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Delhi District Court

Cbi vs Ombir Singh(Trap) on 12 August, 2024

   In the Court of Sh. Ashwani Kumar Sarpal, Special Judge-08 (PC)
              Act, CBI, Rouse Avenue Court, New Delhi.



                    Central Bureau of Investigation

                                 vs.

                             Ombir Singh

                           CIS No. 92/2016
                   RC No. 09A/2015/ACB/CBI/ND
                       U/s 7 & 13 (2) of P.C. Act.
                                                Date of Institution--29-9-2015
                                                Date of decision----12-8-2024

                         *****************
12-8-2024.

JUDGMENT:

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1) According to the chargesheet filed in this Court, FIR was registered on 6-4-2015 on basis of one complaint given by Vipin Kumar, partner of M/s. Gaurav Enterprises on same day upon which verification was also done. Thereafter, trap was laid in which accused Ombir Singh, DDA official was apprehended from his office and trap money was recovered from drawer of his table. Though, in the complaint of Vipin Kumar, besides name of accused Ombir Singh, name of one another senior officer Jitender Singh, Dy. Director was also mentioned but he was not chargesheeted due to alleged insufficient evidence.

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Prosecution allegations in brief

2) It is alleged in the chargesheet that accused Ombir Singh was working as Section Officer in Horticulture Division-I, Sheikh Saria, DDA at the relevant time, whereas Jitender Singh was working as Dy. Director in the same office. Complainant Vipin Kumar partner of firm M/s. Gaurav Enterprises was providing security guards under contract dated 7-2-2014 to the office of accused. As they allegedly demanded bribe of Rs. 2 lakhs from Vipin Kumar for clearing his pending bills, so he made a complaint to CBI against both of them on 6-4- 2015. Verification on the said complaint was done by SI A.K. Maurya in presence of independent witness Kapil Singh. Accused Ombir Singh demanded bribe during telephonic conversation which was recorded, so ultimately FIR was registered on same day against him only which was marked to DSP Joseph Krelo, Trap Laying Officer (TLO) for investigation.

3) DSP Joseph Krelo formed trap team consisting of two independent witnesses, complainant and some CBI officials and took Rs. 1 lakh from complainant Vipin Kumar as trap money. Number of currency notes were noted in an Annexure of Handing Over Memo and Phenolphthalein Powder was applied on the same in the CBI office. The demonstration of use of Phenolphthalein Powder and its chemical reaction with Sodium Carbonate Solution in water was given to trap team members. The trap money was kept in the right side front pocket of pant of the complainant with directions not to touch Page No. 2 of 54 it and to give the same to accused only when he makes a demand. One DVR with micro memory card was given to complainant for purpose of recording of voice of accused and its use was explained to him which was kept inside of his wearing vest at belt level. Complainant was allowed to keep only mobile phone with him besides trap money and DVR and nothing else. One independent witness Kapil Singh was assigned the duty to become shadow witness and to remain close to complainant, so that he can see handing over the bribe money to the accused and overhear their conversations. Another independent witness Abhishekh Vajpia was directed to remain along with the trap team. Complainant was also directed to give signal to TLO after handing over bribe money to accused through miss call from his own mobile phone to the mobile phone of TLO bearing no. 9953076970.

4) From CBI office, trap team reached office of accused in two separate cars at 3.45 p.m. and in the way one call was also received from accused from his mobile number 9899648182 by complainant on his mobile number 9899793566 which was recorded. In the office of accused, complainant entered in the room of accused at about 3.50 p.m., whereas shadow witness remained outside near entrance door of the said room in order to avoid suspicion. Remaining team members including TLO stood on the road near the outer gate of the DDA office.

5) After about 20 minutes, TLO received miss call from the phone of complainant and team rushed towards the office room of the accused where he was found sitting along with Page No. 3 of 54 one another official Naresh Pal, Asst. Director. Complainant told that accused had demanded and accepted the bribe money from him. DVR fitted with memory card was taken from complainant. Accused was caught from both the hands. Fresh solution of Sodium Carbonate mixed with water was prepared and hands of the accused were dipped in the same one by one and solution turned pink. Bribe money of Rs. 1 lakh was found in the right side of the table drawer of the accused and currency notes number of the same were found tallied with the numbers as noted in Annexure of Handing Over Memo which were seized.

6) A cloth piece also rubbed inside of the table drawer from where money was recovered and dipped in the Sodium Carbonate Solution which also turned pink. One paper containing some calculations made by accused in respect of bills of complainant was also found which was seized. Sealing of all the seized material was done and complainant explained all the circumstances which had taken place inside of the office room. Search in the office room of accused was done, Jatinder Singh, Dy. Director who had already left the office was called and thereafter some files were seized by TLO by preparing Production cum Receipt Memo. Site plan was prepared, mobile phone of the accused was also taken in possession and trap team left with the accused to CBI office at about 6 p.m. where the memory card kept in DVR as well as DVR were sealed. In the CBI office, specimen voice of the accused was taken and he was formally arrested at 7.30 p.m., recovery memos were prepared in CBI office and Page No. 4 of 54 investigation completed. Lateron, the recorded voice of the accused was also got identified from Deen Dayal, another official of DDA, CFSL result and record from mobile companies were obtained and after completion of investigation, chargesheet was filed in court.

Charges framed and evidence led

7) My ld. Predecessor vide order dated 15-2-2016 framed charges under Section 7 & 13 (2) r/w 13 (1) (d) of P.C. Act against accused who pleaded not guilty. Prosecution in order to prove its case examined total 15 witnesses, whereas after recording of statement of accused u/s 313 Cr.P.C., he examined two defence witnesses from CBI office itself. I have heard counsel for the accused and PP for CBI and gone through the record and case laws shown by counsel for accused. Prosecution also filed its written submissions in which some case laws were referred but the copies of same were not annexed.

Contentions of prosecution and defence

8) As per PP, the following facts are clearly proved by the complainant PW-3 Vipin Kumar, independent witness PW-8 Kapil Singh, verifying officer PW-9 A.K. Maurya, and TLO PW-14 DSP Joseph Krelo in their examination in chief which are constant and corroborated from record.

(i) That PW-3 complainant Vipin Kumar had provided Page No. 5 of 54 security guards in the office of DDA and his bill was not cleared without payment of bribe, so he lodged complaint with CBI Ex. PW3/A on 6-4-2015.

(ii) That on this complaint, verification was done by PW-9 SI A.K. Maurya in presence of independent witness PW-8 Kapil Singh. During preliminary inquiry, one call made by the accused to complainant was recorded in which demand was made by uttering the words "Jo Bhi Hai Le Ke Aa Ja".

(iii) On the basis of verification report Ex. PW3/B and on the recommendations of PW-9 SI A.K. Maurya, FIR Ex. PW14/1 was registered against accused only on same day and thereafter a trap team was constituted under supervision and control of TLO PW-14 DSP Joseph Krelo.

(iv) Trap team consisting of TLO PW-14, K.S. Pathania (DSP), Pramod Kumar (Inspector), Gurusevak Singh (Inspector), A.K. Maurya (SI) PW-9, two independent witnesses namely Abhishek Vajpai and Kapil Singh PW-8 gathered in the office of CBI where preliminary proceedings were conducted. The demonstration about use of Phenolphthalein Powder and recording of conversations through DVR was given.

(v) CBI took Rs. 1 lakh from complainant PW-3 Vipin Kumar to be used as bribe money, noted its numbers in Annexure-A of handing over memo Ex. PW3/F, applied this money with Phenolphthalein Powder and put in the pocket of complainant and gave DVR to him.

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Independent witness PW-8 Kapil Singh was instructed to act as a shadow witness and to remain close to the complainant, so that he can hear and see the bribe transaction, whereas another independent witness has to remain with the trap team.

(vi) That the complainant PW-3 Vipin Kumar was instructed that the bribe money is to be paid only on the specific demand made by the accused or to be paid to any other person on his specific direction. After making payment, complainant has to give miss call to the TLO on his mobile number. Trap team left CBI office at about 3.20 p.m. towards office of accused.

(vii) That on the way to the office of the accused, a telephone call was received by the complainant Vipin Kumar from the mobile phone of accused at about 3.42 p.m. which was also recorded. In this call, accused asked the complainant about his whereabouts. The team reached office of accused at about 3.45 p.m.

