated that specimen voice memo Ex.PW1/A9 and voice identification cum transcription memo Ex.PW1/A10 were manipulated documents. No court permission was taken to obtain his specimen voice nor the specimen voice was given by him voluntarily. The certificates u/s 65-B were invalid certificates. He further denied that he ever wanted to meet the complainant, when he had come to Delhi. He claimed that he was innocent and was falsely implicated in this case by the complainant, in connivance with CBI officials and a manipulated investigation was done against him.
6. Defence Evidence The accused preferred to lead DE. During defence evidence, the accused examined only one witness i.e. DW1 Sh. Prem Parkash Maurya, Under Secretary, IFS-1/AGMUT, CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 36 of 81 Ministry of Environment, Forest & Climate Change, Jor Bagh Road, Delhi. In fact, the accused had moved an application to examine four witnesses including DW1, but one of the witnesses, namely, Tarun Coomar, was reported to have expired and the other two witnesses, namely, Sh. Gulab Singh and Sh.Roshan Horo were not keeping well, so, the said three witnesses were dropped by the accused.
6.1 DW1 Sh. Prem Prakash Maurya brought the summoned official record i.e. Personal file of accused Diganta Gogoi relating to the regularization of his service from 09.05.2017 to 31.07.2017. He also brought the original Minutes of Meeting of Joint Cadre Authority (JCA) dated 08.02.2019 and stated that only one meeting dated 08.02.2019 was held between 30.05.2018 till 17.03.2019. DW1 also brought the original office minutes of JCA meeting dated 27.03.2019 along with note sheet and order dated 01.11.2019, relating to approval for up-gradation of one Deputy Conservator Officer Post to the Conservator Forest Post, in Arunachal Pradesh. He further stated that as per record, the regularization of service of accused took place on 01.11.2019 and he was regularized on the basis of documents already available on record.
During his cross-examination by Ld. PP CBI, DW1 has admitted that till 17.03.2019 regularization of service of accused had not taken place. He further admitted that he was having no personal knowledge of the contents of official record brought by him nor he had participated in the above meeting of JCA. He further stated that from the record of accused brought by him before the court, it was not possible for him to tell as to CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 37 of 81 where the regularization file was pending as on 16.03.2019. He further stated that as per the noting on Ex.PW1/D1, no processing of the matter of accused took place between 11.01.2019 and 27.06.2019. Lastly, he also stated that he was not aware as to who was the custodian of file during 11.01.2019 and 27.06.2019. Thereafter, DE was closed.
6.2 EXIBITED DOCUMENTS (DEFENCE)
Sl. Name of Exhibits Particulars Remarks
Witness
1 Prem Ex.DW1/ Personal file of accused Diganta Document
Prakash D1 Gogoi regarding regularization of his brought by
Maurya service. DW1 himself.
Ex.DW1/ Minutes of Meeting of Joint Cadre -do-
D2 Authority dated 08.02.2019
Ex.DW1/ Office noting of JCA Meeting dated -do-
D3 27.02.19 relating to approval of
upgradation of accused.
7. Final Arguments
7.1 During final arguments, Ld. PP CBI argued that the
offence against accused D. Gogoi stands proved beyond shadow of doubt. He has specifically relied upon the testimony of PW1 complainant Manmohan, PW3 Tarun Johri and PW14 DSP Atul Hajela, the First IO of this case, besides the corroborating testimonies of other witnesses. He argued that it was an admitted position that the matter of regularization of service of accused was pending as on the date of offence. For the said purpose, accused D. Gogoi had handed over one stapled envelope containing some documents relating to his regularization, to PW3 Tarun Johri, to be handed over to PW1 complainant, as per PW3 CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 38 of 81 Tarun Johri. The said envelope being stapled, was also having bribe amount of Rs.10,000/-, with which PW3 Tarun Johri, was unaware and the envelop was handed over by PW3 Tarun Johri to complainant, as is evident from the testimony of PW1 and PW3. This was evident from the audio recording between Tarun Johri and complainant. Even from the recorded conversation between complainant and accused D. Gogoi, it became clear that Rs.10,000/- in the envelope, had been placed by accused himself. Moreover, the accused further transferred Rs.10,000/- in the bank account of complainant for the same purpose. Hence, it was sufficiently proved that accused D. Gogoi had given bribe to the complainant, in order to get his work done. Accordingly, he prayed for conviction of accused.
7.2 On the other hand, Ld. Defence counsel argued that the prosecution case is full of infirmities and contradictions. The prosecution was required to prove its case beyond reasonable doubt by leading plausible, cogent and legally admissible evidence of unimpeachable character, which it had failed to do in this case. He argued that as per Section 8 of PC Act, whoever gives an undue advantage to another person with intention to induce a public servant, to perform a public duty, "improperly" or as reward to such public servant, for the "improper performance"
of public duties. However, the said requirement was clearly missing in this case, as the complainant was not asked to perform his duty in an improper manner.
7.3 It was further argued that there was no basis of proceeding against the accused as the complaint Ex.PW1/A-2 did not contain any allegation of paying bribe or offering to pay bribe CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 39 of 81 by accused to the complainant or having any intention to do so. Further, there was no mention of bribe either in the conversation between complainant and Tarun Johri or the conversation between the complainant and D. Gogoi. It was further argued that the FIR was registered hastily, upon receipt of complaint, without verification of complaint by CBI.
7.4 The Ld. Defence counsel also pointed out various infirmities and discrepancies in the testimony of PW1 to argue that a false case was got registered by the complainant against the accused. It was urged that the accused was the victim of circumstances, who under pressure and persistent demand of money by PW1, transferred Rs.10,000/- from his account to the account of PW1. Similarly, he pointed out that there were vital contradictions in the testimony of PW1 and PW3, which creates further doubt on the prosecution case.
7.5 It was further argued that as per prosecution, the alleged bribe amount of Rs.10,000/- and three other papers were contained in an envelope of Balmer Lawrie and the said envelope of Balmer Lawrie was then kept in a white colour envelope, which was handed over by the accused to Tarun Johri. However, the said white colour envelope did not contain initials/ signature of any witness or complainant, which shows that it was subsequently added in this case.
7.6 He further argued that the IO did not bother to obtain the CCTV footage of the area, outside the office of complainant Manmohan, despite the fact that the said area was covered by CCTV camera as deposed by PW1. Similarly, he pointed out towards infirmities in the testimony of PW13 Deepak CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 40 of 81 Kumar Shokeen, the independent witness and argued that he was a tutored witness. In similar manner, he pointed towards the deficiencies in the investigation conducted by the IO and has impeached the testimony of PW11, PW12, PW14, PW15, PW16 & PW17, being unreliable and untrustworthy.
7.7 Lastly, it was alleged on behalf of accused that the accused had discussed the pending case of regularization of his service with his batch mate PW3 Tarun Johri, in December, 2018, when they had met. PW3 had called complainant over phone and introduced him with accused D. Gogoi, so that the pending case of accused could be explained to the complainant. Accused D. Gogoi was very frustrated because of the long pending issue in the Ministry, for which he had requested the senior officers of the department and he was even contemplating action/complaint against complainant, as was also admitted by PW3 in his deposition. The accused had repeated this intention to make complaint against complainant, to PW3 when he met him in the first week of March, 2019, since complainant was unauthorisedly keeping the file of accused with him, even after 10.01.2019. The complainant had concocted a false story of bribe with a revengeful attitude as he might have come to know about the intention of accused Diganta Gogoi to lodge complaint against him, as the complainant was having no explanation for the deliberate delay in the regularization matter of accused.
