Delhi District Court
In Re vs I.K.Takkar on 8 August, 2011
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03,CBI
NEW DELHI,DISTRICT, NEW DELHI
CC No.07/2011
RC No.35 (A)/2006/CBI/ACB/ND
In re:
STATE (CBI)
VS
I.K.Takkar
S/o late Shri Nand Lal
r/o House No. 316, Village Tihar,
New Delhi110018
Date on which charge sheet was filed - 27.06.2007
Date on which charges were framed 24.03.2008
Date on which judgment was reserved03.08.2011
Date on which judgment was pronounced08.08.2011
APPEARANCES:
Mr. A.K.Mishra, Ld.Sr.PP for CBI.
Mr. Harsh Kumar Sharma, Advocate for the accused.
08.08.2011
JUDGMENT
1. Accused I.K.Takkar, Naib Tehsildar in the Office of SDM, Najafgarh, Delhi has been arraigned for trial by the State (CBI) for demanding and accepting a bribe of Rs.10,000/ from Gurmeet Singh Kapoor, s/o Shri Surjit Singh Kapoor on 22.08.2006 for releasing the compensation amount of Rs.2,85,833/ to him for State (CBI v. I. K. Takkar Page No.1/27 2 being the legal heir of his grand father late Inder Singh Kapoor and uncle late Paramjeet Singh Kapoor, killed in 1984 riots in Delhi.
FACTS
2. The case of the State (CBI) is that a written complaint Ex.PW4/A was filed on 23.08.2006 by Gurmeet Singh Kapoor s/o Shri Surjit Singh Kapoor (PW4) alleging that his grand father late Shri Inder Singh Kapoor and unmarried uncle late Shri Paramjeet Singh Kapoor were killed in 1984 riots on 01.11.1984; that a compensation of Rs.3,50,000/ was sanctioned for each deceased by the Govt. of NCT of Delhi, totalling Rs.7,00,000/, out of which he was entitled to 1/3rd share amounting Rs.2,33,333/ besides entitled to 1/3rd share out of compensation amount Rs.1,57,500/ i.e. Rs.52,500/ for the property damaged/burnt during the riots; that the compensation Rs.2,85,833/ had been sanctioned by the Govt. of NCT, Delhi and in regard to which he had already deposited requisite documents i.e. proof of identity, proof of address, indemnity bond etc. with the Office of Tehsildar, Palam Zone at Office of SDM, Najafgarh, Delhi on 12.06.2006. The complainant alleged that the issue of disbursement was pending with Shri I.K.Takkar, Naib Tehsildar and when he met him in his office on 22.082006, I.K.Takkar demanded a bribe of Rs.10,000/ for releasing the compensation amount.
State (CBI v. I. K. Takkar Page No.2/27 3
3. It is the case of the State (CBI) that the present RC Ex.PW4/F was registered and a trap team consisting of TLO Inspector Shyam Parkash (PW7) , Inspector Praveen Ahlawat, SI Zaheer Akhtar with supporting staff was constituted besides two independent witnesses namely Kapoor Singh (PW5),LDC in the Directorate of Enforcement and Shri Ram Singh (PW9) Vigilance Assistant in IOCL, Northern Region, Yusuf Sarai, New Delhi.
4. The case of the State (CBI) is that during the pre trap proceedings, the independent witnesses were apprised about the written complaint; that the amount of Rs10,000/ in the indian currency denomination of Rs.500/ each was made available by the complainant; that pretrap demonstration was given to the witnesses about the handling of the tainted money which were treated with Phenolphthalein Powder and thereafter PW9 Sri Ram Singh an independent witness was made to touch the powdered treated GC notes and thereafter his hands were washed in colourless solution of Sodium Carbonate, which turned pink; that the demonstration was given about the handling of digital recorder and the complainant was instructed to keep the tainted amount in his upper left side shirt pocket and hand over the same to the suspect/accused on his demand; that two sealed blank audio cassettes of make SONY Premium EF 60 were procured and played on a digital recorder which were found blank State (CBI v. I. K. Takkar Page No.3/27 4 and thereafter the formal voices of both the independent witnesses were recorded on the same; that the numbers of currency notes were recorded in the handing over memo Ex.PW4/B signed by all the witnesses; that the trap team alongwith complainant and independent witnesses left the office of CBI and reached the office of SDM, Najafgarh, Delhi at about 1.00 PM ; that the vehicles were parked at a safer distance; that the complainant was handed over the digital recorder and PW5 Kapoor Singh was directed to accompany him as a shadow witness and try to over hear the conversation between the complainant and the accused in regard to the bribe.