(viii) That complainant PW-9 Vipin Kumar switched on the DVR and shadow witness PW-8 Kapil Singh remained outside of the room. In the office of accused at about 3.50 p.m., complainant Vipin Kumar gave him bribe money of Rs. 1 lakh and recorded conversations. Accused kept that money in the drawer of his table. Trap team after getting signal of miss call from complainant reached in the said office room, caught the accused, took his handwashes, recovered bribe money from his table drawer, compared the number of same Page No. 7 of 54 with numbers noted in Annexure-A of Handing Over Memo Ex. PW3/F and prepared recovery memo Ex. PW3/G.

(ix) That the conversation recorded between the complainant and the accused was heard in the presence of both the independent witnesses. Trap team conducted search in the office vide memo Ex. PW8/3 and also seized one paper Ex. PW8/4 on which accused had made some calculations and assessed the bribe amount as Rs. 2,45,700/-. Rough site plan Ex. PW8/6 was prepared and trap team collected some documents from Dy. Director Jitender Singh who was called in the office vide Ex PW8/5. Accused was formally arrested after taking him to CBI office at about 7.30 p.m. and his arrest cum search memo Ex. PW8/7 and recovery memo Ex. PW3/G of currency notes was prepared. Specimen voice sample was also taken. Proceedings in the office of CBI was closed at about 11.30 p.m.

(x) That final IO PW-15 Ramesh Kumar sent the exhibits to CFSL for opinion, prepared transcription memo Ex. PW3/H of the recorded conversation in presence of independent witnesses and the complainant on 23-4- 2015, recorded the statements of some witnesses and also got identified the voice of accused Ombir Singh and Assistant Director Naresh Pal, collected CDRs and CAF of complainant and accused Ombir Singh from the service provider of the mobile company as well as collected some more record from office of DDA.

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(xi) That it is established from call details record of complainant and accused that they talked with each other on phone on 6-4-2015 and accused had made a demand of bribe which was recorded.

(xii) That the specimen voice sample of accused was found matched with the recorded voice as per report of CFSL. Opinion of handwriting and chemical analyst were also taken.

(xiii) That after obtaining sanction u/s 19 of P.C. Act for prosecution of accused Ex. PW1/A from the competent authority, accused was chargesheeted.

9) Counsel for accused submitted that no doubt, complainant PW-3 Vipin Kumar, independent witness PW-8 Kapil Singh, PW-9 Verifying Officer Inspector A.K. Maurya and PW-14 IO cum TLO DSP Joseph Krelo in their respective examination in chief repeated the same allegations which are mentioned in the chargesheet but when the turn of their cross examination came, then number of facts and circumstances, discrepancies and improbabilities came on record which created doubt about the genuineness of the prosecution story. If the evidence of these main four prosecution witnesses in their examination in chief only is read and considered, then it is sufficient to convict the accused but Court has to go through the entire evidence of these witnesses including their cross examination also to find out their reliability and to find out whether ingredients of offence are made out or not.

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10) PP argued that minor contradictions and discrepancies in the statements of witnesses can be ignored which normally occur due to passage of time. He also stated that evidence of complainant PW-3 who had become hostile on number of points still can be read in favour of prosecution. On the other hand, counsel for accused pointed out towards various facts and circumstances, testimony of unreliable and stock witnesses, big contradictions and huge inconsistencies in the statement of prosecution witnesses as well as pointed out towards manipulations and fabrications of documents done by CBI which create a big dent in the prosecution story and leads to the conclusion that this trap was not genuine but was fabricated in which accused was falsely involved in this case. The following facts and circumstances of the case and appreciation of evidence raised during arguments from both sides as came on record, point out that the case is full of doubts, the benefit of which goes to accused and he is liable to be acquitted on these grounds.

Status of accused being public servant and dealing with the office file of complainant is established on record

11) The unpaid bill of firm M/s. Gaurav Enterprises in which complainant PW-3 Vipin Kumar was one of the partners, was only for a period of one last month from 5-1-2015 to 4-2- 2015 amounting to Rs. 1,47,000/-. The contract of M/s. Gaurav Enterprises had come to an end on 4-2-2015. Accused Page No. 10 of 54 even in his statement u/s 313 Cr.P.C. did not dispute his status as of public servant and admittedly was dealing with official file of firm M/s. Gaurav Enterprises. Though, accused is saying that complainant had not fulfilled certain pre- requisite formalities i.e. non submission of labour report and non-signing of attendance register but mere dealing with the said file is sufficient for his prosecution in the capacity of public servant. Even PW-12 Jitendra Singh, Dy. Director, Horticulture under whom accused was working at the relevant time has produced certain records such as Measurement Book, Site Order Book, agreement entered by DDA with M/s. Gaurav Enterprises, Completion Certificate etc. which were to be considered by the accused before recommending for clearance of the bills of firm and even some documents were signed by him. Thus, his dealing with the documents relating to complainant firm and processing the unpaid bill itself were sufficient to bring him in the scope and purview of public servant. Accordingly, prosecution has succeeded to prove the status of accused being a public servant and to attract the provisions of P.C. Act against him.

Sanction of prosecution u/s 19 P.C. Act against accused appears to be invalid

12) PW-1 Arun Goel, the then Vice Chairman of DDA gave sanction u/s 19 of P.C. Act dated 24-9-2015 Ex. PW1/A against accused for his prosecution. According to PW-1, he after receipt of investigation report, copy of FIR, memos, Page No. 11 of 54 relevant documents and statement of witnesses from CBI found it a fit case to grant sanction. PW-1 admitted in his cross examination that request dated 16-9-2015 for grant of sanction was received from CBI along with a draft sanction order. This witness was asked a question twice in his cross examination that his sanction order Ex. PW1/A and draft sanction order sent by CBI are exactly same except minor grammatical corrections. Instead of giving specific reply both the times, whether this suggestion of defence counsel is correct or not, PW-1 evaded to give the clear answer and only said that his sanction order is signed by him after going through the entire material. Accused during cross examination of this witness did not ask this witness to place on record the copy of CBI draft sanction order received by him on court file or to prove it, so that it can be ascertained whether both are virtually same and issued in similar manner. At defence evidence stage, accused moved an application to bring on record the copy of draft sanction order by summoning the relevant record but that request was rejected. However, despite it non giving of specific reply of question put twice itself create a suspicion that sanction order Ex. PW1/A was a ditto copy of the draft order of CBI which may indicate that this witness himself did not apply his mind before giving sanction. No doubt, witness PW-1 denied suggestions of defence that he gave sanction order without going through the material, at the behest of CBI and without application of mind but still, avoiding to give answer of above mentioned question put to him twice, the possibility cannot be ruled out that Page No. 12 of 54 sanction order was not passed after application of mind but it was passed just by coping the draft order sent by CBI. Hence, legality and validity of sanction order Ex. PW1/A is doubtful and questionable, the benefit of which goes to the accused.

No violation of Section 17 of P.C. Act

13) Counsel for accused argued that only an officer of rank of DSP or above could investigate the offence as per Section 17 of P.C. Act but here in this case, the verification/ preliminary inquiry on the complaint of complainant PW-3 Vipin Kumar was done by PW-9 Sub-Inspector A.K. Maurya, who submitted his report to higher officers and on his recommendations, FIR was registered. According to counsel, this process is illegal and consequently the entire investigation is bad in the eyes in law. It is also argued that Section 17 of P.C. Act further says that no person below the rank of Inspector can investigate the offence punishable under this Act without the order of the Magistrate. Admittedly, before holding preliminary inquiry, no permission of any Magistrate was taken. Counsel for accused cited case law H. N. Rishbud vs. State of Delhi AIR 1955 SC 196 in which the investigation conducted by an officer below the rank of Inspector prior to obtaining of order of Magistrate was found not valid, though the investigation done after the date of such order of Magistrate was found reasonable and legitimate.

