Cbi vs . Rajinder Singh Tomar & Anr. on 10 April, 2023

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Delhi District Court

Cbi vs . Rajinder Singh Tomar & Anr. on 10 April, 2023

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IN THE COURT OF MS. NAMRITA AGGARWAL : SPECIAL JUDGE
    (PC ACT) CBI21 : ROUSE AVENUE COURT : NEW DELHI.

                                     CBI Vs. Rajinder Singh Tomar & Anr.
                                                         CBI No. 233/2019
                                                 RC No. DAI-2015-A-0018
                                          CNR No. DLCT110009092019

IN THE MATTER OF :

CBI
                                     ............................... Prosecution

VERSUS

1. Rajinder Singh Tomar @ R.S. Tomar.
S/o Late Sh. Prem Singh Tomar
R/o H.No. 46 C, PocketB, Mayur Vihar,
PhaseII. Delhi91.

2. Aditya Kumar Rajvanshi.
S/o Late Sh. J.P. Rajvanshi
R/o H.No. 64 A, Sector22, Noida, U.P.

                                     ..................... Accused.


CBI No.                               :     233/2019
CNR No.                               :     DLCT110009092019
Date of institution                   :     28.09.2016
Date of transfer of case to this court:     18.04.2019
Date of conclusion of arguments :           22.03.2023
Date of judgment                      :     10.04.2023


CBI No. 233/2019                                              (Namrita Aggarwal)
                                                   Spl. Judge (PC Act) CBI21/10.04.2023
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JUDGMENT

1. Greed signifies a state of insatiability associated with striving to obtain more. As opposed to mere accumulation, greed may be characterized by hazarding potentially negative consequences that result from one's own actions. This may consequently take the shape of corruption. We are living in the consequences of unfettered greed, as a whole society is built upon it. In 'Swatantar Singh Vs State of Haryana, (1997) 4 SCC 14' it has been held that :

"Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politic, social fabric of efficiency in public service and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corruption would gather thick and unchaseable clouds around the conduct of the officer and gained notoriety much faster than the smoke. "

The present case is a classic example where a public servant driven by greed exploited his public duty and responsibility towards the public in return of personal material gain, forgetting that this deadly trait can lead him into a pool of troubles and legal tangles.

CBI No. 233/2019                                                    (Namrita Aggarwal)
                                                         Spl. Judge (PC Act) CBI21/10.04.2023
                                             -3-



BRIEF FACTS

2. A written complaint was received by CBI Anti Corruption Branch on 10.07.2015 from complainant Sh. Munna Lal Gupta alleging that Rajender Singh Tomar (A1), the then Registrar of Firms & Societies, Udyog Bhawan, Patparganj, Delhi had demanded Rs. 1 crore as 'illegal gratification' from him to certify the Executive Committee of 'Green Estates & HRE Plot Holders Association' situated at X1/17, Budh Vihar, PhaseI, New Delhi which was a Registered Society registered vide registration no. 3506 in the year 1967 with Registrar of Firms & Societies, New Delhi and also for clearing the position of the complainant as President of the said Society.

Verification Proceedings

3. On the basis of the said complaint, verification proceedings were conducted by SI Raman Kumar Shukla who arranged an independent witness Sh. Sunil Kumar, a Pharmacist with Directorate of Health Services, Shahdara, Delhi to witness the entire verification proceedings as a shadow witness. SI Shukla also arranged a Digital Voice Recorder (DVR) with a blank memory card inserted therein in which introductory voice of Sh. Sunil Kumar was recorded. Thereafter, on 10.07.2015 itself, the complainant alongwith independent witness Sh. Sunil Kumar and SI Raman Shukla reached the office of Registrar of Firm & Societies, Udyog Bhawan, Patparganj at about 4:15 p.m wherein the DVR in switched on mode was handed over to the CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -4- complainant and the independent witness was asked to accompany the complainant to overhear the conversation between the complainant and accused R.S. Tomar (A1).

4. It is stated that the complainant alongwith Sh. Sunil Kumar went inside the office of A1 wherein the complainant told A1 that he could arrange only Rs. 50 lakhs as illegal gratification. A1 on hearing this, got cautious and suspicious and stated that he did not want any money. He also directed the complainant Sh. Munna Lal Gupta to talk to his subordinate Sh. Aditya Kumar Rajvanshi (A2).

5. The complainant alongwith independent witness Sh. Sunil Kumar met A2 outside the cabin of A1 and requested A2 to get the alleged bribe amount reduced from A1. A2 after meeting A1 in his chamber came out and demanded Rs. 80 lakhs as illegal gratification from the complainant by writing the words '80' on a piece of paper and showing the same to the complainant. A2 then tore off the said piece of paper and gave time of 12 weeks to the complainant to arrange the alleged bribe amount.

6. Continuing the verification proceedings, the complainant along with independent witness Sh. Sunil Kumar again went to the office of A1 on 14.07.2015. The DVR in switched on mode was again handed over to the complainant and the independent witness was asked by the verification officer CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -5- to remain at a safe distance from the complainant to avoid any suspicion. The complainant then went to A2 Aditya Kumar Rajvanshi who informed him that he will have to talk to A1 R.S. Tomar himself regarding illegal gratification. The complainant then went inside the cabin of R.S. Tomar and inquired about his work. A1 demanded money through gestures from the complainant and informed him that he would finish the work of the complainant on Sunday and would call the complainant on his mobile phone on Monday. The DVR as well as the memory card containing the said conversation was then seized.

Trap proceedings

7. The case of the prosecution is that on 16.07.2015 A1 R.S. Tomar called the complainant from his mobile no. 8527589463 on the mobile phone of the complainant 9958370381 and asked him to meet him at Neelam Mata Mandir, Mayur Vihar, PhaseII, Delhi at 9:30 a.m on 17.07.2015 with Rs. 10 lakhs as part payment of the illegal gratification. However, being cautious A1 used the word 'potato' instead of money or rupees. The complainant informed CBI about the same on the basis of which FIR bearing no. RC18(A)/2015 was registered on 16.07.2015.

8. The complainant was called to CBI office on 17.07.2015 along with the alleged bribe money and a Trap Team was constituted comprising of two independent witnesses i.e Sh. Sunil Kumar, Pharmacist, Directorate of Health Services, Shahdara, Delhi and Sh. Satbir Singh, Office Clerk, Vikas CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -6- Sadan, DDA, INA, New Delhi. The complainant produced Rs. 94,000/ in the form of currency notes of Rs. 1,000/ each. The number and the denomination of GC notes produced by the complainant were recorded in Handing Over Memo and the said amount was treated with phenolphthalein powder. The amount of Rs. 94,000/ was arranged in 47 wads to give it a shape of Rs. 1 crore by putting plain papers between 2 GC notes of Rs. 1,000/. The first and the last plain paper put between the currency notes were got signed by the independent witnesses. The reaction of phenolphthalein powder when treated with the solution of sodium carbonate and water was explained to the trap team. After treatment of the final GC notes with phenolphthalein powder, the wads were kept in a black brief case. Sh. Sunil Kumar acted as a shadow witness to hear the conversation between the complainant and the accused persons. A new blank memory card was arranged and inserted in the DVR to record the conversation between the complainant and the accused. Complainant also produced one button video camera in which another blank memory card was inserted to videograph the entire trap proceedings.

9. The trap team left CBI office in two vehicles, one of the complainant and other an official vehicle of CBI. After reaching a specified place which was at a safe distance from Neelam Mata Mandir, the complainant was sent alone in his car alongwith the attached DVR and button camera. A 1 was asked by the complainant on his mobile phone to come to the parking area of Neelam Mata Mandir. On reaching there, the complainant went and CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -7- sat beside A1 in his car who asked him to hand over Rs. 10 lakhs as illegal gratification to him saying that he would complete the work of the complainant that day itself. A1 further asked the complainant to pay the remaining bribe amount of Rs. 90 lakhs on Monday when he would hand over all the relevant documents to him and complete his work. The complainant came out of the car of A1 with a while polythene bag given to him by A1 and kept 10 wads of tainted currency notes in it. Thereafter, as per the directions of A1, the white polythene containing the alleged bribe amount was kept in the diggy of the car of A1 by complainant. The complainant Sh. Munna Lal Gupta gave signal to the CBI team by scratching his head with left hand after completing the transaction and again went and sat inside the car of the A1. Immediately, the trap team including independent witnesses approached the car of A1 and challenged him. Complainant narrated the entire incident to the team whereafter the recorded conversation was heard at the spot itself which corroborated with the version as narrated by the complainant.