5. The saga further goes that the complainant alongwith shadow witness entered in the room of accused shown in the site plan Ex. PW 4/D; that the conversation took place between the complainant and the accused in regard to the bribe amount and on demand accused was paid the tainted money of Rs.10,000/ by complainant ; that the accused was seen counting the money with both hands and kept it in his left side shirt pocket and the accused hurriedly moved towards the toilet in the Compound. In the meanwhile agreed signal was given and as soon as accused came out of the toilet, he was apprehended by the trap team; that his left and right hand were caught hold by Inspector Shyam Parkash and Inspector Parveen Ahlawat and a blue coloured handkerchief State (CBI v. I. K. Takkar Page No.4/27 5 which accused was holding in his right hand was taken from him ; that on being challenged about the demanding and accepting a bribe amount of Rs.10,000/ the accused stated that the same has been put forcibly in the left side shirt pocket by the complainant; that the issue of demand and acceptance of bribe amount was corroborated by the shadow witness; that the tainted money was counted and its numbers were tallied with the handing over memo and the seizure memo Ex. PW4/E was prepared; that wash of both the hands of accused besides that of inner lining of pocket of shirt being worn by the accused as well as handkerchief were taken and the same turned into pink colour and such solution transferred into clean bottles and capped, tied with clothes and sealed with the seal of CBI.; that the digital recorder was played which also confirmed the demand and acceptance of Rs.10,000/ by the accused; that the case property was sealed and seized vide seizure cum arrest memo Ex.PW4/E and the accused was arrested. Suffice to state that on completion of investigation, present charge sheet was filed against the accused. CHARGE
6. Needless to state that the accused was charged for having demanded a sum of Rs.10,000/ as illegal gratification from the complainant to release him the compensation amount and thereby committing an offence under Section Section 7 of State (CBI v. I. K. Takkar Page No.5/27 6 Prevention of Corruption Act (for short PC Act) and also charged for abusing his position and obtaining pecuniary advantage to the extent of Rs.10,000/ and thereby committing an offence under Section 13 (1) (d) of the PC Act, 1988 r/w Section 13 (2) PC Act, 1988. The accused pleaded not guilty to the charges and claimed trial.
PROSECUTION EVIDENCE
7. The prosecution in order to prove its case examined the following witnesses.
8. At the cost of repetition the complainant was examined as PW4, the shadow witness Kapoor Singh as PW5 and another independent witness Ram Singh as PW8 who supported the prosecution case. I shall dwell on their testimony in the reasoning part of this judgment.
9. So far as the expert witnesses are concerned, PW1 Dr. Rajinder Singh, Principal scientific Officer, CFSL conducted the voice identification of the audio cassette Ex.P3 which contained the conversation between the complainant and the accused recorded at the time of incident with the specimen voice of accused Ex.P7 and proved his report Ex.PW1/A to the effect that the voice in in the cassette Ex.P3 (Questioned document Q1 (A)) was the probable voice of I.K.Takkar whose specimen voice was marked as S1 (A) also Ex.P7.
State (CBI v. I. K. Takkar Page No.6/27 7
10. PW2 V.B.Ramteke was Senior Scientific Officer, Grade II, Chemistry in CFSL. He deposed conducting the chemical analysis of four bottles mark RHW, LHW, LSSPW and HW Ex.P13 to Ex.P16 and proved his report Ex.PW2/A regarding the positive test for the presence of Phenolphthalein Powder.
11. The State (CBI) also examined PW3 Surender Singh, Tehsildar, Palam in the Office of SDM, Najafgarh, New Delhi in regard to seizure of several documents concerning the claim of compensation of the complainant which are marked Ex.PW3/A to Ex.PW3/F..
12. PW6 Rajiv Kale, Director, Women and Child Development, Govt. of NCT of Delhi, who accorded the sanction for prosecution under Section 19 of the PC Act against the accused.