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14) The above arguments of counsel for accused is liable to be rejected because Section 17 deals with the investigation to be done by an officer of particular rank and as per Cr.P.C., investigation starts only after registration of FIR. Prior to registration of FIR and start of investigation, any proceeding done for verification of complaint by police officer is permissible and there is no bar that it has also to be done by an officer of rank of DSP or by an Inspector with the permission of the court. Preliminary inquiry can be done only to find out whether complaint discloses any cognizable offence or not. The Hon'ble Supreme Court in case State of Karnataka vs. M.R. Hiremath (2019) 7 SCC 515 held that the stage of preliminary inquiry does not represent the commencement of the investigation. Hon'ble Supreme Court in Lalita Kumari vs. State of UP (2014) 2 SCC 1, Ashok Tshering Bhutia vs. State of Sikkim (2011) 4 SCC 402 and P. Sirajuddin vs. State of Madras (1970) 1 SCC 595 held that some suitable preliminary inquiry into the allegations by a responsible officer in respect of the allegations of act of dishonesty should be conducted before registration of FIR against a public servant. The scope of such preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

15) Sub-Inspector cannot be treated as an irresponsible officer and there is nothing on record to show that PW-9 conducted preliminary inquiry in irresponsible, unfair or biased manner.

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His appreciation of evidence collected during inquiry may be incomplete or wrong but that alone is not enough to held that his preliminary inquiry report was not correct or liable to be discarded straightway. Non production of complete inquiry proceedings is not fatal to the prosecution case. Hence, the objection of bar of Section 17 of P.C. Act is not applicable in respect of the preliminary inquiry conducted by PW-9 SI A.K. Maurya.

Demand of bribe of Rs. 2 lakhs is not convincing

16) The unpaid bill of M/s. Gaurav Enterprises was only for one month period from 5-1-2015 to 4-2-2015 amounting to Rs. 1,47,000/- as admitted by complainant PW-3 Vipin Kumar in his cross examination and thereafter, the contract of this firm had come to an end on 4-2-2015 due to expiry of contract period. Even PW-7 K.C. Chaudhary from account branch of DDA after seeing the measurement book Ex. PW7/PX-3 (colly) confirmed the date of completion of the contract of M/s. Gaurav Enterprises as 4-2-2015 and there is no entry after the said date as no further work was performed by this firm after this date. He also stated that no bill of complainant was pending except the bill for the period from 5-1-2015 to 4- 2-2015. The contract of the complainant had already come to an end on 4-2-2015 and there was even no proposal to extend it. No prior bills were pending being already paid to complainant. It is highly doubtful that for clearance of amount Page No. 15 of 54 of last bill of Rs. 1,47,000/-, the accused had demanded bribe of Rs. 2 lakhs as alleged in the complaint. No prudent public servant will demand nor any individual will pay the amount towards bribe which is more than the amount or value of benefit which he will get from the office of said public servant. Thus, demand of Rs. 2 lakhs as alleged by complainant PW-3 Vipin Kumar in his complaint Ex. PW3/A on the face of it appears to be highly doubtful, improbable and not convincing.

Bill could not have been passed due to fault and lapses on the part of the complainant

17) Furthermore, the last bill of the complainant PW-3 Vipin Kumar of Rs. 1,47,000/- could not have been passed as he had not signed on the attendance register as well as had not submitted the labour report, which were the necessary pre- conditions for clearance of his bill. Admittedly, complainant PW-3 Vipin Kumar had not complied with these two conditions. PW-12 Dy. Director Jitender Singh not only in his examination in chief but also in cross examination clearly stated that since the contractor (i.e. complainant) had not signed on the last page no. 12 of the attendance register pertaining to deployment of security guards Ex. PW5/C, so his bill was stopped though he had already signed first 11 pages. He also stated that contractor was also required to submit labour report which was not given. As per this witness Page No. 16 of 54 PW-12, the final bill is prepared on the basis of completion certificate which was already prepared by accused i.e. Ex. PW7/P-X. PW-12 Jatinder Singh also stated that after these formalities are completed, the process of preparation of the final bill is started.

18) Other prosecution witnesses PW-11 Satya Pal Singh and PW- 13 Deen Dayal from DDA who were also working in the same office also mentioned the procedure of their office regarding issuing of contract, how and in which manner the bills of contractor used to be passed and how from one table to another, bill file used to go for release of payment as well as some facts relating to contract awarded to M/s. Gaurav Enterprises, a firm belonging to complainant. PW-13 deposed that accused was maintaining the attendance register of the security guards of M/s. Gaurav Enterprises Ex. PW5/C which bears his signature against each entry and Assistant Director Naresh Pal also used to cross check this register by signing the same. He also stated that payment upto 4-1-2015 was already made to M/s. Gaurav Enterprises and no further payment from 5-1-2015 to 4-2-2015 was made as it was under

process. He also stated that the completion certificate Ex. PW3/DX-1 had already been prepared by accused but since M/s. Gaurav Enterprises has not signed on attendance register and had not submitted the labour report that is why his payment was withheld.

19) One more witness PW-7 K.C. Chaudhary, Assistant Account Page No. 17 of 54 Officer of the office also admitted in his cross examination that in absence of signature of the contractor in the measurement book for the period from 5-1-2015 to 4-2-2015 as well as non furnishing of labour report for the said period, it can be said that apparently necessary formalities by the contractor were not completed for purpose of the submission of the bills for this period. Complainant PW-3 in his cross examination after seeing the 10 monthly reports Ex.

PW3/DX-2 admitted that earlier these reports were bearing his signatures. From his admission, it is thus clear that complainant PW-3 himself had not signed on the monthly report of a period from 5-1-2015 to 4-2-2015 qua which period, his payment was left only to be paid by DDA as his contract has come to an end on 4-2-2015. Complainant PW-3 in his cross examination also admitted that Bill Clerk will not process making of the bill for payment until and unless he counter signed the register Ex. PW5/C containing details of the security guards deputed by him. PW-3 also admitted that he had not signed on the last page no. 12 of this register, though all earlier pages were signed by him. Thus, the above deposition of various witnesses including the admission of the complainant PW-3 himself, DDA officials were justified to withheld the payment of the complainant due to non- compliance of certain mandatory formalities by him and accused was also right to stop the further movement of file of the complainant due to his own lapse and negligence. Hence, the chances of making false complaint of demanding bribe by the accused on the part of the complainant becomes more Page No. 18 of 54 apparent by concealing his own misdeeds, inaction and non- fulfillment of the mandatory conditions.

Threats given by complainant to DDA officials

20) PW-12 Jatinder Singh Dy. Director of DDA and senior officer of the accused deposed in his evidence that instead of completing the necessary formalities, complainant PW-3 once forcibly entered in his office after about one month of 4-2- 2015 when his contract had already expired and threatened of consequences in case his bill is not cleared. This witness also stated that complainant had wrongly named him in his complaint when he had not demanded any bribe from him. Similarly, PW-11 Satya Pal Singh, another DDA official working in the same office where accused was posted in his statement mentioned that complainant PW-3 Vipin Kumar used to threaten the officials of DDA that his awarded work should be extended otherwise the officials will face consequences. He also used to threaten the officials of DDA that in case his work is not done, he will get the official arrested by CBI. This witness PW-11 also stated that about 15 days prior to the incident, complainant visited his office and in presence of other officials told him that he should advise accused to work as per his demand, otherwise he will get accused Ombir arrested by CBI. Complainant PW-3 also told this witness PW-11 and others that he had already got a police official arrested by CBI. Complainant PW-3 in his cross Page No. 19 of 54 examination admitted that earlier also one trap case was instituted on his complaint against Delhi Police Sub Inspector Nirmal Singh. He also admittedly is an accused in one case of forgery etc. registered in PS Chhapar, Muzzaffar Nagar according to the certified copy of chargesheet Ex. PW3/DX-3. These facts of giving threats to DDA officials coupled with the fact that he was also having some criminal antecedents indicate that complainant was adamant to get his work done by hook or crook and by giving threats without complying with the necessary formalities and procedure of clearance of his bill.