10. The alleged bribe money was taken out from the diggy of the car of A1 by independent witness Sh. Satbir Singh and it tallied with the number of GC notes as recorded in Handing Over Memo. The said amount was seized. The DVR after removing cells was separately seized. The specimen voice of A1 was recorded in a fresh memory card and all the recovered material alongwith DVR and memory cards were sealed with the seal of CBI CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -8- and signed by independent witnesses. CDR of mobile no. 8750871091 and 9958370381 was recovered by the IO. Specimen voice sample of A2 Aditya Kumar Rajvanshi was also taken in the presence of independent witnesses. Investigation qua the file of Green Estates & HRE Plot Holders Association was conducted and it was found that the same was pending in the office of Registrar of Societies for certifying the governing body of the Society and status of complainant as President of the said Society. It was also found that the said file was pending with A1 who was then competent to decide the matter in his capacity as Registrar of Societies.

11. After culmination of the investigation, chargesheet against accused no. 1 R.S. Tomar and accused no. 2 Aditya Kumar Rajvanshi was filed. Pursuant to the filing of the chargesheet, Ld. Predecessor of this court took cognizance of the offence after perusing the same in light of the supporting documents and summoned the accused accordingly. Compliance of the provisions of Section 207 Cr.P.C was done and the accused were supplied with the copy of the chargesheet and the documents relied upon by the prosecution. Thereafter, charges U/s 120 B IPC read with Section 7 P.C. Act and Section 13 (1) (d) read with Section 13 (2) P.C. Act, 1988 were framed against the accused persons alongwith substantive charges.

PROSECUTION EVIDENCE

12. Prosecution was thereafter called upon to prove their case by CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -9- examining the witnesses listed in the list of witnesses filed alongwith the chargesheet. Availing the said opportunity, the prosecution examined 14 witnesses.

13. The witnesses examined by the prosecution to substantiate their case can be broadly categorized into four categories.

14. The first category of witnesses consists of Material Witnesses relating to the incident i.e

a) PW2 Sh. Munnalal Gupta, the complainant.

b) PW4 Sh. Sunil Kumar, independent witness.

c) PW9 Sh. Kumar Mahesh, the then Incharge Registrar Society.

15. The second category of witnesses are those witnesses who were involved in the investigation of the case at various stages and comprise of :

a) PW3 SI Raman Kumar Shukla

b) PW7 Inspector Shitanshu Sharma

c) PW13 Inspector Jayant Kashmiri

16. The third category of witnesses consists of Official Witnesses who played an important role for smooth investigation of the case. They comprise of :

a) PW5 Sh. Kewal Kumar Sharma, the then Chief Secretary, Delhi.

CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -10-

b) PW6 Sh. Sanjeev Ahuja, the then Commissioner Industries, Delhi.

c) PW14 Sh. Deepak Kumar Tanwar, Principal Scientific Officer (Physics) cumAssistant Chemical Examiner, CFSL, DFSS, Delhi.

17. The fourth category of witnesses are the Miscellaneous Witnesses which comprise of :

a) PW1 Sh. Chander Shekhar

b) PW8 Ms. Kamlesh Hatta

c) PW10 Sh. Santosh Kumar

d) PW11 Sh. Amit Aggarwal

e) PW12 Sh. Nem Chand Meena

18. Before proceeding further, it is pertinent to make a brief mention of the role and deposition of these prosecution witnesses category wise as referred herein above. The detail deposition of the witnesses is not being adverted to, as the same shall be referred to while dealing with the necessary ingredients of the offences with which the accused persons have been charged vizaviz the rival contentions advanced by Ld. Special PP for CBI as well as Ld. Defence Counsels for the accused persons. Even the detailed cross examination of these witnesses is not being mentioned for the sake of brevity, but the same shall be referred to during the course of appreciating the legal as well as factual issues advanced by the parties.

CBI No. 233/2019                                                   (Namrita Aggarwal)
                                                        Spl. Judge (PC Act) CBI21/10.04.2023
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19. Material Witnesses.
19.1               PW2 Munna Lal Gupta, i.e. the complainant in the present case

reiterated the facts as mentioned by him in his complaint Ex.PW2/A and stated that accused R.S. Tomar had demanded a bribe of Rs. 1 crore from him for certifying the Executive Committee Members of Green Estate & HRE Plot Holders Association Ltd. and also for clearing the name of complainant as the President of the said society. This witness also explained the proceedings conducted by CBI during verification as well as the trap proceedings and clearly deposed before the Court that the bribe amount was recovered from the diggy of the car of the accused R.S. Tomar during the trap proceedings. The memo bearing details of verification proceedings dated 10.07.2015 was exhibited as Ex.PW2/B (colly) and of the verification proceedings dated 14.07.2015 was exhibited as Ex.PW2/C (colly). This witness also identified the signatures on the FIR Ex.PW2/D(Colly) as well as on the memo of Trap Proceedings Ex.PW2/E(colly). During his deposition this witness identified the white polythene Ex.PW2/G which was handed over to him by accused R.S. Tomar for keeping the bribe amount as well as the wads of currency notes taken at the spot by him during Trap Proceedings as Ex.PW2/H(colly). He also identified the DVR alongwith the micro SD Card used for recording the proceedings as Ex.PW2/I4 and the button camera as Ex.PW2/J1. He further identified the briefcase in which 47 wads were kept on the day of Trap Proceedings as Ex.PW2/K2 and identified his signatures on the recovery memo Ex.PW2/N(colly). The complainant PW2 identified the introductory CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -12- voices of independent witness Sunil Kumar and independent witness Satbir Singh as well as his own voice and the voice of accused R. S. Tomar in different parts of the conversation which was recorded in the memory card through DVR as Ex.PW2/O and Ex.PW2/P respectively. PW2 identified the voice of accused No.2 Aditya Kumar Rajvanshi in Ex.PW2/O(colly). In totality, this witness supported the case of the prosecution through his deposition. He was crossexamined at length by Ld. Counsels for accused No.1 and accused No.2.

19.2 Independent witness Sh. Sunil Kumar, Pharmacist in DGHS (HQ), GNCTD Delhi deposed as PW4 and stated that he was deputed on 10.07.2015 by his department to report at the CBI Office to participate in the Verification and Trap Proceedings in this case. This witness clearly supported the case of the prosecution and stated that he remained with the complainant during verification proceedings dated 10.07.2015 and the conversation between accused No.1 and the complainant as well as accused No.2 and the complainant took place in his presence on 10.07.2015. PW4 deposed that accused No.2 Aditya Kumar Rajvanshi was asked by the complainant to get the bribe amount reduced and after coming back from the cabin of accused No.l R.S. Tomar, he wrote '80' on a piece of paper and showed it to the complainant. Later, A2 tore off the said piece of paper and threw it in the dustbin. PW4 also stated that accused No.1 R.S. Tomar was not stating anything directly but was demanding the bribe amount on 14.07.2015 during CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -13- verification proceedings by gestures only. PW4 further deposed regarding the Trap Proceedings conducted on 17.07.2015 and corroborated the testimony of PW2. This witness also identified the voices of the complainant as well as the accused No.1 as recorded in the memory card through DVR which were played in the Court during his deposition.

19.3 Sh. Kumar Mahesh, who was posted as Special Commissioner, Industries in Delhi Govt. at the relevant point of time deposed as PW9 and stated that accused No.1 R.S. Tomar was deputed as Incharge of the Society Registration Act during that time. He further stated that accused No.1 gave opportunity of hearing to the complainant during three hearings wherein the complainant was directed to produce the original documents. He further stated that the complainant had filed an application Mark PW9/A on 19.03.2013 for certification of the governing body of Green Estate and HRE Plot Holders Association. PW9 also got exhibited as PW9/1 the notesheet prepared by him by which he had directed the complainant Mr. M.L.Gupta to produce documents regarding the above named society. He also identified the signatures of accused No.1 R.S. Tomar on notingsheet Ex.PW9/2 wherein accused No.2 had submitted his report stating that,'M.L.Gupta seemed to be the justified office bearer of the Society'. The notingsheet prepared by PW9 after that was exhibited as Ex.PW9/3, Ex.PW9/4 and Ex.PW9/5 as well as Ex.PW9/6 (colly) regarding the file of Green Estate and HRE Plot Holders Association Ltd.

CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -14-

20. Witnesses who were involved in the investigation 20.1 PW3 S.I. Raman Kumar Shukla who conducted the verification proceedings dated 10.07.2015 & 14.07.2015 also deposed in sync with the complainant and identified his signatures on the notesheet of CBI wherein he had recommended for registration of the case against accused no. 1 as Ex.PW3/A. This witness further deposed regarding the Trap Proceedings conducted on 17.07.2015 and clearly stated that the alleged bribe amount was recovered from the diggy of the car of the accused No.1 R.S. Tomar. He also identified his signatures on the rough site plan of the Trap Proceedings Ex.PW3/H. 20.2 PW7 Inspector Shitanshu Sharma, stated that at the relevant point of time, he was posted as Inspector in CBI, Anti Corruption Branch, Delhi and as such, was entrusted with the investigation of this case on 17.07.2015. He being the Trap Laying Officer, constituted a Trap Team comprising of Inspectors Anand Swaroop, Alok Kumar Singh, Pramod Kumar, Arjun Singh as well as SI Raman Kumar Shukla and two independent witnesses Satbir Singh and Sunil Kumar. This witness deposed regarding the pretrap as well as posttrap proceedings conducted on 17.07.2015 and corroborated the testimony of the complainant. This witness also clearly stated in his evidence that the alleged bribe amount which was carried by the complainant during Trap Proceedings was recovered from the diggy of the car of accused No.1.