7.8 Further there was not a single call where accused was offering or intending to pay bribe to the complainant. It was also argued that in view of close proximity between complainant and PW3, there was also a possibility that PW3 had himself put CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 41 of 81 the money in the envelope given to complainant, for favour extended to him by complainant. He accordingly, prayed for acquittal of the accused.
8. Legal Position
8.1 I have now carefully perused the evidence lead by the prosecution as well as duly considered the submissions and arguments on behalf of prosecution and defence.
The present case is for commission of offence u/S 8 of PC Act which reads as under :-
"8. Offence relating to bribing of a public servant.
(1) Any person who gives or promises to give an undue advantage to another person or persons, with intention
(i) to induce a public servant to perform improperly a public duty; or
(ii) to reward such public servant for the improper performance of public duty;
shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both:
Provided that the provisions of this section shall not apply where a person is compelled to give such undue advantage:
Provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage:
Provided also that when the offence under this section has been committed by commercial organisation, such commercial organisation shall be punishable with fine. Explanation. - It shall be immaterial whether the person to whom an undue advantage is given or promised to be given is the same person as the person who is to perform, or has performed, the public duty concerned, and, it shall also be immaterial whether such undue advantage is given or promised to be given by the person directly or through a third party.
(2)Nothing in sub-section (1) shall apply to a person, if that CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 42 of 81 person, after informing a law enforcement authority or investigating agency, gives or promises to give any undue advantage to another person in order to assist such law enforcement authority or investigating agency in its investigation of the offence alleged against the later."
Hence, in order to be successful, the prosecution was required to prove that :-
a) The giving of bribe or undue advantage or its promise thereof,
b) The same has flown from a person, who may or may not be a public servant.
c) Thereby an inducement was given to a public servant, so the person induced has necessarily to be a public servant.
d) The public servant is hence, induced to perform "improperly" a public duty;
e) Or the giving or promise of undue advantage was as a reward to public servant for the improper performance of public duty.
8.2 As far as burden of proof on the prosecution is concerned, it is no longer res integra that the prosecution has to prove all the ingredients of an offence, before it can be held to have successfully proved the case against the accused. In the case titled as Ashish Batham v. State of MP, AIR 2002 SC 3206, it was observed by Hon'ble Supreme Court as follows:-
"Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing the accused does not arise, merely by being CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 43 of 81 carried away by heinous nature of the crime or the gruesome manner in which it is found to have been committed. Mere suspicion, however strong or probable it may be, is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between „may be true‟ and „must be true‟ and this basic and golden rule only helps to maintain the vital distinction between conjectures and sure conclusions to be arrived at by the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
8.3 The prosecution is duty bound to prove its case beyond reasonable doubt. Regarding reasonable doubt, the Supreme Court has held in Chhotanney Vs. State of UP AIR 2009. SC 2013, that :-
"Doubts would be called reasonable if they are free from a zest of abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response....A reasonable doubt is not an „imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
I will proceed to decide this case, in the light of ratio of the aforesaid case laws.
9. Appreciation of Evidence 9.1 In this case, the accused had attempted to induce complainant, a public servant, to perform his public duty improperly, by allegedly offering/giving bribe of Rs.10,000/- as CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 44 of 81 reward, so that his service regularization work could be expedited, even without the complainant asking for the bribe or a prior offer by accused or without prior information to complainant.
9.2 So, this is not one of those typical cases wherein the accused public servant had previously demanded bribe from another person or obtained pecuniary advantage, in order to perform public duty improperly, in favour of the said another person or any other person, at his request. Rather, the present case is a case wherein the accused public servant has been alleged to have already offered/given bribe to complainant public servant, for doing the work of the accused public servant, in an improper manner, without any demand or request.
9.3 Infact in the present case, there are two alleged transactions of bribe, being given by accused Diganta Gogoi to the complainant Sh. Manmohan. First, when the accused had handed over certain documents pertaining to his regularization, in a stapled envelope to his friend Tarun Johri, to further hand it over to the complainant, which PW3 Tarun Johri did, on 15.03.2019. When complainant opened the said stapled envelope, he found copies of three documents of accused Diganta Gogoi and Rs.10,000/- in the said envelope. This amount was allegedly put in the envelope by accused, so that his matter could be expedited. PW3 Tarun Johri was also not informed about the money, by the accused. So, the transaction of bribe was already completed at the end of accused.
9.4 Thereafter, during investigation, complainant was asked to make a call to accused Diganta Gogoi, as per CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 45 of 81 instructions of CBI officials and to ask for further bribe from accused, so as to verify the fact that the money in the envelope, had been sent by accused Diganta Gogoi himself, to the complainant without there being demand on the part of complainant. During the telephonic conversation with complainant, accused did not deny having sent the money to complainant and even transferred extra sum of Rs.10,000/- from his bank account to the bank account of complainant, immediately after the call, as the complainant had told him that the initial money of Rs.10,000/- was insufficient and more money was required.
9.5 From the aforesaid facts, it is quite clear that since the second transaction of Rs.10,000/- was made by the accused on the specific asking of complainant to give more amount as bribe and it was made only in order to corroborate the allegation of first offer of Rs.10,000/- by accused to complainant, so it is the first handing over of Rs.10,000/- as bribe by the accused to the complainant, in a closed envelope, is what is material to be proved in this case. Though the second transaction of Rs.10,000/- by way of bank transfer is also important in order to prove that the first transaction of Rs.10,000/- was by the accused himself, as a relevant fact being the subsequent conduct of the accused.
9.6 As far as prosecution evidence is concerned, PW1 is complainant himself and a material witness, PW2 is a formal witness from bank of complainant, PW3 is another material witness of prosecution, PW4, PW5 and PW6 are witnesses from Telecom Company, who have merely proved the CDRs and are formal witnesses, PW7 is another formal witness from bank of CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 46 of 81 accused, PW8 is the expert witness to prove the genuineness of audio conversations, PW9 is another official from the Telecom Company, who corroborated the testimony of PW6, PW10 is another formal witness being driver of PW3, PW11 is witness of interrogation of suspect Tarun Johri and the accused and since the memo of interrogation of accused persons was prepared in their police custody, it in itself is inadmissible in evidence, as such, the testimony of PW11 is of no use to prosecution, PW12 is another formal witness to prove the transcript of audio conversation, PW13 is another important witness being the independent witness to the proceedings conducted by CBI, PW14 is the first IO of the case and a material witness, PW15 is the senior official of CBI and is only a corroborating witness, PW16 is another corroborating witness, who had witnessed the proceedings conducted by CBI having accompanied the complainant to CBI office and lastly, PW17 is the Second IO of the case. The prosecution case primarily relies on the testimony of PW1, PW3, PW4, PW13 & PW14, besides the supporting testimonies of other witnesses.
9.7 Coming to the evidence on record, this fact is not in dispute that the matter of regularization of service of accused was pending in the Ministry of Environment, Forest and Climate Change. Furthermore, complainant has admitted in his cross examination dated 23.09.2022 that the file of accused regarding regularization of his service for the period 10.05.2017 to 31.07.2017 Ex.PW1/A1, was being dealt by him. The complainant also admitted that he had mentioned the rule position in the note sheet of the file Ex.PW1/A1 vide notings CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 47 of 81 dated 11.12.2018 and 10.01.2019. He has further admitted that the said file remained with him till the incident happened in this case. It is also not in dispute that the file of accused was pending in the Ministry for more than six months prior to the date of incident. On the other hand, the accused admits having left over copies of some documents related to his regularization with PW3 Tarun Johri and one Balmer Lawrie envelope but the allegations of bribe are denied in toto and it is contended by the accused that as he was being harassed by complainant, he had transferred the money of Rs.10,000/- by way of bank transfer, to collect evidence of demand of bribe on the part of the complainant, so following points emerge for consideration in view of rival contentions and the evidence on record :-
1.)Whether the complaint Ex. Ex. PW1/A-2 does not disclose commission of any offence by the accused ?