No demand of bribe made by accused nor the bribe amount was delivered to him

21) Prosecution story is that it was the accused himself who demanded the bribe and also accepted the same from the complainant PW-3 and the bribe money was found from the drawer of his table. Complainant PW-3 Vipin Kumar in his examination in chief stated that when he reached the office room, he found that accused was not present at that time in his room and Asst. Director Naresh Pal was there. Complainant PW-3 specifically stated in response to one question put by prosecution (at page 5 of examination in chief dated 4-3-2020) that he had given bribe money to Naresh Pal before accused came to his office room and Naresh Pal had kept that money in the drawer of a table on which accused sat Page No. 20 of 54 after entering in the office. Prosecution declared complainant hostile in this regard. During the cross examination done by PP (at page 2 and 3 dated 28-10-2021), PW-3 complainant by denying the suggestion of PP again confirmed that when he reached in the office, only Naresh Pal was present there. He also again stated he handed over the bribe money to Naresh Pal and not to the accused. Once again, complainant PW-3 confirmed in his statement (dated 11-11-2021 at page 1 during cross examination done by PP) that he had handed over the money to Naresh Pal and not to the accused on his demand. Again in response to the suggestion put by PP (page 2 of his statement dated 15-11-2021), complainant disclosed that he had given the bribe money to Naresh Pal and not to the accused. He also stated that Naresh Pal had put the bribe money in the table drawer and specifically denied that it was the accused who put the said money in his drawer. Complainant PW-3 once again in his cross examination done by counsel for accused on 15-11-2021 admitted that on his entering room, Naresh Pal had demanded bribe money which was handed over to him. He also admitted that at that time, accused was not present in the room and only Naresh Pal, Ashok and Bahadur were there. He had sent Bahadur to bring cigarettes after handing over the bribe amount to Naresh Pal and accused came in the said room lateron after Bahadur left. Mere fact that at one stage of his cross examination done by accused, complainant PW-3 stated that bribe money was for all of them itself is not sufficient to hold that accused had demanded or accepted the same.

Page No. 21 of 54

22) It has also come in the statement of complainant PW-3 that Assistant Director Naresh Pal and accused both were sharing the said office room which means that it was not the exclusive room of accused. Site plan Ex. PW8/6 (Mark Ex. PW3/DX- A) also shows that it was the room of Naresh Pal where alleged bribe transaction taken place. PW-8 Kapil Singh, a shadow witness in cross examination admitted that he himself had not seen the complainant handing over the bribe money to any person. PW-8 even admittedly did not hear the entire conversation taken place in the room as per his statement dated 2-2-2018 Ex. PW8/D-1 given before inquiry officer in DDA office in disciplinary proceedings conducted against Naresh Pal. Even PW-14 DSP Joseph Krelo TLO in his cross examination admitted that he could not see who was going or coming from the office room of Naresh Pal as he was standing outside the gate of DDA office complex. He clearly admitted that he had not seen or heard the accused demanding or taking any money from the complainant.

23) PW-9 A.K. Maurya also admitted in his cross examination that he himself had not seen to whom complainant had met after he entered the room nor could tell whether the other team officials standing with him outside the office of DDA or the said room could see the activities inside the said room. PW-15 Ramesh Kumar, last IO also admitted in his cross examination that during his investigation he had learnt that the activities of the complainant after he entered in a room at Page No. 22 of 54 the DDA office, were not seen by either of the remaining members of the trap team including independent witness. Thus, all the above facts specially testimony of the complainant PW-3 himself, not only create a big doubt in the prosecution story but infact demolish its case that it was the accused only who demanded and accepted the bribe from the complainant. On the other hand, statement of complainant PW-3 indicates that Naresh Pal Asst. Director had demanded the bribe and received the same which he put in the drawer of table of the accused in his absence. Why no prosecution has been launched against Naresh Pal by CBI is an unexplained fact. Even during pendency of the case, no application was moved by prosecution to summon Naresh Pal u/s 319 Cr.P.C. as an accused despite the fact that some evidence had come in the statement of complainant PW-3 against this official. One more thing was pointed by counsel for accused that prosecution has not examined LW-10 Raj Kumar who in his statement u/s 161 Cr.P.C. stated that complainant used to give money to DDA official, so that they make direct payment of wages to security officials appointed in the office by him. Had the statement of this witness came before court, then there might be possibility that some explanation come that alleged payment made by complainant to Naresh Pal was not towards bribe but towards some unofficial understanding towards payment of wages to the security guards.

The call recording before registration of FIR is inadmissible in evidence Page No. 23 of 54

24) Much reliance is placed upon by the prosecution on one call recording containing the words "Jo bhi hai le ke aaja"

allegedly uttered by the accused during making of a call to the complainant PW-3 at 12.30 p.m. on 6-4-2015 through his mobile phone no. 9899648182. Prosecution described these words of accused as of making demand of bribe. Admittedly, this call was recorded when only verification proceedings was being conducted by PW-9 A.K. Maurya and FIR was not registered.

25) Hon'ble Supreme Court in case State of Karnataka vs. M.R. Hiremath (2019) 7 SCC 515 held that the purpose of preliminary inquiry is only to enable the prosecution to ascertain whether a cognizable offence is made out or not. In corruption cases, there may be a situation where a preliminary inquiry is required. The stage of preliminary inquiry does not represent the commencement of the investigation and the purpose is to ascertain whether the information which was furnished by the complainant can form the basis of lodging of FIR. Hon'ble Supreme Court in this matter held that collection of material before registration of FIR is inadmissible in evidence as investigation starts on the day when the FIR is registered under Section 154 Cr.P.C. In this cited case, complainant gave a written complaint on 8-11-

2012 before Lokayukta Police regarding apprehension of demand of bribe from him by public servant and his associates. The police handed over spy camara to the Page No. 24 of 54 complainant and conversation between him and public servant was recorded on 15-11-2012 in which some discussions had taken place in respect of bribe amount to be exchanged for completion of work. Lokayukta Police lodged FIR on 16-11-2012 and trap was laid and associate of the public servant was apprehended while receiving initial payment on behalf of public servant. Hon'ble Supreme Court held that the stage of handing over the spy camara to the complainant and recording of conversation between him and public servant regarding demand of bribe is a stage which does not represent the commencement of the investigation. At that stage, the purpose was to ascertain in the course of a preliminary inquiry, whether the information which was furnished by the complainant would form the basis of lodging of FIR. The purpose of the exercise which was carried out on 15-11-2012 was a preliminary enquiry to ascertain whether the information reveals a cognizable offence.

26) In case Charan Singh vs. State of Maharashtra (2021) 5 SCC 469, Hon'ble Supreme Court held that the purpose of preliminary inquiry was whether cognizable offence is revealed or not and the scope of such preliminary inquiry is not to verify the veracity or otherwise of information received. In this case the Hon'ble Supreme Court held that preliminary inquiry cannot be a fishing or roving inquiry and the statement made by the accused during such preliminary inquiry cannot be used against him during the course of trial.

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27) Hence, in the present case, the recorded conversation before the stage of registration of FIR cannot be looked into and accordingly, the alleged uttered words of accused "Jo bhi hai le ke aaja" which prosecution allege that it is infact a demand of bribe have to be ignored.

Complainant was not using the mobile phone upon which calls of accused were received

28) PW-2 Pradeep Singh, Nodal Officer from Vodafone Mobile company provided certified copy of customer application form (CAF) Ex. PW2/A and call detail records (CDR) Ex. PW2/B for the period of 5-4-2015 and 6-4-2015 along with certificate u/s 65B of Indian Evidence Act Ex. PW2/D relating to mobile no. 9899648182 issued in the name of accused. This witness also proved certified copy of CAF Ex. PW2/F and CDR Ex. PW2/G for the period 5-4-2015 and 6-4- 2015 along with certificate u/s 65B of Indian Evidence Act Ex. PW2/J in respect of mobile no. 9899793566 issued in the name of Devendra. As per prosecution, this mobile no. 9899793566 was allegedly being used by the complainant PW-3 Vipin Kumar on the day of trap.