CBI No. 233/2019                                               (Namrita Aggarwal)
                                                    Spl. Judge (PC Act) CBI21/10.04.2023
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20.3                Sh. Jayant Kashmiri who was working as DSP in Anti

Corruption Branch of CBI in 2015, deposed as PW13 being the Investigating Officer in the present case and corroborated the testimony of the complainant as well as the witnesses relating to Verification and Trap Proceedings. This witness supported the case of the prosecution and stated that he had sent the recordings of data conversation Ex.Q1, S1 and S2 to CFSL for preparation of copies and for examination through letter Ex.PW13/A(colly). PW13 deposed that on the basis of the Verification and Trap Proceedings during investigation, he filed chargesheet Ex.PW13/B(colly) against accused No.1 and accused No.2 respectively. During crossexamination, Ld. Defence Counsel for accused No.1 got exhibited the forwarding letter dated 04.01.2016 as Ex.PW13/DA and Ld. Counsel for accused NO.2, got exhibited the application dated 16.11.2015 signed by this witness and forwarded to Ld. Principal District & Sessions Judge, Karkardooma Courts for getting the statement of Aditya Kumar Rajvanshi(A2) recorded under Sec. 164 Cr.P.C. as Ex.PW13/DC. The said statement recorded under Sec. 164 Cr.P.C. of Aditya Kumar Rajvanshi was exhibited as Ex.PW13/DD.

21. Official Witnesses 21.1 PW5 Kewal Kumar Sharma, State Election Commissioner, Jammu & Kashmir, identified his signatures on the Sanction Order dated 13.06.2016 Ex.PW5/A (colly), which he had passed granting permission for prosecution of accused No.1 R.S. Tomar under Sec. 19 of the PC Act, 1988.

CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -16- He stated that being the Chief Secretary, Delhi at the relevant point of time, he was competent to remove accused No.1 from his services and therefore, granted sanction for prosecution of accused No.1 after due application of his mind.

21.2 PW6 Sh. Sanjeev Ahuja, Secretary Tourism, Govt. of Goa, identified his signatures on the Sanction Order Ex.PW6/A (colly) dated 15.06.2016, which he had passed granting permission for prosecution of accused No.2 Aditya Kumar Rajvanshi under Sec. 19 of the P.C. Act, 1988. He stated that he was competent to remove accused No.2 at the relevant point of time from his services and as such granted permission for prosecuting him.

21.3 The deposition of Sh. Deepak Kumar Tanwar, Principal Scientific Officer (Physics) cum Asstt. Chemical Examiner to the Govt. of India, CFSL, DFSS, New Delhi was recorded as PW14. This witness apart from stating his educational qualification as well as experience, got exhibited his CFSL report as Ex.PW14/A(colly).

22. Miscellaneous Witnesses 22.1 PW1 Chander Shekhar, Nodal Officer from Bharti Airtel Ltd. produced the CDR as well as the Customer Application Form of mobile numbers 8527589467 & 9958370381 alongwith the certificate under Sec. 65 B of Indian Evidence Act, which were exhibited as Ex.PW1/A(colly).

CBI No. 233/2019                                               (Namrita Aggarwal)
                                                    Spl. Judge (PC Act) CBI21/10.04.2023
                                         -17-

22.2               PW8 Ms. Kamlesh Hatta who was posted as Deputy

Commissioner in the Industry Department at the relevant point of time, got exhibited the search memo Ex.PW8/A regarding the search conducted by the CBI Team in the office of accused No.1 R.S. Tomar on 17.07.2015.

22.3 PW10 Sh. Santosh Kumar, who was working as Asstt. Commissioner, Industries (Vigilance) in the year 2016 identified his signatures on the forwarding letter sent to S.P., CBI alongwith the order for grant of sanction for prosecution of accused No.1 and accused No.2.

22.4 PW11 Sh. Amit Aggarwal identified his signatures on the searchcumseizure memo Ex.PW8/A dated 17.07.2015.

22.5 PW12 Sh. Nem Chand Meena deposed that on 18.07.2015 the voice sample of Aditya Rajvanshi accused No.2 was recorded in his presence and he identified his signatures on the specimen voice recording memo Ex.PW7/F.

23. STATEMENT OF ACCUSED 23.1 Statement of accused persons U/s 313 Cr.P.C was recorded wherein accused no. 1 R.S. Tomar and accused no. 2 Aditya Kumar Rajvanshi denied all the incriminating evidence against them. It is submitted by A1 R.S. Tomar in his statement U/s 313 Cr.P.C that the present complaint has been filed by the complainant falsely against him in collusion with the CBI officials CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -18- as he did not succumb to the pressure of CBI to turn hostile in one other case wherein he was the prime witness. It is further submitted by A1 that in fact it was the complainant Sh. M.L. Gupta who had forced him to change his report regarding Green Estate & HRE Plot Holders Association (a Society) and when he denied, the complainant filed the present case against him.

23.2 A2 Aditya Kumar Rajvanshi filed a memo of his statement U/s 313 Cr.P.C stating that he was posted as Junior Technical Assistant in the office of Commissioner of Industries, Government of Delhi in the Society Department since 2010 and was looking after the RTI related work of the Societies Department. In fact he was not in any way responsible or capacitated to deal with the certification of the Executive Committee members of Green Estate and HRE Plot Holders Association (society).

23.3 He further stated that he had no role to play in the present case and in fact was initially treated as a prosecution witness but was subsequently falsely arrayed as an accused by the IO in order to wreck vengeance against him. His name is neither mentioned in the complaint of Sh. M.L. Gupta nor has he been named in the FIR or the note sheet recommending registration of FIR prepared by SI Raman Kumar Shukla. As per accused no. 2, he was called upon by the Investigating Officer to be the prosecution witness in this case in the beginning but since accused no. 2 refused to depose falsely on the instructions of the IO, he deliberately made him an accused in this case.

CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -19- Moreover, the statement of accused no. 2 was recorded by the IO U/s 161 and Section 164 Cr.P.C which was deliberately concealed from the court as well as from the sanctioning authority in order to mislead.

24. DEFENCE EVIDENCE 24.1 Ld. Defence Counsel appearing on behalf of A1 R.S. Tomar sought permission to examine two witnesses in his defence namely :

1) Principal Scientific Officer, Photo / DFU, CFSL

2) Accused No. 1 himself.

On being granted permission, both these witnesses were called in the witness box.

24.2 DW1 Sh. P.K. Gottam, Principal Scientific Officer, Photo / DFU, CFSL, DFSS, Delhi identified the copy of the letter dated 10.11.2015 received by his department alongwith enclosures marked as Mark DY and stated that the samples enclosed with this letter remained in his custody from 17.11.2015 to 02.12.2015.

24.3 DW2 Rajender Singh Tomar brought with him the white coloured Grand Hyundai I10 car bearing registration no. DL7CP5267 registered in his name which was found at the spot of trap proceedings. This witness deposed that the diggy of the said car is auto locked and does not open with the help of keys. He was cross examined at length by Ld. PP for CBI CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -20- wherein he stated that he had not gone for his duty at the Registrar office on 17.07.2015 as he had gone for a meeting. He further admitted that he knew Sh. Munna Lal Gupta since 2014 and on 17.07.2015 he had called him to Neelam Mata Mandir to have a discussion with respect to the file of Green Estate & HRE Plot Holders Association. He further admitted that an amount of Rs. 20,000/ were recovered from the diggy of his car on 17.07.2015 by the trap team. This witness without denying in totality certain suggestions given to him by Ld. PP for CBI, stated that he does not remember whether he had asked the complainant that he wanted only '10 kg of potatoes' that day. He further admitted the transcription Ex.PW2/O thus acknowledging that he had in fact stated the following sentences to the complainant during their conversation : 'abhi batao is time bahut achha mauka hain, power mere haath mein hain', 'maen apni naukri dav par laga raha hu', 'mujhe sirf dus kilo chahiye' etc. He also divulged that these statements were made by him with respect to the file of Green Estate & HRE Plot Holders Association.