2.) Whether the verification proceedings were necessary before proceeding to register the FIR ?
3.) Whether there were two envelopes used in this case i.e. a white colour envelope Ex. PW3/A-2 and Balmer Lawrie envelope or only the Balmer Lawrie envelope Ex. PW1/A12 (colly.)?
4.) Whether the white colour envelope was stapled and was containing Rs.10,000/- when it was handed over to complainant by PW3 Tarun Johri?
5.) Whether the amount of Rs.10,000/- was put in the Balmer Lawrie envelope by the accused himself or by PW3 Tarun Johri ?
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 48 of 81
6.) Whether the accused had denied during his conversation with complainant about sending of Rs.10,000/- to the complainant in the envelope?
7.) Whether the prosecution has been able to prove that the alleged bribe was offered to complainant for "improper discharge" of his public duties as public servant?
8.) Whether the accused was being harassed by complainant and he transferred Rs. 10,000/- to complainant as proof of demand of bribe by him, so as to make complaint against him ?
9.) Whether the prosecution has not been able to prove its case beyond reasonable doubt in view of the contradictions and infirmities cited by Ld. Defence Counsel?
10. Points for Consideration and findings 10.1 1.) Whether the complaint Ex. PW1/A-2 does not disclose commission of any offence by the accused ?
10.1.1 Since this question goes to the root of the case, hence it is being taken up firstly. It was argued that there was no basis of for registration of FIR against the accused as the complaint Ex.PW8/A2 did not contain any allegation of paying bribe or offering to pay bribe, by accused to the complainant or having any intention to do so nor there was no mention of bribe in the conversation between complainant and Tarun Johri and D. Gogoi. Perusal of complaint Ex.PW1/A2, on the first blush, does give an impression that what was stated by Ld. Counsel for CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 49 of 81 accused is correct. However, upon a careful consideration of complaint Ex.PW1/A2, it can be seen that there was sufficient material in it, to register the FIR both against suspect Tarun Johri and accused D. Gogoi.
10.1.2 The complainant had clearly mentioned in his complaint Ex.PW1/A2 that he was looking after the administrative work of AGMUT Cadre of IFS officers. On 15.03.2019, suspect Tarun Johri called him on his mobile and stated that he wanted to meet him with respect to the work of accused D. Gogoi IFS AGMUT 2000 and would give rule position, so that the post of accused could be upgraded, since the approval for the same was required from the Ministry of Environment, Forest and Climate Change and the said file was pending with him (complainant). Thereafter, Tarun Johri met complainant outside the office and gave one envelope asking the complainant to do the work of accused, expeditiously and then he left. When the complainant opened the envelope, he found Rs.10,000/- inside it alongwith some papers belonging to accused. He further stated that he had never demanded any bribe either from Tarun Johri or from accused D. Gogoi and so, he prayed to CBI, to take appropriate action.
10.1.3 From the above facts as narrated by the complainant, only one inference can be drawn which is that the complainant had been directly offered bribe by the accused through suspect Tarun Johri, so as to expedite his pending work. The job of a complainant is to report the matter as it is and not to draw conclusions from it. It is incorrect to infer that there was no allegation in it against either suspect Tarun Johri or against CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 50 of 81 accused D. Gogoi. In fact, in his cross-examination dated 19.03.20-24, PW14 was specifically asked about the same to which he replied that:
"As per FIR, the matter of accused Diganta Gogoi was pending with the complainant and co-accused Tarun Johri had approached the complainant on 16.03.19 and requested the complainant to take up the matter of accused D. Gogoi and also give envelope containing some documents related to the matter of accused D. Gogoi along with bribe of Rs.10000/-. This was enough to register the FIR against Diganta Gogoi and Tarun Johri."
10.1.4 Even in the opinion of this court, the above explanation given by PW14 is perfectly sound and proper. The complaint Ex.PW1/A2 reflected commission of cognizable offence on the part of accused, in connivance with suspect Tarun Johri. So, this contention is clearly unsustainable and is rejected.
10.2 2.) Whether the verification proceedings were necessary before proceeding to register the FIR ? 10.2.1 The next contention on behalf of accused was that the FIR was registered hastily, upon mere receipt of complaint Ex.PW1/A2, without verification of complaint by CBI. It was argued that in every trap case, it was a pre-requisite to conduct verification proceedings before registration of FIR, which was admittedly not done in this case. In fact, when PW14 was cross- examined on this point, he admitted about conducting of prior verification of complaint in trap cases before registration of FIR and further admitted that this provision was also mentioned in the CBI Crime Manual. Even PW17, the second IO has admitted this fact.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 51 of 81 10.2.2 PW14 however, also explained in his cross- examination that verification proceedings were not carried out in this case since the complainant was himself a public servant and was accompanied by his senior officer i.e. Under Secretary of the department, to file the complaint in CBI, on 16.03.2019. He further stated that verification was conducted in this case with respect to the integrity and probity of the accused, as held by the Hon'ble Supreme Court in the judgment of Sirajuddin Vs. State of Tamil Nadu. On the other hand, Ld. PP CBI, has argued that the present case was not a trap case, but rather that of reverse trap. He argued that in normal trap cases, the complainant approaches CBI alleging that a public servant has demanded bribe, which he did not want to pay. So, the factum of demand of bribe on the part of public servant, needs to be verified which is done through verification proceeding. Whereas, in the present case, the transaction of bribe was already complete at the end of accused, since amount of Rs.10,000/- was already offered and handed over to the complainant by accused through his friend PW3 Tarun Johri. Hence, no trap was required to be laid against the accused, as happens in usual trap cases. The IO was only required to conduct investigation whether allegations of giving of bribe by accused to the complainant, were genuine or not. Hence, verification proceedings were not required in this case. 10.2.3 As regards the above contention, since the CBI manual has been referred in this case, so it would be appropriate to bring on record the excerpts of CBI Manual with regard to verification proceedings. As per CBI (Crime) Manual, 2020 at para 6.11, the following categories of complaints may be CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 52 of 81 considered fit for verification:-
"6.11 a) Complaints pertaining to subject matters which fall within the purview of CBI, received either from official channels or from well-established and recognized public organisations or from individuals, who are known and who can be traced and examined.
b) Complaints containing specific and definite allegations involving corruption or serious misconduct against public servants, etc., falling within the ambit of CBI, which can be verified."
10.2.4 The present case falls within the second category of complaints as aforesaid and so as per CBI Manual, such a complaint could have been considered for verification. However, the said verification is not mandatory in each and every case, as is clear from para 6.13 of the same CBI Manual, which is as follows:-
"6.13 If the information contained in the complaint prima facie reveals commission of cognizable offence within the jurisdiction of CBI, the matter may be proceeded for registration of regular case without delay. In case it appears that the matter requires preliminary enquiry or verification before registration of RC, the preliminary enquiry or verification may be conducted adhering to the stipulated times limits. It is not mandatory to conduct verification or register preliminary enquiry in every matter, before registration of a regular case. In such cases where a preliminary enquiry or regular case is registered straight away without registering the complaint for verification, no separate number is to be assigned to the complaint."