29) According to call details record of phones of both accused and Devendra dated 6-4-2015 (the day of trap), only 3 calls between them took place, two were made by accused and one was received by him. However, PW-6 Devendra in whose Page No. 26 of 54 name mobile no. 9899793566 was standing and who worked as driver for about 10 years in M/s. Gaurav Enterprises specifically stated that in the year 2015, he had purchased one Vodafone SIM with the number 9899793566 vide his CAF Ex. PW2/G and when he had gone to his village in May, 2015, then at the request of his employer Vipin Kumar, he gave SIM no. 9899793566 to him for his use and prior to that he was using that SIM himself. This witness was declared hostile by prosecution. In cross examination done by PP, he specifically denied the fact that he had given this SIM to complainant Vipin Kumar immediately after its purchase and it was used by him on 6-4-2015. He admitted that CBI had recorded his statement but denied that it was read over to him. In cross examination done by accused, he again confirmed that he had told CBI that he had given his SIM to Vipin Kumar in May 2015, before going to his village. Thus, from his testimony, this fact has come on record that on the day when trap was laid, mobile number 9899793566 was used by him and not by PW-3 Vipin Kumar complainant. This testimony of PW-6 also creates a big doubt in the prosecution story regarding exchange of calls between complainant and accused on 6-4-2015 allegedly containing conversations in respect of making a demand of bribe. When the complainant PW-3 was not using the mobile no. 9899793566 on the day of trap, then how it is possible that he talked with accused thrice on that day has remained unexplained fact. The testimony of PW-6 makes a big dent in the truthfulness of the prosecution story.

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Simple evidence of handwash and recovery of bribe amount from open drawer is not sufficient to convict the accused in absence of other evidence

30) Hon'ble Supreme court in case M. K. Harshan vs. State of Kerela (1996) 11 SCC 720 held that where there are conflicting versions and suspicious features, the plea of accused that notes were put in the drawer without his knowledge does not appear to be improbable. In this cited case, the statement of complainant was found not fully reliable, there was no corroboration of such statement, besides demand there must be an acceptance of bribe and simple demand itself is not sufficient to establish the offence. When any person can have access to the room of the accused and can put anything in the drawer of his table and there is difficult to place reliance upon uncorroborated testimony of the complainant, then the plea of the accused that in his absence somebody else might have put the tainted money in his drawer is plausible. In such circumstances, the Hon'ble Supreme court gave benefit of doubt to the accused and acquitted him.

31) Hon'ble Supreme court in case P. Parasurami Reddy vs. State of Andhra Pradesh (2011) 12 SCC 294 found number of facts going in favour of the accused but the lower courts solely relied upon the evidence of the handwash to convict him. It was held by the Hon'ble Supreme court that sole evidence of Page No. 28 of 54 the fingers being soiled in sodium carbonate turned pink itself is not sufficient to convict the accused and he should be given benefit of doubt.

32) PP referred to Section 7 of P.C. Act and argued that mere 'obtaining', 'accepting' or 'attempting' to obtain undue advantage with the intention to act or forbear from acting in a certain way is sufficient to complete the offence. It is not necessary that the act for which the bribe is given be actually performed. PP stated that accused asked for bribe of Rs. 2 lakhs as per complaint of PW-3 Vipin Kumar to clear his bills, accepted sum of Rs. 1 lakh which was recovered from his table drawer constitute the offence which is complete even if the pending bills were not cleared by that time. On the other hand, TLO PW-14 has admitted in his cross examination that drawer of the table of the accused was an open drawer without any lock in which anyone can put anything. According to PW-8, since he has not checked the drawer of the table from where bribe money was recovered, so he cannot tell whether there was any lock in the table drawer or not and whether the bribe money could have kept in it by complainant himself or Naresh Pal, Asst. Director.

33) From the cross examination of complainant PW-3 it has already come on record that he had given the bribe amount to Naresh Pal, Asst. Director, who had kept the same in the drawer of table of the accused who was not present in the room at that time. After Bahadur had left to bring the cigarettes, then accused came in the room. When accused sat Page No. 29 of 54 on his chair, the complainant had shaken his hands with him. Thus, the possibility of Phenolphthalein Powder coming into the hands of the complainant after giving of bribe money smeared with such powder to Naresh Pal and then coming on the hands of accused after hands were shaked by complainant cannot be ruled out. PW-15 Ramesh Kumar last IO also admitted in his cross examination that it is the property of the Phenolphthalein Powder that if hands of a person are smeared with such powder and he shakes hand with any other person, the particles of Phenolphthalein Powder get transferred to the other person's hand. In such situation, mere fact that hand washes of the accused were found positive is not sufficient to hold that he had accepted the bribe amount when the stand of the complainant PW-3 was again and again that bribe was demanded by Naresh Pal, Asst. Director which was given to him only and he kept in the drawer of the table of the accused in his absence. Thus, in such situation, prosecution cannot take benefit of the fact that hands of the accused were dipped in the Sodium Carbonate solution and colour of the same became pink as well as that the recovery had taken place from the open drawer of the table upon which accused was sitting especially when the money was kept in that drawer by Naresh Pal in absence of accused after taking the same from complainant.

Recorded Telephonic Conversations after registration of FIR and preparation of its transcriptions

34) Even if one recorded call prior to registration of FIR has been Page No. 30 of 54 discarded being inadmissible in evidence but prosecution still is relying upon two calls recorded after registration of FIR as well as conversations taken place at the time of giving bribe as well as transcriptions of the same prepared by last IO PW-

15. It is important to mention here that recorded conversations infact nowhere clearly reveal any demand of bribe specifically made by the accused.

35) Counsel for accused cited case laws Yusuffali Esmail Nagre vs. State of Maharashtra 1967 SCC OnLine SC 87, N. Sri Rama Reddy vs. Shri V. V. Giri 1970 (2) SCC 340, Mahabir Prasad Verma vs. Dr. Surinder Kaur (1982) 2 SCC 258, R. M. Malkani vs. State of Maharashtra 1972 (2) SCR 417 which relates to recorded telephonic conversations. The crux of these judgments is that evidence of tape recorded conversation is admissible in evidence to corroborate the evidence of the witnesses who had stated that such conversations had taken place. However, the time and place and accuracy of the recording must be proved by competent witness and the voices must be properly identified. Further, the Court must be satisfied beyond reasonable doubt that such telephonic conversation record has not been tampered with. Moreover, there should not be any element of duress, coercion or compulsion and the statements should not have been extracted in an oppressive manner or by force or against the wishes of a person against whom such conversation is to be used. Previous statement made by a person and recorded on tape can be used not only to corroborate previous evidence Page No. 31 of 54 in the Court but also to contradict the evidence given before the Court as well as to test veracity of the witness and also to impeach his impartiality. It was also held by the Hon'ble Supreme Court that tape recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation the tape recorded conversation is indeed no proper evidence and cannot be relied upon. It is also held that tape recorded conversation even if illegally obtained is admissible in evidence u/s 7 of Evidence Act provided that conversation is relevant to the matter in issue and there is identification of the voice and there is no possibility of erasing or tampering of recording.

36) Hon'ble Supreme Court in Ram Singh vs. Col. Ram Singh 1985 (Supp.) SCC 611 held that a tape-recorded statement is admissible in evidence, subject to the following conditions:-

(1) The voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.

(2) The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence:

direct or circumstantial.

(3) Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded.

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(4) The tape-recorded statement must be relevant. (5) The recorded cassette must be sealed and must be kept in safe or official custody.

(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.

37) Complainant PW-3 Vipin Kumar in his cross examination done by PP after declaring him hostile identified his voice and voice of accused when memory cards were played in the court containing recordings at the stage of verification proceedings, at the time of going to office of DDA as well as recorded at the time of alleged bribe transaction. However, PW-13 Deen Dayal from whom voices were got identified during investigation could not identify any recorded voice either of accused or Asst. Director Naresh Pal, when the same was played before him in Court, despite the fact that he worked with accused for about 1½ year and with Naresh Pal for about 3 years.

38) PW-7 K.C. Chaudhary, Assistant Account Officer, DDA became totally hostile firstly and denied recording of statement of any person in his presence when he visited CBI office. It is the allegation of the prosecution that in presence of this witness, specimen voice of accused was taken and even recorded conversations taken place between complainant and the accused were played. PW-7 deposed that when IO informed him that he would play some recordings in his presence, then he expressed his inability to identify any such Page No. 33 of 54 voice on the ground that he was not familiar with any details of the persons whose voices were to be played. After this no recording was played before him. However, in the cross examination done by PP, he stated that on 14-5-2015, an audio recording was played before him by IO Inspector Ramesh Kumar on his laptop but he could not identify any voice on the ground that he did not even know the face of the person whose voice he was supposed to identify. Thus, it is clear that this witness PW-7 had also not identified the voice of the accused in CBI office. Prosecution even did not play the recorded conversations before him in the court also during his deposition.