24.4 Accused no. 1 in his crossexamination however denied that the file of Green Estate & HRE Plot Holders Association was pending before him stating that the same was pending before Sh. Kumar Mahesh, the then Special Commissioner of Firms & Societies. He at the beginning of his deposition stated that he had never acted as Registrar of Firm & Societies at any point of time nor had received any formal orders for the same but during cross examination he admitted that he was working as an Incharge, Registrar of CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -21- Societies in June 2015 though he had not received any formal order to that effect. This witness further deposed in his crossexamination that he had demanded only '5 kg of potatoes' from the complainant. However, he denied the suggestion that the word 'aloo' connoted bribe amount and not literally the potatoes. DW2 further deposed that he had called Sh. M.L. Gupta (complainant) to Neelam Mata Vaishno Mandir, Mayur Vihar on 17.07.2015 only for the purpose of discussion about the documents of Green Estate & HRE Plot Holders Association.

24.5 Accused No. 2 Aditya Kumar Rajvanshi did not examine any witness in his defence and at the request of Ld. Defence Counsels appearing on behalf of A1 and A2, the defence evidence was closed.

25. I have heard the arguments advanced by Sh. Amjad Ali, Ld. Special PP for CBI as well as Sh. Praveen Goswami, Ld. Counsel for A1 and Sh. Tanveer Meer Ahmad alongwith Ms. Diviani Verma, Ld. Counsels appearing on behalf of accused no. 2.

ARGUMENTS ON BEHALF OF CBI 26.1 Ld. PP for CBI Sh. Amjad Ali briefed this court about the background of this case stating that Green Estate & HRE Plot Holders Association having its office at X1/17, Budh Vihar, PhaseI, New Delhi was registered with the Registrar of Firms & Societies on 05.09.1968 vide CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -22- registration no. 3506. An application Ex.PW9/A was filed by the complainant Sh. Munna Lal Gupta on behalf of the Society on 19.03.2013 with Registrar of Firm & Societies for certifying the names of governing body members of Green Estate & HRE Plot Holders Association and for clearing the name of the complainant as the President of the aforesaid association. At that time R.S. Tomar (A1) was posted as Deputy Commissioner of Industries and he prepared a report dated 10.10.2014 wherein he stated that Sh. M.L. Gupta seemed to be the office bearer of the said society. Aggrieved by the said report, the complainant approached Registrar office for certifying the members of the governing body of the association and for clearing his name as President of the society.

26.2 Ld. PP for CBI has assiduously argued that on 08.07.2015 A1 R.S. Tomar (who was acting as Registrar of Societies at that time) demanded illegal gratification of Rs. 1 crore from the complainant Sh. M.L. Gupta to certify him as the President of Green Estate & HRE Plot Holders Association and also to certify the names of the executive committee members of the said association. Ld. PP has relied upon the complaint Ex.PW2/A and pleaded that during verification proceedings on 10.07.2015 A1 asked the complainant to meet Aditya Kumar Rajvanshi (A2) who conveyed that the bribe amount has been reduced to Rs. 80 lakhs by A1 by writing the same on a chit of paper subsequently torn by him. The case of the prosecution is that A2 entered into criminal conspiracy with A1 in deciding and demanding 'illegal gratification' CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -23- from the complainant to get his work done.

26.3 Further, Ld. PP has indefatigably argued that on 16.07.2015 A1 called the complainant on his mobile phone and asked him to meet at Neelam Mata Mandir, Mayur Vihar. Subsequently, on 17.07.2015 A1 made immediate demand of Rs. 10 lakhs from the complainant which was subsequently recovered from the diggy of the car of the complainant that day itself during trap proceedings. This fact has been accepted by DW2 i.e Accused No. 1 himself in his cross examination. It is the case of the prosecution that A1 during his crossexamination has admitted almost the entire case of the prosecution and has failed to explain why he had called the complainant at Neelam Mata Mandir for discussion on 17.07.2015 and why he had demanded 'potatoes' from the complainant that day. Ld. PP has relied upon the recorded audio and video conversation between the complainant and accused no. 1 in support of his case as well as the CFSL report Ex.PW14/A (colly) in support of his arguments. He has also relied upon the judgment of the Hon'ble High Court in Mubarak Ali Vs State, 1958 AIR (Madhya Pradesh) 157.

ARGUMENTS ON BEHALF OF A1 R.S. TOMAR 27.1 In refutation to the imputations, Sh. Praveen Goswami, Ld. Defence Counsel appearing for A1 argued that A1 has been falsely implicated in the present case at the instance of CBI in order to wreck CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -24- vengeance as he was a prime witness against the Chief Prosecutor of CBI and refused to depose falsely in his favour even on pressure from CBI. He vehemently argued that there is neither any demand nor acceptance at any point of time of illegal gratification by A1 and in fact no recovery was ever made from the vehicle of A1 on 17.07.2015.

27.2 To buttress his arguments, Ld. Defence Counsel submitted that the complainant Sh. M.L. Gupta had earlier also filed a complaint against Sh. K. Mahesh, the then Registrar of Societies before Ministry of DSDCI on 18.05.2015 with respect to the file of Green Estate & HRE Plot Holders Association wherein A1 was not even named. He further questioned the authenticity of the recorded conversation and transcription of the same, thus challenging the CFSL report Ex.PW14/A (colly) as well, stating that the same had not been recorded, prepared or protected as per law. He further argued that DW2 i.e A1 himself entered into the witness box and produced his car i.e Grand Hyundai I10 bearing no. DL7CP5267 in order to prove that the diggy of the alleged car is auto operated and thus does not open with the help of keys.

27.3 In support of his contentions, Ld. Defence Counsel for A1 has relied upon the following judgments :

i) V.C. Shukla Vs State (Delhi Admn) 1980 AIR 1382.

CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -25-

ii) Esher Singh Vs State of Andhra Pradesh Crl. Appeal No. 1363 of 2003 decided on 15.03.2004.

iii) K. Shanthamma Vs State of Telengana Crl. Appeal No. 261 of 2023.

iv) K. Satyanarayana Murthy Vs The District Inspector of Police & Anr., Crl. Appeal No. 31 of 2009.

v) Anvar PV Vs P.K. Basheer & Ors., (2014) 10 SCC 473.

ARGUMENTS ON BEHALF OF A2 ADITYA KUMAR RAJVANSHI 28.1 It is argued by Ld. Defence Counsels appearing for A2 i.e Sh. Tanveer Ahmed Mir & Ms. Diviani K. Verma that A2 was posted as Junior Technical Assistant in the office of Commissioner of Industries, Government of India in the Society Department since 2010. He was only looking after the RTI related work of the Societies Department and was in no way officially capacitated to deal with the certification of the executive committee of Green Estate & HRE Plot Holders Association. Ms. Diviani K. Verma further argued that A2 has an unblemished service record of 27 years with a reputation of incorruptibility. She submitted that A2 merits to be acquitted since he has been falsely chargesheeted despite there being no evidence against him and in fact his statement U/s 161 and Section 164 Cr.P.C were recorded by the IO, which were deliberately concealed by him from this court as well as from the sanctioning authority, thus highlighting that accused no. 2 was infact involved in the present case earlier by the IO as a prosecution witness. She also CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -26- challenged the validity of sanction order Ex.PW6/A on the ground that the said order was obtained without supplying complete set of material documents to the sanctioning authority.

28.2 In support of their contentions, Ld. Defence Counsels for A2 have relied upon the following judgments :

i) B. Jayaraj Vs State of A.P (2014) 13 SCC 55.

ii) C.M Girish BabuVs CBI (2009) 3 SCC 779.

iii) V.K. Mishra & Ors. Vs State of Uttarakhand & Ors. (2015) 9 SCC 588.

iv) Mahavir Prasad Verma Vs Surinder Kaur AIR 1982 SC 1097.

v) Sachin Makadey Vs NCB 2022 SCC Online Del 4294.

vi) Nazim Ahmed Wahid Ahmed Khan Vs State of Maharashtra 2010 SCC Online Bom 1775.

vii) Arya Chaudhary Vs State (2006) ILR 1 Cal 263.

viii) Sudhir Chaudhary & Ors. Vs State (NCT of Delhi) (2016) 8 SCC 307

ix) CBI Vs Ashok Kumar Aggarwal (2014) 14 SCC 295.

x) Nilesh Chand Vs State of Rajasthan 2005 SCC Online Raj 365

xi) Neeraj Dutta Vs State 2022 SCC Online SC 1724.

xii) Amrik Singh Vs State of Punjab 2004 SCC Online P&H 469

xiii) Giri Raj Singh Meena Vs State 2014 SCC Online Del 257.

xiv) State Vs Ombir Singh 2015 SCC Online.

CBI No. 233/2019                                                (Namrita Aggarwal)
                                                     Spl. Judge (PC Act) CBI21/10.04.2023
                                            -27-

29.      APPRECIATION               OF     EVIDENCE          VIZAVIZ              RIVAL
CONTENTIONS.
29.1               I have given my thoughtful consideration to the rival contentions

advanced in the light of oral as well as documentary evidence on record. I have also gone through the precedents relied upon by the Ld. PP for CBI as well as Ld. Defence Counsels to substantiate their rival contentions.