10.2.5 So, it is quite clear that verification proceedings are not required to be conducted in each and every case and CBI may CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 53 of 81 proceed to register regular case, even without verification, if the facts and circumstances of the case, are of such a nature. Hence, it needs to be analyzed whether verification proceedings in this case, were required or not.
10.2.6 Having considered the rival contentions, in my considered opinion, the submissions made by Ld. PP CBI, appears to be just and proper. In order to succeed in the present case, the prosecution was required to prove only the offer of bribe through money being sent to the complainant in an envelope, by the accused, at the hands of Tarun Johri and not the second transfer of Rs.10,000/- from the bank account of accused to the bank account of complainant, since, the second transfer of money, was on the asking of complainant, at the behest of CBI officials, to determine the genuineness of allegations in the complaint Ex.PW1/A2. So, when the transaction of bribe had already got completed at the end of accused, no verification was required to be conducted in this case and the limited role of the IO was to investigate whether there was actually an offer of bribe on the part of accused Diganta Gogoi, through the money sent in the envelope. Moreover, the present complaint had been made by a public servant himself, and that too upon instructions from his senior officers, lending it more credibility. So, even this contention does not hold any water.
10.3 3.) Whether there were two envelopes used in this case i.e. a white colour envelope Ex. PW3/A-2 and Balmer Lawrie envelope or only the Balmer Lawrie envelope Ex.PW1/A-12 (colly.) ?
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 54 of 81 10.3.1 It was further argued by defence that as per prosecution, one white colour envelope Ex. PW3/A-2 was handed over to the complainant by PW3 Tarun Johri, in a stapled condition. The said white colour envelope was containing one Balmer Lawrie envelope, which was further containing Rs.10,000/- and three other papers relating to the accused. However, the said white colour envelope Ex. PW3/A-2 which was handed over by PW3 Tarun Johri to the complainant, did not bear any initials/ signature of complainant or any other witness, which shows that the story of first white colour envelope Ex. PW3/A-2, was concocted.
10.3.2 As far as this contention is concerned, it is an admitted fact that the white colour envelope Ex.PW3/A-2 does not contain signature / initial of any person or the complainant. However, perusal of evidence of PW1 and PW3 Tarun Johri shows that both have stated the same thing that a white colour envelope Ex.PW1/A12 (colly.) (later white colour envelope was separately exhibited as Ex.PW3/A2) had been handed over by Tarun Johri to the complainant and they have also correctly identified the same in court. In fact, the evidence of PW1 complainant shows that PW1 has not even been cross-examined on the point of there being no white colour envelope, used in this case.
10.3.3 The accused in his statement u/s 311 Cr.PC had admitted that he had left one Balmer Lawrie envelope on the table in the house of Tarun Johri, so the accused is not disputing that the envelope of Balmer Lawrie Ex.PW1/A-12 was the same envelope, which he had left at the house of PW3 Tarun Johri.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 55 of 81 Hence, defence ought to have cross-examined the complainant as to how the said white colour envelope came into picture in this case, but it was not done.
10.3.4 Even the testimony of PW3 is very important in this regard, who had stated on 16.01.2023 in his examination in chief that he had received only a plain white envelope in stapled condition from accused D. Gogoi, which was exhibited as PW3/A2 and he had handed over the said envelope to the complainant in stapled condition itself, besides correctly identifying the said white colour envelope Ex.PW3/A2. Further PW3 had denied the suggestion given to him by Ld. Defence counsel in his cross-examination that the envelope which was given to him by accused D. Gogoi was not stapled and was in open condition.
10.3.5 It has to be kept in mind that both PW3 Tarun Johri and accused D. Gogoi were close friends being batchmate and for that reason, accused D. Gogoi had discussed his pending work of regularization of job with PW3. Accused also admits in his statement u/s 313 Cr.P.C. that Tarun Johri was his friend. Under such circumstances, there was no reason for PW3 Tarun Johri to give a false deposition against accused and had reason not to support the prosecution case, as he was himself initially arrested in this case, due to complaint of PW1 Manmohan. 10.3.6 Moreover, even PW15 has stated in her cross- examination that as far as she remembered, there was one envelope given (to the complainant), inside which there was another envelope. So, there were two envelopes. It is important to note that the complainant had met her immediately after opening CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 56 of 81 the envelope given to him by PW3, to inform about the incident, much before going to the office of CBI for registering the complaint so any manipulation later on, by complainant or by the CBI officials, is also ruled out. Hence, the factum of there being two envelopes used in this case, one the white colour envelope Ex.PW3/A2 and the second Balmer Lawrie envelope Ex.PW1/A12 (colly.), stands proved.
10.3.7 It is also pertinent to mention that this court had fixed a specific date for closure scrutiny of both the envelopes, after hearing final arguments on behalf of both the parties, so as to appreciate the facts, in a better manner. The court found that there were visible staple marks on the white colour envelope Ex.PW3/A2 and there was slightly faded staple mark on the Balmer Lawrie envelope. When the Balmer Lawrie envelope was put inside the white colour envelope, by the court, it could be seen that Balmer Lawrie envelope was having staple mark exactly at the same place where the white colour envelope Ex.PW3/A2 was having visible staple marks. This clearly shows that the Balmer Lawrie envelope was kept inside the white colour envelope Ex.PW3/A2, atleast at some point of time. This further negates the contentions on behalf of accused. 10.3.8 Hence, in my considered opinion, there were two envelopes used in this case, i.e. the white colour envelope Ex.PW3/A2 and the Balmer Lawrie envelope which was kept inside the white colour envelope.
10.4 4.) Whether the white colour envelope was stapled and was containing Rs.10,000/- when it was handed over to the CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 57 of 81 complainant by PW3 Tarun Johri?
5.) Whether the amount of Rs.10,000/- was put in the Balmer Lawrie envelope by the accused himself or by PW3 Tarun Johri ?
6.) Whether the accused had denied during his conversation with complainant about sending of Rs.10,000/- to the complainant in the envelope?
10.4.1 All the above questions are inter-related to each other, hence it would be appropriate to deal with them, together.
The accused has himself admitted that he had left some papers with PW3 Tarun Johri, on 07.03.2019. Though he also stated that the same were not meant for complainant but were given to PW3 to make efforts at his end, to expedite the matter of accused. It is also an admitted fact that the accused had brought an envelope of Balmer Lawrie with him, wherein he had kept his travel tickets as Balmer Lawrie was the recognized agent for broking tickets for govt. officials and he had left the said envelope, at the house of Tarun Johri on 07.03.2019. However, as per PW3, he had found one white colour stapled envelope in his house, after he got up in the morning on 07.03.2019 as accused had already left in early morning on the same day. The said envelope was meant for complainant as they had discussed about it, on the previous date i.e. 06.03.2019, when accused stated to him that he will leave papers of regularization at PW3's home. Further as per PW3, he had handed over the envelope in the same condition, to complainant as he had found on his table being left by the accused.
10.4.2 The question which needs answer is whether the CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 58 of 81 envelope left by the accused at the house of PW3 Tarun Johri, was stapled or not since the Balmer Lawrie envelope was inside another white colour envelope Ex.PW3/A2, which was stapled when it was handed over by Tarun Johri to the complainant. Obviously, there is no concrete evidence on record whether the white colour envelope Ex.PW3/A2 was stapled or not, by the accused. So, one has to infer this from the circumstantial evidence on record. Firstly, there is no cross examination of complainant on the point that he had received an unstapled envelope from PW3 Tarun Johri. So, whatever may be the case, atleast at the time when the white colour envelope was handed over to the complainant, it was stapled. Hence, either the accused had himself left a stapled envelope for being handed over to complainant or the envelope was stapled by PW3 Tarun Johri. Now, it is difficult to presume as to why PW3 will staple the envelope after keeping Rs.10,000/- in it on his own, especially when he and accused were close friends, which fact is not denied even by the accused, as this act might have caused prejudice to the accused. The accused has not alleged any malafide intention on the part of PW3, so it has to be presumed that the accused had himself left a stapled envelope with PW3.