13. PW7 was inspector Shyam Parkash who was the Trap Laying Officer and PW9 was Inspector R.C.Sharma, who was handed over the case for investigation after transfer of Inspector Umesh Vashist and prepared the voice identificationcum transcription memo Ex.PW4/G and transcription Ex.PW4/H. He also seized several documents from PW3 vide seizure memo Ex.PW3/A, Ex.PW3/C and Ex.PW3/E and deposed about recording statement of witnesses and filing the charge sheet after completion of investigation.
State (CBI v. I. K. Takkar Page No.7/27 8 STATEMENT OF THE ACCUSED & DEFENCE EVIDENCE
14. On the close of the prosecution evidence all the incriminating facts and circumstances were put to the accused who denied the case of the prosecution and refuted that he accepted any bribe from the complainant. He disputed the correctness of the expert evidence and the authenticity of the tape recorded conversation and submitted that the complainant was having a grudge against him as he was not entertaining his request for releasing the claim only to him and not to his other relatives like aunty and tau and stated that CBI were interested in success of their case and he claimed innocence submitting that he has been falsely implicated in this case.
15. In his defence, the accused examined four witnesses. DW1 was HC K.Mam Chand from the office of CBI, ACB, CGO Complex, who produced the malkhana register of trap cases for the period 2005 to 2008 and proved the entry of this case RC No.35 (A)/2006 dated 23.08.2006 Ex.DW1/A. It does not support any thing in defence of this case.
16. DW2 was P.S.Jacob, Assistant, Central Vigilance Commission, INA. He produced the attested copy of Circular No. 000/VGL/154 dated 15.12.2005 Ex.PW2/A issued by the Central Vigilance Commission interalia containing a directive to take action against govt. officials who intentionally depose against the State (CBI v. I. K. Takkar Page No.8/27 9 CBI in trap cases. This is produced in order to show intimidation on the part of CBI in tutoring witnesses to their end.
17. DW3 was HC Satdev Singh who produced the Roznamcha Register, Log Book of Vehicle No. DL 3 CJ 4298 used by Inspector Shyam Parkash, Visitor Register of Block No.4 of CBI for the period 22.08.2006 to 23.08.2006 concerning this case.
18. DW4 was HV Farkya as Chief Vigilance Manager, Indian Oil Corporation who deposed about the requisition of services of Shri Ram Singh on 22.08.2006 vide documents Ex. DW4/A1to DW4/A4; and DW5 was Surender Singh , Assistant Director (Estt.) Directorate of Enforcement, Lok Nayak Bhawan. He produced the attendance record in regard to Kapoor Singh for various dates one of which is 22.08.2006 which are marked Ex.DW5/A1 to Ex.DW5/A4.
19. I have heard Ld.Sr.PP for the State (CBI) and Ld.Defence Counsel for the accused. I have perused the record carefully and minutely.
SANCTION FOR PROSECUTION
20. At the outset, the plea taken by Ld. Defence counsel that sanction for prosecution has not been granted by the Competent Authority since PW6 was not the Appointing Authority of the accused cannot be sustained. Undoubtedly the accused while deputed as Naib Tehsildar was a Public Servant and employed in State (CBI v. I. K. Takkar Page No.9/27 10 connection with affairs of the State Government i.e Government of NCT of Delhi within the meaning of Section 19 (1) (b) of the PC Act and PW6 categorically deposed that he being the Dy. Commissioner, District South West during the relevant time was not only the Disciplinary Authority but also the Authority competent to remove the accused from the services. Further, the plea that the Sanction for Prosecution has been granted without application of mind is also not tenable. Ld. Counsel has relied on decision in Mansukh Lal Bithal Chauhan v. State of Gujrat, 1997, 7 SSC 622; Ram Krishan v. State of UP 2000 (10) SSC 43 and plethora of case law. The case law relied upon deduce the proposition of law to the effect that the Grant for Sanction for the Prosecution is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act and provides protection to the Government Servant against frivolous prosecution. In other words, it is a weapon to guard against frivolous and vexatious prosecution but at the same time not a shield for the wrong doer. The order of Sanction must disclose that the Sanctioning Authority has considered the evidence and material collected during the investigation. It is merely an administrative decision which must be based on sound reasoning showing application of mind.