39) PW-8 Kapil Singh, an independent witness in his cross examination admitted that he did not hear the voice of Naresh Pal, Ombir (accused) and complainant in any other case except this case. When asked who had identified the name of the speaker in the said transcription Ex. PW3/H, when it was being prepared, then he replied that all the people who had signed on the transcription had identified the voices, which means that he had not actually identified any voice and his signatures were only taken on voice identification memo. In answer to one question put in cross examination, this witness PW-8 also deposed by stating that since he was outside the office room, he was not able to hear the conversation between the speakers taken place inside of the room.

40) There are also contradictions when the micro memory cards containing recorded conversations were sealed and when the Page No. 34 of 54 transcription of the same were prepared. As per prosecution, the transcription of recorded calls was prepared only on 23-4- 2015 in presence of witnesses. PW-15 last IO Ramesh Kumar clearly denied the suggestion of defence that transcription of the conversation was made prior to 23-4-2015 and he just signed on the said previously made transcription Ex. PW3/H. He also stated that no copy of transcription of any nature was sent to CFSL on 22-4-2015. However, he could not explain how the copy of transcription prepared on 23-4-2015 consisting of 16 pages reached in the office of CFSL along with the letter of SP on 22-4-2015. The copy of transcription was found attached with the expert report Ex. PW4/B and expert clearly stated in his deposition that it was received along with the sealed micro memory cards and DVR with the letter of concerned SP. All the above facts not only create doubt about the correctness of the identification of recorded voices but also point out towards manipulating the transcriptions of the same.

Non examination of second Independent witness

41) PP mentioned the cases State of Haryana vs. Inder Singh (2002) 9 SCC 537, Karunakaran vs. State of Tamil Nadu (1976) 1 SCC 434, Sadhuram vs. State of Rajasthan (2003) 11 SCC 231 and Seeman vs. State (2005) 11 SCC 142 in his written submissions and took plea that even testimony of sole independent witness PW-8 Kapil Singh is reliable and conviction can be based upon it because he had no motive to Page No. 35 of 54 falsely implicate the accused in the present case despite the fact that complainant PW-3 turned hostile.

42) There were two independent witnesses joined in this case namely Kapil Singh and Abhishekh Vajpia. Prosecution did not examine one independent witness Abhishekh Vajpia and only Kapil Singh was examined as PW-8. TLO PW-14 had asked him to remain close to complainant PW-3 Vipin Kumar at the time when bribe money was to be exchanged during trap proceedings so that he could see and hear what had happened between accused and complainant inside of the office room as well as how and in which manner bribe money was exchanged. However, from the testimony of this witness PW-8 Kapil Singh, it has come on record that he could not hear and see what had happened inside of the room. On the other hand, testimony of the complainant Vipin Kumar shows that this independent witness had left the office and gone to the park. In such situation, non-examination of second witness is fatal to the case of the prosecution especially when it has also come on record that PW-8 was the stock witness of the CBI.

CBI officials also failed to prove bribe transaction

43) According to PP, the statement given by PW-9 SI A.K. Maurya and TLO PW-14 DSP Joseph Krelo can be relied upon even if the complainant has become hostile as law says that presumption that a person acts honestly applies as much Page No. 36 of 54 as in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds. In this regard, PP referred to judgments Aher Raja Khima vs. State of Saurashtra AIR 1956 SC 217, Pradeep Narayan vs. State of Maharashtra (1955) 4 SCC 255 and Tahir vs. State (1996) 3 SCC 338 in his written submissions. He argued that conviction can be recorded on the evidence of CBI officials as it inspires confidence despite the fact that complainant PW-3 Vipin Kumar has not supported the case on some aspects. However, the question of reliance upon evidence of these officials to prove the bribe transaction arises only, if they themselves had seen or heard about giving of bribe by complainant to accused. They in their cross examination already admitted that they could not see or hear anything because they were standing at outer gate of DDA complex whereas alleged bribe transaction had taken inside of the office room which was at a distance from the main gate as per site plan prepared by CBI officials. Even last IO PW-15 also admitted in his cross examination that he could not find any evidence during investigation that any CBI official or even independent witness were able to hear and see the bribe transaction allegedly taken place in between complainant and accused. In such situation, the argument of prosecution to rely upon the testimony of CBI officials to prove exchange of bribe is liable to be rejected.

Complainant became hostile and not supported prosecution on most of material aspects Page No. 37 of 54

44) It is argued by the PP while referring the decision of Hon'ble Supreme Court in case Neeraj Dutta vs. State (2023) 4 SCC 731 that even if the bribe giver or the complainant dies or turns hostile and the fact cannot be proved by direct evidence, then it could be proved by the evidence of another witness who has direct knowledge of the said fact or even by circumstantial evidence. In the event, the fact of acceptance is proved, Section 20 of P.C. Act would apply and a presumption has to be raised that the acceptance was the reward of any act. PP also relied upon decision of Hon'ble Supreme Court in case Himanshu vs. State of Delhi, Crl. Appeal no. 560/2010 decided on 4-1-2011 in which it is held that evidence of a hostile witness remains the admissible evidence and it is open to the court to rely upon the dependable part of that evidence which is found to be acceptable and duly corroborated by some other reliable evidence available on record. PP also pointed towards some observations of the court in Koli Lakhmanbhai vs. State of Gujarat (1999) 8 SCC 624 wherein it is held that the testimony of the hostile witness is useful to the extent to which it supports the prosecution case. Case Prithi vs. State of Haryana, Crl. Appeal no. 1835/2009 decided on 27-7-2010 is also mentioned in the written submissions in which it is held that the evidence of prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record Page No. 38 of 54 altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof.

45) However, complainant PW-3 on most of material aspect did not support prosecution and evidence of such hostile witness infact has gone in favour of the accused despite the fact that he was cross examined at length by PP. As per examination in chief of PW-3, trap team informed him that it had been decided to apprehend both accused and Dy. Director Jitender Singh whereas actually it was the accused only who was suspect and Dy. Director Jitender Singh was not named in FIR who infact was made prosecution witness. PW-3 in this respect denied the correctness of his own statement u/s 161 Cr.P.C. Ex. PW3/C-1 also.

46) PW-3 Vipin Kumar in his deposition before court stated that currency notes after treated with Phenolphthalein Powder were kept in his pocket by CBI official whereas as per CBI chargesheet it was kept by independent witness Abhishekh Vajpai. During cross examination done by PP, this witness again repeated his stand that money was kept in his pocket by CBI official and not by independent witness Abhishekh Vajpai. But he again changed his stand during cross examination done by PP by stating that powder treated trap money was given to him by Abhishekh Vajpai which he had put in his pant pocket.

47) PW-3 in examination in chief stated that CBI team left the Page No. 39 of 54 office at about 11 a.m.-12 p.m. for DDA office and reached there at about 1 p.m. and after conducting proceedings there left at about 3-4 p.m. and reached CBI office at about 4 p.m. However, when he was cross examined by PP after declaring hostile, then he stated that pre trap proceedings in CBI office were concluded at 3.20 p.m., team reached DDA office at about 3.45 p.m. and left at about 6 p.m.

48) Complainant PW-3 in his examination in chief also stated that after returning to CBI office, nothing had happened in his presence as he was asked to go home. Even during cross examination done by accused, he stated that he was sent out of the office room by CBI team within 1-2 minutes of their entry in the said room. He was called in CBI office thereafter many times and his signatures were taken on certain papers.

49) According to PW-3 in his examination in chief when transcription of recorded conversation was prepared while playing the same on laptop, then there was no other person present except him and CBI official whereas prosecution case is that even independent witnesses were also present at that time.

50) PW-3 also stated in his examination in chief that he received total 3 calls from accused and made one call to him whereas he had actually received only 2 calls. In cross examination done by PP he stated by mistake he stated in earlier statement that he had made only one call to the accused while on the way to the spot. He also stated that he does not know why he Page No. 40 of 54 had said on the previous date that there was another call from the accused. He also deposed that he did not remember what was asked from him on the previous date and in what context he had stated about another call made by the accused. Thus, the complainant was not sure of actual facts and appears to be in confused state of mind in this regard.