10.4.3 As far as the amount of Rs.10,000/- being available with accused on 06.03.2019 or 07.03.2019 is concerned, one may argue that since the accused had come on an official visit from Andaman and Nicobar Islands to New Delhi, for only 2-3 days, he may not have been carrying so much cash with him, so as to pay bribe to the complainant. However, the bank account statement of accused Ex.PW7/A (colly.) reflects that the accused CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 59 of 81 had withdrawn a sum of Rs.20,000/- on 06.03.2019 itself, through ATM. So, the accused was having money which could have been used and may have been used to give bribe to the complainant.
10.4.4 Obviously, there is no direct evidence as to whether the accused had himself put the amount of Rs.10,000/- in the envelope or whether it was done by PW3 Tarun Johri. However as has been already mentioned above, the subsequent conduct of the accused as reflected from the telephonic conversation made by complainant to the accused, at the behest of CBI officials, gives a fair idea about the person who had put the money in the envelope.
10.4.5 While PW3 Tarun Johri specifically denies about being aware of the Rs.10,000/- found in the envelope, in his telephonic conversation with the complainant, no such denial is found in the telephonic conversation of complainant with the accused. It is relevant to reproduce part of the transcript of both PW3 Tarun Johri and accused with the complainant for better clarity of facts.
10.4.6 The relevant highlighted portion of the conversation between PW1 complainant Manmohan and PW3 Tarun Johri, as per transcript Ex.PW1/A7, is as under:-
Manmohan(MM) - कल जो सर दिया था ना मैंने देखा उसने रोल पजेशन और उसमें 10,000 थे Tarun Johri (TJ) - है.. पैसे थे MM - हां जी हां जी..
TJ - पैसे मतलब CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 60 of 81 MM - 10000.. जो आपने मेरे को दिया था लिफाफा.. और जो TJ - अच्छा.. हमें नहीं पता The lack of awareness of PW3 Tarun Johri about the money found in the envelope sent by accused, is more evident from the further discussion between them, which is as follows:-
TJ - नहीं पैसे.. नहीं मालूम पैसे का तो.. वही तो बता रहा हूं ना.. पर आप बता रहे हो तो मैं उनसे पूछ लूंगा फिर क्यों दिया उन्होंने किस लिए दिया वह आपसे बात करेंगे MM - नहीं मैं वेट कर रहा था उनकी फोन का क्योंकि मेरे को आज जाना भी है थोडा सा मुश्किल हो जाएगा तो मैंने सोचा आप से बात कर लेता हूं एक बार तो फिर बाद में आप बोलोगे कि मनमोहन तुमने काम भी नहीं किया और paise भी TJ - नहीं नहीं यार ऐसा कु छ भी नहीं.. कौन बोलेगा यार.. वह आलरेडी पेंडिंग पडा है काम जब आओगे तब होगा.. देखा जाएगा MM - जी तो पैसे का क्या करूं यूज कर लो उनको क्या करूं उनका फिर TJ - और क्या यूज कर लीजिए यार MM - ठीक है ठीक है TJ - अगर उसने डाल कर दिए तो उसको यूज कीजिए और वह जब आएंगे तब बात कर लेंगे MM - ठीक है फिर वह हो नहीं पाएगा उसमें फिर फिर आप बोलोगे कि.. पहले ही बोलना रहता है TJ - ठीक है ठीक है नहीं हो पाएगा तो जैसे होगा वह बताइएगाना MM - जी जी 10.4.7 From the aforesaid, it is quite clear that PW3 Tarun Johri was not aware that the envelope which he had handed over CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 61 of 81 to complainant, was also having Rs. 10,000/- in it and was surprised to know about it. Rather, PW3 stated that he will ask the accused about it. It has to be kept in mind that when complainant had talked to PW3 Tarun Johri on 16.03.2019, he was not aware that an FIR had already been registered against him and accused D. Gogoi for offer of bribe, to PW1 Manmohan.
Hence, there was no reason for Tarun Johri to have denied knowledge of Rs.10,000/- being placed in the envelope. It is also pertinent to mention that the complainant had told PW3 Tarun Johri that the envelope was containing rule position of accused D. Gogoi besides Rs.10,000/-. However, the envelope was not containing any document pertaining to the rule position of accused. So, if the envelope had been stapled by PW3 Tarun Johri after keeping the documents of accused, he would have also been aware that the envelope was not having any document pertaining to the rule position of accused and would have corrected the complainant then and there, but he did not do so. This also gives an indication that the envelope was already closed and stapled when it was left in the house of PW3 Tarun Johri, to be handed over to the complainant.
10.4.8 At this stage, it would also be relevant to reproduce the relevant transcript Ex.PW1/A8 of the telephonic conversation of accused with the complainant and the same is as under:-
Diganta Gogoi (DG) - हां जी मनमोहन जी नमस्कार Manmohan (MM) - नमस्कार सर नमस्कार वह कागज मेरे को मिल गए थे जो आपने तरूण जोहरी के पास दिए थे 10,000 Rs DG - हां MM - तो मैं देखता हूं उससे करता हूं पर वो कु छ कम है सर उसी से हो नहीं CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 62 of 81 पाएगा DG - Voice not clear.. पुट अप करने के लिए कु छ हो.. Voice not clear MM - Hello DG - प्रोसेस से होता है.. नेक्स्ट टाइम.. हां MM - लेकिन वह जो आप ने दिए हैं ना पैसे.. वह तो कम है उससे कु छ हो नहीं पाएगा.. और वह कागज put up होंगे तो बाद में ही होंगी.. मैं 1 हफ्ते की छु ट्टी जा रहा हूं DG - जैसे भी होने वाला हो कु छ करवाइए.. मैं तो डी जी से भी बात किया था. रिप्रेजेंटशन देने के लिए बोला था I 10.4.9 The above portion of the transcript clearly shows that the complainant had informed the accused in the beginning itself about Rs.10,000/- being received by him which was sent through PW3 Tarun Johri, alongwith some papers. The accused replied in the affirmative and did not deny it. The above transcript shows the accused having used the word "हां (haan)"
however when the audio recording was heard by this court at the time of writing this judgment one could hear that the accused had responded with the sound of "hmmm" and not haan. The sound of "hmmm" is always a nod in the affirmation and not denial. 10.4.10 The Ld. Counsel for the accused has argued that the said sound made by the accused upon hearing about Rs.10,000/- from the complainant, was an enquiring voice denoting his surprise. However, that is not so. Moreover, had the accused been actually surprised after hearing Rs.10,000/- being received by PW1 from PW3 Tarun Johri along with papers, he would have immediately told the complainant that no such money had been sent by him but in the entire conversation, the accused has nowhere expressly or impliedly told the complainant that the CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 63 of 81 money was not sent by him. Rather, the complainant even told the accused that the money was less but still the accused did not deny having sent the money to the complainant. The material portions of the transcript are already highlighted as above. 10.4.11 Furthermore, one can see that when complainant again told the accused that some more money would be required, the accused stated in the affirmative to give the same, as depicted below from the highlighted portions of the transcript. Infact the accused can be heard asking the complainant as to clearly state his demand, if Rs.10,000/- was less. Lastly and most importantly, the accused agrees to give further Rs.10,000/- to the complainant and has used the word " और" 10,000/- (additional Rs.10,000/-) while stating "ना ना हो जाएगा और 10000". The relevant transcript is as follows:-