29.2 Before I delve into the multifarious contentions advanced by Ld. Defence Counsel on one hand and Ld. Public Prosecutor on the other hand, it would be expedient at this juncture to set out the relevant provisions of Section 7 and Section 13 (1) (d) read with Section 13 (2) P.C. Act 1988.

29.3 Section 7 in The Prevention of Corruption Act, 1988 reads as under :

"7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -28-

(c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years and shall also be liable to fine.

(Explanations) --(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."

29.4 Section 13 in The Prevention of Corruption Act, 1988 reads as under :

"13. Criminal misconduct by a public servant.--

(1) A public servant is said to commit the offence of criminal misconduct,--

(a) if he habitually accepts or obtains or agrees to accept CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -29- or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation--For the purposes of this section, "known sources of income" means income received from any CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -30- lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.

29.5 The essential ingredients of Section 7 of P.C. Act 1988 are :

1) the accused must be a public servant or expecting to be a public servant ;

2) he should accept or obtain or agree to accept or attempt to obtain from any person ;

3) for himself or for any other person ;

4) any gratification other than legal remuneration ;

5) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour ;

29.6 Section 13 (1) (d) P.C. Act has the following ingredients which need to be proved before bringing home the guilt of a public servant under the said provision, namely :

1) the accused must be a public servant ;

2) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or by abusing his official position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or while holding office as public servant, obtains for CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -31- any person any valuable thing or pecuniary advantage without any public interest ;

3) to make out an offence U/s 13 (1) (d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward ;

4) an agreement to accept or an attempt to obtain does not fall within 13 (1) (d) to make out an offence under this provision. There must be actual obtainment.

29.7 In the present case it has nowhere been denied that accused no. 1 or accused no. 2 were public servants at the relevant period of time. No arguments qua this aspect was ever raised in the court and thus this ingredient stands proved against both accused no. 1 and accused no. 2.

29.8 In 'B. Jayaraj Vs State of A.P (2014) 13 SCC 55' it has been held by the Hon'ble Apex Court that mere possession and recovery of currency notes from the accused without proof of demand would not bring home the offence U/s 7 of P.C. Act. It was further observed that presumption U/s 20 of the Act could not be drawn in respect of an offence U/s 7 of the Act. Such a presumption could have been drawn only if there was a proof of acceptance of illegal gratification for which proof of demand was a sine qua non.

29.9 Subsequently, in 'P. Satyanarayana Murthy Vs The District Inspector of Police, State of A.P (2015) 10 SCC 152', the Hon'ble Apex CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -32- Court by placing reliance on B. Jayaraj (supra) observed that mere possession and recovery of currency notes from the accused without proof of demand would not establish an offence u/s 7 as well as Section 13 (1) (d) of the P.C. Act. This is because proof of demand is a sine qua non or an indispensable essentiality and a mandate for an offence U/s 7 and 13 (1) (d) of the act. The proof of acceptance of illegal gratification could follow only if there was a proof of demand. The proof of demand of illegal gratification is therefore the gravemen of the offence under Sections 7 and 13 (1) (d) of the Act and in the absence thereof, the charge would thereby fail.

29.10 Thus, mere acceptance of any amount by way of illegal gratification or recovery thereof dehors the proof of demand, ipsofacto would not be sufficient to bring home the charges U/s 7 and Section 13 (1) (d) of P.C. Act.

29.11 Recently, the Hon'ble Supreme Court of India clarifying the relevant provisions of law U/s 7 and Section 13 (1) (d) of P.C. Act in 'Neeraj Dutta Vs State (Government of GCT of Delhi) 2022 SCC Online SC 1724' held that :

"74. What emerges from the aforesaid discussion is summarised as under:

(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -33- under Sections 7 and 13(1) (d)(i) and (ii) of the Act.

(b) In order to bring home the guilt of accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

(d) In order to prove the fact in issue namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(I) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.

CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -34-

(iii) In both cases of (I) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (I) and (ii) of the Act.

(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -35- during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal.

Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.

(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is a discretionary in nature."

(emphasis supplied) Further, paragraph 76 of the aforesaid judgment provided that :

"76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:

In the absence of evidence of the complainant (direct/primary, CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -36- oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a deduction of culpability/guilt of a public servant under Section 7 and Section (13)(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution."

(emphasis supplied)

30. ACCUSED NO. 1 RAJINDER SINGH TOMAR @ R.S. TOMAR 30.1 The main contention raised by Ld. Counsel appearing for A1 in his defence is that there is no specific single evidence in respect of any demand in any conversation, transaction or memos ever made by A1 from the complainant for performing his official duty nor was any illegal gratification ever accepted by A1 from the complainant at any point of time. Per contra, it is vehemently argued by Ld. PP for CBI that the evidence of prosecution as well as defence witnesses and the material placed on record taken as a whole demonstratively prove demand, receipt and recovery of illegal gratification by A1. Both the parties have made profuse reference to the evidence on record specially the transcript of conversation between the complainant and the accused.

CBI No. 233/2019                                                  (Namrita Aggarwal)
                                                       Spl. Judge (PC Act) CBI21/10.04.2023
                                             -37-

30.2               Perusal of the record shows that the entire case of the prosecution

is premised upon the complaint made by the complainant Ex.PW2/A against accused no. 1 wherein he alleged that A1 R.S. Tomar demanded illegal gratification of Rs. 1 crore from him on 08.07.2015 for getting the name of the complainant cleared as President of Green Estates & HRE Plot Holders Association. The said complaint was duly proved by the complainant when he entered into the witness box as PW2. On the basis of this complaint only, verification proceedings were conducted against A1 on 10.07.2015 and 14.07.2015. During verification proceedings on 10.07.2015, when the complainant visited the office of A1 alongwith independent witness Sh. Sunil Kumar, A1 frisked the complainant for any hidden recording device. This reflects guilty mind of the accused cause had the accused been innocent, he would have no reason to be suspicious about complainant or to frisk him under the fear that the complainant might record conversation between them. He further told complainant that day, as recorded in transcript Ex.PW2/O that 'jo maine bol diya aap ko wo kariye.......,aap ko apna kaam karna hain aap recording karoge toh usse kaam thodi ho jayega. Main hi toh suspend ho jaunga.' This also shows the culpability of A1 and that he again and again kept asking the complainant to meet A2 Aditya Kumar Rajvanshi and kept telling him that whatever has been told to him earlier has to be done. Further, the statement made by A1 that 'recording karoge toh usse kaam thodi ho jayega. Main hi toh suspend ho jaunga.' clearly reflects that he knew he was doing something wrong because of which he was under an apprehension that if CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -38- the complainant records their conversation, he might get suspended.

30.3 Thus, on 10.07.2015 and 14.07.2015, though there was no clear and unambiguous demand by A1 but circumstantial evidence indicates towards culpability of A1, casting doubt on his conduct.

30.4 Thereafter, on 17.07.2015 during trap proceedings the entire conversation between complainant and A1 was recorded by way of DVR as well as button camera. During that conversation A1 clearly told complainant that 'maine bol diya ek bori deni hain kyunki aisa hain na...., bilkul bilkul rajvanshi se kuchh baat nahi karni kyunki phir wo disclose kar dega, abhi batau is waqt bahut achha mauka hain power mere haath mein hain, main batau naa main apni naukri daav par hi laga raha hu, mujhe ek bori chahiye, ek bori isiliye chahiye poori, mujhe sirf 10 kg chahiye, 90 kg aap monday ko, sham ko yahi aa ke doge aur copy ..........'.

30.5 All these lines spoken by A1 to the complainant on 17.07.2015 duly prove demand of illegal gratification of Rs. 1 crore (referred to as one bori) from the complainant for getting his work done. A1 is again and again mentioning during this conversation that he would hand over the work papers to the complainant on Monday and the complainant would have to make payment of balance amount of Rs. 90 lakhs that day itself. The words 'mujhe sirf 10 kilo chahiye' clearly indicates that A1 was demanding Rs. 10 lakhs CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -39- from the complainant as advance payment of illegal gratification. A1 is also talking about the fact that he has put his job at stake because of the complainant due to which the complainant should trust him in handing over the sum of Rs. 10 lakhs to him. If A1 R.S. Tomar would not have been guilty of doing a wrongful act then he would not have mentioned this to the complainant that he is putting his job at stake because of the work of the complainant.