21. In the instant case a meaningful perusal of the Sanction State (CBI v. I. K. Takkar Page No.10/27 11 Order Ex.PW 6/A would amply demonstrates that the Sanctioning Authority considered the nature of duties assigned to the delinquent / accused which interalia included disbursement of compensation to the victims of 1984 riots; that the accused was caught red handed while demanding and accepted illegal gratification of Rs.10,000/ from the complainant and it considered the fact that the hand wash of the accused at the spot with solution of sodium carbonate turned into pink and thereby ruled out the possibility of their being any vexatious or frivolous complaint against the accused and finding him prima facie wrong doer indulging in corrupt activities. Mere fact that the amount of compensation that was supposed to have been disbursed was not indicated in the order is hardly of any significance. Nothing has been shown that the Grant of Sanction has resulted in miscarriage or failure of justice to the accused.
NATURE OF DUTIES OF THE ACCUSED
22. At the cost of repetition, the accused was posted as Naib Tehsildar in the office of SDM, South West District Najafgarh, Delhi. Perusal of documents Ex.PW 3/B (166) visavis the cross examination of PW4 Gurmeet Singh Kapoor would bring out that a claim of compensation had been sanctioned in favour of the complainant Gurmeet Singh Kapoor, his aunt Satnam Kaur and uncle Baljinder singh Kapoor to the extent of 1/3rd each. The claim State (CBI v. I. K. Takkar Page No.11/27 12 was in respect of death of Inder Singh Kapoor and Paramjeet grand father and unmarried uncle respectively of complainant Gurmeet Singh Kapoor who were as killed in Delhi riots 1984. It is also in evidence that initially claim of Rs.10,000/ plus Rs.7500/ had been sanctioned and given to Smt. Balvinder Kaur grant mother of the complainant who expired on 30.01.2003 and later pursuant to the recommendations of the Nanawati Commission inquiring into the various aspects of Sikh Riots in Delhi, the compensation was enhanced by the Government of India as a rehabilitation package vide Notification dt.16.01.2006 to the extent of exgratia amount of Rs.3.5 lakhs in case death of an individual besides exgratia payment @ 10 times over the original amount for damage of residential premises after deducting the amount already paid. The said notification forms part of judicial record Ex.PW 3/D at page 35. The combined perusal of the documents Ex.PW 3/B and Ex.PW 3/D would invite no doubt that a claim had been preferred by the complainant and other legal heirs seeking compensation and PW4 was entitled to total compensation of Rs.2,33,333/ towards death of his grand father and uncle besides Rs.52,500/ towards damage to the residential properties and the other two legal heirs were also equally entitled to the said amount (vide PW3/B64). It is uncontroverted evidence of PW3 Surender Singh, Tehsildar that accused I. K. State (CBI v. I. K. Takkar Page No.12/27 13 Takkar was dealing with the claim of disbursement of compensation of exgratia payment to the complainant. The plea by the defence that no compensation was actually payable to the complainant can not be accepted.
DEMAND AND ACCEPTANCE OF BRIBE
23. Ld. Defence counsel has relied upon plethora of case law to canvass the points that no demand was made by the accused for bribe and that the money was thrusted upon him in his pocket by the complainant and he has vehemently urged that PW5 Kapoor Singh and PW9 Sri Ram Singh have given contradictory version about how and where the money was paid . Besides challenging the authenticity of the audio tapes Ex.P3 visavis the transcript Ex.PW 4/H, it is urged that in absence of any cogent corroboration of the version of the complainant, which itself suffers form several infirmities and contradictions, the prosecution miserly fails to bring home the guilt of the accused beyond reasonable doubt. Reference is made to decisions in Panna Lal Damodar Rathi v. Sate of Maharashtra 1980 SCC (Crl.) 121; (3 Judges Judgement); Ayyasami v. State of Tamilnadu, 1992 Crl. L. J. SC 608; Chanderbhan v. State (CBI) 73 (1998) DLT 318; Subhash Prabhat Sonvane v. State of Gujrat AIR 2003 SC 2169; Karnail Singh v. State of PB (2009) 3 C.C. Cases (HC) 145 (P&H); State of Maharashtra v. D. L. Rao Wankhede 2009 (4) RCR (Crl) 217 SC; State (CBI v. I. K. Takkar Page No.13/27 14 A. Subair v. State of Kerala 2009 (VII) AD (SC) 117; V. Kannan v. State 2009 (IX) AD (SC) 293; Banarsi Dass v. State of Haryana 2010 (3) JCC 1842 (SC); Rajinder Singh v. State of PB 2010 (1) CC Cases (HC) 60 (P&H); Harbans Singh v. State of PB 2010 (2) C. C. Cases (HC) 287 (P&H); Ashok Kumar v. State of Haryana 2011 (1) C. C. Cases (HC) (P&H) 281.