MM - ठीक है.. पर थोडा सा ज्यादा लगेंगे उससे DG - हां ठीक है चलेगा.. हो जाएगा.. आप चिंता मत कीजिए MM - ठीक है ठीक है.. क्योंकि थोडा कम है ना वह 10000 Rs DG - आप क्लीयरली बोलिए.. आप क्लीयरली बोलिए कोई बात नहीं हमारे लिए वह आप चिंता मत कीजिए MM - अच्छा इसीलिए मैंने कहा था आपसे बात कर लो.. 10000 Rs और लगेंगे तभी हो पाएगा वह DG - ना ना हो जाएगा और 10000 MM - हां जी हां जी.. तभी कर पाऊं गा मैं उसको DG - हां ठीक है CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 64 of 81 Had the accused not sent Rs.10,000/- previously to the complainant, he would not have agreed to give additional Rs.10,000/-. Rather the complainant had also expressly told him that the earlier 10,000/- were not sufficient and more money was required. The accused did not object even then. This also clearly shows that Rs.10,000/- found in the envelope handed over to the complainant Manmohan was put in the envelope, by the accused himself. The fact that during the conversation, the accused or the complainant did not refer to the said money as reward or bribe for improper work, is not at all material, since it is common knowledge that one hardly uses such explicit words during such conversations with one another and the words used are generally implicit and so, inference has to be drawn. 10.4.12 One another factor which leads credence to the allegations against the accused is that the envelope containing Rs.10,000/- and other papers of the accused, was handed over to the complainant by PW3 Tarun Johri after office hours, outside the office of the Ministry and the complainant finding the money inside it, immediately informed about it, to his senior officials including PW15 Ms. Anuradha Singh, who was Director Vigilance of the department, at about 6 p.m. on the same day, as deposed by him and PW15, as well as apparent from CDR Ex.PW4/A. Had there been any malafide intention on the part of complainant, he would not have immediately reported the matter to his senior officials. So, there is more than sufficient reason to believe that the allegations of complainant were credible in nature.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 65 of 81 10.5 7.) Whether the prosecution has been able to prove that the alleged bribe was offered to complainant for "improper discharge" of his duties as public servant? 10.5.1 It was then argued on behalf of accused that for the sake of arguments but not admitting it, evenif one presumes that the accused had given money to the complainant through PW3 Tarun Johri, the prosecution still fails to prove that the accused had attempted to induce the complainant to discharge his public duty in an improper manner, as not only there was no previous talk between them for offer of money, even the accused had not stated anywhere as to why he wanted to give money to complainant.
10.5.2 As far as above contention is concerned, it is an admitted fact that the file relating to regularization of service gap of accused was pending with the ministry and the complainant was the dealing clerk of the same, in the ministry. There is no explanation on record as to why the accused had given money to the complainant in the envelope except that he wanted his pending work to be expedited. Infact since the accused had given the money in a white colour stapled envelope, without the complainant asking for it or having any prior talk about the same, so it was within the specific knowledge of accused himself, as to why he gave the money. In the absence of any positive evidence on this aspect, one has to go by circumstantial evidence.
10.5.3 As per the accused, the complainant was delaying his matter, however admittedly, complainant was not the competent authority to grant regularization of service to him, so the only reasonable purpose to give money to the complainant, CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 66 of 81 appears it to be treated as a reward to get the matter of accused put up before the competent authority or one can say, to expedite his matter. One may argue that the accused was only getting his work expedited through complainant and did not intend to induce him to discharge his duty in an "improper manner". However that is not the case. Getting one's lawful work done through a public servant, out of turn or to getting it expedited through unfair means, will still fall under the category of "inducement for discharge of public duty in an improper manner".
10.5.4 In the case titled as Som Parkash vs State of Delhi AIR 1974 SC 989, the Hon'ble Supreme Court had opined as follows:-
"Bribes are paid not only to get unlawful things done but to get lawful things done promptly since time means money. Here, we must remember that gate passes and pro forms have to be signed by the excise inspector, and signatures can carry a price. While we do not accept generalisation about corruption in the country, we may excerpt a couple of foot-notes from Gunnar Myrdal's "Asian Drama" only to point out that the modus operandi of corrupt officials may take the course of accepting money for doing what is lawful more quickly. We would, however, repeat that we dissociate ourselves from any impression that the book may otherwise give. The foot- notes read "The London Times (August 5, 1964) reports :
"Many of these instances of bribery are those in which the citizen pays in order to get what he is entitled to anyway, and some students of Indian affairs have argued that this is a necessary and not harmful lubricant for a cumbersome administration...... this corruption is "simply a way that citizens have found of building rewards into the administrative structure in the absence of any other appropriate incentive system."
"As a means of accelerating the sluggish, meandering CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 67 of 81 circulation of a file within 'a department this might be all very well; but speed money, belying the name, actually has the effect of a brake on administration, slowing it down even further. Delay will deliberately be caused in order to invite payment of a bribe to accelerate it again."
In this very case, on the ill-starred day, duty had been fully paid and only his signature to the pro forma had to be appended for which the bribe was sought. We have little hesitation in taking the view that " speed money" is the key to getting lawful things done in good time and "operation signature", be it on a gate pass or a pro forma, can delay the movement of goods, the economics whereof induces investment in bribery, Every pass and pro forma tempts and every discretionary power induces illicit demands, given a declining ethos where giving and taking of illegal gratification is looked upon as an inevitable evil which has come to stay-more and more inevitable and less and less evil, as the habit catches on. Producers depend for their rolling capital on quick turn- over which is clogged when forms and passes to be signed by officials are issued with purposeful reluctance and official slow- motion becomes the signal for use of that paper lubricant which on expanding class of businessmen blessed with dubious morals consider an, invisible component of the cost of production and a widening circle of officials gifted with low key consciences. regard as the unobjectionable art of coking out untaxed additions to their emoluments May be, this exaggerated version of the situation is but the folklore of corruption but knocks the bottom of the appellant's plea against motive."
10.5.5 Of course this is an old judgment of Hon'ble Supreme Court, passed much before the enactment of the Prevention of Corruption Act, in the year 1988. However, this court finds no reason to take a different view on this aspect, since the observations made by Hon'ble Supreme Court, are general in nature, wherein it has considered such acts to be falling within the purview of bribe as an inducement to public servant to CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 68 of 81 improperly expedite one's matter. So even this argument of defence fails.
10.6 8.) Whether the accused being harassed by complainant, had transferred Rs. 10,000/- to complainant, to collect proof of demand of bribe by him, so as to make complaint against him ?
10.6.1 Another contention of the Ld. Defence Counsel was that the accused was very frustrated because of his long pending issue in the Ministry, for which he had requested the senior officers of the department and he was even contemplating action/ complaint against complainant. These facts were even admitted by PW3 in his cross examination. Infact accused was a victim of circumstances, who under pressure and persistent demand of money by PW1 had transferred Rs.10,000/- from his account to the account of complainant, so as to collect evidence against the complainant, of his unlawful acts. However, before the accused could make complaint against the complainant for demand of bribe, he was arrested in this case.