30.6 Moreover, complainant Sh. M.L. Gupta deposed during his evidence that he had informed the CBI officers on 16.07.2015 about receiving a call from A1 asking him to meet him at Neelam Mata Mandir on 17.07.2015 with Rs. 10 lakhs as part payment of illegal gratification. This fact is corroborated by CDR of A1 and complainant Ex.PW1/A (colly) which proves that on 16.07.2015 A1 called complainant on his mobile at 17:30:03 hours for 79 seconds and thereafter at 19:40:18 hours for 20 seconds. From the CDR of complainant and A1 it is unambiguously proved that the complainant was not trying to implicate A1 falsely without any basis.

30.7 Ld. Defence Counsel for A1 has casted serious aspersions on the authenticity and admissibility of recorded conversation between the complainant and A1 and also transcription of the same which is already exhibited as Ex.PW2/O (colly), Ex.PW2/P (colly) on the ground that the same have not been recorded, prepared or protected as per law. As per him, CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -40- the DVR and SD cards were played on different electronic devices and the transcription was prepared without any authentication certificate U/s 65B of Indian Evidence Act.

30.8 In support of his contention, Ld. Defence Counsel has relied upon the judgment of Hon'ble Supreme Court in 'Anvar PV Vs P.K. Basheer & Ors., (2014) 10 SCC 473'. However, perusal of the entire judgment shows that the Hon'ble Apex Court has drawn clear distinction between the situation when the device used for recording is directly produced in the court as primary evidence and a situation when the incriminating material is recorded using other instruments which are fed in computer from which CDs are prepared and produced in evidence before the court. The relevant paragraph is :

"24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcement been duly got seized through the police or election commission and had the same been used as primary evidence, the High Court would have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirement of Section 65 B of Indian Evidence Act are not satisfied. It is clarified that not withstanding what we have stated CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -41- herein in preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence U/s 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions in Section 65B of the Evidence Act."

30.9 Further, in 'Arjun Pandit Rao Khotkar Vs Kailash Kushanrao Gorantyal, Civil Appeal No. 2082520826/2017' it has been held by the Hon'ble Apex Court that :

"The clarification referred to above is that the required certificate U/s 65B (4) is unnecessary if the original document itself is produced. This can be done by the owner of the laptop, computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and / or operated by him. In cases where the computer happens to be a part of a computer system or computer network and it becomes impossible to physically bring such system on network to the court, then the only means of providing information contained in such electronic record in accordance with Section 65B (1), together with requisite certificate under 65B (4)".

30.10 Thus, in the present case as well the DVR and the memory cards were produced as primary evidence in the court under Section 62 of Indian Evidence Act and the witnesses identified the voices of the speakers when this primary evidence was played in the court. Thus, there was no need for compliance of the conditions laid down under Section 65B of the Indian CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -42- Evidence Act. The transcript filed by CBI tallied with the conversation when the primary evidence was played in the court with the help of official laptop and the same was got exhibited after identification of the voice as well as the contents of the conversation and transcription by the witnesses.

30.11 Moreover, it is not disputed that DVR as well as SD cards, button camera with memory card inserted in it were all sent to CFSL for examination alongwith covering letter and the sealed parcels marked as Q1, Q2, S1 and S2. After due examination it was opined in the report dated 02.05.2017 Ex.PW14/A (colly) that the auditory examination of questioned voices marked Ex.Q1(1)(T), Q1(2)(T), Q2(1)(T) and Q2(2)(T) and the specimen voice of R.S. Tomar mark Ex.S1(T) revealed that they were similar in respect of their linguistic and phonetic features. Further, the subsequent voice spectographic examination of common clue, sentences / words selected from questioned and specimen voice of R.S. Tomar revealed that they were similar in respect of their formalt frequencies distribution, intonation pattern, number of formants and other general visual features in their voice grans. It was on the basis of both these examinations only that it was concluded that the questioned voices were the probable voices of accused R.S. Tomar whose specimen voice was Ex.S(1)(T).

30.12 Further, it was also opined in report Ex.PW14/A (colly) by an expert witness that the auditory examination of questioned voices marked CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -43- Ex.Q2(1)(R) and Q2(2)(R) and the specimen voice of Aditya Kumar Rajvanshi mark Ex.S(2)(R) revealed that they were similar in respect of their linguistic and phonetic features. Further, the subsequent voice spectographic examination of common clue, sentences / words selected from questioned and specimen voice of Aditya Kumar Rajvanshi revealed that they were similar in respect of their formalt frequencies distribution, intonation pattern, number of formants and other general visual features in their voice grans. It was on the basis of both these examinations only that it was concluded that the questioned voices were the probable voices of accused Aditya Kumar Rajvanshi whose specimen voice was Ex.S(2)(R).

30.13 A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under the Evidence Act. It is res gestae. In S. Pratap Singh Vs State of Punjab, AIR 1964 SC 72, the Hon'ble Apex Court considered the issue and clearly propounded that tape recorded talks are admissible in evidence. Reference be also made to Ram Singh & Ors. Vs Col. Ram Singh AIR 1986 SC 3 as well as R.M. Malkani Vs State of Maharashtra AIR 1973 SC 157 which are the often quoted judgments on the subject.

30.14 In the present case, the most material person i.e the accused himself has admitted the transcript of the conversation between himself and the complainant as well as the material witness i.e the complainant has also CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -44- identified the voice of the accused in the said conversation. Undoubtedly, the signs of voice recognition is not as accurate and perfect as the signs of finger printing. I am also mindful of the fact that electronic evidence is essentially to be used for substantiation purposes only and it cannot be taken as a substantial piece of evidence. Even the report of expert only suggests that the questioned voice was the probable voice of the concerned speaker. However, in the present case, A1 himself entered into the witness box as DW2 and clearly stated that the conversation dated 17.07.2015 between him and the complainant has been rightly recorded in the transcript Ex.PW2/O (colly). This amounts to admission on behalf of A1 of the entire conversation as recorded in the transcript which includes specific demand made by A1 from the complainant, as discussed above. A1 also admitted the video recording of the conversation dated 17.07.2015 as videographed in the ninth video file.

30.15 A1 stated in his statement U/s 313 Cr.P.C that he had gone to Neelam Mata Mandir on 17.07.2015 for offering prayers as he goes there generally but in his crossexamination when he entered the witness box as DW2, he deposed that he had called the complainant Sh. M.L. Gupta to Neelam Mata Mandir on 17.07.2015 to have a discussion with him on the documents of Green Estate & HRE Plot Holders Association. No reasonable explanation has been advanced as to why A1 called the complainant to Neelam Mata Mandir, Mayur Vihar only to discuss about the society papers when it could have been conveniently done at his office, being an office CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -45- related work. A1 further admitted during his crossexamination that he had demanded '5 kg potatoes' from the complainant.

30.16 As far as Acceptance of illegal gratification by A1 is concerned, A1 told complainant to hand over 10 kgs 'potatoes' to him and also handed over a white polythene bag to the complainant to keep the alleged bribe amount in it. He further said 'mere peechhe diggy mein rakh doh, main apni naukri daav par laga raha hu.....'. In these circumstances, there seems to be no plausible reason for A1 to demand 'potatoes' from the complainant and the evidence and transcription when read in entirety clearly indicates that the word 'potatoes' was used by the accused no. 1 as a code word for money, since he again and again demanded the same from the complainant and asked him to hand over the remaining amount after completion of work.

30.17 It is trite law that in cases dependent on circumstantial evidence, the inference of guilt can be made if all the incriminating facts and circumstances are incompatible with the innocence of the accused or any other reasonable hypothesis than that of his guilt, and provide a cogent and complete chain of events which leave no reasonable doubt in the judicial mind. When an incriminating circumstance is put to the accused and the said accused offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. In the present case as well, the demand of potatoes by A1 from the CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -46- complainant does not seem to be justifiable and in totality of all the circumstances has no other reasonable hypothesis than that of the guilt of accused no. 1 specially in the light of the fact that he had himself admitted that he had demanded potatoes from the complainant. The accused failed to offer any reasonable explanation for demanding potatoes from the complainant specially in return of getting his work done. Thus, the combined effect of all the proven facts taken together is conclusive in establishing demand as well as acceptance of illegal gratification by A1 from the complainant.

30.18 Recovery of illegal gratification from A1 is duly proved as A1 himself admitted in his crossexamination that money was recovered from the diggy of his car on 17.07.2015. He went on to say that Rs. 20,000/ was recovered from the diggy of his car and the rest were blank white papers. This admission of A1 as well as evidence of PW2, PW3, PW4, PW7 and PW 13 clearly go on to prove beyond reasonable doubt that recovery was effected from the diggy of the car of the complainant on 17.07.2015 after he was duly challenged by the CBI officers on completion of trap proceedings. Further, A 2 miserably failed to advance any plausible explanation as to the reason why the said money was kept in his car by the complainant, as had been witnessed by all the prosecution witnesses during trap proceedings. Even the number of GC notes recovered from the diggy of the car of the accused tallied with the number of notes as recorded in Handing Over Memo Ex.PW2/N at the time they were furnished by the complainant for trap proceedings. Further, the CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -47- recovered amount was in the form of wads as prepared by the complainant for trap proceedings. Even the first and the last white blank paper beneath and above the currency notes in each wad bore signatures of independent witnesses. This further goes on to prove that the recovered money from the diggy of the car of A1 was in fact the same money which was produced by the complainant for trap proceedings.