24. The legal position which emerges regarding appreciation of evidence in a trap case can be summarized as under :
(i) To succeed in such a case, the prosecution is obliged to prove the previous demand of bribe, its acceptance and the recovery of tainted money;
(ii) The demand can be proved by the testimony of the complainant as well from the complaint made by him if proved in accordance with law;
(iii) A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption of course is rebuttable;
(iv) However, if the explanation given by the accused about the recovery of such money is false, it may be taken as an adverse circumstance against the accused;
(v) If the accused gives some defence that can be scrutinized by the test of preponderance of probability while the prosecution must prove its case beyond reasonable doubt; and
(vi) However if the explanation given is false it may be used adversely against the accused and may strengthen the presumption under Section 20 of the Act.
25. Per contra ld. Senior PP referred to the observation of their lordships in the case of Ramesh. v. State of UP (2010) 2 SCC 3 671 to the effect "that contradictions, inconsistencies, exaggerations or embellishments are bound to occur in the State (CBI v. I. K. Takkar Page No.14/27 15 testimonies of witnesses due to various natural factors and the court has to consider the issue from the truthful account of the incident given by the witnesses."
26. I have meticulously gone through the case law cited by Ld. Defence Counsel for the accused. May I hasten to point out that the any proposition of law laid down by the superior courts can not be read divorced from the context or the facts and circumstances in consideration in such cases. It must be emphasized that the prosecution in order to bring home the charge u/s 7 of PC Act is required to prove that the accused either accepted , obtained or attempted to attain illegal gratification from the complainant; and in order to establish the guilt of the accused u/s 13(2) r/w section 13 (1) (d) of PC Act, the prosecution is required to establish that the accused by corrupt or illegal means or by abusing his official position, obtained advantage or a valuable for himself or any other person. In the case of Krishna Ram. Vs,. State of Rajasthan, (2010) 1 SCC (Cri) 147 and (2009) 11 SCC 708, it was held that every acceptance of illegal gratification, whether preceded by a demand or not, would be covered by Section 7 of the Act. But, if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13 (1)(d) of the PC Act.
State (CBI v. I. K. Takkar Page No.15/27 16
27. In order to decide the instant case, it would be expedient to dwell on the evidence of PW4. The complainant lodged written complaint Ex.PW 4/A with the CBI on 23.08.2006. Bare reading of this complaint would show that the complainant alleged that when he met accused I. K. Takkar Naib Tehsildar on 22.08.2006 he demanded Rs.10,000/ for releasing the compensation amount of Rs.2,85,833/. The plea by Ld. Defence counsel that PW4 has not deposed about the alleged demand for bribe made by the accused on 22.08.2006 therefore does not cut much ice. PW4 categorically deposed about the requisition of witnesses Kapoor Singh and Ram Singh by the CBI official and about the pretrap proceedings which were conducted as per holding out memo Ex.PW 4/B. It is also in his evidence that he was given a digital tape recorder by the CBI team and when they reached the spot PW5 accompanied him as a shadow witness. He further deposed that when they went to the room of accused, he wasn't there and instead found him sitting in the office of his senior i.e Tehsildar where he was talking to some other person; that as as soon as the room was empty they started talking to accused who inquired about his case and took him out of the room and demanded Rs.20,000/. PW4 testified that he expressed his inability to pay the same and told him that he had brought only Rs.10,000/.
28. Gurmeet Singh Kapoor PW 4 then deposed that accused State (CBI v. I. K. Takkar Page No.16/27 17 told him to pay Rs.10,000/ that very moment and pay the balance of Rs.10,000/ at a later time. He categorically deposed that money was handed over to the accused, who counted the tained currency notes with both hands and put the same in the front left side pocket of his shirt and went towards the bath room and in the meanwhile agreed signal was given to the CBI team and as soon as the accused came out of bath room/toilet, he was apprehended.