10.6.2 Having considered the submissions, I find that there is nothing on record to suggest that the transfer of money by accused in the bank account of complainant, was due to any pressure exerted on the accused by the complainant. Rather, if we hear the entire audio conversation and read its transcript thereof, one can figure out that the accused was not at all under any kind of pressure to transfer money in the account of complainant. Infact, the accused can be heard stating to the complainant that he was willing to give more money to the complainant, if required.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 69 of 81 The relevant portion of the transcript is as follows:-
MM - ठीक है.. पर थोडा सा ज्यादा लगेंगे उससे DG - हां ठीक है चलेगा.. हो जाएगा.. आप चिंता मत कीजिए MM - ठीक है ठीक है.. क्योंकि थोडा कम है ना वह 10000 Rs DG - आप क्लीयरली बोलिए.. आप क्लीयरली बोलिए कोई बात नहीं हमारे लिए वह आप चिंता मत कीजिए MM - अच्छा इसीलिए मैंने कहा था आपसे बात कर लो.. 10000 Rs और लगेंगे तभी हो पाएगा वह DG - ना ना हो जाएगा और 10000 MM - हां जी हां जी.. तभी कर पाऊं गा मैं उसको DG - हां ठीक है 10.6.3 Moreover, it is also apparent from perusal of record that once conversation between accused and complainant got over, the accused on his own, first sent a whatsapp message to the complainant asking for the bank account number of the complainant and IFSC Code. When there was a delay on the part of complainant to provide the same, the accused then again sent an SMS asking to provide the above details. He also confirmed from the complainant regarding him having received the transferred amount, after its transfer, by sending a screenshot.
Hence from the above, it appears that the accused was far more eager to transfer the money in the bank account of complainant as compared to the alleged demand of complainant (which was on instructions of CBI officials) and the complainant was not even interested to provide his bank account number and IFSC details, until he was expressly asked to do so, by the accused. This clearly shows that the accused had transferred the additional money, voluntarily, in the account of complainant, without being CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 70 of 81 in any kind of pressure.
10.6.4 Moreover, the accused expeditiously transferred the money but did not inform about the demand of bribe either to his seniors or to the law enforcing agencies, till the time he was arrested in this case. This also shows that accused was not collecting any evidence against complainant for demand of bribe but had willingly transferred the money.
10.6.5 At this stage, another contention which is related to the above argument on the part of accused, is also worth discussing. It was argued that the accused was being continuously harassed by complainant since complainant had unauthorizedly kept the regularization file of accused pending with him, even after 10.01.2019, when he had already made noting on the same. In this regard, it is worth mentioning that the accused was a much higher ranked public servant as compared to the complainant. One can understand a public servant being harassed by a senior officer but it is extremely rare to see that a senior officer gets harassed by a junior officer. As already stated above, the complainant being only the dealing clerk, was not the competent authority to regularize the service gap of accused, which was supposed to be done in JCA committee meeting. So the complainant cannot be blamed if the matter of accused was not taken up in the JCA meeting since the agenda of a meeting is prepared as per the directions of the chairperson of the committee. Moreover, if the accused was indeed being harassed by the complainant, the ideal course for him was to make a complaint to the senior officers of complainant, under whom he was working then. Infact, this submission only appears to be an CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 71 of 81 excuse on the part of accused, to hide his unlawful act and nothing more.
10.7 9.)Whether the prosecution has not been able to prove its case beyond reasonable doubt in view of the contradictions and infirmities cited by Ld. Defence Counsel?
10.7.1 Various other contentions were raised on behalf of accused by the Ld. Defence counsel and it would be appropriate to deal the same at this stage.
It was argued that no investigation was conducted either by first IO PW14 or second IO PW17, for obtaining the CCTV footage of the outside area of office of complainant, where the envelope was handed over by PW3 to the complainant. However, it has to be noted that complainant PW1 stated in his cross-examination that even though the premises of the Ministry was covered by CCTV cameras from outside, but he was not aware about the exact places, which was so covered. He further stated that he was not aware whether the area where he went outside to meet PW3 Tarun Johri was covered by CCTV cameras or not. Similarly, PW15 who was then Director Vigilance stated that she did not remember whether CCTV cameras were installed outside the office of her Ministry, where complainant was posted during the relevant period. Similar was the reply of PW16, who was working as Under Secretary in the same Ministry. Hence, it is not clear whether there were any CCTV cameras installed or not, outside the premises of the building of Ministry, where the PW1 complainant had met PW3 Tarun Johri, on 15.03.2019.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 72 of 81 10.7.2 Admittedly, the IO did not conduct investigation on this aspect, however, this fact alone does not make the prosecution case suspicious. It is proved on record in view of testimony of PW1 and PW3 that both of them had met each other on 15.03.2019 and PW3 had handed over one envelope to the complainant. So, until and unless both PW1 and PW3 were colluding with each other to falsely implicate the accused, they would not have stated the same thing in their deposition. Moreover, it is not the defence of accused that there was any collusion between complainant and PW3, at any point of time. 10.7.3 The Ld. Defence counsel had further laid stress on the striking down of the words "Chale gaye" in complaint Ex.PW1/A2 and rewriting it with the words " Bole Shree Gogoi ka kaam jaldi kar dena aur phir wo chale gaye ". It was argued by Ld. Defence counsel that the said cutting of the words "Chale gaye" does not bear any initial of complainant, which shows that the complainant initially only wanted to say that PW3 Tarun Johri had immediately left after handing over the envelope but it was changed at the behest of CBI officials, with the words that Tarun Johri had also stated to do the work of accused D. Gogoi expeditiously and then left.
10.7.4 I do not find any force even in these contentions of accused. Perusal of complaint Ex.PW1/A2 shows that after striking the word Chale Gaye, there is a continuity of the facts which complainant wanted to narrate, in one flow. In his examination in chief, PW1 had stated that CBI officials had asked to give complaint in writing, so he gave written complaint to the CBI officials narrating the incident. He has nowhere CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 73 of 81 deposed that the said complaint was written by him at the CBI office, as per the dictation of any CBI official. PW14 had stated in his cross-examination that the complainant was already carrying the written complaint and correction was already there in the complaint. So, there is nothing on record to suspect any malafide act either on the part of complainant or the CBI officials, in getting the said correction. 10.7.5 Even otherwise, the said correction would make no difference to the prosecution case, since both PW1 and PW3 have stated in their respective depositions that before they met on 15.03.2019 in the evening, PW3 had called the complainant and told him that he was coming to meet him, to hand over some papers pertaining to accused D. Gogoi. PW1 re-iterated in his cross-examination that he remained with PW3 for about 4-5 minutes on 15.03.2019, when he met him in the evening. It is quite obvious that they would have had a brief talk on 15.03.2019 even for the reason that they were known to each other, previously. PW3 similarly stated in his examination in chief dated 16.12.2022 that on 15.03.2019, he had told Manmohan that this was the envelope, which the accused left with him (PW3) to be handed over to him (PW1 Manmohan) and gave the envelope. So, it is clear that had briefly talked to each other, on that day. Only a messenger or a postman leaves immediately after handing over the message/document or the post, without talking to the person, to whom it is delivered.