30.19 A1 in his defence also brought with him his Grand Hyundai I10 car bearing no. DL7CP5267 to prove that the diggy of this car is auto operated and does not need keys to open it. However, Ld. PP for CBI argued that none of the witnesses stated in their evidence that they used keys to open the diggy of the car. Perusal of the record shows that PW2 i.e the complainant stated in his crossexamination that he had not opened the diggy of the car of the accused no. 1 with keys handed over to him by A1. Ld. Defence Counsel has also raised doubt regarding time of preparation of wads of money by complainant by pointing out towards certain discrepancies in the evidence of material witnesses. However, minor discrepancies in evidence which do not go to the root of the matter, specially when evidence is adduced by the witnesses nearly a decade after the date of incident, cannot be considered as material discrepancies. In this regard, it has been held in 'Harijana Thirupala Vs Public Prosecutor, High Court of A.P Hyderabad, AIR 2002 SC 2821' that :

"The case of the prosecution must be judged as a CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -48- whole having regard to the totality of the evidence. In appreciating the evidence, the approach of the court must be integrated not truncated or isolated. In other words, the impact of evidence in totality on the prosecution case or innocence of accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching to a conclusion about the guilt of the accused, the court has to appreciate, analyze and access the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of the witnesses.' 30.20 The Hon'ble Court has further emphasized that if the discrepancies in the depositions are minor what is important is the nature of contradiction. Similarly, in 'Rammi @ Rameshwar Vs State of Madhya Pradesh' it was held that :

"The courts should bear in mind that it is only when the discrepancies in the evidence of the witnesses are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious of view to be adopted on mere variations falling in the narration of an incident is an unrealistic approach for judicial scrutiny".

30.21 Third limb of the argument of Ld. Defence Counsel for A1 was that A1 was Deputy Commissioner of Industries at the relevant point of time and had no authority to certify the list of office bearers of the society. In fact the file of Green Estate & HRE Plot Holders Association was never marked to A1 R.S. Tomar. Complainant had earlier made a complaint against the then CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -49- Special Commissioner of Industries Sh. K. Mahesh in 2015 wherein there was no allegation against A1. Prosecution examined Sh. K. Mahesh as PW9 who admitted that from April - May 2013 till 11.06.2015 he was acting as Incharge, Registrar of Society and R.S. Tomar was Deputy Commissioner of Industries and also Incharge of Society Registration Act. This witness clearly deposed in the court that after 11.06.2015, the subject of Society Registration Act was transferred to A1 R.S. Tomar who then became the Incharge of Registrar of Societies. This deposition of PW9 was buttressed by A1 when he entered the witness box as DW2 and stated on oath that he was working as Incharge, Registrar of Societies after June 2015, though he had not received any formal orders to that effect. He further admitted that in the entire conversation with the complainant as elaborated in Ex.PW2/O, Ex.PW2/P, he was talking about the file of Green Estate & HRE Plot Holders Association. Thus, it is crystal clear from the deposition of PW9 and DW2 that A1 became Incharge of Registrar of Societies after 11.06.2015 and at that time he had the authority which was earlier possessed by Sh. K. Mahesh i.e to certify the names of governing body members of Green Estate & HRE Plot Holders Association.

30.22 Even otherwise, Section 20 of P.C. Act, 1988 provides as under :

"20. Presumption where public servant accepts any undue advantage -

Where, in any trial of an offence punishable under section 7 or under section 11 it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -50- himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under Section 11."

30.23 Thus, Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression 'shall be presumed' in subsection (1) and subsection (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted gratification as a motive or reward for doing or for bearing to do any official act, if the condition envisaged in the former part of the section is satisfied. The only condition for drawing a legal presumption U/s 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification.

30.24 In 'State of Madras Vs A. Vaidyanatha Iyer AIR 1958 SC 61' it was observed that presumption U/s 20 of the Act would arise where illegal gratification has been accepted. The legislature has used the words 'shall presume' and not 'may presume' which means the presumption has to be raised as it is a presumption of law and therefore it is obligatory on the court to raise it. In the present case as well having proved that the accused no. 1 had CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -51- demanded as well as accepted illegal gratification from accused no. 1 which was subsequently recovered from the diggy of his car, a presumption U/s 20 of P.C. Act, 1988 can be raised that the said illegal gratification was received by A1 for dishonestly performing his public duty in favour of A1.

30.25 The last limb of the argument of Ld. Defence Counsel for A1 was that the sanctioning authority issued sanction order against A1 Ex.PW 5/A dated 13.06.2016 without applying its mind as inadequate documents were submitted to it by CBI. It is averred that the transcript of communication between the complainant and A1 was not filed before the sanctioning authority. Ld. Defence Counsel has relied upon the judgment titled as 'V.C. Shukla Vs State (Delhi Admn) 1980 AIR 1382' and 'CBI Vs Ashok Kumar Aggarwal (2014) 14 SCC 295' in support of his contention. However, perusal of the record shows that sanction for prosecution of A1 was granted by PW5 on 13.06.2016 whereas the transcript of conversation was prepared on 03.06.2016. Hence, CBI had all the time to submit transcript of conversation to the sanctioning authority for their perusal before grant of sanction. PW5 himself stated in his crossexamination that he must have gone through transcript of conversation before granting sanction. Thus, there is no weight in the arguments of Ld. Defence Counsel for proving invalidity of the sanction order Ex.PW5/A. 30.26 Therefore, the evidence and the relevant material as well as CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -52- reports placed on record when judged on the touch stone of legal principles adumbrated above, leave no manner of doubt that the prosecution has successfully proved its case against A1 beyond reasonable doubt. Testimony of complainant and independent witness Sh. Sunil Kumar inspires absolute confidence in light of the corroborative evidence. Elements of demand, acceptance and recovery stand proved beyond reasonable doubt and presumption U/s 20 of Prevention of Corruption Act also stands attracted with respect to Section 7 of Prevention of Corruption Act. A1 R.S. Tomar is thereby convicted for offences U/s 7 and 13 (1) (d) read with 13 (2) P.C. Act, 1988.

31. ACCUSED NO. 2 ADITYA KUMAR RAJVANSHI 31.1 The preeminent allegation against A2 is that he being the Junior Technical Assistant in the office of Commissioner of Industries, Government of India and being junior to A1 R.S. Tomar, entered into criminal conspiracy with A1 in deciding and demanding 'illegal gratification' from the complainant to get his work of certification done.

31.2 Perusal of the record and documents placed alongwith unveils that the complaint Ex.PW2/A made by the complainant in CBI office on 10.07.2015 does not even mention the name of A2 nor any role has been attributed to him. In fact, after the completion of verification proceedings, SI Raman Kumar Shukla prepared a notesheet on 16.07.2015 recommending CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -53- registration of FIR against A1 alone. Here, even after the incident of 10.07.2015 (which bears main allegations against A2) the name of A2 Aditya Kumar Rajvanshi is not recommended for registration of FIR against him. Thus, FIR dated 16.07.2015 Ex.PW2/D also bears the name of A1 R.S. Tomar only. To add on to it, A2 was cited as a witness who signed the search and seizure memo Ex.PW8/A when search was conducted in the office of A

1. Had there been any allegation or suspicion upon Aditya Kumar Rajvanshi, he would not have been made a witness to search proceedings during investigation.

31.3 It is alleged by Ld. PP for CBI that on 10.07.2015 during verification proceedings, A1 got suspicious of the complainant and thus asked him to talk to his subordinate i.e A2 (Junior Technical Assistant). Subsequently, complainant alongwith the independent witness met A2 and requested him to get the bribe amount of Rs. 1 crore reduced from A1. It is alleged that A2 met A1 and thereafter wrote '80' on a piece of paper which he showed to the complainant before tearing it off. This version of the prosecution is supported by the complainant and independent witness Sh. Sunil Kumar. Both of them deposed before the court that A2, in order to get the bribe amount reduced met A1 and thereafter wrote '80' on a piece of paper to convey to the complainant that the bribe amount has been scaled down to 80 lakhs and thereafter tore off the said piece of paper. Per contra, Ld. Defence Counsel pleaded that no demand of Rs. 80 lakh was ever made by A2 either CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -54- verbally, in writing or through gestures. Moreover, the alleged chit on which 80 was written was neither collected nor seized or photographed by the complainant or independent witness in a discreet manner.