29. PW5 Kapoor Singh, the shadow witness, corroborated the version of Gurmeet Singh Kapoor PW4 as regards the pre trap proceedings and deposed that they reached the office of accused where the complainant and the accused exchanged some pleasantries in Punjabi and he could not understand much since did n't understand Punjabi. He testified that as he tried to get up, accused asked him to keep sitting but he followed them and stood in the verandah; that the accused and complainant went inside the bath room and came out after sometime and on the signal given by the complainant to him, he gave a signal to the CBI team, which apprehended the accused.
30. PW8 Sri Ram Singh the other independent witness also corroborated the pretrap proceedings and in regard to the main incident deposed that he saw the complainant Gurmeet Singh Kapoor and Kapoor Singh PW5 entering into a room and after State (CBI v. I. K. Takkar Page No.17/27 18 sometime they came out of the room and entered into another room; that then after sometime,the complainant came out with one person out of that room and he saw both of them talking to each other and after sometime complainant took out the tainted GC notes and handed over to the accused, who accepted the bribe amount with his right hand and kept the same in the front left side pocket of the short. He further testified that thereafter the complainant and accused proceeded towards the room, from which they had come out but accused turned back from the door of the room while the complainant Gurmeet Singh Kapoor entered the room and accused proceeded towards the toilet and when he came out of toilet he was apprehended. All the three witnesses i.e. complainant Gurmeet Singh Kapoor PW4, Kapoor Singh PW5 and Sri Ram PW8 testified in unison that the accused was apprehended when he came out of bath room/toilet cleaning his wet hands with a handkerchief.
31. Much mileage was sought to be taken by ld. Defence counsel harping on the contradiction in the evidence of PW5 Kapoor Singh with that of PW4 Gurmeet Singh Kapoor to the effect that both complainant Gurmeet Singh Kapoor and accused went inside the bath room/toilet. To me, it appears that PW5 Kapoor Singh probably assumed that the complainant and accused went inside the bathroom when they went out of the State (CBI v. I. K. Takkar Page No.18/27 19 room and acted rather over smartly deposing in favour of the prosecution but this blemish apart there is nothing to discard his testimony. Evidence of PW8 Sri Ram Singh and PW5 Kapoor Singh and PW7 Inspector Shyam Parkash is very categorical that the tainted money was handed over ot the accused outside the room which was counted by him. What is discernible from the evidence of PW4 complainant, PW5 Kapoor Singh and PW8 Sri Ram Singh besides PW7 Inspector Shyam Parkash is that as soon as the accused came out of the toilet, he was apprehended and the tainted money was found in the left side shirt pocket and on being confronted by the CBI team, accused stated that the complainant had thrusted the money into his pocket and such proceedings were reflected in the seizure cum arrest memo Ex. PW4/E
32. The conduct of the accused which becomes relevant under Section 8 of the Indian Evidence Act is that when money was so thrusted upon him, assuming his version to be true for the sake of convenience, he did not protest nor made any hue and cry or threw it away and instead coolly went into the toilet/wash room. At this stage, the site plan Ex.PW4/D assumes significance which shows that there was a toilet immediately abutting the room of the accused and the access to the toilet was from the open verandah. The correctness of the site plan has not been disputed State (CBI v. I. K. Takkar Page No.19/27 20 by the defence and it shows point D where Inspector Shyam Parkash PW7 and at point E where PW8 Sri Ram Singh were standing who could have a clear view of what was happening outside the room of the accused.