51) In his examination in chief, PW-3 also stated that he went inside of the office of accused whereas shadow witness remained outside the office in a park. However, after declaring hostile, this witness in his cross examination stated independent witness Kapil Singh stayed outside of the office of accused. Complainant is blowing hot and cold at the same moment and his testimony cannot be relied upon which allegedly is going in favour of prosecution as argued by PP. PW-3 also denied the fact in his cross examination done by PP that independent witness Kapil Singh stayed outside of the office room of accused at his own asking which fact was found contradictory to his statement u/s 161 Cr.P.C. Even PW-14 TLO in his cross examination stated that shadow witness Kapil Singh remained outside of the room at the asking of the complainant Vipin Kumar and this fact was noted in Ex PW3/G.

52) PW-3 Vipin Kumar also denied the suggestion given by PP during his cross examination that accused was found present in the office room when he entered in the said room. This witness not only in his examination in chief but also in cross examination done by PP and counsel for accused repeated Page No. 41 of 54 again and again that accused was not there when he reached there as he came lateron when bribe money was already given to Naresh Pal, Asst. Director who put that money in the drawer of table of the accused and bribe transaction had already completed.

53) During his cross examination done by PP, this witness complainant PW-3 denied giving of any statement to CBI that he had made inquiry from accused about his pending bills or accused started making some calculations on a paper and told that that bribe of Rs. 2,45,700/- has to be given or that he told accused that he earlier was asking only Rs. 2 lakhs and thereafter he handed over the bribe money of Rs. 1 lakh to him which he kept in drawer of his table. In these aspects, he was confronted by PP with his earlier statement u/s 161 Cr.P.C. dated 22-4-2015 Ex. PW3/C-1 but despite it, complainant did not change his stand from earlier examination in chief given in court before declaring hostile. If the last line of page no. 3 of cross examination done by PP on 28-10-2021 after declaring complainant as hostile that "It is wrong to suggest that I had not given the trap money to Naresh Pal in the office of accused Ombir Singh" is taken into consideration, then prosecution itself had demolished its own case by suggesting that bribe money was given to Naresh Pal and not to the accused and thus has supported the version of the complainant.

54) Complainant PW-3 in his cross examination done by PP Page No. 42 of 54 admitted that he had pointed towards accused to trap team and told TLO that he had taken the bribe money but also simultaneously clarified that on the asking of TLO as to who was Ombir Singh, he pointed towards him and told that bribe money was in table drawer of the accused. It is also stated by him that thereafter he was sent outside of the office room by TLO, so do not know what happened thereafter.

55) Complainant PW-3 in his cross examination done by PP also denied that DVR was played in the office room of accused to hear the recorded conversation in the presence of all team members. He also showed ignorance whether TLO made a missed call on the phone of accused. He also denied the suggestion that memory card of DVR was sealed in the office of CBI after returning back but stated that it was sealed on next day in his presence. He even did not know whether any sample voice of accused was taken in CBI office in presence of independent witnesses or not. However, he denied the presence of independent witnesses when the transcription of the recorded conversations were prepared in CBI office. He also denied that independent witnesses had identified their voices in the recordings in his presence in CBI office. In this regard, he was again confronted with his statement u/s 161 Cr.P.C. on each and every aspect.

56) Complainant in his cross examination done by PP also stated that his bills for payment of 3-4 months were pending with DDA when infact it was only pending for last one month Page No. 43 of 54 period i.e. from 5-1-2015 to 4-2-2015. His contract had come to an end on 4-2-2015 itself.

57) Even if complainant PW-3 in his cross examination done by counsel for accused stated that accused and Naresh Pal both were sharing the same room but infact when bribe transaction took place, accused was not there and bribe was given by complainant to Naresh Pal and not to the accused. According to complainant PW-3 during his cross examination done by counsel for accused, his bill is signed by both Asst. Director Naresh Pal and Jitender Singh, Dy. Director after it is prepared and he himself sign the said bill.

58) However, when such hostile witness like PW-3 changes his stand again and again, then it is very difficult to rely upon his testimony even in favour of prosecution. Complainant PW-3 Vipin Kumar did not support prosecution on different aspects in his examination in chief but when he was cross examined by PP after declaring him hostile and was confronted with his statement u/s 161 Cr.P.C., then he supported prosecution on those aspects which were contradicted earlier. In cross examination done by accused, he again changed his testimony to some extent. Hence, it is not fully safe to rely upon testimony of complainant on number of aspects. But since complainant PW-3 remained constant and strict to his stand in his examination in chief, cross examination done by prosecution as well as defence that he had not given bribe to the accused who was absent at that time in his office and came lateron but had given the bribe amount to Naresh Pal Page No. 44 of 54 Asst. Director who kept the same in drawer of table of the accused, then that part of testimony has to be believed which throughout remained constant and same.

Contradictions and discrepancies in the testimony of witnesses including independent witness

59) As per PP, certain discrepancies and contradictions appearing in the statements of different witnesses appearing due to passage of time are not sufficient to reject the prosecution case. PP in this regard cited decisions Rajendra vs. State of Karnataka, Crl. Appeal no. 1438/2011 and Mrityunjoy Biswas vs. Pranab (2013) 12 SCC 796 in his written submissions. The contradictions were relating to timings when trap team reached DDA office and when came back, who were present in the office room, to whom actually the room belonged to; whether to the accused or to Naresh Pal, to whom bribe money was given whether to the accused or Naresh Pal, who kept the money in the drawer of table, the exact position of shadow witness PW-8 Kapil Singh, at whose instructions he came out of the building and gone to park etc.

60) There is also contradiction in the statements of PW-8 and DW-2 whether unused Phenolphthalein Powder and other articles were deposited back in Malkhana or not. PW-9 in his cross examination also admitted that no entry of requisitioning of trap bag, Phenolphthalein Powder, Sodium Carbonate powder, glass tumbler etc. is made with the Page No. 45 of 54 Malkhana of CBI and no entry, relating to return of remaining Phenolphthalein Powder is made in Malkhana CBI. The submission made by PP that IOs are given kit to be used in trap cases and that is why there is no entry in the Malkhana register Ex. DW2/A regarding return of Phenolphthalein Powder cannot be believed as DW-2 in his cross examination admitted that no record of kit was maintained in Malkhana, when it was issued and when it was returned and even no record is maintained regarding procurement of such kits in Malkhana record. Even PW-9 also admitted that no entry is made for requisitioning the DVR or the Micro SD card.

61) As per site plan Ex. PW8/6 (Mark PW3/DX-A), the seat of the accused was situated on the right side of the table of Naresh Pal. However, PW-8 Kapil Singh stated that accused was sitting on left side whereas on the right side other person was sitting.

62) PW-8 Kapil Singh denied hearing the content of DVR on 6-4- 2015 in the DDA office whereas as per TLO PW-14, the DVR was played there. According to PW-8, no sealed DVR was opened before him for preparation of the transcription (which was prepared on 23-4-2015 in his presence) but after transcription the said DVR was sealed, however as per TLO, DVR was sealed on 6-4-2015 in the office of CBI. On the other hand, complainant PW-3 stated that when transcription was prepared no other person except himself and CBI officials were present.

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63) PW-8 Kapil Singh claims that he had heard the conversations taken place between the complainant and accused while standing outside of the room but had not heard the conversations whether any one had asked another person in the room to bring cigarette, which is clear from the transcription of recorded conversations as complainant asked one Bahadur present in the room to bring cigarettes. According to this witness PW-8, he remained outside the room for 15-20 minutes and he had not seen anybody going outside or coming inside the room but this fact is wrong because one Bahadur gone outside of the room to bring cigarettes and also came back after some time. Even accused also entered in the room after Bahadur left but before he came back with cigarettes.

64) It is very strange from where complainant PW-3 brought money for bringing cigarettes through Bahadur in the office room of Naresh Pal. PW-15 did not enquire from the TLO as to how the complainant was carrying money, which he had given to Bahadur for bringing cigarette, when except bribe money, mobile and DVR, no other thing including money was kept with him as per chargesheet.