10.7.6 It was further pointed out by the Ld. Counsel for the accused that the complainant and PW3 Tarun Johri were known to each other since year 2015 and used to regularly talk to each CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 74 of 81 other but this fact was intentionally concealed by complainant. PW1 had also concealed about his telephonic conversation with PW3 on 14.03.2019 and twice in the forenoon on 15.03.2019, which were clearly apparent from the record. This established close association between PW1 and PW3 and PW3 even used the word "Yaar" while talking to PW1. Infact it is also stated that there was a possibility that PW3 had himself put money in the envelope given to PW1, for favour extended to him by PW1. Moreover, PW1 could not say in his cross examination as to why PW3 gave him clearance to utilize the alleged amount of Rs.10,000/-, as can be seen from the conversation between them. 10.7.7 As regards this, I have already held above that the money was put in the envelope by the accused himself. With regards to other allegations, they are quite minor in nature and they do not affect the substratum of the case in any manner. With respect to the allegation of PW3 Tarun Johri offering money to the complainant on his own, this is merely a speculation on the part of accused. Moreover, as has already been stated above, accused and PW3 Tarun Johri were close friends. Rather, PW3 in his cross examination had even supported the allegation of accused that complainant was delaying his matter, for which the accused was contemplating action against him. So, complainant and PW3 cannot be said to be friends or that the money was put in the envelope by PW3. For the same reason, being friend of accused, PW3 may have given his consent on behalf of accused, to the complainant to use the money found in the envelope. This is not in any manner surprising since PW3 also told that he will talk to accused about the same.
CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 75 of 81 10.7.8 Some other infirmities & contradictions in the testimony of PW1 has also been mentioned by the Ld. Defence Counsel both in his oral arguments as well as written arguments. Some similar minor contradictions/ infirmities were also pointed out in the testimonies of PW3 and PW17. However, those infirmities are insignificant in nature and do not in any manner affect the case of prosecution. In Krishna Mochi Vs. State of Bihar, (2002) 6 SCC 81, it was observed by hon'ble Apex Court as under :
"If a whole body of the testimony is to be rejected because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stage. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be satisfied with care. One hardly comes across a witness, whose evidence does not contain a grain of untruth or at any rate 26 exaggeration, embroidery or embellishments. An attempt has to be made to separate the grain from the chaff."
10.7.9 Similar observation has been made by the Supreme Court in Kalabhai Hamirbhai Kachhot vs. State of Gujarat (2021) 19 SCC 555, as follows;
"24. Further, in Narayan Chetanram Chaudhary v. State of Maharashtra [(2000) 8 SCC 457 : 2000 SCC (Cri) 1546], this Court has considered the effect of the minor contradictions in the depositions of witnesses while appreciating the evidence in criminal trial. In the aforesaid judgment it is held that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses. Relevant CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 76 of 81 portion of para 42 of the judgment reads as under: (SCC p.
483) "42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness.".
10.7.10 The Ld. Defence Counsel also impeached the testimony of PW13 on various counts and claimed that he was a tutored witness, such as his testimony to the effect that he was told on 15.03.2019 by CBI about a case of Forest Officer, when the actual fact is that the complainant had visited the CBI office only on 16.03.2019. PW13 further stated that accused had told complainant about the money during audio conversation that "aap rakh lo, use kar lo, jo maine aapko bheja hai" or that accused asked complainant "kitne kam hain". PW13 also identified the voices of PW3 Tarun Johri and accused even though he had never met them prior to the present case. Some more infirmities in his testimony were also pointed out. 10.7.11 These are obviously false statements as is apparent from record. PW13 appears to have exaggerated few facts but CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 77 of 81 still his testimony, more or less, is on the same line as that of other witnesses. Though at the same time, it can be safely said that even if one excludes the testimony of PW13, in toto, there is sufficient oral and documentary evidence on record against the accused, which prove his involvement in the present offence. 10.7.12 Lastly, it was pointed out that PW17, the second IO had not conducted investigation on various aspects such as the reason as to why PW1 himself came out of the office to take envelope or why it was not taken in the office itself and as to why the CBI team did not wait for the bribe to be offered by the accused to PW1 before taking further action. PW17 further deposed in his cross examination that he did not investigate the reason why PW1 had kept the file with him after 10.01.2019 till the date of incident. These were major shortcomings in the investigation.
10.7.13 Though PW17 has admittedly not investigated the above facts but there would hardly be a case, wherein one does not find investigation not being conducted on one aspect or the other. However, when the substratum of the case is proved beyond reasonable doubt, non-investigation by the IO on some less material facts, cannot discredit the case. Infact PW1 in his cross examination has given the reason as to why he had kept the file with him after 10.01.2019 till the date of incident stating that his seniors had asked him to keep it. With respect to CBI team not waiting for the bribe to be offered by accused to complainant before taking further action, PW14 has explained that the call to accused had become necessary since PW3 (his alleged accomplice at that time), had denied any knowledge about the CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 78 of 81 money found in the envelope. So, it was required to be verified whether the accused had himself put the money in the envelope to be given to the complainant or not and the mobile call was thus made by the complainant to the accused, at the behest of CBI officials.
10.7.14 To conclude, there can be no denial that there are indeed some short comings in the prosecution case and it is certainly not fool proof. But whether it is of such a nature to give benefit of doubt to the accused, is what needs to be considered. While upholding the conviction of the accused, Hon'ble Supreme Court observed as follows in Iqbal Moosa Patel vs State Of Gujarat 2011 (2) SCC 198 :-
"13. That brings us to the question whether the appellants could be given the benefit of doubt having regard to the nature of the evidence adduced by the prosecution against them. We do not think that the appellants have made out a case for grant of any such benefit. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions (1947) 2 ALL ER 272.
"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence `of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt....
It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 79 of 81 man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land."
14. Reference may also be made to the decision of this Court in Sucha Singh & Anr. v. State of Punjab (2003) 7 SCC 643 where this Court has reiterated the principle in the following words:
".......Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish."
From the aforesaid, it is quite clear that the prosecution has only to prove its case beyond reasonable doubt and not beyond all shadow of doubt.
11. Decision 11.1 In view of the above discussions and findings, I am of the considered opinion that there is sufficient material on record to prove that the amount of Rs.10,000/- alongwith papers related to regularization of his service, was kept in the envelope by the accused himself, to be handed over to the complainant. The accused then kept the envelope in the house of PW3 Tarun CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 80 of 81 Johri, to hand it over to the complainant. Furthermore, the envelope was stapled and so its contents were not known to PW3. The accused did not deny in his audio conversation with the complainant that the amount of Rs.10,000/- was sent by him, through Tarun Johri. Accused further sent additional Rs.10,000/- to the complainant through bank transfer, without any protest or whisper, to expedite regularization of his service gap. Lastly, I am also of the view that there was no hidden motive with PW1 Manmohan to falsely implicate the accused in this case, as there was no prior issue between them, of any nature whatsoever. 11.2 Accordingly, prosecution has been able to successfully prove its case qua commission of offence punishable U/s 8 of the Prevention of Corruption Act 1988, beyond reasonable doubt, against accused Diganta Gogoi. The accused is hereby convicted for the aforesaid offence. 11.3 Copy of this judgment be given to the convict, free of cost. Convict be heard separately on the point of sentence.
Digitally signed by ATUL ATUL KRISHNA
Announced in open court KRISHNA AGRAWAL
Date:
AGRAWAL
on 10.12.2024. 2024.12.10
13:27:32 +0530
(Atul Krishna Agrawal)
Special Judge, CBI-19 (PC Act)
RADC/New Delhi
Certified that this judgment contains 81 pages and each page bears my signatures, at the end. ATUL Digitally signed by ATUL KRISHNA KRISHNA AGRAWAL Date: 2024.12.10 AGRAWAL 13:27:41 +0530 (Atul Krishna Agrawal) Special Judge, CBI-19 (PC Act) RADC/New Delhi/10.12.2024 CBI Vs. Diganta Gogoi Atul Krishna Agrawal RC-DAI-2019-A-0005 Spl.Judge, CBI-19, RADC Date of Decision: 10.12.2024 Page No. 81 of 81