33. The oral testimony of PW4 Gurmeet Singh Kapoor read vis àvis transcript Ex.PW4/H recorded at the time of transaction also supports the prosecution theory. Ld. Defence counsel took me through the entire transcript Ex.PW4/H and sought to urge that it could not be that the accused was talking about the bribe in front of so many persons. Well, that is not the case and the transcript visàvis audio tape Ex.P3 (that was played in the court during the course of final arguments) would show that initially some persons were sitting in the office of the accused and it is only when they left that the discussion about the transaction started. The plea that accused was rather astonished to see the complainant and asked him "kaise aaye" does not cut much ice since more often than not it is the starting point of any discussion. The transcript in the case proves that accused discussed the case of the complainant telling him that he would get processed one of the case of Rs.3.50,000/ in regard to his 1/3rd share and on being asked by the complainant to expedite the issue, the accused replied "SEWA PAANI CHAI PAANI AA JAYEGI TO JALDI HO JAYEGA". On being further pressed, the accused replied "USKE State (CBI v. I. K. Takkar Page No.20/27 21 LIYE TO PAHLE KUCH DO" . On being asked by the complainant how much, the accused replied "DUS USKE DUS USKE". It appears that on some point of time both got up and came out of the room, the accused telling PW5 to remain seated and the inference that could be raised is that accused demanded Rs. 10,000/ towards the two claims of Rs.3.50,000/ totaling Rs. 7,00,000/ and in the verandah the tainted money of Rs.10,000/ was handed over to the accused. It is pertinent to mention here that while playing the tape recorded conversation, the sound of the counting of notes is distinctly audible besides the complainant reassuring the accused that it was ten thousand. Further, the plea that the accused was in no position to help the complainant as there was no budget for release of compensation hardly dents the prosecution case as the accused assured that complainant that disbursement would be done as soon as the sanctioned budget comes about in about 1015 days time from the date of incident.
34. The above said discussion goes to show that the accused had demanded bribe of Rs.10,000/ each in regard to the two claims of Rs.3.5 lakhs ; that the tainted money was paid to him outside his room Mark X2 in the site plan Ex.PW4/D ; that the tainted money was found in the possession of the accused as soon as he came out of toilet. It is also in evidence that the hand State (CBI v. I. K. Takkar Page No.21/27 22 wash of the accused was taken by applying solution of Sodium Carbonate, which turned pink and transferred into two bottles marked LHW and RHW Ex.P9 and Ex.P10 respectively. Further the inner lining of the shirt was applied with the solution of Sodium Carbonate, which turned pink and the solution was transferred into a clean glass bottle marked as LSSPW Ex.P11 . The handkerchief was also applied with the solution of Sodium Carbonate and it turned pink which was transferred into a clean glass bottle and marked as HW Ex.P12. The report PW2/A that the liquid in the bottles had traces or presence of phenolphthalein is unassailable.
35. Further mileage was sought to be taken from the fact that both the witnesses were stock witnesses but that alone does not warrant their entire evidence getting discarded since their version was quite cogent, coherent and the evidence had a ring of truth around it; and in view of the tape recorded conversation, can not be brushed aside. All said and done, there was no motive for PW4 to falsely implicate the accused as his 1/3 claim was legally payable otherwise.
EVIDENCE ON TAPE RECORDING
36. Shri HK Sharma, ld. Counsel for the accused vehemently assailed the tape recorded conversation vide cassette Ex.P3 arguing that the same was tampered with and was not genuine. State (CBI v. I. K. Takkar Page No.22/27 23 Ld. Defence counsel argued that as per the prosecution case, the transcript in regard to the alleged bribery transaction on 23.08.2006 Ex.PW4/H was prepared on 22.01.2007 and if that was so, how is that when the forwarding letter for conducting audio analysis was sent alongwith the specimen voice on 05.09.2006 received in the office of CFSL on 07.09.2006 that the transcript Ex.PW1/A could be prepared on 22.01.2007. Well, the answer is that the recorded conversation was transferred on two cassettes by PW9 as corroborated by the T.L.O and other witnesses.
37. I do not find any merit in this submission as there is nothing in the evidence of PW2 Dr. Rajinder Singh that he was supplied with the copy of the transcript and it appears that expert conducted the auditory and spectrograph test confined himself to the two exhibits i.e. questioned document Ex.P3 audio cassette regarding conversation between the complainant and accused and the specimen cassette Ex.P7 containing the specimen voice of the accused that were sealed properly and nothing wrong was found with it.
38. Shri Sharma relied on decision in Nilesh Dinkar Paradkar v. State of Maharashtra, 2011 VII AD (SC) 10 to canvass the point that the transcript Ex.PW4/H should not have been prepared by the IO or any other CBI official. I donot see any prejudice caused to the accused. In the cited case, the earlier decision by the Apex State (CBI v. I. K. Takkar Page No.23/27 24 Court in Ram Singh & Ors. v. Col. Ram Singh, 1985 (Supp) SCC 611 was cited with approval where the conditions necessary for admissibility for tape recorded statements were laid down as under :
(i) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(ii) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence
- direct or circumstantial.