65) It is the case of the prosecution as per chargesheet that after entry of the trap team in the office room of the accused, certain inquiries were made from him and he accepted taking of bribe. Thereafter DVR was taken from the complainant and switched off. However, transcription does not show about any such confession of the accused which indicates that either the Page No. 47 of 54 DVR was switched off earlier or it was tampered.

Independent witness is a stock witness of the prosecution

66) Prosecution argued that PW-8 Kapil Singh was the independent witness who had no enmity with the accused to falsely implicate him in the present case but this witness during his cross examination admitted that he earlier also joined trap proceedings of CBI in 2-3 other different cases as per the request made by the CBI. Thus, he had motive and vested interest to help the CBI in every situation even though was not knowing the accused earlier. Biasness and partiality of this independent witness for success of the CBI case is clear from his status being stock witness of the prosecution. No explanation is given by prosecution, why the independent witnesses available in the office of DDA such as Naresh Pal, Ashok, Bahadur were not joined in the investigation and why the stock witness was joined.

Comparison with the earlier case CBI vs Ashish decided by this court

67) In the written submission filed by PP, prosecution tried to compare the present case with one case earlier decided by this court on the ground that in earlier case, accused Ashish was convicted by this court on the same facts and circumstances, so there should not be any different view in the present case.

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However, each case has to be decided on its own facts and situations. No doubt, some of the facts are similar in that case and the present case but it is also a fact that number of facts are totally different and distinguishable in both. Hence, prosecution cannot be allowed to take benefit of conviction order passed in one different case and to request the Court to give same verdict in the present matter also on the alleged ground of parity.

Complainant and TLO known to each other

68) Earlier also one trap case was registered on the complaint of complainant PW-3 Vipin Kumar on 11th February, 2015 against Delhi police official Nirmal Singh, which was investigated by the same DSP Joeph Krelo who is TLO in the present case. Even some of the CBI officials also assisted him earlier who are also involved in the present case. Thus, the complainant and TLO were known to each other earlier also. PW-14 TLO Joseph Krelo even in his cross examination admitted that he knew the complainant even prior to lodging of his complaint dated 6-4-2015 in the present case. However, the present case is registered under the directions of SP who was competent to mark the investigation to any official. Mere fact that both the cases of complainant were coincidently marked to same TLO PW-14 Joseph Krelo itself is not a ground to presume that he had unduly favoured the complainant. Accused could not show by any evidence that false FIR of complainant was lodged in this case at the Page No. 49 of 54 instance of TLO due to his personal friendship or known to complainant or due to any enmity with the accused.

Part preparation of documents in DDA office and part in CBI office

69) Sealing of all exhibits such as handwashes, bribe amount, paper found in drawer etc. and preparation of production cum seizure memo regarding some files was prepared in the DDA office whereas arrest cum personal search memo Ex. PW8/7 and recovery memo were prepared in the CBI office after accused was brought there. The explanation given by TLO PW-14 that in DDA office 'Mahaul thik nahi tha' or circumstances were not conducive is not convincing. Alleged existence of heavy crowd on road outside of office and absence of electricity were not mentioned anywhere in the chargesheet which compelled the CBI officials to go to CBI office for preparing formal arrest memo and recovery memo there. Accused was detained in his office at about 6 p.m. but was taken to CBI office and his arrest is shown there at 7.30 p.m. Even if there was no electricity as alleged in DDA office but still it was the month of April and sunlight remains till 7.30-8 p.m. normally as per judicial noticeable fact, so this ground is falsely taken apparently by TLO for some ulterior motive which is not known to this Court but this conduct raises some suspicion over the act and conduct of this officer. PW-9 A.K. Maurya also showed ignorance about the fact that it is essential for the CBI officials to prepare the arrest memo Page No. 50 of 54 at the time when any person is taken in custody and it should indicate the place from where the person is being taken in custody. He also denied the existence of clear and mandatory instructions for the officials of CBI that in any case particularly in case of trap, arrest memo of the accused should be made at the time and place, where he had been detained by the officials of the CBI. Hence, non-preparation of arrest memo at the spot raises some suspicion about the act and conduct of the CBI officials.

Evidence of expert

70) At last prosecution strongly relied upon reports of CFSL ex- perts. PW-10 Deepti Bhargava, from CFSL gave report Ex. PW10/1 after chemical analysis of two handwashes and one table wash which gave positive test in respect of presence of Phenolphthalein Powder in the same. PW-5 Sh. D. R. Handa another expert from CFSL compared the paper recovered from table of the accused allegedly containing his handwritten calculations with the admitted signatures/ handwriting and gave report Ex. PW5/E, according to which the same were written by accused. PW-4 Dr. Subrat Kumar Choudhury from CFSL proved his report Ex. PW4/B dated 6-5-2015 in respect of questioned recorded voice of the accused with his speci- men voice sample and opined that both are same and also found that there is no tempering in the recorded voice. How- ever, from his testimony it has come on record that two sealed Micro SD cards, DVR were received in his office on 22-4- 2015 from SP, CBI vide Ex. PW4/A along with photocopy of Page No. 51 of 54 transcriptions Ex. PW4/DA-3, whereas transcriptions were not prepared by that time as per prosecution record itself which was prepared only on 23-4-2015. It means that IO while preparing the transcriptions had done some manipula- tions which means that those were not prepared at the time as shown but was already prepared. However, simple reports of experts itself are not sufficient to convict the accused when the substantive evidence of complainant PW-3, shadow wit- ness PW-8 and other CBI officials are not fully supporting the prosecution case and serious doubt has arisen about the gen- uineness of the allegations. Law is well settled that reports of experts are only opinions and it cannot take place of substan- tive evidence. Hence, simple expert reports are not sufficient to convict the accused.

FIRs are kept in loose papers

71) FIR of the present case is bearing no. DAI 2015 A0009. DW- 1 from office of CBI produced relevant FIR register which shows that prior to the present FIR, the FIR no. DAI 2015 A0007 was there whereas after the FIR of present case, FIR bearing no. DAI 2015 A0013 was bound in the register. He also stated in his examination in chief that in CBI, FIR/RC are kept in loose position in Crime Section of CBI and at the end of a particular year, the same are compiled and bound. However, from simple this fact itself, it cannot be said that the FIR of the present case was antedated or manipulated as alleged by defence counsel.

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Final decision

72) Mere fact that complainant PW-3 Vipin Kumar has proved his complaint Ex. PW3/A upon which FIR was registered after verification, calls made or received from phone of the accused were recorded and the call exchanged are established from CDRs brought by mobile phone company itself are not sufficient to convict the accused when the alleged recording taken place at preliminary stage is found inadmissible in evidence and complainant himself has not supported the case during evidence and gone against the contents of his own complaint. PW-9 did not conduct any verification with respect to Jitender Singh, Deputy Director named in the complaint Ex. PW-3/A. Experts report that tape recorded conversations were not tempered, paper containing some calculations Ex. PW-5/B seized from table of accused is in the hand of accused etc. are also of no help to the prosecution to establish the guilt of the accused due to fact that main witness of the prosecution has turned hostile. Similarly, proving of other procedure of trap such as giving demonstration of use of Phenolphthalein Powder, how to use DVR, conducting of the set proceedings by the TLO etc. also not sufficient to convict the accused in view of the above situations and certainly benefit of doubt goes to him.

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73) In view of the above, accused is hereby acquitted of all the charges by giving benefit of doubt. His bail bonds are cancelled. As complainant PW-3 has not come forward to take back his alleged trap money of Rs.1,00,000/- alleged bribe amount, so the same should be deposited in CBI Benevolent Fund or CBI Employees Welfare Fund to be used for the welfare of CBI officials and their family members. In case there is no such fund maintained by the CBI, then this amount will be deposited in Prime Minister's Relief Fund after expiry of appeal period or subject to any order passed in appeal. File be consigned to record room.

Digitally signed by ASHWANI

ASHWANI KUMAR SARPAL KUMAR Date:

SARPAL 2024.08.12 12:24:30 +0530 (Ashwani Kumar Sarpal) Dt. 12-8-2024. Spl. Judge (CBI), Rouse Avenue New Delhi.

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