31.4 It cannot be denied that the allegations against Aditya Kumar Rajvanshi (A2) refers to verification proceedings dated 10.07.2015. Despite that, SI Raman Kumar Shukla did not recommend registration of FIR against A2 on 16.07.2015. Had there been any cause of suspicion against A2 of entering into a criminal conspiracy with A1, SI Raman Kumar Shukla would have atleast recommended his name as well for registration of FIR against him. Even otherwise, in 'Amrik Singh Vs State of Punjab 2004 SCC Online P&H 469' the Hon'ble Supreme Court has confirmed the position as laid down in 'Sat Paul Vs Delhi Administration, 1976 SCC (Cri.) 160' wherein it was held that :

"Trap witnesses are interested witnesses concerned with the success of the trap and qualitatively their testimony is inferior to that of an interested witness. Corroboration of such interested witnesses from independent source is essential where witnesses have poor moral fiber with bad antecedents and have motive to remove the accused from their way."

31.5 In 'State of Bihar Vs Basawan Singh AIR 1958 SC 500' it was held that :

"If any of the witnesses are accomplices who are praticeps criminis in respect of the actual crime charges, CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -55- their evidence must be treated as the evidence of accomplices is treated ; if there are no accomplices but are partisan or interested witnesses who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case and in a proper case, the court may even look for independent corroboration before convicting the accused person.' 31.6 Thus, case against A2 being solely on the evidence of interested witnesses, it was all the more necessary for the prosecution to seize or atleast photograph the torn chit in which allegedly '80' was written, being a clinching piece of evidence which they failed to do. In the absence of alleged chit of paper, there is no other independent evidence against A2 to prove his guilt.

31.7 Even the transcript of conversation held during verification proceedings on 10.07.2015 Ex.PW2/O reveals that when the complainant told A2 that A1 has asked him to meet A2, A2 Aditya Kumar Rajvanshi said 'mujhe nahi pataa abhi' meaning thereby that there was no prior of meeting of mind between A1 and A2. When complainant persuaded A2 to get the bribe amount reduced from A1 then also there is no subsequent conversation between A2 and complainant which casts an iota of doubt against A2.

31.8 During verification proceedings on 14.07.2015 when complainant met Aditya Kumar Rajvanshi, he clearly told complainant that 'main toh isiliye beech mein bolna nahi chahta, main ab tak tha hi nahi kabhi bhi, maine kaha CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -56- mera kya lena nahi dena nah.' These statements are in itself exculpatory in nature and show that A2 Aditya Kumar Rajvanshi was nowhere concerned with the matter between complainant and A1. In fact, PW2 in his examination before the court clearly stated that on 14.07.2015 when complainant (PW2) met A2, A2 told him that A1 R.S. Tomar was a shrewd person and that he will not do complainant's work without taking money. A2 further clarified that he had nothing to do with A1 and that complainant should talk to A1 directly. Further, PW2 admitted in his crossexamination that A2 only used to hand over documents sought in RTI Act after the dealing hand had collected fees from the applicant and that A2 Aditya Kumar Rajvanshi was not authorized to certify that the complainant was the President of Green Estate & HRE Plot Holders Association.

31.9 Even during trap proceedings, the transcript of which is exhibited as Ex.PW2/P, A1 himself told the complainant to leave aside any conversation held with A2 stating 'usey chhodo, wo mota hai naa wo kal complaint karega, naye boss to bolega, main wo cheez nahi karna chahta..... Rajvanshi se kucchh baat nahi karni kyunki phir wo disclose kar dega.....' This clearly shows absence of any type of conspiracy between A1 and A2. In fact, A1 himself told complainant to forget about A2 meaning thereby that there was no element of conspiracy between them.



31.10              As far as demand of Rs. 80 lakhs is concerned, the prosecution

CBI No. 233/2019                                                   (Namrita Aggarwal)
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did not restrict its case to the point that the final demand was of Rs. 80 lakhs. In fact, PW3 SI Raman Kumar Shukla in his examinationinchief stated that 'the complainant also told us that accused R.S. Tomar said to the complainant that his work will be done today and the complainant will have to pay Rs. 1 crore out of which Rs. 10 lakhs was to be paid that day and remaining amount of Rs. 90 lakhs after the work was done'. Hence, the final demand by A1 was of Rs. 1 crores (and not Rs. 80 lakhs) out of which he asked the complainant to pay Rs. 10 lakhs on 17.07.2015 itself as advance payment. This establishes the fact that the demand kept flip flopping during the entire process and the figure '80' had no relevance for A1 R.S. Tomar since it was not even the final demanded amount. This further clarifies the point that there was no meeting of mind between A1 and A2.

31.11 Another blazing fact which was revealed during trial of this case was that an application Ex.PW13/DC was moved by the IO in the court of Ld. Principal District & Sessions Judge for recording the statement of Aditya Kumar Rajvanshi U/s 164 Cr.P.C stating that 'Sh. Aditya Kumar Rajvanshi, Junior Technical Assistant has worked under / with the accused R.S. Tomar, therefore, he is well conversant with the illegal acts i.e demand of bribe by accused R.S. Tomar from the complainant Sh. Munna Lal Gupta. Therefore, the statement of witness Sh. Aditya Kumar Rajvanshi, JTA is very relevant and essential which is required to be recorded u/s 164 Cr.P.C'.

CBI No. 233/2019                                                  (Namrita Aggarwal)
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                                           -58-

31.12              The said application was allowed and statement of A2 Aditya

Kumar Rajvanshi was recorded U/s 164 Cr.P.C on 18.11.2015 which is exhibited as Ex.PW13/DD. However, at the time of filing the final charge sheet IO deliberately concealed the statement of A2 recorded by him U/s 161 and 164 Cr.P.C as a witness and failed to place those statements on record. No plausible explanation was advanced by the prosecution as to why these statements were not placed on record alongwith the chargesheet and saw the light of the day only upon an application moved by Ld. Defence Counsel during proceedings U/s 207 Cr.P.C.

31.13 In 'Siddharth Vasishth @ Mannu Sharma Vs State (NCT of Delhi) (2010) 6 SCC 1' it was concluded that the prosecuting agency has wider set of duties than to merely ensure that the accused is punished i.e the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for determination of truth and justice for all the parties including the victims.

31.14 Thus, the conduct of IO manifestly demonstrates that A2 Aditya Kumar Rajvanshi was initially made a prosecution witness and that is why office search and seizure memo Ex.PW8/A was got signed by A2 as a witness only. Even while moving the application Ex.PW13/DC for recording the statement of A2 U/s 164 Cr.P.C, IO stated that 'statement of witness Aditya Kumar Rajvanshi is very relevant and essential'. Had there been any reason to CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -59- consider A2 as an accused, IO could have moved an application for grant of pardon before this court and thereafter made him an approver in this case which was not done. In fact, a deliberate attempt was made by the IO to conceal these chain of events, thus casting serious aspersions on the case of the prosecution against A2.

31.15 IO PW13 Jayant Kumar Kashmiri stated in his cross examination that 'I do not know whether statement of A2 U/s 161 and 164 Cr.P.C were sent to the sanctioning authority for sanction of prosecution of A 2 U/s 19 of P.C. Act'. This statement shows that statement U/s 161 and 164 Cr.P.C of A2 were concealed from the sanctioning authority as well by the IO and thus the sanction order passed by the competent authority was not on the basis of all the relevant material documents. Hence, the sanction order against A2 U/s 19 of the P.C. Act is also held to be invalid specially in light of the judgment of 'CBI Vs Ashok Kumar Aggarwal' (supra) wherein it has been held that :

"The prosecution must sent the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statement of witnesses, recovery memos, draft chargesheet and all other relevant material. The record so sent should also contain material / document, if any, which may tilt the balance in favour of the accused and on the basis of which the competent authority may refuse sanction."

Thus, my forgoing discussion persuades me to hold that the CBI has CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023 -60- miserably failed to prove its case against accused no. 2 Aditya Kumar Rajvanshi beyond reasonable doubt as the testimony of interested witnesses do not find corroboration from circumstantial evidence and material placed on record.

32. CONCLUSION

1. Accused No. 1 Rajinder Singh Tomar @ R.S. Tomar is convicted of offences U/s 7 P.C. Act and Section 13 (1) (d) read with Section 13 (2) P.C. Act. However, he is acquitted of the charges U/s 120-B IPC.

2. Accused No. 2 Aditya Kumar Rajvanshi is acquitted of the charge U/s 120-B IPC read with Section 7 P.C. Act and Section 13 (1) (d) read with Section 13 (2) P.C. Act.

Dictated & Announced in the open court today dated 10.04.2023 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21 Rouse Avenue Courts Complex/New Delhi CBI No. 233/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI21/10.04.2023

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Delhi District Court

Cbi vs . Rajinder Singh Tomar & Anr. on 10 April, 2023