(iii) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(iv) The statement must be relevant according to the rules of Evidence Act.
(v) The recorded cassette must be carefully sealed and kept in safe or official custody.
(vi) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
39. Coming to the instant case, PW4 identified his voice and that of the accused in the tape recorded conversation. The audio tape State (CBI v. I. K. Takkar Page No.24/27 25 that was played in the court did not suffer from any sound or audio quality or technical infirmities or substantial distortion. As a matter of fact, the accused has not denied his voice in the tape recorded conversation. In the instant case, all the necessary formalities were duly observed and the witnesses categorically stated that the conversation was transferred from the digital recorder on two cassettes, one was sealed in their presence and signatures of the witnesses were found intact on the inlay card during the recording of the evidence. The conversation heard as whole rules out any challenge to its authenticity or editing so as to prejudice the accused.
PRESUMPTION UNDER SECTION 20 OF THE P.C.ACT
40. It is well settled that Where it is proved that a gratification has been accepted, the presumption under S. 20 of the PC Act shall at once arise. It is a presumption of law and it is obligatory on the Court to raise it in every case brought under Sec. 7. The words "unless the contrary is proved" mean that the presumption raised by S.20 has to be rebutted by proof and not by bare explanation which may be merely plausible. The required proof need not be such as is expected for sustaining a criminal conviction; it need only establish a high degree of probability. Much was argued by ld. Defence counsel that mere recoveries of tainted money divorced from the circumstances under which it was paid, is not sufficient to convict the accused but it ignores that such could be an inference State (CBI v. I. K. Takkar Page No.25/27 26 when the substantive evidence is not reliable. The State of Kerala. v. C. P. Rao in Crl.Appeal no.1098/06 dated 16.05.2011, Mahesh Pd. Gupta . v. State of Rajasthan, (1974) 3 SCC 591 and T. Subramaniam v. State of Tamil Nadu , AIR 2006 SC 836 are clearly distinguishable because that was a case where substantive evidence was not found reliable. Such is not the case in the instant matter before us. It may be that the shadow witness was not able to see the handing over of the money by the complainant to the accused, at the cost of repetition the same was seen by PW7 Inspector Shyam Parkash and PW8 Sri Ram Singh. The accused has not been able to advance any probable or reasonable explanation besides stating that it was thrusted upon him which appears to be a lame defence and does not convince this Court. The clear and distinct sound in the tape recorded conversation about the counting of the tainted currency notes belies the theory that the money was thrusted upon the accused and fortifies the prosecution case that the accuse had taken the bribe.
FINAL VERDICT
41. I, therefore, conclude that the State (CBI) has been able to prove beyond reasonable doubt a case under Section 7 and 13 (2) r/w 13 (1)(d) of PC Act 1988 against the accused I.K.Takkar for demand and accepting an illegal gratification other than legal State (CBI v. I. K. Takkar Page No.26/27 27 remuneration of Rs.10,000/by abusing his position as such a public servant from the complainant Gurmeet Singh Kapoor.
42. In the said view of the matter, the accused I.K.Takkar is convicted under Section 7 and 13 (2) r/w 13 (1)(d) of the PC Act, 1988.
43. Let the accused be heard on the point of sentence on 10.08.2011 after lunch.
ANNOUNCED IN THE OPEN COURT TODAY: 08.08.2011.
(DHARMESH SHARMA) SPECIAL JUDGE 03 CBI NEW DELHI DISTRICT PHC/NEW DELHI.
State (CBI v. I. K. Takkar Page No.27/27 28 CC No. 07/2011 State v. I. K. Takkar 08.08.2011 Present : Mr. A.K.Mishra, Ld.Sr.PP for CBI.
Mr. Harsh Kumar Sharma, Advocate for the accused. Vide separate judgment of even date, the accused I. K. Takkar is convicted under Section 7 and 13 (2) r/w 13 (1)(d) of the PC Act, 1988.
Let the accused be heard on the point of sentence on 10.08.2011 after lunch.
(DHARMESH SHARMA) SPECIAL JUDGE 03 CBI NEW DELHI DISTRICT PHC/NEW DELHI.
State (CBI v. I. K. Takkar Page No.28/27